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CASE NO.: Appeal (civil)  4055 of 2006

PETITIONER: Lalsai Khunte

RESPONDENT: Nirmal Sinha & Ors

DATE OF JUDGMENT: 27/02/2007

BENCH: A.K.MATHUR & V.S. SIRPURKAR

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.

               This appeal is directed against the order dated  1.8.2006  passed by the learned Single Judge of the Chhattisgarh High Court   at  Bilaspur in  Election Petition No. 9/2004 whereby the learned  Single Judge has allowed the election petition in part and  set aside  the election of the  appellant for Malkharaud Assembly Constituency  No. 38  to the Chhattisgarh State Legislative Assembly.  Aggrieved  against the said order the present appeal was filed                 The Election Commission of India by Notification dated  7.11.2003, notified the election to the Legislative Assembly of the  State of  Chhattisgarh  inviting persons to submit their nomination  papers between 7.11.2003 to 14.11.2003 and  15.11.2003 was the  date  of scrutiny of the  nomination papers & the last date  for  withdrawal of candidature was 17.11.2003.   The election was fixed  for 2nd December, 2003.  Nine candidates  filed their nominations.   After  scrutiny, petitioner along with  respondents Nos. 1 to 7  remained in  contest.  The polling took place on 2nd December, 2003  and the result was declared on 4th December, 2003 declaring the  appellant as elected for  constituency. The appellant was convicted   by the  Court  of Additional Chief Judicial Magistrate, Sakti in Criminal  Case No. 208/91- State of Chhattisgarh Vs. Lal Sai and  two others  under Section 420 read with Section 34 and  468 read with Section  34 of the IPC and punished  for two years. ,  rigorous imprisonment   on  each count and convicted under section 471 of the IPC and   punished  with rigorous imprisonment for one year by judgment and  order dated 9.5.2002.  Aggrieved against this order appellant filed  appeal before  District Judge and learned Additional Sessions Judge  by his order dated 31.5.2002 released appellant on furnishing  Bond  & Security & suspended judgment & Order of Addittional Chief  Judicial  Magistrate dated 9.5.2002.  All candidates were required to   submit their nomination alongwith their declaration and affidavit  wherein they were required to disclose  particulars of  conviction for  two years or more.  The appellant Lalsai  though he was  convicted  and was disqualified but mislead   the returning officer and concealed  the vital information in  the affidavit of his conviction.   Therefore, the  returning officer could not cancel  his nomination.  The lost candidate filed  the present election petition  raising  the question of disqualification of appellant under Section 8(3)  of the  Representation of People Act, 1951 (hereinafter referred as  ’the R.P.  Act’).  The defence of the appellant was that the execution of  judgment and conviction dated 9.5.2002 was stayed by the  appellate  Court  by its order dated 31.5.2002.   Therefore,  the returning Officer  rightly rejected the objection raised  before him during the scrutiny  and he was not  disqualified and is not guilty  of  suppression of  the   facts.    He also  took the plea  that the election petitioner did not

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deposit the security amount within the prescribed  time period,  therefore, petition be dismissed being barred by time. The security  deposit was  made on  19.1.2004 whereas the  election petition  was  filed on 17.1.2004.  As  such  election petition is barred by time.   However, it may be stated  at the outset that so far as  this objection  is concerned we  ourselves checked up the date and we find that the  election petition was filed  on 19.1.2004 with security amount.    Hence, this objection  is  factually  incorrect and overruled. The question before us is whether the order passed by the  appellate Court  in a Criminal Case  on 9.5.2002  whereby  the  conviction and sentence of the appellant was suspended, whether  this amounts to staying  the  conviction or not?  All other questions  are not relevant except the aforesaid question.   However,  learned  Single Judge after relying  on decision of this Court in the case of  K.  Prabhakaran  Vs. P. Jayarajan  reported in {(2005) 1 SCC 754}   held that the returning officer committed an illegality in accepting the  nomination  of the appellant  because the appellant’s conviction was  not stayed but suspended.  Therefore,  incumbent was disqualified at  the time of scrutiny and accordingly the learned Judge  decided this  issue in favour of the election petitioner and consequently the election  petition was allowed  and  election was set aside.  Hence,  the  present appeal.    We have heard learned counsel for  the parties and perused  the record.    The main question before us is whether the view taken by the  learned  single Judge of the High Court is correct or not?    Section 8(3) of the Representation of People Act, 1951 is  reproduced hereunder:    "8.     Disqualification on conviction for certain  offences.-

       (1)     \005\005\005\005\005         (2)     \005\005\005\005\005         (3)     A person convicted of any offence and  sentenced to imprisonment for not less than two years  (other than any offence referred to in sub-section (1) or  sub-section (2) shall be disqualified from the date of such  conviction and shall continue to be disqualified for a  further period of six years  since his release.         (4)     \005\005\005\005\005.."

 The legal position is already  crystallized  by this  Court in  the  case of  K. Prabhakaran  (Supra) wherein it was held as under: "42. What is relevant for the purpose of Section 8(3) is the  actual period of imprisonment which any person convicted  shall have to  undergo or would have undergone  consequent upon the sentence of imprisonment  pronounced by the court and that has to be seen by  reference to the date of scrutiny of nominations or date of  election.  All other factors are irrelevant.  A person  convicted may have filed an appeal.  He may also have  secured an order  suspending execution of the sentence  or the order appealed against under Section 389 of the  Code of Criminal Procedure, 1973.  But that again would   be of no consequence.  A court of appeal is empowered  under Section 389  to  order that pending an appeal by a  convicted person 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 bond.  What is  suspended is not the conviction or sentence; it is only the  execution of the sentence or order which is suspended.  It  is suspended and not obliterated.  It will be useful to refer  in this context to a Constitution Bench judgment of this  Court in Sarat Chandra Rabha Vs. Khagendranath Nath?    The convict had earned a remission and the period of

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imprisonment reduced by the period of remission would  have had the effect of removing disqualification as the  period of actual imprisonment would have been reduced  to a period of less than two years.   The Constitution  Bench held that the remission of sentence under Section  401 of the Criminal Procedure Code (old) and  his release  from jail before  two years of actual imprisonment would  not reduce the sentence to one of a period of less than  two years and save him from incurring the disqualification.   

" An order of remission thus does not in any way interfere  with the order of the court; it affects only the execution of  the  sentence passed by the court and free the convicted  person from his liability to undergo the full term of  imprisonment inflicted by the court, though the order of  conviction and sentence passed by the court still stands  as it was.  The power to grant remission is executive  power and cannot have the effect  which the order of an  appellate or revisional court would have of reducing the  sentence passed by the trial court and substituting in its  place the reduced sentence adjudged by the appellate or  revisional court."

Recently   this Court in the case of  Ravikant  S. Patil  Vs.   Sarvabhouma S. Bagali   reported in {2006(12) SCALE 295}  has  clearly  held that  the Court has enough power to stay the conviction.    It was held as under:-   ‘       "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 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 that 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."          Again  recently in the case of Navjot Singh Sidhu  Vs. State  of Punjab  reported in {JT 2007 (2) SC 382),   Hon’ble Court  while  entertaining the appeal  of accuse stayed the conviction.  The  relevant portion of the  judgment  reads as under: "13.1    The Act provides not only the eligibility and  qualification for membership of House of People and  Legislative Assembly but also for disqualification on  conviction and other matters.  The Parliament in its  wisdom having made a specific provision for  disqualification on conviction by enacting  Section 8, it is  not for the Court to abridge or expand the same.  The  decisions of this Court rendered in Rama Narang V. Kant  S. Patil Vs. Sarvabhouma S. Bagali  (Supra) having  recognized the power possessed by the Court of appeal  to suspend or stay an order of the conviction and having

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also laid down the parameters for exercise of such power,  it  is not possible to hold, as a matter of rule, or to lay  down, that in order to prevent any person who has  committed an offence from entering the  Parliament or the  Legislative Assembly the order of the conviction should  not be suspended.   The Courts have to interpret the law  as it stands and not on considerations which may be  perceived to be morally more correct or ethical."

Therefore, this Court in  recent decisions held that the   appellate Court has power  to stay the execution of the conviction and  if appellate Court has stayed the conviction then in that case, this will  not operate as a disqualification.   But simply order of suspension of  the sentence  will not operate as staying the conviction.  It was  specifically mentioned  that the stay of order of  the conviction  will  mean  it is temporarily non-operative.           As already mentioned above,  in the present case it is  clearly transpired that the  appellate Court  suspended the order of   the trial court dt. 9th May, 2002 and granted the bail to the accused  appellant.   The suspension does not mean  the stay of the  conviction. We have ourselves seen the application for suspension of  sentence. The said application is a routine application under Section  389 whereby the appellant sought for the suspension of sentence.  There is nothing in that application to suggest that the applicant  therein had sought the stay of conviction in contra-distinction to the  suspension of sentence. In Ravi Kant Patel’s case cited supra, it will  be seen that an application for stay of conviction was specifically filed  specifying the consequences if the conviction was not stayed. This  Court had taken that fact into consideration while holding that in that  case the conviction was specifically stayed. Such is not the case  here.  If the incumbent had been vigilant enough, he could have  moved the court even later on after obtaining the stay of conviction  particularly in view of the fact that he wanted to contest the election  but that was not done.                      In the case of   Rama Narang  Vs.  Ramesh Narang and  Ors.  reported in {1995)2 SCC 513}  their Lordships were  examining  the effect of conviction under the  Companies Act, 1956,  that  what is  the effect of the conviction of Managing Director for an offence  involving moral turpitude  as disqualification  and suspension  of that  conviction by the appellate court.   This Court after examining the  question took the view that  Section 389(1) of the CR.P.C.  confers  the power  on appellate Court to stay the operation of the order of the  conviction.  If the order of conviction is to result to some   disqualification of the type mentioned in Section 267 of the  Companies act, a narrow meaning should not be given to Section  389(1) of the Code  to bar the Court  from granting an  order  staying  operation of order  of  conviction in a fit case.    Therefore, their  Lordships were  very clear that Section 389(1) of the Code empowers  the  appellate court to stay the conviction also.   But  suspension will  not amount to staying the conviction.  It was held as under:

That takes us to the question whether the scope of  Section 389(1) of the Code extends to conferring power  on the Appellate Court to stay the operation of the order  of conviction.  As stated earlier, if the order of conviction  is to result in some disqualification of the type mentioned  in section 267 of the Companies Act, we see no reason  why we should give a narrow meaning to Section 389(1)  of the Code to debar the court from granting an order to  that effect in a fit case.  The appeal under  Section 374 is  essentially against the order of conviction because the  order of sentence is merely consequential thereto; albeit  even the order of sentence can be independently  challenged if it is harsh and disproportionate to the

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established guilt. Therefore, when an appeal is preferred  under Section 374 of the Code the appeal is against both  the conviction and sentence and therefore, we see no  reason to place a narrow interpretation on Section 389(1)  of the Code not to extend it to an order of conviction,   although that issue in the instant case recedes to the  background because High Courts can exercise inherent  jurisdiction under Section 482 of the Code if the power  was not to be found in Section 389(1) of the Code.  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 person 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 (sic or) 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."

 As already pointed out above that on 31st May, 2002, the  appellate Court while granting him the bail only suspended  the  impugned order dated 9th May, 2002.  Thus suspension does not  amount to temporarily washing out the conviction.    The conviction  still remains, only  the operation  of the order  and the sentence   remain suspended that does not amount to temporary stay of the  conviction. A specific order staying conviction has to be sought.      Hence, the view taken by the learned Single Judge of the  Chhattisgarh High Court is correct  and there is no ground to  interfere. This appeal  is dismissed with no order as to costs.