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Judgment
Petitioner is a Councillor of the Kasipalayam Town Panchayat. He had been convicted and sentenced to undergo imprisonment for life by the
Principal Sessions Judge in S.C.No. 36 of 1998 dated 5.4.1999. Consequently, the Secretary of the Town. Panchayat informed the petitioner that
he has ceased to be a member and disqualified to continue as member under Sections 49, 50(1) (a) and 50(3) of the Tamil Nadu District
Municipalities Act, 1920 (hereinafter referred to as the Act).
Petitioner filed an application before the Principal District Judge u/s 51 of the Act praying to declare the disqualification made by the Panchayat
as illegal. The learned Principal District Judge held that there is no doubt regarding the conviction and that Section 51 (1) of the Act will not apply
to the petitioner. The correctness of this order is challenged in this revision under Article 227 of the Constitution of India.
The learned counsel for the petitioner endeavoured to and made a fervent plea that in the light of the order of the High Court in Criminal Appeal
Nos. 320 and 321 of 1991 suspending the sentence of imprisonment, there is no question of the petitioner being disqualified u/s 50(1 )(a) of the
Act. According to him, Section 49 will apply only in case of contest for election of a Councillor, whereas Section 50 deals with disqualification.
The Councillor will cease to hold office only if there is a sentence existing. In this case, the sentence had been suspended. In the eye of law, there is
no sentence at all so as to disqualify the petitioner being the Councillor. In any event, according to him, the Principal Sessions Judge ought to have
considered the matter on merit. He ought not have dismissed the petitioner in limine without even numbering the same.
I have heard the Counsel for the petitioner and considered the matter carefully. The petitioner is an existing member of the Town Panchayat. He
has been convicted for an offence u/s 302, I.P.C. in S.C. No. 36 of 1998 on the file of the First Additional and Sessions Judge. Erode and by
judgment dated 5.4.1999, he was sentenced to undergo life imprisonment. The only question that arises for consideration is whether in
consequence of this conviction and sentence, petitioner is liable to be disqualified.
Section 50(1)(a) of the Act reads as follows:
Subject to the provisions of Section 51, [the chairman of] a councillor [or a person referred to in clauses (b) and (c) of sub-section (2) of section
3-C or clauses (b) and (c) of sub- section (3) of section 7] shall cease to hold his office, if he-
(a) is sentenced by a [criminal] Court to such punishment [and for such offence] as is described in sub-section (1) of section 49.
Clause (3) and (4) of Section 50 reads as follows:
(3) Where a person ceases to be a councillor under [Clause (a) [or clause (aa)] of sub-section (1) or u/s 60,] [such person shall be restored to
office for such portion of the period for which such person was elected (.....)] [.....] as may remain unexpired at the date of such restoration, if and
when the [conviction] sentence of order is annulled on appeal or revision or [the disqualification caused by the [conviction or] sentence or incurred
u/s 60 is removed by an order of [the State Election Commission)] [and any person elected [.....] to fill the vacancy in the interim shall on such
restoration vacate office].
[ (4) Where a person ceases to be [the chairman or] a Councillor under clause (i) of sub-section (1) the [executive authority] shall at once intimate
the fact in writing to such person and report the same to the council at its next meeting. If such person applied for restoration suo motu to the
council on or before the date of its next meeting or within fifteen days of the receipt by him of such intimation, the Council may at the meeting next
after receipt of such application restore him to his office of [the chairman or] councillor:
Provided that [the chairman or] a councillor shall not be so restored more than twice during his term of office.]
From the above, it is clear that a Councillor shall cease to hold office if he is sentenced by a criminal court to a punishment of an imprisonment for
period more than six months. Section 49 of the Act deals with the disqualification of candidates prior to the election. But, the provision that applies
to the case on hand is only Section 50.
The order granting bail by the High Court was strongly relied upon to say that the sentence is suspended. Unless the operation of the conviction
and sentence is specifically stayed, the order of the High Court has to be treated only as an order for the purpose of granting bail. The suspension
of a sentence in this context does not obliterate the order of conviction and sentence. Petitioner has obtained suspension of sentence u/s 389 of the
Code of Criminal Procedure, 1973. As per this provision, the appellate court has got the power to suspend the sentence pending the appeal. But,
this provision makes it clear that the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. So, the
sentence is deemed to be suspended for the purpose of releasing the appellant on bail. In other words, the sentence is not stayed or suspended.
The bail granted by the appellate court cannot be taken so as to mean that the sentence of the criminal court had been suspended to enable the
petitioner to continue as a Member of the Town Panchayat. As a matter of fact, the moment sentence had been imposed, he had ceased to hold
the office.
In Banubhai M. Rawal v. Union of India, AIR 1991 Bom. 1991, a Division Bench of the Bombay High Court held that mere filing of appeal
against conviction does not remove disqualification. The Division bench followed the judgment of the Madhya Pradesh High Court reported in
Purushottamlal Kaushik Vs. Vidyacharan Shukla, which held that the disqualification is not lifted by mere filing of an appeal against the order of
conviction. The Division Bench held as follows:
It must be assumed that the legislature did not want, at the helm of affairs of the State, persons with unwiped off convictions of offences"".
.........
Giving clean administration to the Citizenary is ex hypothezi, the object of every election statute.
Another Division Bench of the Assam High Court in Gajendranath v. Umesh Chandra, AIR 1958 Asm. 183 held that the fact that person had
preferred an appeal against the conviction and sentence and the appeal was pending could not remove the disqualification. The emphasis is on the
conviction for any offence in which the person is sentenced imprisonment. In that case, prima facie, the disqualification will attach to the person so
convicted and sentenced. The Division Bench refused to accept even a remission of punishment as a ground to remove the disqualification.
In Sachindranath Tripathi v. Doodhanath, AIR 1987 A.L.J. 667, Om Prakash, J. (as he then was), dealing with the suspension of sentence, held
that disqualification is the immediate effect of conviction, and the order of the appellate court staying the execution of the sentence would not wipe
out the conviction. According to the learned Judge, the only effect of the stay order passed by the appellate court was that the execution of
sentence awarded and the conviction orders remained under suspension. After the conviction, the accused person was to suffer the sentence and
that part of the order was suspended by the stay order. The stay order, being prospective in operation, did not and could not affect the conviction
order, which automatically gave birth to disqualification. Grant of bail to the accused person does not interfere with the finding of conviction and
that cannot render the disqualification automatically merging from conviction inoperative.
Another learned Judge of the Himachal Pradesh High Court, in Vikram Anand Vs. Rakesh Singha, , held that the judgment of conviction
consists of, inter alia, the order of conviction which is declaration of the guilt of the accused, followed by the order of sentence, if the court decides
to punish the convicted person. In a given case, when a convicted person challenges the judgment against him, besides asking for suspension of
execution of sentence in grant of bail, he may also ask for suspension of the order of conviction to save him from its recourse during the pendency
of the appeal. But, there cannot be any doubt that the order of suspensions of conviction cannot be passed in a routine manner. The appellate court
may pass such an order in an exceptional case in which it is satisfied that even by accepting the entire findings given by the trial court in its
judgment, prima facie, no case is made out against the appellant. Learned Judge refused to accept the argument that the disqualification is attracted
only when a person is convicted by the final court and not the trial court. Disqualification starts from the order of conviction passed by any court
whether final or not.
In a recent Judgment in K. Venkatachalam v. A. Swamickan and another, AIR 1998 S.C. 1723, the Supreme Court upheld the decision of
the High Court under Article 226 that a person who is disqualified, even if he gets elected, is not entitled to sit in the State Assembly, Sub clause 3
and 1 of Section 50 make it clear that the person ceases to be a councillor the moment conviction is ordered, and he can be restored to office if
the order is reversed or annulled. No person elected to the vacancy shall vacate the office. Therefore, the intention of the legislature is clear that on
sentence by a criminal court, the Member will cease to hold the office and he can be restored only after the order is reversed.
For all these reasons, no grounds are made out to interfere with the order of the Sessions Judge. The civil revision petition fails and if is
accordingly dismissed. No costs. Consequently, C.M.P.No. 11710 of 1999 is closed.