SC sends NCP MP's plea against conviction back to Kerala HC

Terming as "erroneous" the Kerala high court's approach, the Supreme Court on Tuesday set aside its verdict suspending the conviction of Lakshadweep Lok Sabha MP Mohammed Faizal in an attempt to murder case, but shielded him from immediate disqualification by keeping in abeyance the operation of its order for six weeks.

The top court temporarily protected the status of Faizal as an MP, saying the benefit of the high court's impugned order, staying the suspension, will remain in operation during the period keeping in mind that there should not be any ”vacuum” with regard to representation of the Lakshadweep Lok Sabha constituency in Parliament.

It remanded the matter back to the high court and asked it to decide afresh the lawmaker's application seeking a stay of his conviction within this period.

A bench of justices BV Nagarathna and Ujjal Bhuyan took note of the vehement submissions of senior lawyer Abhishek Singhvi, appearing for the NCP lawmaker, that the Lakshadweep constituency and its voters should not remain unrepresented in the Lok Sabha keeping in mind the legal position that in the event of non-stay of the conviction, his disqualification as the MP will be automatic under the Representation of People Act, 1951.

"It is evident that the approach of the Kerala high court was erroneous as it considered only one aspect that the respondent was a member of Parliament," the bench observed orally during the proceedings.

”We find that the Kerala high court has not considered the position of law as it emerges on the basis of the judgements that have been rendered by this court with regard to in the manner an application seeking a stay of conviction has to be considered,” the bench said in its order.

The apex court also referred to the part of the high court order which said the disqualification of the accused as an MP will lead to a fresh election and result in enormous expenses.

”We find that the said aspect need not have been the only aspect which could have been considered by the high court. We find that the High Court ought to have considered the application seeking stay of conviction in its proper perspective and bearing in mind the relevant judgements rendered by this court and in accordance with law,” it said.

”On this short ground alone, we set aside the impugned order and remand back the matter to the high court for reconsideration of the application filed by first respondent herein (the MP) seeking suspension of his conviction,” the bench ordered.

It took note of the fact that Faizal has continued to remain an MP and said he will continue to avail himself of the benefit of the impugned order of the high court for six weeks.

”It is needless to clarify that since we are remanding the matter to high court for reconsidering the application filed by the respondent 1 herein seeking stay of conviction and in order to see that there no vacuum created...the benefit of the impugned order shall be extended to the first respondent herein in for the said period,” it said.

The top court it made clear that its observations were meant for the purposes of disposing of the present appeals of the Lakshadweep Union territory and the victims, and will have no bearing on the merits of the case to be argued afresh before the high court.

It did not entertain Singhvi's request that one week be granted to the MP to go in appeal if the high court does not allow his plea for suspension of conviction. This request, if required, can be made before the high court following the pronouncement of the judgment, the bench said.

Senior advocate Maneka Guruswamy, appearing for complainant Padanath Mohammed Salih, who was attacked by Faizal in 2009, opposed the part of the order protecting the status of the accused as an MP.

Guruswamy, however, said she, like the UT administration, has no objection if the matter is sent back to HC for proper consideration.

On January 11, 2023, Faizal and three others were sentenced to 10 years rigorous imprisonment and fined Rs 1 lakh each by a sessions court in Kavaratti in Kerala for attempting to kill Mohammed Salih, son-in-law of the late union minister P M Sayeed, during the 2009 Lok Sabha elections.

Faizal had moved the Kerala high court against the order and the HC suspended his conviction and sentence on January 25.

In its order, the high court said it was suspending the conviction and sentence of the NCP leader pending disposal of his appeal against the trial court order. It said not doing so will result in fresh elections for the seat vacated by him which will impose a financial burden on the government and the public.

The Lakshadweep administration moved the Supreme Court against the high court's order, and on January 30, the top court agreed to hear its petition.

In its petition, the UT administration said the high court had erred in suspending Faizal's conviction and sentence.

On March 29, the top court had disposed of Faizal's separate plea against his disqualification as a Member of Parliament in view of the Lok Sabha secretariat's notification restoring his membership following the high court order.

Faizal was disqualified from the membership of the Lok Sabha with effect from January 11, the date of his conviction by the sessions court in Kavaratti, according to a notification issued by the Lok Sabha Secretariat on January 13.

In its petition in the apex court, the Union territory administration said, "In the present case, the respondent no.1 (Faizal) failed to make out any exceptional circumstance for his conviction to be suspended and the reason assigned by the high court for suspension of conviction and sentence is alien to the exercise of jurisdiction under section 389 (of the) CrPC."