IMPORTANT POINT
Simply order of suspension of the sentence will not operate as staying the conviction. If appellate Court has stayed the conviction then in that case, this will not operate as a disqualification under Section 8 of the Representation of People Act.

Headnote:Representation of People Act, 1951—Section 8(3)—Disqualification on conviction for certain offences—Order granting stay of conviction—If appellate Court has stayed the conviction then in that case, this will not operate as a disqualification—However, simply order of suspension of sentence will not operate as staying the conviction—Election Commission of India by Notification dated 7-11-2003 notified election to Legislative Assembly of State of Chhattisgarh—Persons invited to submit their nomination papers between 7-11-2003 to 14-11-2003—15-11-2003 was fixed as the date of scrutiny of nomination papers—Last date for withdrawal of candidature was 17-11-2003 — Election was fixed for 2-12-2003—Nine candidates filed their nominations—Petitioner along with respondents 1 to 7 remained in contest—Appellant was declared as elected for constituency—Appellant was convicted for offences u/s 420 and 468 rw/s 34 IPC and punished for two years imprisonment and also u/s 471 IPC—In appeal against conviction, appellant was released on bail—Appellate Court suspended judgment and order of conviction—While submitting his nomination, appellant concealed vital information in the affidavit of his conviction—Election petition was filed raising question of disqualification of appellant u/s 8(3) of the Act—Defence of appellant was that execution of judgment of conviction was stayed by appellate Court—Whether order passed by appellate Court suspending conviction and sentence of appellant amounts to staying the conviction of appellant—(No)—Returning Officer committed an illegality in accepting nomination of appellant because appellant’s conviction was not stayed but suspended—High Court was justified in setting aside election of appellant—Criminal Procedure Code, 1973—Section 389.
       Held : This Court in recent decisions held that the appellate Court has power to stay the execution of the conviction and if appellate Court has stayed the conviction then in that case, this will not operate as a disqualification. But simply order of suspension of the sentence will not operate as staying the conviction. It was specifically mentioned that the stay of order of the conviction will mean it is temporarily non-operative. (Para 11)
       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. 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.(Para 12)
       As already pointed out above that on 31st May, 2002, the appellate Court while granting him the bail only suspended the impugned order dated 9th May, 2002. Thus suspension does not amount to temporarily washing out the conviction. The conviction still remains, only the operation of the order and the sentence remain suspended that does not amount to temporary stay of the conviction. A specific order staying conviction has to be sought.(Para 14)

JUDGMENT

A.K. Mathur, J.—This appeal is directed against the order dated 1.8.2006 passed by the learned Single Judge of the Chhattisgarh High Court at Bilaspur in Election Petition No. 9/2004 whereby the learned Single Judge has allowed the election petition in part and set aside the election of the appellant for Malkharaud Assembly Constituency No. 38 to the Chhattisgarh State Legislative Assembly. Aggrieved against the said order the present appeal was filed

2. The Election Commission of India by Notification dated 7.11.2003, notified the election to the Legislative Assembly of the State of Chhattisgarh inviting persons to submit their nomination papers between 7.11.2003 to 14.11.2003 and 15.11.2003 was the date of scrutiny of the nomination papers & the last date for withdrawal of candidature was 17.11.2003. The election was fixed for 2nd December, 2003. Nine candidates filed their nominations. After scrutiny, petitioner along with respondents Nos. 1 to 7 remained in contest. The polling took place on 2nd December, 2003 and the result was declared on 4th December, 2003 declaring the appellant as elected for constituency. The appellant was convicted by the Court of Additional Chief Judicial Magistrate, Sakti in Criminal Case No. 208/91 - State of Chhattisgarh Vs. Lal Sai and two others under Section 420 read with Section 34 and 468 read with Section 34 of the IPC and punished for two years, rigorous imprisonment on each count and convicted under section 471 of the IPC and punished with rigorous imprisonment for one year by judgment and order dated 9.5.2002. Aggrieved against this order appellant filed appeal before District Judge and learned Additional Sessions Judge by his order dated 31.5.2002 released appellant on furnishing Bond & Security & suspended judgment & Order of Additional Chief Judicial Magistrate dated 9.5.2002. All candidates were required to submit their nomination alongwith their declaration and affidavit wherein they were required to disclose particulars of conviction for two years or more. The appellant Lalsai though he was convicted and was disqualified but mislead the returning officer and concealed the vital information in the affidavit of his conviction. Therefore, the returning officer could not cancel his nomination.

3. The lost candidate filed the present election petition raising the question of disqualification of appellant under Section 8(3) of the Representation of People Act, 1951 (hereinafter referred as ‘the R.P. Act’). The defence of the appellant was that the execution of judgment and conviction dated 9.5.2002 was stayed by the appellate Court by its order dated 31.5.2002. Therefore, the returning Officer rightly rejected the objection raised before him during the scrutiny and he was not disqualified and is not guilty of suppression of the facts. He also took the plea that the election petitioner did not deposit the security amount within the prescribed time period, therefore, petition be dismissed being barred by time. The security deposit was made on 19.1.2004 whereas the election petition was filed on 17.1.2004. As such election petition is barred by time. However, it may be stated at the outset that so far as this objection is concerned we ourselves checked up the date and we find that the election petition was filed on 19.1.2004 with security amount. Hence, this objection is factually incorrect and overruled.

4. The question before us is whether the order passed by the appellate Court in a Criminal Case on 9.5.2002 whereby the conviction and sentence of the appellant was suspended, whether this amounts to staying the conviction or not? All other questions are not relevant except the aforesaid question. However, learned Single Judge after relying on decision of this Court in the case of K. Prabhakaran Vs. P. Jayarajan reported in {(2005) 1 SCC 754} held that the returning officer committed an illegality in accepting the nomination of the appellant because the appel

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2006 Supreme(SC) 184

IMPORTANT POINTSimply order of suspension of the sentence will not operate as staying the conviction. If appellate Court has stayed the conviction then in that case, this will not operate as a disqualification under Section 8 of the Representation of People Act.

Cases Referred (4)

IMPORTANT POINT
Simply order of suspension of the sentence will not operate as staying the conviction. If appellate Court has stayed the conviction then in that case, this will not operate as a disqualification under Section 8 of the Representation of People Act.