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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 83 OF 2015 (Arising out of SLP(Crl.) No.5218/2014)

STATE OF RAJASTHAN    … APPELLANT

VERSUS

SALMAN SALIM KHAN           … RESPONDENT

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.

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 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.

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3. The factual matrix of the case is as follows:-

Crime No. IR No.163 of 1998 u/s 147,148 and 149 of IPC and u/s  

9,39,51 and 52 of the Wild Life (Protection Act), 1972 and Section 27  

of the Arms Act was registered against the 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 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 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  

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 restrictions that the respondent will not  

leave the country without prior permission of the Court.   

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Initially, the respondent sought permission of the Court on a

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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  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 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  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  aggrieved  by  the  refusal  of  Visa  by  the  U.K  

Authorities, 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  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.

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On the basis of this legal advice, it is out view  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.

As  only  the  execution  of  the  sentence  has  been  suspended out initial decision to refuse your application

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was correct and in line with our immigration Rules and  Guidance on criminal conviction. I therefore uphold the  decision to refuse entry clearance under paragraph 320 (2)  (B) of HC395.”

On  this  background,  the  respondent  filed  Crl.  Misc.  Appln.  

No.718 of 2013 in SB Crl. Revision Pet. No. 905 of 2007 seeking  

suspension of order of conviction and the same was allowed by the  

impugned judgment.

4. 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  

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 same is  

not  binding  on  the  said  Authority  being  outside  the  

jurisdiction of the Rajasthan High Court.

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(ii) There cannot be a blanket stay of conviction but there  

can be a stay of conviction for a specific purpose and  

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

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circumstances.  

According to appellant, the respondent-accused is also facing  

two  criminal  cases  which  are  pending  before  the  Trial  Court,  

therefore it was specifically directed that the respondent-accused  

has to appear before the Trial Court according to the directions  

passed by the Trial Court in this regard.   

5. According to counsel for the respondent the impugned 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  Court  considered  the  hardship  

caused  to  the  respondent  and  thereafter  passed  the  order  under  

challenge.

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It was further contended that when a person is convicted and if  

the conviction is not suspended or stayed, he may suffer 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 view of applicable norms of the UK Entry Clearance.  

An order of conviction is a sufficient ground for refusal of entry

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clearance. It would have serious consequences on the professional  

career of the respondent which would be against the letter and spirit  

of Article 19 (1) (a) and Article 19 (1) (g) of the Constitution of  

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 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 r/w Section 401 of  

Cr.PC before the High Court of Judicature for Rajasthan at Jodhpur,  

Rajasthan. The revision petition is pending for hearing. Initially on  

31st August, 2007 the  revision  petition  was  admitted and  the High

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Court suspended his sentence with the following conditions:

a. Accused to appear before the court whenever 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,

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 seeking permission to go abroad.

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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 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 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  allowing  the  

application  filed  by  the  respondent  u/s  389  (1) of the Code of

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Criminal Procedure, 1973 for suspension of the order of conviction,  

passed the impugned judgment with following observation:

“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 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.”

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9. In State of Tamil Nadu v. A. Jaganathan, (1996) 5 SCC 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 undone if he ultimately succeeds.

10. Similar observation was made by this Court in Ravikant S. Patil  

v. Sarvabhouma S. Bagali, (2007) 1 SCC 673.  In the said case, this  

Court held:  

“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  conviction  continues to operate. But where  

9 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  conviction non-existent, but only non-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  conviction was not stayed, that is, the appellant would  incur disqualification to contest the election. The High  Court after considering the special reason, granted the  order staying the conviction. As the conviction itself is  stayed  in  contrast  to  a  stay  of  execution  of  the  sentence, 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.”

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  only  in  exceptional  circumstances where failure to stay the conviction, would  lead to injustice and irreversible consequences.”

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11. According  to  counsel  for  the  respondent  there  are  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.  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

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caused  to  the  respondent.  The  High  Court  stayed  the  order  of  

conviction mainly on the ground that the conviction is coming in  

respondent’s way to travel abroad which has resulted in negating the  

order granting him permission to go abroad.

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 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 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

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the record to suggest that 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. Criminal Miscellaneous

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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  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 can be undone if he ultimately succeeds.

14. The appeal stands disposed of with aforesaid observations.

…………………………………………J. (SUDHANSU JYOTI MUKHOPADHAYA)

…………………………………………J. NEW DELHI,                       (ADARSH KUMAR GOEL)    JANUARY 14, 2015.