Sanjay Prabhakar Bhosale v. Additional Commissioner
2014-10-29
R.V.GHUGE
body2014
DigiLaw.ai
Judgment R.V. Ghuge, J. 1. Heard learned Advocates for the respective parties. 2. Rule. By consent, Rule is made returnable forthwith and the petition is taken up for final disposal. 3. The petitioner is aggrieved by the judgment and order dated 1.9.2014, delivered by respondent No.1 - Additional Commissioner, Aurangabad. 4. Contention of the petitioner is that in the election to the Gram Panchayat, Matola, held in October, 2012, respondent No.4 was elected as a Member of the said Gram Panchayat. By the judgment and order dated 13.2.2014, respondent No.4 was held guilty in Summary Criminal Trial No.1524 of 2012 under Section 138 of the Negotiable Instruments Act. He was convicted under Section 255(2) of the Code of Criminal Procedure and was sentenced to suffer simple imprisonment for six months. The amount of Rs.2,70,000/- was directed to be paid to the complainant, failing which, respondent No.4 was to suffer further simple imprisonment for three months. 5. The petitioner further contends that though respondent No.4 preferred an appeal against the said conviction, sentence has been merely suspended and neither the conviction nor the sentence has been stayed. It is, in these circumstances that the petitioner moved a complaint to the Additional Collector, Latur seeking disqualification of respondent No.4, under Section 14(1)(a)(ii) of the Maharashtra Village Panchayat Act, 1958 ( "the Act of 1958"). It is also not in dispute that by order dated 18.6.2014, the Additional Collector, concluded that the conviction of respondent No.4 leads to his dis-qualification. 6. Respondent No.4 had appealed against the said order of the Additional Collector before the Additional Commissioner, Aurangabad in Appeal No. DB/D-2/ZPVP/A/CR-60/2014/L. By the judgment and order dated 1.9.2014, the appeal filed by respondent No.4 was allowed and his dis-qualification, as a Member of Gram Panchayat, Matola and as Up- Sarpanch of the said Gram Panchayat was set aside. The judgment rests on the basis that the sentence of respondent No.4 was suspended in appeal and, therefore, he is restored as a Member of the Gram Panchayat and consequently as the Up-Sarpanch of the said Gram Panchayat. 7. The petitioner submits that the conclusion of the Additional Commissioner is wholly erroneous since it is against the settled principles of law. The suspension of sentence is distinct and different from staying of the conviction and the sentence.
7. The petitioner submits that the conclusion of the Additional Commissioner is wholly erroneous since it is against the settled principles of law. The suspension of sentence is distinct and different from staying of the conviction and the sentence. He has placed reliance upon the judgment of the Apex Court in the case of Lalsai Khunte Vs. Nirmal Sinha and others [2007 AIR SCW 1591] and by this Court in the case of Shamshadbi Bashir Saha Fakir Vs. State of Maharashtra [ 2009 (3) Mh.L.J. 296 ]. It is, therefore, prayed that the conclusion drawn by the Additional Commissioner, in the impugned judgment, deserves to be quashed and set aside and the judgment of the Additional Collector needs to be restored. 8. The learned Advocate for respondent No.4 has attempted to canvass that the suspension of the sentence pending appeal is neither distinct nor different from staying of the conviction and the sentence. In his submissions, the fact that the sentence has been suspended means that respondent No.4 is prima facie innocent and no offence is proved against him. It is further submitted that the conclusions drawn by the Additional Commissioner in the impugned judgment can neither be said to be perverse nor erroneous and there is no case made out by the petitioner, which could invite interference of this Court in its writ or supervisory jurisdiction. 9. Having heard the learned Advocates for the respective sides, I have gone through the petition paper book. The conclusions drawn by the Additional Collector are on the basis that the suspension of sentence would not mean that respondent No.4 is innocent and it would, therefore, not mean that his disqualification is set aside. Though the conclusions drawn by the said authority can be found in the last paragraph of the said judgment and which may not be well worded, the order delivered by the said authority is in tune with the tenets of law. It appears from the said order that the Additional Collector, desired to indicate that mere suspension of the sentence can not be a ground to hold that respondent No.4 is innocent and thereby restore his membership to the Gram Panchayat. 10.
It appears from the said order that the Additional Collector, desired to indicate that mere suspension of the sentence can not be a ground to hold that respondent No.4 is innocent and thereby restore his membership to the Gram Panchayat. 10. The Additional Commissioner, while delivering the impugned judgment has stressed on the fact that the sentence of respondent No.4 has been suspended till the decision of the appeal and, therefore, his case was not fit for taking action of disqualification under the Act of 1958. Consequently, he has set aside the disqualification and restored the membership of respondent No.4 had has installed him as Up-sarpanch of the said Gram Panchayat. I do not find that this conclusion could be said to be correct. 11. Section 14(1)(a)(ii) of the Act of 1958 reads as under:- "14. Disqualifications:- (1) No person shall be a member of a panchayat continue as such, who- (a) has, whether before or after the commencement of this Act, been convicted (i) ...... (ii) of any other offence and been sentenced to imprisonment for not less than six months, unless a period of five years, or such lesser period as the State Government may allow in any particular case, has elapsed since his release; or" 12. The Apex Court, while dealing with a similar situation in the case of Lalsai Khunte (supra) has considered this position and has arrived at a conclusion that staying of the conviction and suspension of the sentence are distinct. The case of a litigant would stand on a different footing if conviction has been stayed and thereby resulted into staying of the suspension. The suspension of sentence will therefore, not amount to staying the conviction. 13. The contents of paragraph Nos.12 and 13 of the said judgment are of assistance for deciding this case and, therefore, I find it appropriate to reproduce the same hereinbelow:- "12. 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.
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. 13. 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.
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 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." 14. This Court, while dealing with Shamshadbi's case (supra) has observed on similar lines as has been the view of the Apex Court. The ratio laid down in the case of Lalsai Khunte (supra) was considered along with the earlier judgment of the Apex Court in the case of K.Prabhakaran Vs. P. Jayarajan [ (2005) 1 SCC 754 ]. The Apex Court, therefore, concluded that a person, who is convicted and has preferred an appeal will have to secure an order staying his sentence. Mere suspension of the sentence in the absence of any order of stay to the conviction would not amount to washing out the conviction of the said candidate. It was, therefore, concluded that the disqualification needs to be upheld and the staying of suspension is of no avail to the said candidate. 15. The facts of the case on hand are quite similar to the facts in the case of Shamshadbi (supra). Taking an over all view of the matter, I am of the opinion that the impugned judgment suffers from errors and is against the tenets of law. The said judgment is, therefore, perverse and unsustainable. 16. In the light of the above, the impugned judgment of the Additional Commissioner, dated 1.9.2014, in Appeal No. DB/D-2/ZPVP/A/CR-60/2014/L is quashed and set aside. Respondent No.4 shall, therefore, suffer disqualification in the light of the judgment and order passed by the Additional Collector, Latur. 17. The petition is accordingly allowed. Rule is made absolute with no order as to costs.