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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

S.B.CRIMINAL MISC. APPLICATION NO.718/2013

IN
S.B.CRIMINAL REVISION PETITION NO.905/2007
(Salman Khan Vs. State of Rajasthan)

Date of Order :: 12.11.2013

HON’BLE MS.JUSTICE NIRMALJIT KAUR

Mr.L.R.Mehta, Senior Counsel assisted by

Mr.Ramit Mehta ]
Mr.Sameer Jain ]
Mr.Kunal Sabharwal ]
Mr.Pradhyuman Singh ]
Mr.Sushant Daga ]
Mr.T.C.Sharma ]
Mr.Narendra Gehlot ], counsel for the applicant.

Mr.R.L.Jangid, AAG and Senior counsel assisted by

Mr.Mahipal Bishnoi ]
Mr.Rajesh Bhati ]
Mr.K.K. Rawal ], counsel for the respondent-State.

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This is an application for suspension of order of conviction

dated 24th August, 2007 passed by Sessions Judge, Jodhpur

confirming the conviction and sentence passed by Judicial

Magistrate, Jodhpur vide order dated 10th April, 2006.

The present applicant is an accused in Criminal Case

No.206/1999, wherein the Judicial Magistrate, Jodhpur vide order

dated 10th April, 2006 convicted the applicant under Section 51 of

the Wildlife Protection Act, 1972 and sentenced him to 5 years'

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simple imprisonment along with fine of Rs.25,000/-. The appellant

court confirmed the order of the trial court vide an order dated 24th

August, 2007. Thereafter, the applicant filed S.B.Criminal Revision

Petition No.905/2007 before the High Court under Section 397

read with Section 401 of the Cr.P.C. The said revision was

admitted vide order dated 31st August, 2007. Vide a separate order

dated 31st August, 2007, the High Court suspended the

substantive sentence of the applicant and granted bail to him

under Section 391(1) of the Cr.P.C. However, while suspending

the sentence, the High Court imposed certain restrictions. One of

the restriction was that the applicant will not leave the country

without prior permission of the Court. Thereafter, on an application

moved by the applicant, the said condition was deleted vide order

dated 21st February, 2011.The High Court permitted the applicant

to travel abroad during the pendency of the said revision petition .

Meanwhile, the Visa of the applicant for travelling to United

Kingdom was rejected by UK Boarder Agency Home Office on the

ground that that applicant was under the criteria set out in

paragraph 320(2) of HC395. It is in these circumstances that the

present application for suspension of order of conviction passed

by the Judicial Magistrate, Jodhpur has been moved.

Reply is filed by the State opposing the prayer of the

applicant. Mr.R.L.Jangid, learned Additional Advocate General and

Mr.Mahipal Bishnoi appearing for the respondent-State while

vehemently opposing the prayer submitted that the application

under Section 389(1) of the Cr.P.C. is not maintainable. It was

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stated that under Section 389(1) of the Cr.P.C., the appellate court

is empowered to suspend the execution of the sentence of a

convicted person. Thus, the said application is maintainable

before the appellate court, whereas, the application for suspension

of conviction awarded to the appellant by both the courts below

has been filed in the revision petition pending under Section 397

of the Cr.P.C. It was stated that stage for moving an application

under Section 389(1) of the Cr.P.C. is over. This is not an

appellate court but a revisional court where no application under

Section 389 of the Cr.P.C. is maintainable. Secondly, two more

criminal cases are pending against the applicant before the

competent court of jurisdiction at Jodhpur and one more case

pertaining to rash and negligent driving is pending consideration

before the competent court of jurisdiction at Mumbai. Thus, he

was not entitled to the relief in view of his conduct.

Learned Additional Advocate General further contended that

the facts of the case of Navjot Singh Sidhu Vs. State of Punjab

and Another, reported in (2007)2 Supreme Court Cases 547,

are not applicable in the facts of the present case and are

distinguishable. It was stated that the said power can be exercised

only in a rarest of rare case depending upon the facts of the case.

In the case of Navjot Singh Sidhu, the applicant was sitting

Member of Parliament and he had chosen a moral path by

resigning immediately, whereas, the averments in the present

application that it will cause irreparable loss and injury both

professional and socially, if Salman Khan is not allowed to

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discharge his professional commitments does not bring him under

the preview of rarest of rare case. Reliance was placed on the

judgment of Hon'ble Supreme Court rendered in the case of State

of Maharasthra through CBI, Anti Corruption Branch, Mumbai Vs.

Balakrishna Dattatrya Kumbhar, (Criminal Appeal No.1648 of

2012), decided on 15th October, 2012.

Learned counsel for the parties were heard at length.

The applicant Salman Khan is convicted under Section 51

of the Wildlife Protection Act, 1972 by an order of Judicial

Magistrate, Jodhpur. The appeal against the said order was

dismissed on 24th August, 2007. The revision petition against the

order of conviction dated 10th April, 2006 was admitted by this

High Court on 31st August, 2007 by observing as under:-

“I have given my thoughtful consideration to

the submissions made by the learned counsel for the
parties. In my view, the instant revision petition
involves certain questions of law and requires
determination thereon. More particularly on the point
of applicability of Section 33 of the Evidence Act and
also the finding based on interpretation of the order
of this Court, which is contrary to the facts on record
and, therefore, it is a fit case to admit the revision
petition for hearing finally.”

Therefore, the argument of learned counsel for the State

that no order staying the conviction can be passed in revision

cannot be sustained. Section 397 of the Cr.P.C. reads as under:-

397. Calling for records to exercise powers of

revision. (1) The High Court or any Sessions Judge
may call for and examine the record of any
proceeding before any inferior Criminal Court situate
within its or his local jurisdiction for the purpose of
satisfying itself or himself as to the correctness,
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legality or propriety of any finding, sentence or order,

-recorded or passed, and as to the regularity of any
proceedings of such inferior Court, and may, when
calling for such record, direct that the execution of
any sentence or order be suspended, and if the
accused is in confinement, that he be released on
bail or on his own bond pending the examination of
the record.
Explanation.-All Magistrates whether Executive or
Judicial, and whether exercising original or appellate
jurisdiction, shall be deemed to be inferior to the
Sessions Judge for the purposes of this sub- section
and of section 398.

(2) The powers of revision conferred by sub-

section (1) shall not be exercised in relation to any
interlocutory order passed in any appeal, inquiry, trial
or other proceeding.
(3) If an application under this section has been
made by any person either to the High Court or to
the Sessions Judge, no further application by the
same person shall be entertained by the other of
them.”

Section 397 confers power not only to suspend the

execution of the sentence but also of any “order”. Meaning of the

word “order” is the same as given in Section 389(1) of the Cr.P.C.

Infact, Hon'ble the Apex Court in the case of Rama Narang Vs.

Ramesh Narang Ors., reported in (1995) 2 Supreme Court Cases

513 came down heavily on the Division Bench of High Court of

Bombay for holding that “the Delhi High Court could not have

exercised jurisdiction under Section 482 of the Code if it was

confronted with a situation of there being no other provision in the

Code for staying the operation of the order of conviction.”

Meaning thereby that the power to stay the conviction can be

exercised even under Section 482 of the Cr.P.C. Para 19 of the

judgment of Rama Narang (supra) reads as under:-

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“We are, therefore, of the opinion that the Division

Bench of the High Court of Bombay was not right in
holding that the Delhi High Court could not have
exercised jurisdiction under Section 482 of the Code
if it was confronted with a situation of there being no
other provision in the Code for staying the operation
of the order of conviction. In a fit case if the High
Court feels satisfied that the order of conviction
needs to be suspended or stayed so that the
convicted persons does not suffer from a certain
disqualification provided for in any other statute, it
may exercise the power because otherwise the
damage done cannot be undone; the disqualification
incurred by Section 267 of the Companies act and
given effect to cannot be undone at a subsequent
date if the conviction is set aside by the Appellate
Court. But while granting a stay of suspension of the
order of conviction the Court must examine the pros
and cons and if it feels satisfied that a case is made
out for grant of such an order, it may do so and in so
doing it may, if it considers it appropriate, impose
such conditions as are considered appropriate to
protect the interest of the shareholders and the
business of the company.”

Moreover, Section 401 of the Cr.P.C. further empowers the

revisional court to exercise power conferred on a court of appeal

by various sections including Section 389 of the Cr.P.C.

The objection of the learned counsel for the State that the

present application has been filed under Section 389(1) of the

Cr.P.C. which is a provision to be invoked in a pending appeal,

whereas, in the present case, it has been filed in a revision

petition, is no doubt correct. However, wrong mentioning of a

section cannot change the character of the application. This is

evident from para 8 of the application, which is reproduced below:-

“8. The Application is thus approaching this

Hon'ble Court under Section 397 of the Code of
Criminal Procedure, 1973, for suspending the order
of conviction passed by the Judicial Magistrate,
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Jodhpur, vide order dated April 10, 2006 and

confirmed by the Hon'ble Sessions Court by order
dated August 24, 2007.”

It is evident that the application was to be under Section 397

of the Cr.P.C. but inadvertently in the heading of the application, it

is wrongly mentioned as 389(1) of the Cr.P.C.

The Hon'ble Apex Court in the case of P.K.Palanisamy Vs.

N.Arumugham & Anr., reported in 2007(9) SCALE 197 held that

mentioning of a wrong provision does not disentitle a person for

relief, if entitled otherwise. The well settled provision of law is

evident from para 13 of the said judgment reproduced as under:-

“13. A contention has been raised that the

applications filed by the appellant herein having
regard to the decisions of the Madras High Court
could not have been entertained which were filed
under Section 148 of the Code. Section 148 of the
Code is a general provision and Section 149 thereof
is special. The first application should have been
filed in terms of Section 149 of the code. Once the
court granted time for payment of deficit court fee
within the period specified therefor, it would have
been possible to extend the same by the court in
exercise of its power under Section 148 of the Code.
Only because a wrong provision was mentioned by
the appellant, the same, in our opinion, by itself
would not be a ground to hold that the application
was not maintainable or that the order passed
thereon would be a nullity.
It is a well settled principle of law that
mentioning of a wrong provision or non-mentioning
of a provision does not invalidate an order if the
court and/or statutory authority had the requisite
jurisdiction therefor.

In Ram Sunder Ram v. Union of India & Ors.. [2007

(9) SCALE 197], it was held:

“;.....It appears that the competent authority has

wrongly quoted Section 20 in the order of
discharge whereas, in fact, the order of
discharge has to be read having been passed
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under Section 22 of the Army Act. It is well

settled that if an authority has a power under the
law merely because while exercising that power
the source of power is not specifically referred to
or a reference is made to a wrong provision of
law, that by itself does not vitiate the exercise of
power so long as the power does exist and can
be traced to a source available in law [see N.
Mani v. Sangeetha Theatre and Ors. (2004) 12
SCC 278]. Thus, quoting of wrong provision of
Section 20 in the order of discharge of the
appellant by the competent authority does not
take away the jurisdiction of the authority under
Section 22 of the Army Act. Therefore, the order
of discharge of the appellant from the army
service cannot be vitiated on this sole ground as
contended by the Learned Counsel for the
appellant.”

In N. Mani v. Sangeetha Theatres & Ors. [(2004) 12

SCC 278], it is stated:

“9. It is well settled that if an authority has a

power under the law merely because while
exercising that power the source of power is not
specifically referred to or a reference is made to
a wrong provision of law, that by itself does not
vitiate the exercise of power so long as the
power does exist and can be traced to a source
available in law.”

In the case of Navjot Singh Sidhu (supra), the application

was filed for staying the conviction after specifying the

consequences, if the conviction was not stayed. In that case, the

reason specified was that the same will incur disqualification for

the applicant therein to contest the election.

The applicant herein, also, has not suppressed the purpose

for which he is seeking the suspension of conviction. He has come

to the court with clean hands and has very fairly pointed out that

he had applied for UK High Commission for a Visa. The same was

rejected by UK Border Agency Home Office on the ground that the

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applicant was under the Criteria set out in paragraph 320(2) of

HC395, which states as follows:-

“(b) if an applicant has been convicted of an

offence for which they have been sentenced to a
period of imprisonment of at least 4 years.”

Thereafter, the applicant applied for administrative review

against the refusal of entry clearance. The administrative review

was also rejected on 20.8.2013 by holding as under:-

“The British Deputy High Commission's Honorary

Legal Advisers have reviewed all of the information
put forward in this case and their advice is that from
the evidence produced, the Indian courts have only
suspended the execution of the 5 years sentence.

On the basis of this legal advice, it is our view that a

suspension of the execution of the sentence pending
a final court hearing does not alter or affect the fact
that you have been convicted of an offence and have
been sentenced to 5 years imprisonment under
Indian law.

As only the execution of the sentence has been

suspended our initial decision to refuse your
application was correct and in line with our
Immigration Rules and guidance on criminal
convictions. I therefore uphold the decision to refuse
entry clearance under paragraph 320(2)(B) of
HC395.”

The same has, therefore, necessitated moving of the

present application. In the present case, the sentence of the

application was suspended till final disposal of the aforesaid

revision. Thereafter, the High Court modified its earlier order and

deleted the condition imposed on the applicant permitting him to

travel abroad without seeking specific permission by the High

Court each and every time when he is required to travel. However,

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inspite of the permission granted to the applicant to travel abroad,

his Visa was rejected by UK High Commission on the ground that

he had been sentenced to undergo imprisonment for 4 years. The

said disqualification has negated the permission granted by this

Court to the applicant to travel abroad. Therefore, staying the

order of conviction in the facts of the present case becomes all the

more necessary.

With respect to the conduct of the applicant, suffice it to say

that while granting permission to the applicant to travel abroad and

not to apply this Court every time before undertaking a journey to

foreign country during the pendency of the revision petition, the

High Court took into consideration both his conduct and that the

same was necessary in view of his profession by observing as

under:-

“In view of the facts and circumstances of the

case, the contents raised before this Court and
looking to the nature of profession of the petitioner
and his compliance with the condition imposed on
past 33 occasions as give out in the application, this
Court is of the opinion that such condition imposed
on the petitioner in the order dated 31.8.2007
suspending the sentence deserves to be modified at
this stage because the final disposal of the revision
petition itself is likely to take still more time.”

Moreover, it is not disputed that the applicant has always

complied with the condition imposed upon him. He is an actor. His

profession requires him to travel Overseas.

The last argument of learned counsel for the State that the

order of conviction should not be stayed in view of the judgment

rendered in the case of State of Maharasthra through CBI Anti

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Corruption Branch, Mumbai (supra) does not help. The judgment

rendered in the case of said case is not applicable to the facts of

the present case. The same relates to conviction on charges of

corruption. In such cases, it is neither in the interest of public and

nor does propriety demand that a person convicted of charge of

corruption should be put back in the department where he has

either misused his position or indulged in malpractice. The same

as been clarified by Hon'ble the Apex Court in para 23 of the

judgment rendered in the case of Navjot Singh Sidhu (supra) as

under:-

15. Lastly, Shri Dwivedi has submitted that in view of

the law laid down in State of Tamil Nadu v. A.
Jaganathan (1996) 5 SCC 329 and K.C. Sareen v.
C.B.I., Chandigarh (2001) 6 SCC 584 the order of
conviction passed against the appellant should not
be suspended. The cases cited have no application
to the facts of the present case as both of them
related to conviction on charges of corruption and in
that context it was observed that when conviction is
on a corruption charge, it would be a sublime public
policy that the convicted person is kept under
disability of the conviction instead of keeping the
sentence of imprisonment in abeyance till the
disposal of the appeal. In such cases it is obvious
that it would be highly improper to suspend the order
of conviction of a public servant which would enable
him to occupy the same office which he misused.
This is not the case here.”

The revision petition of the applicant was admitted vide a

detailed order. The sentence awarded to the applicant was

suspended. The order of suspension of sentence was modified

and permission was granted to the applicant to travel abroad

without seeking permission of the court each and every time. The

order of conviction is coming in his way to travel abroad which has

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resulted in negating the order granting him permission to go

abroad. His profession requires him to travel abroad. He is not a

public servant and nor has he been convicted for any corruption

charges. It is not disputed that applicant has always abided by the

conditions imposed by various courts. He has never absconded

and has always made himself available as and when required by

the court except when exempted. He has not violated any of the

conditions imposed by any Court.

In view of the above, this Court is of the opinion that

application moved by the applicant deserves to be allowed.

Accordingly, the present application for suspension of order

of conviction is allowed and it is ordered that the order dated 10th

April, 2006 passed by Judicial Magistrate, Jodhpur convicting the

applicant under Section 51 of the Wildlife Protection Act, 1972 as

well as the order of the Sessions Judge, dated 24th August, 2007,

vide which, the conviction was upheld, will not be executed during

the pendency of the revision petition.

(NIRMALJIT KAUR), J.

Narendra