Siby Joseph vs State Election Commission

M. Ramachandran, J.—In respect of a charge u/s 379 read with Section 34 of the Indian Penal Code, the petitioner had been subjected to prosecution. On conviction, the Judicial First Class Magistrate, Idukki had sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 5,000/-. Against the conviction and sentence, the petitioner had filed an appeal as Criminal Appeal No.65 of 2004 before the Sessions Court, Thodupuzha. The Sessions Judge has suspended the sentence in Criminal M.P. No. 872 of 2004.

The petitioner was holding the position of an elected member of Ward No.3 of Vathikudi Grama Panchayat in Idukki District. The second and third respondents herein, who were respectively a voter and a Panchayat member, had submitted a petition before the State Election Commissioner, Thiruvananthapuram pointing out that in view of the above development, the Panchayat member is liable to be disqualified. This was by way of an application under Sections 34 to 36 of the Kerala Panchayat Raj Act. The State Election Commission had ascertained the views of the member, and after a protected trial, by order dated 25.6.2004, a copy of which is marked as Ext.P3, held that he is disqualified to continue as member of the Vathikkudi Grama Panchayat from 3rd March, 2004 onwards. This has been subjected to attack by the petitioner.

In fact, the issue was about the impact that might have been there because of the orders of the Sessions Court. In paragraph 3 of the counter statement filed by the petitioner before the State Election Commissioner, it is stated as following:

"It is true that this respondent was convicted for an offence u/s 379 of I.P.C.. However, the sentence is kept under suspension in Crl. M.P.872/2004 on the file of Sessions Judge, Thodupuzha."

Notwithstanding, the Election Commission held that the petitioner was disqualified. According to the petitioner, the decision as above is illogical and illegal.

The 2nd and 3rd respondents contend that it is not as if the issue has not received the close attention of the Election Commission. A copy of the order of the Sessions Court had been produced before the Commission as Ext.R 1. It has been observed that the Sessions Judge has not stayed, or suspended the order of conviction. The Judge only suspended the order of execution of the sentence. According to them, the Commission held that reliance placed on Rama Narang Vs. Ramesh Narang and Others, was misconceived and more appropriate case to be followed was B.R. Kapur v. State of Tamil Nadu ( : AIR 2001 SC 3435).

It is seen that he has also adverted to Section 37(1) of the Kerala Panchayat Raj Act. It provides that once the sentence is annulled on appeal or revision the disqualification caused by the sentence is removed and the member can be restored to the office for the unexpired portion of the period for which he was elected. According to the Commission, therefore, the moment a member is convicted for an offence involving moral turpitude, for exceeding a period of three months, he has to automatically court disqualification.

Mr. K. Ramakumar, appearing for the petitioner, however, submits that the above conclusion resulted because of a misreading of the relevant section. Advertence is made to Section 34 and 35 of the Kerala Panchayat Raj Act. Section 34 of the Act deals with disqualification of candidates, for being chosen as and for being a member of a Panchayat. One of the disqualification is sentence by a Court or Tribunal to imprisonment for a period not less than three months for an offence involving moral turpitude (see Section 34(1)(b)(i)). Section 35 separately deals with disqualification of members. A member shall cease to hold office as such, if he is found guilty as described under Clause (b) of Sub-section (1) of Section 34 of the Act or is sentenced for such an offence. Mr. Ramakumar submits that when Section 34(1)(b)(i) of the Act refers to only sentence, the stipulation in Section 35(a) has to be read subject to what has been stated therein. According to him, the said provision in Section 34 does not refer at all to a situation where a person is adjudged guilty. The results being punitive, counsel submits that a strict interpretation alone was warranted.

But the argument appears to be too technical. Possibly there may be a case where a person may be convicted by a Magistrate, but he may be spared from undergoing a sentence. But the reverse of the above is an impossibility. Unless there is conviction, there can be no sentence. Therefore, when Section 34(1)(b)(i) refers to the ''sentence'', it pre-supposes a conviction. And in fact there is a conviction here. Such conviction is not stayed; only the sentence is stayed. Therefore, as matters presently stand, there is disqualification by the petitioner as prescribed by Section 35(a). The petitioner is a member of a Grama Panchayat and he has been found guilty. In fact, Sub-section (a) has two horns. There is disqualification when there is a finding of guilty. There is disqualification, when there is sentence for such offence as well. So long as the finding of the guilt has not been subjected to a stay, it may not be possible for the petitioner to contend that there is no disqualification for him to continue or function as a member.

The learned counsel had commented on the observations of the Election Commission in paragraph 9 of the order when he had pointed out that a Sessions Judge is not competent to stay the order of conviction and it is an exclusive prerogative of the High Court. But, that observation need hot engage our attention too seriously. The counsel has relied on a judgment of a learned Judge in Crl. M.C. No. 10654 of 2002 (2003 (3) KLT SN 37 ) where it has been held that the Appellate Court do have the right to suspend a conviction. In so far as in the present case, it has not been able to secure such orders, it may not be of any advantage to him, as at present. The judgment of the Andhra Pradesh High Court reported in V. Sundararami Reddi Vs. State, also deals with this position. It is not helpful.

My attention was invited thereafter to the decision of the Supreme Court in Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Another, , Though the counsel submits that the relevant provisions of the Representation of the People Act, 1951 is differently Worded, he refers to the legal position declared by the Supreme Court, especially in paragraph 24 of the order. Dealing with Section 8A of the Act, it has been held as following:

"If the biopsy of the stay order inevitably shows that the finding of corrupt practice is suspended and is not operative, the electoral disqualification automatically stands eclipsed. Section 8A being the necessary follow up of the judgment u/s 100, what is the legal effect of an order by this Court suspending the operation of the judgment and order of the High Court? By sheer force of the first limb of this Court''s stay order, the judgment and order of the High Court is nullified for the once i.e., till the appeal is disposed of. Consequently, the disqualification also ipso jure remains in abeyance."

But, we have to take notice of the observations made by the Supreme Court in B.R. Kapur v. State of Tamil Nadu ( : AIR 2001 SC 3435), which is to the following effect:

"In much the same vein, it was submitted that the presumption of innocence continued until the final judgment affirming the conviction and sentence was passed and, therefore, no disqualification operated as of now against the second respondent. Before we advert to the four judgments relied upon in support of this submission, let us clear the air. When a lower Court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo the sentence. The execution of the sentence can be stayed by an Appellate Court and the accused released on bail. In many cases, the accused is released on bail so that the appeal is not rendered infructuous, at least in part, because the accused has already undergone imprisonment. If the appeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that it is not to say that the presumption of innocence continues after the conviction by the trial Court. That conviction and the sentence it carries operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well."

Though a decision under the Representation of People Act, it may also be necessary to advert to the observations made by the Supreme Court in the earlier decision reported in Vidya Charan Shukla Vs. Purshottam Lal Kaushik, , which runs as following:-

"There can be no doubt that in a criminal case acquittal in appeal takes effect retrospectively and wipes out the sentence awarded by the lower Court. This implies that the stigma attached to the conviction and the rigour of the sentence are completely obliterated, but that does not mean that the fact of the conviction and sentence by the lower Court is obliterated until the conviction and sentence are set aside by an Appellate Court. The conviction and sentence stand pending the decision in the appeal and for the purposes of a provision such as Section 8 of the Representation of the People Act are determinative of the disqualifications provided for therein."

I do not think that the Election Commission has erred in holding that the petitioner is disqualified from the date of conviction, and the specific reference to such a contingency referred to in Section 37 also compels me to accept the finding as above. Further, according to me, in the discretionary jurisdiction, this is not a fit case where interference is to be exercised in the case of the petitioner, who has been convicted by a Criminal Court for an offence involving moral turpitude.