Rama Narang v. Ramesh Narang and Ors. in which at para
Case Details
Patna High Court CR. APP (SJ) No.835 of 2008 (3) dt.01-02-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.835 of 2008 ====================================================== 1. Nav Ratan Choudhary, S/O-Shiv Nandan Choudhary 2. Santosh Choudhary, S/O-Shiv Nandan Choudhary 3. Gopal Choudhary, S/O-Shiv Nandan Choudhary 4. Basant Choudhary, S/O-Shiv Nandan Choudhary 5. Shiv Nandan Choudhary, S/O-Late Kamlu Choudhary All are resident of Goghardhara, P.S.- Banmankhi, District- Purnia The State Of Bihar .... .... Appellant/s Versus .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. N. K. Agrawal (Sr. Advocate)
Legal Reasoning
Mr. Vijay Anand For the State : Mr. S. N. Prasad (A.P.P.) ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER 3 01-02-2013 Ref : I.A. No. 137 of 2013 Heard learned counsel for the appellants no. 1 and 2 as well as learned Additional Public Prosecutor for the State on I.A. No. 137 of 2013. It is pointed out by learned counsel for the appellants no. 1 and 3 that the appellants no. 1 and 3 were elected ward councilors of the ward no. 15 and 17 of Nagar Panchayat, Banmankhi respectively but after their election, Election Commission issued a notice for cancellation of their election on the basis of Section 18 (1) (g) of Bihar Municipal Act, 2007 on the Patna High Court CR. APP (SJ) No.835 of 2008 (3) dt.01-02-2013 ground that both the aforesaid appellants were convicted in Sessions Trial No. 418 of 2004 and they were sentenced to undergo rigorous imprisonment for three years. It is contended by him that if the impugned judgment of conviction and sentence order of the aforesaid appellants is not stayed by this Court, the aforesaid appellants would suffer a loss because even if after final hearing they are acquitted by this appellate court, they could not be compensated for the loss which would occur on account of their cancellation of election. Learned counsel for the appellants relied upon a decision reported in (1995) 2 SCC 513 Rama Narang vs. Ramesh Narang and Ors. in which at para 19 the Hon’ble Supreme Court has held as follows:- 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. Another decision cited on behalf of the appellants is A.I.R. 2007 SC 1003 in which the Hon’ble Supreme Court has held that Section 389 (1) of Criminal Procedure Code confers power not only to suspend execution of sentence and to grant bail but also to suspend the operation of the order appealed against which the order of conviction. Patna High Court CR. APP (SJ) No.835 of 2008 (3) dt.01-02-2013 On perusal of record, I find that both the above stated appellants were convicted under Section 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years for the above stated section vide judgment of conviction and sentence order dated 05.08.2008 passed in Sessions Trial No. 418 of 2004. It is not a disputed fact that both the appellants were elected as Ward Councillors and for cancellation of their election a proceeding is pending before the Election Commission. Here I would like to refer Section 18 (1) (g) of Bihar Municipal Act, 2007 which says that notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as member of the Municipality if such person has been sentenced by a criminal Court, whether within or without India, to imprisonment for an offence, other than a political offence, for a term exceeding six months or has been ordered to furnish security for keeping good behaviour under Section-109 or Section 110 of the Code of Criminal Procedure, 1973 (Act 2, 1974) and such sentence or order not having subsequently been reversed; or absconding being an accused in a criminal case for more than six months. Therefore, it is clear from bare perusal of the aforesaid provision that if a person is convicted for an offence and Patna High Court CR. APP (SJ) No.835 of 2008 (3) dt.01-02-2013 sentenced to imprisonment for a term exceeding six months he would be liable to be disqualified from the election of municipal. Section 389 (1) of the Cr.P.C. says that the appellate court can suspend the execution of the sentence till pendency of the appeal. In Rama Narang case, the Hon’ble Apex Court has held that Section 389 (1) of the Cr.P.C. is not looked to the sentence only but the court can exercise its power under the above stated section to suspend or stay the conviction also because sentence is admittedly follows the conviction. Therefore, even if Section 389 (1) of the Cr.P.C. does not speak about the conviction, then also, in view of the aforesaid decision of the Apex Court of this country, this Court has got jurisdiction to stay the conviction, if this Court finds that the appellant has come before the court with a good case. In the instant case, admittedly, both the appellants were elected as Ward Councillors and after their election, the Election Commission has issued show cause notice to them for cancellation of their election and it appears that the Election Commission has fixed 08.02.2013 for passing order on the aforesaid matter. In my view, if the election of the appellants is cancelled by the Election Commission, the appellants would suffer Patna High Court CR. APP (SJ) No.835 of 2008 (3) dt.01-02-2013 irreparable loss because even if after getting acquittal in their favour by this Court, they cannot be compensated for the loss of cancellation of their election. Considering the aforesaid facts and circumstances as well as submissions of the parties, I.A. No. 137 of 2013 filed on behalf of the aforesaid appellants is allowed and, accordingly, the judgment of conviction and sentence order dated 05.08.2008 passed by learned Additional Sessions Judge, Fast Track Court-V, Purnia in Sessions Trial No. 418 of 2004 is suspended in respect of the aforesaid appellants only till further order of this Court.
Decision
In the aforesaid manner, the I.A. stands disposed off. SHAHZAD/- (Hemant Kumar Srivastava, J)