1. Heard learned counsel for the petitioner and learned counsel for the State.

2. The petitioner being aggrieved by the order dated 11.8.2003 passed by the State Election Commissioner, Bihar, Patna in case No. 109 of 2002 whereunder the petitioner has been held to be disqualified for holding the office of the Member, Zila Parishad under Section 139(1)(g) of the Bihar Panchayat Raj Act, is before this Court.

3. The facts in nutshell are that the petitioner Chandeshwari Prasad filed his nomination for the post of Member, Zila Parishad, Begusarai on 1st March, 2001 and he was elected to the said office. It appears that on 19.3.2001 he was convicted under Section 302 I.P.C. and was sentenced to life imprisonment. In accordance with the amended Rules 122 of the Bihar Panchayat Election Rules, 1995 , one Ram Sundar Singh Kushwaha made application to the State Election Commissioner to look into the matter, decide the question of disqualification and remove the petitioner from office of Zila Pahshad. After hearing both the parties the State Election Commission being satisfied that the petitioner has incurred disqualification to hold the office of the Member, Zila Parishad directed his removal.

4. Learned counsel for the petitioner placing his strong reliance upon a recent Division Bench decision of this Court in the matter of Sri Bhagwan Singh V/s. State of Bihar reported in 2004(4) PLJR 482 submits that the Election Commission, after a person is elected would have no right to consider the question of disqualification. He submits that the order dated 11.8.2003 as contained in Annexure-1 deserves to and be accordingly quashed.

5. Learned counsel for the State submits that the said judgment of the Division Bench also takes the view that if in exercise of the power under Article 226 the order passed by the State Election Commission has to be quashed then too this Court should take cognizance of the subject and if it records a finding that as a fact the present petitioner has suffered disqualification then simply by setting aside the order passed by the Election Commission a larger mischief should not revive because the Court has to see that its act does not lead to a larger mischief.

6. In the said matter of Sri Bhagwan Singh (supra) the Division Bench has clearly observed that the State Election Commission would have no power to enter into the dispute relating to the disqualification suffered after the election. In paragraphs 24 and 26 of the said judgment the court has further observed that if the person has suffered disqualification prior to the election and the person got elected then he would not be entitled to protection from this Court under Article 226 of the Constitution of India. The Court has also observed that if a person has suffered a disqualification under Section 139(1)(g) of the Act then he would not be entitled to hold the office. Section 139(1)(g) reads as under:

139. Disqualification.(1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as Mukhiya, member of the Grampanchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and member of Zila Pahshad, if such person. (g) Has been sentenced by a criminal court whether within or out of India to imprisonment for an offence, other than a political offence, for a term exceeding six months or has been ordered to furnish security for good behaviour under Section 109 or section 110 of the Code of Criminal Procedure, 1973 (Act 2,1974) and such sentence or order not having subsequently been reversed;

7. A fair understanding of Section 139 (1)(g) would make it clear that it provides two types of disqualification. The first is the disqualification for contesting the election and the second is in relation to holding the post after the person is elected. If a person is disqualified, because of his conviction for more than six months, for being elected then such person if c