Deelip Gopalsingh Thakur v. State of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 509 OF 2026INCRIMINAL APPEAL NO. 344 OF 2023 Deelip Gopalsingh ThakurAge: 62 years, Occu.: Business,R/o Mill-road, NandedTq. & Dist. Nanded..APPLICANTVERSUSState of Maharashtra ..RESPONDENT....Mr. S.S. Gangakhedkar, Advocate h/f Mr.G.S. Shete, Advocate for applicantMs. U.S. Bhosle, A.P.P. for respondent – State....CORAM : RAJNISH R. VYAS, J.DATE : 24th FEBRUARY, 2026PER COURT :.Heard.

This is an application for stay of conviction. The applicant / accusedDeelip Thakur is praying for staying his conviction awarded vide order dated 11thApril, 2023 in Sessions Case No. 358 of 2019 by the Additional Sessions Judge-1,Nanded. The present applicant was shown as Accused No.3 in Sessions Case No.358 of 2019, who along with other accused was convicted for commission ofoffence punishable under Sections 143, 147, 148, 149, 332, 336, 341, 353 and427 of the Indian Penal Code (hereinafter referred to as ‘I.P.C.’) and under1 915-APPLN-509-26.odtSection 3 of Prevention of Damage to the Public Property Act, 1984 (hereinafterreferred to as ‘Act of 1984’). All the 19 accused, who were tried by the SessionsCourt, were convicted for the aforesaid offences as under :-SectionSentenceFine (Rs.)In Default148 r/w 149 IPCR.I. for 3 years10,000/-R.I. for 6 months353 r/w 149 IPCR.I. for 2 years50,000/-R.I. for 6 months332 r/w 149 IPCR.I. for 3 years50,000/-R.I. for 6 months336 r/w 149 IPCR.I. for 3 months250/-R.I. for 3 days341 r/w 149 IPCS.I. for 1 month500/-S.I. for 6 days3 of Act of 1984R.I. for 5 years50,000/-R.I. for 1 yearThe sentences were ordered to run concurrently. Challenging theaforesaid conviction, various appeals were preferred by the accused persons, including the appellant.

Heard Mr. Gangakhedkar, learned counsel for the applicant and Ms.Bhosle, learned A.P.P. for the respondent – State.

In order to push his prayer for grant of stay to the conviction, Mr.Gangakhedkar has invited my attention to the order dated 17th April, 2023,passed by this Court while suspending the sentence imposed. The crux of theorder dated 17th April, 2023, is that since the conviction was awarded on 11thApril, 2023 and the sentence imposed, copies of the judgment were not suppliedto the applicant on that day, but were supplied to the other four accused. Hethen contended that, considering the seriousness of the lapses in complying with2 915-APPLN-509-26.odtthe provisions of the Code of Criminal Procedure (hereinafter referred to as‘Cr.P.C.’), bail was granted and sentence was suspended.

Mr. Gangakhedkar further contended that his client is desirous to filehis nomination for the post of ‘Councillor / Nominated Councillor’. He theninvited my attention to the provisions of Section 2(11) of the MaharashtraMunicipal Corporation Act (hereinafter referred to as ‘MMC Act’), which definesa person duly elected as a member of the Corporation, and includes a nominatedCouncillor who shall not have the right, -(i) to vote at any meeting of the Corporation and Committees of the Corporation; and(ii) to get elected as a Mayor of the Corporation or a Chairperson ofany of the Committees of the Corporation; According to this definition, a Councillor includes the NominatedCouncillor also.

Section 5 of the MMC Act was also relied upon by Mr. Gangakhedkarin order to apprise the Court about the constitution of the Corporation, whichconsists of various councillors. A specific attention was drawn to Section 5(2)(b)of the MMC Act, which says that a number of nominated councillors notexceeding five, having special knowledge or experience in MunicipalAdministration, are to be nominated by the Corporation in such manner as maybe prescribed. According to him, the population of the Corporation, i.e. Nanded-3 915-APPLN-509-26.odtWaghala Municipal Corporation, would decide the question of the number ofcouncillors.

Section 10 of the MMC Act was also taken recourse to, which speaksabout the qualification for being a councillor. He then argued that in view ofclause (a) of sub-section (1) of Section 10, a person shall be disqualified forbeing elected and for being a councillor if such a person has been convicted by aCourt in India of any offence involving moral turpitude, unless a period of sixyears has elapsed since the date of such conviction. He then contended thatsince the offences for which he was convicted would be an offence of moralturpitude, he would in fact be disqualified for being appointed as a councillor.

He also invited my attention to the Maharashtra MunicipalCorporation (Qualification and Appointment of Nominated Councillors) Rules,2012, more particularly Rule 4, which prescribes the qualification fornomination. The said rule says that -

A person shall be eligible for being nominated as a candidate forthe office of the nominated Councillors if he has specialknowledge or experience in municipal administration and he, -(g) has experience of not less than five years as an office bearerof a Non-Government Organisation registered under the BombayPublic Trusts Act, 1950, engaged in Social Welfare activities, working within the area of a Municipal Corporation or aCouncil.

4 915-APPLN-509-26.odt9.According to him, the applicant is duly qualified to be nominated as Councillor as he had made a specific averment in his application, moreparticularly in paragraph no.12, that the applicant is very well indulged inbusiness as well as social services since last twenty years and being a socialactivist, he is connected with the Nanded-Waghala Municipal Corporation.

Mr. Gangakhedkar invited my attention to the testimony of thewitnesses, more particularly PW 9 and 10, and stated that applicant’s presence atthe spot of the incident on the date of the incident is highly doubtful. It is onlyPW 9, who has identified the applicant in the Court in the dock. The incident, according to him, had taken place in the year 2008, whereas the evidence of PWs9 and 10 was recorded in 2022. Thus, he submits that the dock identification ishighly doubtful. He, in the aforesaid background, has submitted that he has agood chance to succeed in the appeal, and therefore, this is a fit case where astay of conviction is required to be granted.

Per Contra, learned A.P.P. submitted that the pleadings made in theapplication failed to give any detail, and therefore, it is very difficult to say thatthe applicant has made out any case for stay of conviction. She contended thatthe provisions of the Act and Rules relied upon by the learned counsel for theapplicant need to be tested and weighed in the background of the pleadingsmade. Her primary contention is regarding the pleadings in the application for astay of conviction.5 915-APPLN-509-26.odt12.She further contended that on the day of the incident, i.e. 7th June2018, when the informant bus driver was proceeding from Latur to Nanded fromthe bus depot at 6:45 a.m. to ply the MSRTC bus bearing registration no. MH 20D 8827 and reached Hingoli Gate, Nanded at 9:45 a.m., he noticed that the busof APSRTC bearing registration no. AP 28 Z 2316 was standing in front of his buson the road, and the driver, conductor and passengers therefrom were alightingfrom the said bus and running away. In the meanwhile, the activists of thepolitical party, who were standing on road, started giving slogans and peltingstones on the bus. Therefore, the informant had asked passengers from his bus toget out of the bus, and while he, the bus conductor and passengers werealighting from the bus, 20-25 activists of the political party, armed with stones, sticks, iron rods, etc., with the unlawful assembly, damaged the ST bus and otherbuses.

She submitted that not only the buses were damaged, but also policevan. The mob was led by the MLA and her son; and the applicant was also one ofthe followers. She thus contended that the offence was of a serious nature andmoral turpitude. She then contended that, though there were passengers in thebus and though the applicant was a follower of the political party, which wasformed with an intention to participate in democracy, the act of a personbelonging to the political party in damaging the public property is nothing but animmoral act. She further submitted that it was a deliberate act of damaging6 915-APPLN-509-26.odtpublic property, and therefore, the application of the accused for a stay ofconviction is liable to be rejected.

With the help of both the counsels, I have gone through therespective proceedings and have pondered over the arguments advanced atlength.

At this stage, it is necessary to mention here that there is no specificprovision in the Code of Criminal Procedure for staying of conviction, but therecourse can be taken to Section 389 of the Code of Criminal Procedure. Theparameters for suspension of sentence and stay of conviction are totally different. It is only under exceptional cases the stay of conviction is required to be granted.

What is required to be seen while considering the application forstay of conviction is whether the entire material is brought to the notice of the Court and whether it is pointed out that what specific consequences would flowif the stay of conviction is not granted. Even the material in support of it is alsorequired to be produced on record.

In the case in hand, though it is the contention of learned counselfor the applicant that he wishes to participate in getting nominated as a memberof Nanded-Waghala Municipal Corporation, the application reveals that nospecific pleading is made. Paragraph Nos. 1 to 6 of the application speak about7 915-APPLN-509-26.odtregistration of F.I.R., consequently filing of bail application, and terming thejudgment impugned as illegal and improper. The grounds which are at Sr. Nos. 7to 11, challenge the judgment of the trial court on various grounds. ParagraphNo.9 of the application states that the applicant has every hope to get success inthe criminal appeal and judgement is likely to be get quashed. Paragraph No.10speaks about depositing the fine amount. Paragraph No.12 is the only pleadingwhich can be said to be relevant, and it is reproduced as under -

12. Since the applicant is very well indulged in business as well associal services since last 20 years. Being a social activist, he is likelyto be a co-opt member in the Nanded Waghala MunicipalCorporation. If the sentence is not stayed it will cause prejudice tothe applicant as well as society at large.

Thus what is stated is since the applicant has very well indulged inbusiness as well as in social services since last 20 years, being a social activist heis likely to be elected as member in Nanded-Waghala Municipal Corporation. Ifthe sentence is not stayed it will cause prejudice to the applicant as well associety at large.

If in the aforesaid background, arguments of the respective counselsare tested, then it is crystal clear that absolutely no material is brought on recordto show that when the process of electing the member of the municipalcorporation is going to be held, what the dates are or how the present applicantwould be entitled to be nominated as a member. The pleadings are totally silentregarding whether the applicant has any criminal antecedents.8 915-APPLN-509-26.odt20.At this stage, the fairness shown by Mr. Gangakhedkar is required tobe appreciated since he has stated that the two criminal cases are registeredagainst the applicant, but same are arising out of political rivalry.

I have already discussed that for deciding an application for a stay ofconviction, the case will have to be made out by the concerned party on the basisof a pleading and by producing relevant material on record. In this case, thesame is not done.

Just because the sentence is suspended, it does not mean that theapplicant has a good case for a stay of conviction. As far as the merit of the caseis concerned, suffice it to say that since the foundational facts/pleadings aremissing in the application for stay of conviction, further discussion about themerits of the case would not be relevant. Still, it can be said that PW 10 hasidentified the applicant as a person who was involved in the commission of acrime. The question whether dock identification is permissible or not can bedecided once the appeal is taken for final hearing.

Learned A.P.P. then invited my attention to the law laid down by this Court in the case of Sunil Chhatrapal Kedar Vs. State of Maharashtra reported inAIR Online 2024 BOM 1052, more particularly paragraph numbers 34 and 35,which read as under-9 915-APPLN-509-26.odt

34. In the case of K.C.Sareen v. CBI, Chandigarh, (2001) 6 SCC584, also the Hon'ble Apex Court observed that the legal position, therefore, is though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) ofthe Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal challengingthe conviction, the court should not suspend the operation of theorder of conviction. The court has a duty to look at all aspectsincluding the ramifications of keeping such conviction inabeyance.35. In the case of Sanjay Dutt v. State of Maharashtra, (2009) 5SCC 787, also, relied upon by learned Special Public ProsecutorShri Siddharth Dave, the Hon'ble Apex Court held that the lawprohibits any person who has been convicted of any offence andsentenced to imprisonment for not less than two years fromcontesting the election and such person shall be disqualified for afurther period of six years since his release. In the face of such aprovision, the power of the Court under Section 389 Cr.P.C. shallbe exercised only under exceptional circumstances.

In the light of the aforesaid discussion and law laid down by this Court as well as the Apex Court, suffice it to say that no exceptional case is madeout and foundation in the form of pleadings is missing. In that view of thematter, criminal application is liable to be rejected. Accordingly, same is rejected. ( RAJNISH R. VYAS, J. )SSD10