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2019 DIGILAW 822 (GUJ)

Priteshbhai Umeshbhai Patel v. State of Gujarat

2019-09-24

V.M.PANCHOLI

body2019
JUDGMENT : V.M. Pancholi, J. 1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has challenged the order dated 18.08.2018 passed by the Taluka Development Officer, order dated 15.01.2019 passed by the District Development Officer and the order dated 28.01.2019 passed by the Additional Development Commissioner. It is prayed that the petitioner be restored to the post of Sarpanch of Por Gram Panchayat. 2. Looking to the issue involved in the present petition, this petition is taken up for final disposal with the consent of the learned advocates appearing for the parties. Hence, Rule. Mr. K.M. Antani, learned Assistant Government Pleader, waives service of notice of Rule for respondent Nos. 1 and 2, Mr. H.S. Munshaw, learned advocate, waives service of notice of Rule for respondent Nos. 3 and 4 and Mr. C.B. Upadhyay, learned advocate, waives service of notice of Rule for respondent No. 5. 3. The brief facts leading to the filing of the present petition are as under: 3.1 It is the case of the petitioner that a criminal case being Criminal Case No. 54026 of 2008 was filed against the petitioner for the offence punishable under the provisions of Food Adulteration Act. After the trial, the Judicial Magistrate, First Class, Vadodara, passed an order dated 08.05.2017, by which, the petitioner was convicted and he was ordered to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 5,000/-. The petitioner preferred Criminal Appeal No. 113 of 2017 before the Additional Sessions Judge, Vadodara, against the order dated 08.05.2017 passed by the trial Court. It is the say of the petitioner that the Appellate Court vide order dated 31.05.2017 granted interim stay against the order of conviction, till the final disposal of the appeal. 3.2 Thereafter, on 15.01.2018, a Notification for election of Sarpanch of Por Gram Panchayat was declared and, therefore, the petitioner filled up the form for contesting the election of Sarpanch. The petitioner disclosed about the order passed by the concerned criminal Court and pendency of the appeal. Thereafter, nomination form of the petitioner was accepted by the Election Officer and pursuant to the result declared on 06.02.2018, the petitioner was elected for the post of Sarpanch. The petitioner disclosed about the order passed by the concerned criminal Court and pendency of the appeal. Thereafter, nomination form of the petitioner was accepted by the Election Officer and pursuant to the result declared on 06.02.2018, the petitioner was elected for the post of Sarpanch. 3.3 It is further stated that the Taluka Development Officer issued a Notice to the petitioner on 13.03.2018 for taking action under Section 32(2) of the Gujarat Panchayats Act, 1993 (hereinafter referred to as "the Act" for short) to disqualify the petitioner on the ground that he has been convicted in criminal case. The petitioner, therefore, submitted his reply on 09.05.2018 and pointed out the fact that the appeal is pending against the order of conviction and the conviction is stayed. It was, therefore, requested to drop the proceedings. However, the respondent Taluka Development Officer passed an impugned order dated 18.08.2018 under the provisions of Section 32(2) of the Act, by which, the petitioner is disqualified. 3.4 The petitioner, therefore, preferred an Appeal before the District Development Officer. The District Development Officer rejected the Appeal and, thereby, confirmed the order passed by the Taluka Development Officer. The petitioner, therefore, preferred Revision Application No. 5 of 2019 before the Additional Development Commissioner. However, the said Revision Application is also dismissed vide order dated 28.01.2019. 3.5 The petitioner has also stated in the petition that the Sessions Court, Vadodara, passed an order dated 08.02.2019 in Criminal Appeal No. 113 of 2017 filed by the petitioner and, thereby the order of conviction passed against the petitioner by the concerned trial Court is quashed and set aside and, therefore, it is submitted that when the order of conviction is set aside by the Appellate Court, the impugned orders passed by the respondent authorities be quashed and set aside. 4. Mr. Dilip B. Rana, learned advocate appearing for the petitioner, referred the order dated 26.02.2018 passed by the Sessions Court and submitted that the order of conviction passed by the concerned trial Court is set aside and, therefore, the impugned orders passed by the respondent authorities be quashed and set aside, as the petitioner is disqualified only on the ground that the petitioner is convicted and is sentenced to imprisonment for a period of one year. 4.1. 4.1. Learned advocate for the petitioner, at this stage, contended that against the order of conviction dated 08.05.2017 passed by the concerned trial Court, the petitioner preferred an appeal before the Sessions Court and the Sessions Court vide order dated 31.05.2017 granted stay against the order of conviction, till the disposal of the appeal. Learned advocate for the petitioner has placed on record the said order during the course of hearing of this petition. It is submitted that the order of conviction is stayed by the Appellate Court and, therefore, when the petitioner was elected as Sarpanch, the order of conviction was stayed. Hence, the respondent authorities ought not to have disqualified the petitioner under the provisions of Section 32 of the Act. 4.2. Learned advocate for the petitioner has placed reliance upon a decision rendered by the Honourable Supreme Court in the case of Lok Prahari, through its General Secretary S.N. Shukla Vs. Election Commission of India reported in AIR 2018 SC 4675 and submitted that the issue involved in the present petition is squarely covered by the aforesaid decision. 4.3. Learned advocate for the petitioner has also placed reliance upon the decision rendered by the Honourable Supreme Court in the case of Navjot Singh Sidhu Vs. State of Punjab and another reported in (2007) 2 SCC 574 and more particularly, placed reliance upon Paragraphs-4 and 5 of the said decision. 5. On the other hand, Mr. C.B. Upadhyay, learned advocate appearing for respondent No. 5, has vehemently opposed this petition and contended that the proceedings are initiated against the petitioner on the basis of the representation made by respondent No. 5. It is further submitted that the Sessions Court has not stayed the order of conviction but merely suspended the sentence of the petitioner while exercising powers under Section 389 of the Code of Criminal Procedure, 1973 ('the Code' for short). Thus, the petitioner was disqualified to be elected as Sarpanch on the basis of the order of conviction passed by the trial Court. He, therefore, submitted that the decision rendered by the Honourable Supreme Court in the case of Lok Prahari, through its General Secretary S.N. Shukla Vs. Election Commission of India (supra) would not be applicable to the facts of the present case. 5.1. He, therefore, submitted that the decision rendered by the Honourable Supreme Court in the case of Lok Prahari, through its General Secretary S.N. Shukla Vs. Election Commission of India (supra) would not be applicable to the facts of the present case. 5.1. It is further contended that the order of acquittal is passed by the Appellate Court on 08.02.2019 i.e. after the date on which the petitioner is elected as a Sarpanch and, therefore, only because the order of conviction is set aside by the Appellate Court, after the date of election, would not be helpful to the petitioner. He, therefore, urged that the respondent authorities have not committed any error while passing the impugned orders and, therefore, this petition be dismissed. 5.2. Mr. C.B. Upadhyay, learned advocate for respondent No. 5, has placed reliance upon the decision rendered by the Division Bench of this Court in the case of Yunuskhan Hajikhan Khan Vs. Deputy Collector/Returning Officer reported in 2013(3) GLR 2619 . 5.3. Mr. C.B. Upadhyay, learned advocate for respondent No. 5, has further placed reliance upon the decision rendered by the Honourable Supreme Court in the case of Ravikant S. Patil Vs. Sarvabhouma S. Bagali reported in (2007) 1 SCC 673 . 6. Mr. H.S. Munshaw, learned advocate for respondent No. 5 as well as Mr. K.M. Antani, learned Assistant Government Pleader for respondent Nos. 1 and 2 have adopted the submissions canvassed by Mr. C.B. Upadhyay, learned advocate for respondent No. 5. They have also referred the impugned orders passed by the respondent authorities and contended that no error is committed by the respondent authorities while passing the impugned orders and, therefore, this petition be dismissed. 7. This Court has considered the submissions canvassed by the learned advocates appearing for the parties. This Court has also perused the material placed on record and the decisions upon which the reliance is placed by the learned advocates appearing for the parties. 8. At this stage, following relevant dates and events are required to be kept in mind while deciding the issue involved in the present petition. (a) on 08.05.2017, Judicial Magistrate, First Class, Vadodara, passed an order, by which, the petitioner is convicted for the offence punishable under the provisions of Food Adulteration Act. The petitioner is ordered to undergo simple imprisonment for a period of one year and pay a fine of Rs. 5,000/-. (a) on 08.05.2017, Judicial Magistrate, First Class, Vadodara, passed an order, by which, the petitioner is convicted for the offence punishable under the provisions of Food Adulteration Act. The petitioner is ordered to undergo simple imprisonment for a period of one year and pay a fine of Rs. 5,000/-. (b) On 31.05.2017, the concerned Sessions Court passed an order under Section 389 of the Code, by which, the order of sentence has been suspended. (c) On 15.01.2018, a Notification for election of Sarpanch of Por Gram Panchayat was declared. The petitioner filled up nomination form and contested the election of Sarpanch. Result was declared on 06.02.2018, wherein the petitioner was declared elected for the post of Sarpanch. (d) On 13.03.2018, notice was issued by the Taluka Development Officer under Section 32(2) of the Act to disqualify the petitioner on the ground that he has been convicted in criminal case. (e) On 18.08.2018, the petitioner was disqualified under the provisions of Section 32(2) of the Act. (f) On 28.01.2019, the Revision Application preferred by the petitioner against the order of Taluka Development Officer was dismissed. (g) On 08.02.2019, the Sessions Court, Vadodara, passed an order whereby the order of conviction passed against the petitioner by the concerned trial Court is set aside. 9. In the aforesaid factual aspects of the matter, the provisions contained in Section 30 read with Section 32 of the Act are required to be examined. Sections 30 and 32 of the Act provide as under: "Section 30. 9. In the aforesaid factual aspects of the matter, the provisions contained in Section 30 read with Section 32 of the Act are required to be examined. Sections 30 and 32 of the Act provide as under: "Section 30. (1) No person shall be a member of a panchayat or continue as such who-(a) has whether before or after the commencement of this Act, been convicted-(i) of an offence under the Protection of Civil Rights Act, 1955 or under the Bombay Prohibition Act, 1949, unless a period of five years, or such lesser period as the State Government may allow in any particular case, has elapsed since his conviction; or (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 (b) has been adjudged by a competent court to be of unsound mind; or (c) has been adjudicated an insolvent and has not obtained his discharge; or (d) has been removed from any office held by him in any panchayat under any provision of this Act or in any panchayat before the commencement of this Act under the Gujarat Panchayats Act, 1961 and a period of five years has not elapsed from the date of such removal, unless he has, by an order of the State Government notified in the official Gazette been relieved from the disqualification arising on account of such removal from office; or (e) has been disqualified from holding office under any provision of this Act and the period for which he was so disqualified has not elapsed; or (f) holds any salaried office or place of profit in the gift or disposal of any panchayat, other than an office of President or Vice-President of a panchayat or of a Chairman of any Committee of a panchayat, while holding such office or place; or (g) has directly or indirectly, by himself or his partner, any share or interest in any work done by order of the panchayat, or in any contract with, by or on behalf of, or employment with or under the panchayat; or (h) has directly or indirectly, by himself or, his partner, any share or interest in any transaction of loan of money advanced to or borrowed from any officer or servant of any panchayat; or (i) fails to pay any arrears of any kind due by him to the panchayat or any panchayat subordinate thereto or any sum recoverable from him in accordance with Chapter X of this Act, within three months after a special notice in accordance with the rules made in this behalf has been served upon him; or (j) is a servant of the Government or a servant of any local authority; or (k) has voluntarily acquired the citizenship of a Foreign State or is under any acknowledgement of allegiance or adherence to a Foreign State; or [(kk) has no facility of water closet or privy accommodation at the place of his ordinary residence: Provided that a sitting member shall be deemed to have incurred disqualification if he does not submit to the Taluka Development Officer of the taluka, within six months from the date of commencement of the Gujarat Local Authorities Laws (Amendment) Act, 2014, a certificate issued by the Gram Panchayat Mantri of the panchayat in whose jurisdiction his ordinary residence is situated, to the effect that he is having facility of water closet or privy accommodation at the place of his ordinary residence. Section 32. (1) If any member of a panchayat, (a) who is elected, as such, was subject to any of the disqualifications mentioned in 1 [subsection (1) of section 30] at the time of his election, (b) during the term for which he has been elected, incurs any disqualifications mentioned in 1 [sub-section (1) of section 30], he shall be disabled from continuing to be a member, and his office shall become vacant. (2) In every case, the question whether a vacancy has arisen, shall be decided by the competent authority. The competent authority may give its decision either on an application made to it by any person, or on its own motion, untill the competent authority decides that the vacancy has arisen, the member shall not be disabled under sub section (1) from continuing to be a member. Any person aggrieved by the decision of the competent authority may, within a period of fifteen days from the date of such decision, appeal to the State Government and the orders passed by the State Government in such appeal shall be final: Provided that no order shall be passed under this sub-section by the competent authority against any member without giving him a reasonable opportunity of being heard. 10. Thus, from the aforesaid provisions contained in Section 30 of the Act, it is clear that no person shall be a member of a Panchayat, who has been convicted for the offence and has been sentenced to imprisonment of not less than six months. Further, from Section 32(1) of the Act, it is further clear that if any member of a Panchayat, who is elected, as such, was subject to any of the disqualification mentioned in Section 30(1) of the Act, at the time of his election, he shall be disabled from continuing to be a member, and his office shall become vacant. 11. In the present case, the order of conviction was passed against the petitioner by the concerned trial Court on 08.05.2017 and on the date on which, the petitioner was elected as a Sarpanch on 06.02.2018, the order of conviction was not set aside by the Appellate Court nor it was stayed by the Appellate Court. 12. At this stage, it is required to be noted that Mr. 12. At this stage, it is required to be noted that Mr. Dilip Rana, learned advocate appearing for the petitioner, contended that the Appellate Court by an order dated 31.05.2017 stayed the order of conviction. However, the said contention is misconceived. If the application submitted by the petitioner before the Sessions Court, Vadodara, in Criminal Appeal No. 113 of 2017 is carefully seen, it is revealed that the said application was filed under Section 389 of the Code for suspension of sentence and with a request that the applicant be enlarged on bail. In the said application, no averment was made that why order of conviction is to be stayed, nor any special circumstance is pointed out by the petitioner for stay of the order of conviction passed by the concerned trial Court. Therefore, the Additional Sessions Judge, Vadodara, by an order dated 31.05.2017 granted the said application, which was filed for suspension of sentence and for release of the applicant on bail. If the order dated 31.05.2017 passed by the Additional Sessions Judge, Vadodara, is carefully seen, it is revealed that the Sessions Court has not granted stay of the order of conviction but till final disposal of the appeal, the order of sentence was suspended. During the course of hearing, Mr. C.B. Upadhyay, learned advocate appearing for the private respondents, has placed on record a dictionary meaning of , which means "suspended sentence". Thus, this Court is of the view that the sentence imposed by the trial Court was suspended by the Appellate Court vide order dated 31.05.2017. 13. Thus, from the aforesaid facts and circumstances of the present case, it can be said that on the date on which the petitioner was elected as a Sarpanch, he was subject to disqualification. 14. In the aforesaid factual background of the present case, now, this Court would like to consider the decisions, upon which, reliance is placed by the learned advocates appearing for the parties. 15. In the case of Yunuskhan Hajikhan Khan Vs. 14. In the aforesaid factual background of the present case, now, this Court would like to consider the decisions, upon which, reliance is placed by the learned advocates appearing for the parties. 15. In the case of Yunuskhan Hajikhan Khan Vs. Deputy Collector/returning officer (supra), the Division Bench of this Court has observed in Paragraphs-5.1, 5.2, 5.5 and 5.7 as under: "5.1 Now, so far as the contention on behalf of the petitioner that as against the judgment and order of conviction imposed by the learned JMFC, he has preferred the Criminal Appeal before the learned Appellate Court and his sentence and imprisonment is suspended and therefore, he cannot be held disqualified to become the Councilor is concerned, the same cannot be accepted. It is required to be noted that there is a distinction between suspending the conviction and suspending the sentence and the imprisonment. Even if the sentence and the imprisonment is suspended by the Appellate Court and a person is released on bail, still conviction stands. Therefore, merely because the sentence and imprisonment is suspended, it cannot be said that such a person cannot be held disqualified. 5.2 Identical question came to be considered by the Hon'ble Supreme Court in the case of Lalsai Khunte (Supra). In the said decision it is held by the Hon'ble Supreme Court that where a person seeking to contest the election to legislative assembly or Parliament, having incurred disqualification, Sec. 8(3) of the Representation of People's Act, 1951 due to order of conviction of an offence and sentence passed against him by trial Court, prefers Appeal there against and the Appellate Court only suspends the order of trial Court and grants him bail, it would not amount to temporarily wiping out the conviction as to remove the disqualification. In the said decision the Hon'ble Supreme Court has considered the earlier decision in the case of K. Prabhakaran V/s. P. Jayarajan reported in (2005)1 SCC 754 as well as in the case Ravikant S. Patil V/s. Sarvabhouma S. Bagali reported in (2007)1 SCC 673 . Even the learned single Judge of this Court in the case of Sumerchand Jain (Supra) has held that action for disqualification under Sec. 11 of the Act can be taken even during pendency of Appeal against the order of conviction and sentence passed by the learned trial Court since the order of conviction is not suspended. Even the learned single Judge of this Court in the case of Sumerchand Jain (Supra) has held that action for disqualification under Sec. 11 of the Act can be taken even during pendency of Appeal against the order of conviction and sentence passed by the learned trial Court since the order of conviction is not suspended. 5.3 xxx xxx xxx 5.4 xxx xxx xxx 5.5 Even otherwise on fair reading of Sec. 11(1) (A) of the Act it is to be held that a person who has been convicted by a Court in India and is sentenced to imprisonment for not less than six months, renders disqualification for a period of four years since his release from imprisonment. Sec. 11(1)(A) provides three eventualities viz. (i) a person has been convicted by a Court in India; (ii) he is sentenced to imprisonment for not less than six months; and (iii) he is sentenced to imprisonment, four years period should elapse since his release from imprisonment. If the aforesaid provision is construed in such a manner it would be giving effect to the provisions contained in Sec. 11(1)(A) of the Act. 5.6 xxx xxx xxx 5.7 Now so far as the contention on behalf of the petitioner that in the year 2008 election, the petitioner was permitted to contest the election and therefore, for this year's election he cannot be held disqualified and therefore, his nomination form could not have been rejected is concerned, the same also cannot be accepted. Merely because in past the petitioner might have been permitted to contest the election (though not entitled to), the said illegality cannot be permitted to be perpetuated. As such in the earlier election also, the petitioner ought to have been held disqualified to become the Councilor and his nomination form was required to be rejected. For whatever reason earlier his nomination paper was not rejected and he was permitted to contest the election, is no ground to permit the petitioner to contest the election this time, though not entitled to." 16. In the case of Ravikant S. Patil Vs. Sarvabhouma S. Bagali (supra), the Honourable Supreme Court has observed in Paragraph-15 as under: "15. It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. In the case of Ravikant S. Patil Vs. Sarvabhouma S. Bagali (supra), the Honourable Supreme Court has observed in Paragraph-15 as under: "15. It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction." 17. In the case of Navjot Singh Sidhu Vs. State of Punjab and another (supra), the Honourable Supreme Court has observed in Paragraphs-4 and 5 as under: "4. Before proceeding further it may be seen whether there is any provision which may enable the Court to suspend the order of conviction as normally what is suspended is the execution of the sentence. Sub-section (1) of Section 389 says that pending any appeal by a convicted person, the appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released or bail, or on his own bond. This Sub-section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. This question has been examined in considerable detail by a Three Judge Bench of this Court in Rama Narang v. Ramesh Narang & Ors. This Sub-section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. This question has been examined in considerable detail by a Three Judge Bench of this Court in Rama Narang v. Ramesh Narang & Ors. (1995) 2 SCC 513 and Ahmadi, C.J., speaking for the Court, held as under (para 19 of the reports):- "19. 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 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." 5. The aforesaid view has recently been reiterated and followed by another Three Judge Bench in Ravi Kant S. Patil v. Sarvabhouma S. Bagali. After referring to the decisions on the issue, viz., State of Tamil Nadu v. A. Jaganathan, K.C. Sareen v. C.B.I., Chandigarh, B.R. Kapur v. State of T.N. & Anr. and State of Maharashtra v. Gajanan & Anr., this Court concluded (SCC p. 681, para 16.5): "16.5 All these decisions, while recognizing the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences." The Court also observed: (Ravikant S. Patil Case, SCC p. 679, para 15) "15[11]. It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction nonexistent, but only non-operative" 18. In the case of Lok Prahari, through its General Secretary S.N. Shukla Vs. Election Commission of India (supra), the Honourable Supreme Court has observed in Paragraph-16 as under: "16. An order of stay, of course, does not render the conviction nonexistent, but only non-operative" 18. In the case of Lok Prahari, through its General Secretary S.N. Shukla Vs. Election Commission of India (supra), the Honourable Supreme Court has observed in Paragraph-16 as under: "16. These decisions have settled the position on the effect of an order of an appellate court staying a conviction pending the appeal. Upon the stay of a conviction under Section 389 of the Cr.P.C., the disqualification under Section 8 will not operate. The decisions in Ravi Kant Patil and Lily Thomas conclude the issue. Since the decision in Rama Narang, it has been well-settled that the appellate court has the power, in an appropriate case, to stay the conviction under Section 389 besides suspending the sentence. The power to stay a conviction is by way of an exception. Before it is exercised, the appellate court must be made aware of the consequence which will ensue if the conviction were not to be stayed. Once the conviction has been stayed by the appellate court, the disqualification under sub-sections 1, 2 and 3 of Section 8 of the Representation of the People Act 1951 will not operate. Under Article 102(1) (e) and Article 191(1)(e), the disqualification operates by or under any law made by Parliament. Disqualification under the above provisions of Section 8 follows upon a conviction for one of the listed offences. Once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect. In view of the consistent statement of the legal position in Rama Narang and in decisions which followed, there is no merit in the submission that the power conferred on the appellate court under Section 389 does not include the power, in an appropriate case, to stay the conviction. Clearly, the appellate court does possess such a power. Moreover, it is untenable that the disqualification which ensues from a conviction will operate despite the appellate court having granted a stay of the conviction. The authority vested in the appellate court to stay a conviction ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice. Moreover, it is untenable that the disqualification which ensues from a conviction will operate despite the appellate court having granted a stay of the conviction. The authority vested in the appellate court to stay a conviction ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice. As the decision in Lily Thomas has clarified, a stay of the conviction would relieve the individual from suffering the consequence inter alia of a disqualification relatable to the provisions of sub-sections 1, 2 and 3 of Section 8." 19. If the aforesaid decisions are carefully examined, it is revealed that the Honourable Supreme Court has held that under Section 389 of the Code, the Appellate Court has power to suspend the sentence and the order of conviction passed by the concerned trial Court for the reasons to be recorded in writing. This Court cannot dispute the aforesaid proposition of law laid down by the Honourable Supreme Court. However, in the case of Ravikant S. Patil Vs. Sarvabhouma S. Bagali (supra), the Honourable Supreme Court has specifically observed that the order granting stay of conviction is not a rule but is an exception to be resorted to in a rare case depending upon the facts of the case. 20. Further, in the case of Lok Prahari, through its General Secretary S.N. Shukla Vs. Election Commission of India (supra), the Honourable Supreme Court has observed that the Appellate Court does possess power to stay the conviction and, therefore, when the conviction has been stayed by the Appellate Court, disqualification which ensues from a conviction cannot operate. 21. Keeping in view of the aforesaid decisions rendered by the Division Bench of this Court as well as the Honourable Supreme Court, if the facts as discussed hereinabove are once again recalled, it is revealed that the petitioner submitted an application under Section 389 of the Code with a request to suspend the sentence and enlarge the petitioner on bail and the said application was granted by the concerned trial Court. In the application submitted before the Appellate Court, the petitioner had not pointed out any special circumstance nor any mention is made why the order of conviction passed by the trial Court is to be stayed by the Appellate Court. In the application submitted before the Appellate Court, the petitioner had not pointed out any special circumstance nor any mention is made why the order of conviction passed by the trial Court is to be stayed by the Appellate Court. Further, by an order dated 31.05.2017, the Additional Sessions Judge, Vadodara, has granted the application filed by the petitioner and, thereby, suspended the sentence till the final disposal of the appeal. Thus, in the facts and circumstances of the present case, when the order of conviction passed by the trial Court was not stayed by the Appellate Court, the petitioner was disqualified on the date on which he was elected. It is not in dispute that after the order is passed by the Additional Development Commissioner, by which, the Revision Application filed by the petitioner has been dismissed, the Sessions Court has quashed and set aside the order of conviction. 22. Once again, it is to be noted that as per the provisions contained in Section 30 read with Section 32 of the Act, the petitioner was disqualified at the time of election as a Sarpanch i.e. on 06.02.2018 and, therefore, the order of acquittal passed by the Appellate Court on 08.02.2019 would not be helpful to the petitioner. Thus, on the date on which the election was held, whether the petitioner was disqualified or not, is to be considered and not the order of acquittal passed subsequent to the date of election. Thus, the contention taken by the learned advocate for the petitioner that the petitioner was permitted to contest the election in spite of the fact that the order of conviction was passed against the petitioner and, therefore, now it is not open for the respondent authority to disqualify the petitioner, cannot be accepted. Thus, the said contention is misconceived. 23. In view of the aforesaid facts and circumstances of the present case, this Court is of the view that no error is committed by the respondent authorities while passing the impugned orders against the petitioner and, therefore, no interference is required in the present petition. 24. The petition is, accordingly, dismissed. However, at this stage, learned advocate for the petitioner submitted that now, notification for holding election of Sarpanch is declared on 23.09.2019 and, therefore, the petitioner be permitted to contest the said election in view of the order of acquittal passed by the concerned Sessions Court. 24. The petition is, accordingly, dismissed. However, at this stage, learned advocate for the petitioner submitted that now, notification for holding election of Sarpanch is declared on 23.09.2019 and, therefore, the petitioner be permitted to contest the said election in view of the order of acquittal passed by the concerned Sessions Court. This Court is the view that now, the order of conviction passed by the concerned trial Court has been set aside by the Appellate Court on 08.02.2019 and, therefore, if the petitioner is otherwise qualified, it is always open for him to fill up a nomination form. Thus, at the time of scrutiny of the nomination form, the concerned authority shall consider the order of acquittal dated 08.02.2019 passed by the concerned Sessions Court, by which the order of the trial Court passed against the petitioner is quashed and set aside. 25. In view of the disposal of the main petition, Civil Application does not survive and is disposed of accordingly. Rule is discharged, in the above terms.