By an order dated 14 January 2015, the Supreme Court has quashed and set aside the order dated 12 November 2013 of the Rajasthan High Court, Jodhpur, vide which the conviction of the noted film actor Salman Khan in the black buck case under Section 51 of the Wild Life (Protection Act), 1972 had been suspended pending the hearing of his revision petition against the conviction. What are the consequences of the Supreme Court’s order? Will he go back to jail right now? Let’s examine the main issues.
It may be recalled that Criminal Case No. 206 of 1999 was registered against Salman Khan and Chief Judicial Magistrate, Jodhpur had convicted him under Section 51 of the Wild Life (Protection Act), 1972 vide order dated 10th April, 2006, and had sentenced him to undergo simple imprisonment for five years along with a fine of ₹ 25,000/- and in default to further undergo simple imprisonment for 3 months.
Salman Khan had preferred an appeal vide Criminal Appeal No. 50 of 2006 before the District and Sessions Judge, Jodhpur, which was dismissed vide order dated 24th August, 2007. Thus, his conviction and sentence were affirmed.
Salman Khan then filed a Criminal Revision Petition No. 905 of 2007 before the Rajasthan High Court, Jodhpur, under Section 397 read with Section 401 of the Criminal Procedure Code (Cr.P.C.), challenging the aforesaid order of the Sessions Judge. This Criminal Revision Petition is still pending before the High Court since 2007, and is yet to be decided. However, the High Court had suspended the sentence of Salman on 31 August 2007 and had granted bail to him. Certain restrictions were imposed on his leaving the country without prior permission of the Court.
By taking court’s permission, Salman Khan went abroad many times in relation to his professional engagements, which entailed shooting of films / commercials / shows as per the requirements of producers and directors. Later, by an order dated 21 February 2011, the High Court allowed him to travel abroad even without the permission of the Court.
However, the United Kingdom Border Agency Home Office denied him visa to enter U.K. on the ground that he had been convicted in a case where the punishment was more than 4 years and that merely his sentence had been suspended and conviction remained in force.
At this juncture, it may be pointed out that pending an appeal against conviction, Indian laws allow two different things: (1) suspension of sentence, and (2) suspension of order of conviction itself. The relevant provision is contained in Section 389(1) of the Cr.P.C., which is reproduced below:
“389. Suspension of sentence pending the appeal; release of appellant on bail.— (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:
Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.”
Thus, it is seen that the appellate court has the power to:
- suspend the execution of the sentence, or
- to suspend the order appealed against (i.e., to suspend the conviction itself).
In the case of Salman Khan, what had been done so far was only the suspension of sentence, due to which he got entitled to grant of bail. It may be pointed out here that the suspension of sentence of Salman Khan is still in existence (even after the aforesaid Supreme Court order dated 14 January 2015) and thus he will continue to be on bail.
Order of his conviction had not been stayed or suspended by the Rajasthan High Court vide its order(s) of 2007 or of 2011. U.K. refused to grant him visa on this ground that only his sentence had been suspended, implying thereby that his conviction was not suspended, though this particular aspect was not mentioned by U.K. authorities in so many words. In view of these reasons, Salman Khan moved another application before Rajasthan High Court and sought suspension of his conviction also.
By the above order dated 12 November 2013, Rajasthan High Court, Jodhpur, allowed the above application filed by Salman Khan under the aforesaid Section 389(1) of the Code of Criminal Procedure, 1973, for suspension of the order of conviction, and made the following observations:
“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.”
Based on this order of the High Court, suspending his conviction order, Salman Khan was able to obtain visa from the United Kingdom authorities.
It is this order dated 12 November 2013 which was challenged before the Supreme Court by the State of Rajasthan, and which order has now been set aside by the Supreme Court on 14 January 2015 in Criminal Appeal No. 83 of 2015.
A bench of the Supreme Court comprising of Justice Sudhansu Jyoti Mukhopadhaya and Justice Adarsh Kumar Goel, have observed as under:
“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 the record to suggest that the respondent has again to visit UK for further shooting of any film/movie.”
On the basis of these reasons, the Supreme Court set aside the above order of the High Court and remitted the case back to the High Court to decide it afresh. The Supreme Court has made it clear that when such matter is heard afresh by the High Court, it would be open to Salman Khan 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 of Rajasthan also to oppose such prayer on the ground that non-suspension of conviction will not cause any irreversible consequences or injustice to Salman and the same can be undone if he ultimately succeeds.
Thus, in essence, what has been done by the Supreme Court is merely to set aside the order of suspension of conviction of Salman Khan. And, here also, the case has been remitted back to the High Court for fresh hearing, wherein he can again get a similar order if he can 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 should thus be clear that the order of suspension of sentence of Salman Khan has not been set aside by the Supreme Court; what has been set aside is the order of suspension of conviction. In fact, the order of suspension of sentence was not even under challenge before the Supreme Court. So, Salman Khan will continue to be on bail. He will continue to have liberty to go abroad without taking permission from the court. However, his U.K. visa may perhaps be under threat, though it is not sure what decision the U.K. authorities would take in this regard. Meanwhile, if he can again get a fresh order of suspension of his conviction from the High Court (since the case has been remitted back to the High Court by the Supreme Court for a fresh decision), even his U.K. visa may survive, and if it is revoked it may perhaps be revived.
However, as mentioned in the beginning of this article, his revision petition (on merits of the case) against his conviction is still pending before the Rajasthan High Court since 2007 which has to be decided on merits. It is this revision petition which will ultimately decide his fate in the above case, i.e., whether his conviction will be upheld or will be set aside. Of course, he will get a chance to approach the Supreme Court against an adverse order from High Court by filing a Special Leave Petition under Article 136 of the Constitution.
So, the above order of the Supreme Court is only a temporary setback to Salman Khan. Its effect may be limited to his U.K. visa only. He will continue to be on bail and he will continue to have permission to visit other countries.
