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2020 DIGILAW 404 (MP)

Abdul Hakeem Khan @ Pappu Bhai v. State of M. P.

2020-03-12

AJAY KUMAR MITTAL, V.K.SHUKLA

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JUDGMENT Shukla, J.--1. The present intra-Court appeal is filed under section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, being aggrieved by the order dated 31.8.2016 passed in W.P. No. 6174/2015, whereby the learned Single Judge has allowed the writ petition filed by the respondent No. 5/writ-petitioner. 2. Shorn of unnecessary details : the present appellant and the writ petitioner contested election of Member, Ward No. 16, of the Janpad Panchayat, Berasia, wherein the appellant was declared elected and he also contested the election of the President of the said Janpad Panchayat. The writ petitioner - respondent No. 5 in this appeal, preferred a writ petition seeking a writ of quo warranto against the appellant on the ground that the appellant was not eligible to contest the election of the Member of the Janpad Panchayat, as he was convicted and sentenced in respect of the offence punishable under sections 307, 323, 436, 435 and 148 read with section 149 of the Indian Penal Code, vide judgment dated 16.6.2005 passed by the IX Additional Sessions Judge, Bhopal in S.T. No. 114/2002. The appellant was convicted and sentenced to undergo rigorous imprisonment for six months for the offence under section 148 of IPC; 5 years rigorous imprisonment for the offence under section 307/149 IPC with fine of Rs. 1000/-; rigorous imprisonment of six months under section 323/149 IPC; and rigorous imprisonment of 2 years under section 435/149 IPC and fine of Rs. 500/-, with further stipulation that the substantive sentences would run concurrently. 3. The order of sentence and judgment of conviction was assailed in Criminal Appeal No. 1218/2005 wherein the jail sentence was suspended, vide order dated 16.8.2005. Learned counsel for the appellant strenuously urged that as per the provisions of section 36(1)(a)(ii) of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 [hereafter referred to as "the Adhiniyam, 1993] the appellant could not have been held disqualified. 4. In order to appreciate the aforesaid submission, it is condign to refer the provisions engrafted under section 36(1)(a)(ii) of the Adhiniyam 1993, the relevant portion of which is extracted hereunder : "36. 4. In order to appreciate the aforesaid submission, it is condign to refer the provisions engrafted under section 36(1)(a)(ii) of the Adhiniyam 1993, the relevant portion of which is extracted hereunder : "36. Disqualification for being office-bearer of Panchayat.- (1) No person shall be eligible to be an office-bearer of Panchayat who.- (a) has, either before or after the commencement of this Act, been convicted.- (i) of an offence under the Protection of Civil Right Act, 1955 (No. 22 of 1955) or under any law in connection with the use, consumption or sale of narcotics or any law corresponding thereto in force in any part of the State, 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 had been sentenced to imprisonment for not less than six months, 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;…" 5. The question which cropped up before the learned Single Judge was - "whether the term "release" means a person discharged and released, or released having undergone the entire term of sentence or released on bail". 6. Delving into the issue, it is observed that the object for introduction of the provisions like section 36 in the statute is to keep the tainted person away from body politic. Discussing the rules of interpretation of Statutes the Supreme Court in New India Assurance Co.Ltd. v. Nusli Neville Wadia (2008) 3 SCC 279 observed as under : "51. Except in the first category of cases, as has been noticed by us hereinbefore, section 4 and 5 of the Act, in our opinion, may have to be construed differently in view of the decisions rendered by this Court. If the landlord being a State within the meaning of Article 12 of the Constitution of India is required to prove fairness and reasonableness on its part in initiating a proceeding, it is for it to show how its prayer meets the constitutional requirements of Article 14 of the Constitution of India. For proper interpretation not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein. For proper interpretation not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein. With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior Court to interpret a statute in a reasonable manner, the Court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfil its constitutional obligations as held by the Court inter alia in Ashoka Marketing Ltd." (Emphasis supplied) 7. In the present context since the object of the legislature is to keep the democratic set up free from criminalization, reference can be had to the observation of this Court in Shiv Singh Rawat v. State of M.P. 2008 (2) JLJ 124 = (2008) 2 MPLJ 573 : "11. It is condign to state here that the politics neither at the grass root level nor at any level can be allowed to have any nexus with criminalization. Criminalization requires to be ostracized from the periphery of body polity. The citizens in democratic set up should not be compelled to suffer criminalization on the ground that they are helpless. A convict cannot be allowed to occupy an elected post where a statute clearly prohibits. In this context, we may refer with profit to the decision rendered in Ram Udgar Singh v. State of Bihar, wherein Their Lordships have stated thus: 'Politics, which was once considered the choice of noble and decent persons is increasingly becoming a haven for law breakers. The 'Nelsons' eye' turned by those wielding power to criminalisation of politics by their solemn and determined patronage and blessings by vying with each other has been encouraging and facilitating rapid spread and growth with rich rewards and dividends to criminals. The 'Nelsons' eye' turned by those wielding power to criminalisation of politics by their solemn and determined patronage and blessings by vying with each other has been encouraging and facilitating rapid spread and growth with rich rewards and dividends to criminals. The alarming rate of social respectability such elite gangsterism gaining day by day in the midst of people who chose and had given unto themselves the right to elect their rulers, mostly guided by misdirected allegiance to party politics and self oriented profit making endeavours seem to provide the required nectar for its manifold and myriad ways of ventilation with impugnity. Though it is an irony, yet accepted truth is that the 'Home rule' we could achieve by 'non- violence' has become the root cause for generating 'homicidal' culture of political governance effectively shielded by unprincipled mass sympathies and highly profit-oriented selfish designs of unscrupulous 'people' who have many faceted images to present themselves at times to the extent of their deification. Forsome it brings seal for respectability and for some others, it is intended to be used as a shield for protection against law enforcing agencies and that is how reports of various Commissions and Committees have become sheer cry in wilderness.' We have referred to the aforesaid passage to highlight that the criminalization of politics by any form is impermissible in democracy which is the basic feature of our Constitution. We would have thought of directing prosecution against him for filing a false affidavit before this Court but we restrain ourselves from doing so. We only deprecate the conduct of the respondent No. 9." 8. The expression "release" has to be understood in the context in which it has been incorporated and keeping in view the Purposive Interpretation it is held that "release" would mean where the convict is released after undergoing the entire sentence. The relevant observations in Shiv Singh Rawat (supra) may be reproduced with advantage which is in the following terms : "8. In view of the aforesaid, the concept of 'release' that was endeavoured to be scanned by Mr. Bhati remains in the realm of much ado about nothing as the said respondent has remained in custody for a period of three years and was not released. It is worth-noting here that the respondent No. 9 was convicted by the judgment dated 28.9.2000. Bhati remains in the realm of much ado about nothing as the said respondent has remained in custody for a period of three years and was not released. It is worth-noting here that the respondent No. 9 was convicted by the judgment dated 28.9.2000. The same is perceptible from the judgment passed in Criminal Appeal. We would be failing in our duty if we do not state that, as it was mentioned before us that the appeal of the respondent No. 9 was dismissed, we called for the record and perused the order. 9. The election was held for the post of member in the year 2004 and that of President in 2005. On a bare reading of section 36(1)(a)(ii) it is quite clear that a person will not be eligible to hold a post for a period of 5 years if he has been sentenced for not less than six months. In the case at hand the respondent No. 9 was sentenced for a period of three years. He remained in custody, as is patent, till 2003. He could not have contested till 2008. Yet, for unexplainable reasons, he was allowed to contest and also got elected. Thus, indubitably he is disqualified to be in the office in question." 9. Similar view has been expressed by a Coordinate Bench in Virendra Tyagi v. State of M.P. 2011(1) JLJ 181 = 2011 (1) MPLJ 245 : "10. As per the aforesaid section 36(a)(ii), a person shall be ineligible to be an office-bearer of the Panchayat, if he had been sentenced to imprisonment for less than six months. In the present case, the respondent No. 4 was sentenced and convicted for offence punishable under section 302 of Indian Penal Code and sentenced for life imprisonment. He has already undergone the aforesaid sentence. In such circumstances, the respondent No. 4 has illegally suppressing the fact has been holding the post of Sarpanch, which is a public office." 10. In view of the aforesaid discussion, release of the appellant on bail on 16-8-2005, will not tantamount to undergoing the sentence and temporary release on bail would not fall within the domain of section 36(1)(a)(ii) of "Adhiniyam 1993". Therefore, the learned Single has rightly held that he was not eligible to contest the election on 22.2.2015. 11. In view of the aforesaid discussion, release of the appellant on bail on 16-8-2005, will not tantamount to undergoing the sentence and temporary release on bail would not fall within the domain of section 36(1)(a)(ii) of "Adhiniyam 1993". Therefore, the learned Single has rightly held that he was not eligible to contest the election on 22.2.2015. 11. Further, we are equally not impressed with the submissions of the learned counsel for the appellant that the jail sentence of the appellant has already been suspended in Criminal Appeal No. 1218/2005 by order dated 16.8.2005, and therefore, the provisions of section 36 of the Adhiniyam, 2013 would not be attracted. Suspension of sentence and suspension of conviction are different in nature and are distinct. The law relating to suspension of conviction is well settled as held by the apex Court in the case of Navjot Singh Sidhu v. State of Punjab and another, (2007) 2 SCC 574 that suspension of conviction can be resorted to only in rare cases depending upon special facts of the case. Thus, the suspension of sentence would not mean that the conviction of the appellant has also been stayed or suspended. 12. In view of our preceding analysis and enunciation of law, we do not perceive any error in the impugned order passed by the learned Single Judge warranting any interference in the present intra-Court appeal in allowing the writ petition filed by the respondent No. 5. 13. Accordingly, the writ appeal deserves to and is hereby dismissed. There shall be no order as to costs.