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2016 DIGILAW 2450 (ALL)

Yashpal v. State of U. P.

2016-07-14

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

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JUDGMENT Yashpal s/o Durga Prasad is before this Court assailing the validity of the notification dated 29.4.2016 declaring petitioner as disqualified to continue as Corporator of Ward No. 23, Nagar Nigam, Jhansi and the subsequent notification dated 6.7.2016 wherein in the vacancy, that has so occurred, election notification has been published. 2. Petitioner contested the election of Corporator from Ward No. 23, Nagar Nigam, Jhansi, and was declared elected on 4.7.2012 and since then continued to function as Corporator. It appears that while petitioner has been continuing as Corporator a FIR has been lodged against him bearing Case Crime No. 3 of 2014 under Section 376 IPC read with Section 6 of POCSO Act. Thereafter, petitioner was put up for trial and ultimately the Additional Sessions Judge, Court No. 6, Jhansi, vide judgment and order dated 25.11.2015 proceeded to punish the petitioner in Special Sessions Trial No. 34 of 2014 (State Vs. Jitendra & others) whereby the petitioner has been convicted and sentenced to five years' RI and a fine of Rs. 5000/- under section 363 IPC and twenty years' RI and a fine of Rs. 30,000/- under section 376-D IPC with default stipulation. Petitioner against the said order of conviction has preferred Criminal Appeal No. 5743 of 2015 (Yashpal Vs. State of U.P.) wherein following order has been passed; "Heard learned counsel for the appellant, Shri Rajeev Pandey, learned counsel for the complainant and learned Additional Government Advocate for the State-respondent. A prayer for bail has been made by the appellant Yashpal in this criminal appeal, which has been filed against the judgement and order dated 25.11.2015 passed by the learned Additional Sessions Judge, Court No. 6, Jhansi in Special Sessions Trial No. 34 of 2014 (State vs Jitendra and others) arising out of Case Crime No. 3 of 2014, under sections 363, 376, 506 IPC and 6 POCSO Act, PS Prem Nagar, district Jhansi, whereby the appellant Yashpal has been convicted and sentenced to five years' RI and a fine of Rs. 5000/- under section 363 IPC and twenty years' RI and a fine of Rs. 30,000/- under section 376-D IPC with default stipulation. 5000/- under section 363 IPC and twenty years' RI and a fine of Rs. 30,000/- under section 376-D IPC with default stipulation. It has been contended on behalf of the appellant that the informant did not wholly support the prosecution case, even the victim did not support the prosecution version, inasmuch as she has stated that the present accused Yashpal, who was present in court did not commit rape on her, but it was some other Yashpal. Thus, identity of the accused is in question. The learned trial court has based its judgment on surmises and conjectures and illegal evidence. He was on bail during trial. The appellant did not misuse the liberty of bail. Hence, he is entitled to bail. Learned AGA has opposed the prayer for bail and has submitted that the lower court has based its conviction on evidence available on record. Hence, the bail application is liable to be rejected. Having heard the submission made by learned counsel for the appellant and perused the material brought on record, this Court is of the view that appellant-applicant is entitled to be released on bail during the pendency of criminal appeal before this Court. Let the appellant- Yashpal convicted and sentenced in Sessions Trial No. 34 of 2014 (State vs Jitendra and others) arising out of Case Crime No. 3 of 2014, under sections 363, 376-D IPC, PS Prem Nagar, district Jhansi, be released on bail on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned. On acceptance of bail bonds and personal bonds, the lower court shall transmit photostat copies thereof to this Court for being kept on record. List after six weeks for hearing. " 3. Record in question reflects that State Government, in view of the conviction that has been so earned by the petitioner, has proceeded to exercise its authority conferred under Section 25 (1) (a) of U.P. Nagar Nigam Act, 1959, and petitioner has been declared as disqualified and vacancy in question has been declared for the post of Corporator of Ward No. 23, Nagar Nigam, Jhansi and, thereafter, against the said vacancy in question State Election Commission has published election programme and thus impelling the petitioner to be before this Court. 4. 4. Sri Rajendra Prasad Tiwari, learned counsel for the petitioner, submitted before this Court that petitioner has already been released on bail by this Court and there are all possibilities of appeal being allowed and an application has already been moved for suspending the sentence and said application in question remains pending and, in view of this, by no stretch of imagination an elected incumbent ought to have been removed, as has been done in the present case, as such, writ petition deserves to be allowed. 5. Learned Standing Counsel as well as Sri S.M. Shukla, Advocate, appearing for respondent no. 3, and Sri K.P. Singh, Advocate representing respondent no. 2 before us, submitted that whatever action has been taken against the petitioner, same is in consonance with the statutory provisions that clearly talks of disqualification once conviction order has been recorded against an incumbent, in view of this, no interference is warranted and merely bail has been granted and application has been moved for suspending the sentence, disqualification in question cannot be wiped out, as such, writ petition is liable to be dismissed by this Court. 6. In order to appreciate the respective arguments, at this juncture, we proceed to examine the provisions contained under 25 (1) (a) of U.P. Nagar Nigam Act, 1959, which reads as follows; "25. Disqualifications for Corporator - (1) A person shall, notwithstanding that he is otherwise qualified, be disqualified for being chosen as, and for being, a Corporator, if he- (a) whether before or after the commencement of this Act has been convicted by a court in India of any offence and sentenced to imprisonment for not less than two years, unless a period of five years, or such less period as the State Government may allow in any particular case, has elapsed since his release." 7. A bare perusal of the provisions quoted above would go to show that once conviction in question is earned and sentence of more than two years is there, then the same has to be followed by disqualification in question. 8. A bare perusal of the provisions quoted above would go to show that once conviction in question is earned and sentence of more than two years is there, then the same has to be followed by disqualification in question. 8. In the present case accepted position is that after petitioner has been elected and has been performing and discharging the duties of Corporator he has been implicated in a criminal case being Case Crime No. 3 of 2014 under Sections 363, 376, 506 IPC and 6 POCSO Act, Police Station Prem Nagar, District Jhansi, and petitioner has been put up for trial being Special Sessions Trial No. 34 of 2014 (State Vs. Jitendra & others) whereby he has been convicted and sentenced to five years' RI and a fine of Rs. 5000/- under section 363 IPC and twenty years' RI and a fine of Rs. 30,000/- under section 376-D IPC with default stipulation. Thereafter, petitioner has preferred Criminal Appeal No. 5743 of 2015 (Yashpal Vs. State of U.P.) and on 6.4.2016 petitioner has been directed to be released on bail. Accepted position is that the sentence/conviction order still is operational and only as an interim measure bail has been accorded to the petitioner. Apex Court in the case of Vijai Kumar Vs. Narendra, 2002 (9) SCC 364 , Ramji Prasad Vs. Ratan Kumar Jaiswal, 2002 (9) SCC 366 , has taken the view that in cases involving conviction under Section 302 I.P.C. it is only in exceptional cases that benefit of suspension of sentence can be granted. Coupled with this merely because appellant has been released on bail, same ipso facto does not give him right to claim suspension of sentence as a matter of right. Apex Court, in the case of State of Haryana Vs. Hasmat, 2004 (6) SCC 175 , has clarified the situation that there is distinction between bail and suspension of sentence, and in case authority conferred is to be exercised, then same should not be made in routine manner, rather it has to be preceded by reason. 9. Apex Court in the case of Navjot Singh Siddhu Vs. Hasmat, 2004 (6) SCC 175 , has clarified the situation that there is distinction between bail and suspension of sentence, and in case authority conferred is to be exercised, then same should not be made in routine manner, rather it has to be preceded by reason. 9. Apex Court in the case of Navjot Singh Siddhu Vs. State of Punjab, 2007 (2) SCC 574 , clarified that appellate Court can suspend or grant stay of order of conviction, but the person seeking stay of conviction should specifically draw the attention of appellate Court to the consequences that may arise if conviction is not stayed, and said authority can be exercised in rare cases depending on the special facts of the case . Same view has been reiterated in the case of Sanjay Dutt Vs. State of Maharashtra, 2009 (5) SCC 787 , that power of Court under Section 389 Cr. P.C. should be exercised in exceptional circumstances. 10. In the present case the factual situation that is so emerging is that till today the sentence/conviction has not at all been stayed on the date when the orders in question have been passed on 29.4.2016 and 6.7.2016 and once there is no order passed by this Court suspending the sentence/conviction of the petitioner, then as per the spirit of provisions as contained under Section 25 (1) (a) of U.P. Nagar Nigam Act, 1959, disqualification was the only unequivocal consequence, in view of this, the decision taken by the State authorities cannot be faulted by any means. We also make it clear that in future also in case there is an order passed by this Court proceeding to stay the sentence/conviction of petitioner, said order would not have effect on the order dated 29.4.2016, inasmuch as, the said order would apply prospectively and would not at all wipe out the effect of the action, that has already been taken. 11. Consequently, once petitioner himself is responsible for such a situation as he has earned conviction for himself in Special Sessions Trial No. 34 of 2014 (State Vs. 11. Consequently, once petitioner himself is responsible for such a situation as he has earned conviction for himself in Special Sessions Trial No. 34 of 2014 (State Vs. Jitendra & others), then there is no infirmity in the decision taken by the State Government disqualifying him to hold the post of Corporator of Ward No. 23, Nagar Nigam, Jhansi and also there is no infirmity in the action of State Election Commission when in the resultant vacancy, that has so occurred, election process has been notified. 12. Writ petition is dismissed, accordingly.