STATE OF RAJASTHANversusSALMAN SALIM KHAN

                        [2015]2S.C.R.16


A                    STATE OF RAJASTHAN
                                v.
                      SALMAN SALIM KHAN
                 (Criminal Appeal No. 83 of 2015)
                       JANUARY 14, 2015
B
             [SUDHANSU JYOTI MUKHOPADHAYA
               AND ADARSH KUMAR GOEL, JJ.]

       Code of Criminal Procedure, 1973: s.397 - Conviction
  of respondent uls. 51 of Wild Life Protection Act and sentence
C for 5 years - High Court on revision suspends the sentence
  with liberty to travel abroad- Visa rejected by UK. Authorities
  on account of conviction order - Prayer for suspension of
  order of conviction - Allowed by High Court - Challenge
  against - Held: If an order of conviction in any manner is
D causing irreversible consequences or injustice to the
  respondent, it is open to the court to consider the same - No
  such ground was shown by the High Court while passing the
  impugned order - Matter remitted to High Court to decide
  matter afresh.
E
        Disposing of the appeal and remitting the matter to
    the High Court, the Court

      HELD: 1. The High Court stayed the order of
  conviction mainly on the ground that the conviction is
F coming in respondent's way to travel abroad which has
  resulted in negating the order granting him permission
  to go abroad. If some foreign country authority is not
  granting permission to visit the said country on the
  ground that the respondent has been convicted of an
G offence and has been sentenced for five years of
  imprisonment under the Indian Law, the said order
  cannot be a ground to stay the order of conviction. If an
  order of conviction in any manner is causing irreversible
  consequences or injustice to the respondent, it was
H                                16
    STATE OF RAJASTHAN v. SALMAN SALIM KHAN                      17



open to the court to consider the same. If the court A
comes to a definite conclusion that the irreversible
consequences/injustice would cause to the accused
which could not be restored, it was well within the domain
of the court to stay the conviction. No such ground was
shown by the High Court while passing the impugned B
order. Further, now more than one year has passed and
there was nothing to suggest that the respondent has
again to visit UK for further shooting of any film/movie.
[Paras 11 and 12] [24-H; 25-A-D]

     State of Tamil Nadu v. A. Jaganathan 1996 (5) SCC 329: C
1996 (3) Suppl. SCR 572; Ravikant s. patil v. Sarvabhouma
s. Bagali 2001 (1) sec 673: 2006 (8) Suppl. SCR 1156 -
relied on.
                   Case Law Reference                             D
    1996 (3) Suppl. SCR 572        relied on.     Para 9
    2006 (8) Suppl. SCR 1156       relied on.     Para 10
   CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 83 of 2015                                             E

    From the Judgment and Order dated 12.11.2013 of the
High Court of Judicature for Rajasthan at Jodhpur in S.B.
Criminal Misc. Application No. 718 of 2013 in S.B. Criminal
Revision Petition No. 905 of 2007                                 F
    V. Prakash, S. S. Shamshery, AAG, Varun Punia,
Harshwardhan Rathor, Kushboo Arora, lshu Prayas, Ruchi
Kohli for the Appellant.
   Sidharth Luthra, Arjun Harkauli, Balbir Singh, Udita Singh,    G
Angad Singh for the Respondents.
    The Judgment of the Court was delivered by
    SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave
granted.                                                          H
18        SUPREME COURT REPORTS                    [2015] 2 S.C.R.


A      2. This appeal has been preferred by the State against
  the final judgment and order dated 12th November. 2013
  passed by the High Court of Judicature for Rajasthan at Jodhpur
  in S.B. Criminal Miscellaneous Application No.718 of 2013 in
  S.B. Criminal Revision Petition No.905 of 2007. By the
B impugned judgment. the High Court allowed the prayer for
  suspension of order of conviction dated 10th April, 2006
  passed by the Judicial Magistrate during the pendency of the
  revision petition on the ground that the order of conviction is
  coming in the way of respondent to travel abroad.
c       3. The factual matrix of the case is as follows:-
       Crime No. IR No.163of1998 u/s 147, 148 and 149 of IPC
  and u/s 9,39,51 and 52 of the \tVild Life (Protection Act), 1972
  and Section 27 of the Arms Act was registered against the
D respondent, pursuant to which the respondent was arrested
  on 12th October, 1998. Thereafter, Criminal Case No.206 of
  1999 was registered and Chief Judicial Magistrate, Jodhpur
  vide order dated 10th April, 2006 convicted the respondent u/
  s 51 of the Wild Life (Protection Act), 1972 and sentenced
E him to undergo simple imprisonment for five years alongwith
  a fine of Rs.25,000/- and in default to further undergo simple
  imprisonment for 3 months.
      Aggrieved by the aforesaid order of conviction and
F sentence, the respondent preferred an appeal being Criminal
  Appeal No.50 of 2006 before District and Sessions Judge,
  Jodhpur, which was dismissed vide order dated 24th August,
  2007.
       Thereafter, the respondent preferred a Criminal Revision
G Petition No.905 of 2007 before the High Court of Rajasthan
  under Section 397 r/w Section 401 of the Cr.PC. The High
  Court by detailed and reasoned order dated 31st August, 2007
  suspended the sentence of the respondent and granted bail
  to him under Section 391(1) of the Cr.P.C. with inter alia
H restrictions that the respondent will not leave the country without
    STATE OF RAJASTHAN v. SALMAN SALIM KHAN                      19
       [SUDHANSU JYOTI MUKHOPADHAYA, J.]

prior permission of the Court.                                    A
     Initially, the respondent sought permission otthe Court on
a number of occasions to travel abroad in relation to his
professional engagement, which entailed shooting of films/
commercials/shows as per the requirement of producer and B
director. Subsequently, after a period of almost 3.5 years, the
respondent moved an application for modification of the order
dated 31st August, 2007 to the extent that the respondent may
be allowed to travel abroad without the permission of the Court.
The High Court vide order dated 21st February, 2011 allowed C
the prayer.
     Meanwhile, the respondent applied for a United Kingdom
Visa which was rejected by the U.K. Border Agency Home
Office on the ground that the application does not satisfy the
criteria set out for grant of entry clearance or leave to enter the D
U.K. specially referring to U.K. Immigration Rules laid down in
Paragraph 320(2) (b) of HC 395 states that entry clearance to
the U.K. is to be refused if an applicant has been convicted of
an offence for which he has been sentenced to a period of
imprisonment of at least 4 years. The respondent being E
aggrieved by the refusal of Visa by the U.KAuthorities, applied
for administrative review which was rejected on the ground on
20th August, 2013, which is reproduced hereunder:
    "Honorary legal Advisors have review all the                   F
    information put forward in this case and their
    advice is that from the evidence produced, the
    Indian Courts have only suspended the
    execution of 5 years sentence.
     On the basis of this legal advice, it is out view             G
     that 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 sentence to 5 years
     imprisonment under Indian Law.                                H
20         SUPREME COURT REPORTS                   [2015] 2 S.C.R.


A       As only the execution of the sentence has been
        suspended out initial decision to refuse your
        application was correct and in line with our
        immigration Rules and Guidance on criminal
        conviction. I therefore uphold the decision to
B       refuse entry clearance under paragraph 320 (2)
        (BJ of HC395."
       On this background, the respondent filed Crl. Misc. Appln.
  No.718 of 2013 in SB Crl. Revision Pet. No. 905 of 2007
C seeking suspension of order of conviction and the same was
  allowed by the impugned judgment.
         The correctness of the impugned judgment and order is
     assailed by the appellant on the following ground:
         (i)   The effect of suspension of conviction only takes away
D
               the operative effect of conviction but the conviction
               as the fact stands until reversion and acquittal and
               therefore the denial of Visa by the UK Authorities on
               the factum of conviction is not going to be in any way
               be altered by the suspension of conviction as the
E
               same is not binding on the said Authority being
               outside the jurisdiction of the Rajasthan High Court.
         (ii) There cannot be a blanket stay of conviction but there
              can be a stay of conviction for a specific purpose and
F             not for all purposes and by that yard stick, the
              impugned judgment does not pass the test as it is a
              blanket suspension of conviction.
         (iii) The instant case does not fall under any exceptional
               circumstances.
G
       According to appellant, the respondent-accused is also
  facing two criminal cases which are pending before the TriC:il
  Court, therefore it was specifically directed that the respondent-
  accused has to appear before the Trial Court according to the
H directions passed by the Trial Court in this regard.
      STATE OF RAJASTHAN v. SALMAN SALIM KHAN                            21
         [SUDHANSU JYOTI MUKHOPADHAYA, J.]

      5. According to counsel for the respondent the impugned             A
 judgment and order dated 12th November, 2013 is a reasoned
 order. The conviction of the respondent was suspended on
 the ground that the respondent is an actor and his profession
 requires him to travel abroad but conviction of sentence is
 coming in his way to travel abroad. Apart from this the High             B
 Court considered the hardship caused to the respondent and
 thereafter passed the order under challenge.

       It was further contended that when a person is convicted
 and if the conviction is not suspended or stayed, he may suffer          c
 from certain disadvantages as consequences of his conviction.
 In the present case, if the conviction of respondent is not
 permitted to remain suspended, serious disqualification would
 come to visit the respondent as the said order would prevent
 the respondent from even being considered for a UK Visa in               o
 view of applicable norms of the UK Entry Clearance. An order
 of conviction is a sufficient ground for refusal of entry clearance.
 It would have serious consequences on the professional career
 of the respondent which would be against the letter and spirit
 of A11icle 19 ( 1) (a) and Article 19 ( 1) (g) of the Constitution of    E
  India which guarantee all citizens of India freedom of speech
 and expression and the freedom to practice any profession,
 or to carry on any occupation, trade or business.

      6. We have considered the rival contentions raised by the           F
 parties and also perused the record.

        7. The respondent-accused is convicted u/s 51 of the Wild
  Life '(Protection Act), 1972. The order of conviction was upheld
' by the Appellate Court. Against the same, the respondent-
  accused has preferred a revision petition under Section 397             G
  r/w Section 401 of Cr. PC before the High Court of Judicature
 Jor Rajasthan at Jodhpur, Rajasthan. The revision petition is
  pending for hearing. Initially on 31 stAugust,2007 the revision
  petition was admitted and the High Court suspended his
  sentence with the following conditions:                                 H
22        SUPREME COURT REPORTS                    [2015] 2 S.C.R.


A         a. Accused to appear before the court wheneve~ the
             order to do so.
          b. Accused to intimate the court in case he shifts a place
             of his residence as well as address of the new place
             of residence,
B
          c. The accused/respondent shall not leave the country
             without the prior permission of the court.
             Later on, the High Court vide order dated 21st
             February, 2011 modified the condition regarding
c            seeking permission to go abroad.
        8. From the aforesaid fact it is evident that when the
  sentence was modified vide order dated 21st February, 2011
  the High Court was pleased to modify the order to enable the
o respondent to travel abroad without permission of the Court.
  The petition for suspension of conviction was filed by the
  respondent due to denial of Visa by the UK Authorities on the
  ground that the respondent has been convicted in a criminal
  case and the Court has only suspended the execution of five
E years sentence. The UK Authorities were of the view that the
  suspension of the execution of the sentence pending a final
  court hearing does not alter or affect the fact that the respondent
   has been convicted of an offence and has been sentenced to
  five years imprisonment under Indian law. The High Court while
F allowing the application filed by the respondent u/s 389 (1) of
  the Code of Criminal Procedure, 1973 for suspension of the
   order of conviction, passed the impugned judgment with
   following observation:
         "The revision petition of the applicant was
 G       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
 H       court each and every time. The order of
   STATE OF RAJASTHAN v. SALMAN SALIM KHAN                   23
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]

   conviction is coming in his way to travel abroad           A
   which has 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                B
   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              C
   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."                                           D
    9. In State of Tamil Na du v. A. Jaganathan, (1996) 5
sec 329 this Court held that power to suspend conviction
and sentence pending appeal/revision can be exercised only
when damage caused to the appellant/revisionist cannot be     E
undone if he ultimately succeeds.

    10. Similar observation was made by this Court in
Ravikant 5. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC
673. In the said case, this Court held:
                                                              F
    "15. It deserves to be clarified that an order
    granting stay of conviction is not the rule but is
    an exception to be resorted to in rare cases
    depending upon the facts of a case. Where the
    execution of the sentence is stayed, the                  G
    conviction continues to operate. But where the
    conviction itself is stayed, the effect is that the
    conviction will not be operative from the date of
    stay. An order of stay, of course, does not render
    the con-viction non-existent, but only non-               H
24         SUPREME COURT REPORTS                   [2015] 2 S.C.R.


A        operative. Be that as it may. Insofar as the present
         case is concerned, an application was filed
         specifically seeking stay of the order of
         conviction specifying the consequences if con-
         viction was not stayed, that is, the appellant
B        would incur disqualification to contest the
         election. The High Court after considering the
         special reason, granted the order staying the
         conviction. As the con-viction itself is stayed in
         contrast to a stay of exe-cution of the sentence,
c        it is not possible to accept the contention of the
         respondent that the disqualification arising out
         of conviction continues to operate even after stay
         of conviction."

D         Referring to other decisions of this Court, in Ravikant S.
     Patil this Court further observed:
         "16. 5. All these decisions, while recognising the
         power to stay conviction, have cautioned and
         clarified that such power should be exercised
E        only in exceptional cir-cumstances where failure
         to stay the conviction, would lead to injustice and
         irreversible consequences."
       11. According to counsel for the respondent there are
F adequate grounds to justify the impugned judgment as
  irreparable harm would be caused to the respondent if the
  conviction is not stayed. He further contended that respondent
  is an actor and his profession requires him to travel abroad
  but conviction of sentence is coming in his way to travel abroad.
G However while passing the impugned judgment the High Court
  has not given any finding that if the conviction is not stayed
  irreparable harm/irreversible consequences or injustice would
  be caused to the respondent. The High Court stayed the order
  of conviction mainly on the ground that the conviction is coming
H in respondent's way to travel abroad which has resulted in
     STATE OF RAJASTHAN v. SALMAN SALIM KHAN                          25
        [SUDHANSU JYOTI MUKHOPADHAYA, J.)

 negating the order granting him permission to go abroad.              A
        12. If some foreign country is not granting permission to
  visit the said country on the ground that the respondent has
   been convicted of an offence and has been sentenced for five
  years of imprisonment under the Indian Law, the said order 8
   cannot be a ground to stay the order of conviction. If an order
 . of conviction in any manner is causing irreversible
· consequences or injustice to the respondent, it was open to
   the court to consider the same. If the court comes to a definite
   conclusion that the irreversible consequences/injustice would c
   cause to the accused which could not be restored, it was well
   within the domain of the court to stay the conviction. No such
   ground has been shown by the High Court while passing the
   impugned order. Further, we find that now more than one year
   has passed and there is nothing on the record to suggest that o
   the respondent has again to visit UK for further shooting of any
   film/movie.
      13. For the reasons aforesaid, we set aside the impugned
 judgment and order dated 12th November, 2013 passed by
 the High Court of Judicature for Rajasthan at Jodhpur in S.B. E
 Criminal Miscellaneous Application No.718 of 2013 in S.B.
 Criminal Revision Petition No.905 of 2007 and remit the case
 to the High Court to decide the matter afresh. It would be open
 to the respondent to show that if the order of conviction is not F
 stayed it will cause irreversible consequences/injustice to him
 which cannot be undone if he ultimately succeeds. It would be
 open to the State to oppose such prayer on the ground that
 non-suspension of conviction will not cause any irreversible
 consequences or injustice to the respondent and the same G
 can be undone if he ultimately succeeds.
     14. The appeal stands disposed of with aforesaid
 observations.
 Devika Gujral                              Appeal disposed of and
                                 matter remitted back to High Court    H