M. Ramachandran, J.

In respect of a charge under S.379 read with S.34 of the Indian Penal Code, the petitioner had been subjected to prosecution. On conviction, the Judicial First Class Magistrate, Idukki had sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5,000/-. Against the conviction and sentence, the petitioner had filed an appeal as Criminal Appeal No.65 of 2004 before the Sessions Court, Thodupuzha. The Sessions Judge has suspended the sentence in Criminal M.P. No.872 of 2004.

2. The petitioner was holding the position of an elected member of Ward No.3 of Vathikudi Grama Panchayat in Idukki District. The second and third respondents herein, who were respectively a voter and a Panchayat member, had submitted a petition before the State Election Commissioner, Thiruvananthapuram pointing out that in view of the above development, the Panchayat member is liable to be disqualified. This was by way of an application under Ss.34 to 36 of the Kerala Panchayat Raj Act. The State Election Commission had ascertained the views of the member, and after a protected trial, by order dated 25.6.2004, a copy of which is marked as Ext.P3, held that he is disqualified to continue as member of the Vathikkudi Grama Panchayat from 3rd March, 2004 onwards. This has been subjected to attack by the petitioner.

3. In fact, the issue was about the impact that might have been there because of the orders of the Sessions Court. In paragraph 3 of the counter statement filed by the petitioner before the State Election Commissioner, it is stated as following:

"It is true that this respondent was convicted for an offence under S.379 of I.P.C.. However, the sentence is kept under suspension in Crl. M.P.872/2004 on the file of Sessions Judge, Thodupuzha."

Notwithstanding, the Election Commission held that the petitioner was disqualified. According to the petitioner, the decision as above is illogical and illegal.

4. The 2nd and 3rd respondents contend that it is not as if the issue has not received the close attention of the Election Commission. A copy of the order of the Sessions Court had been produced before the Commission as Ext.Rl. It has been observed that the Sessions Judge has not stayed, or suspended the order of conviction. The Judge only suspended the order of execution of the sentence. According to them, the Commission held that reliance placed on Rama Narang v. Ramesh Narang &-Ors. ((1995) 2 SCC 513) was misconceived and more appropriate case to be followed was B.R. Kapur v. State of Tamil Nadu (AIR 2001 SC 3435).

5. It is seen that he has also adverted to S.37(1) of the Kerala Panchayat Raj Act. It provides thatonce the sentence is annulled on appeal or revision the disqualification caused by the sentence is removed and the member can be restored to the office for the unexpired portion of the period for which he was elected. According to the Commission, therefore, the moment a member is convicted for an offence involving moral turpitude, for exceeding a period of three months, he has to automatically court disqualification.

6. Mr. K.Ramakumar, appearing for the petitioner, however, submits that the above conclusion resulted because of a misreading of the relevant section. Advertence is made to Ss.34 and 35 of the Kerala Panchayat Raj Act. S.34 of the Act deals with disqualification of candidates, for being chosen as and for being a member of a Panchayat. One of the disqualification is sentence by a Court or Tribunal to imprisonment for a period not less than three months for an offence involving moral turpitude (see S.34(1)(b)(i)). S.35 separately deals with disqualification of members. A member shall cease to hold office as such, if he is found guilty as described under Cl.(b) of sub-s.(1) of S.34 of the Act or is sentenced for such an offence. Mr. Ramakumar submits that when S.34(1)(b)(i) of the Act refers to only sentence, the stipulation in S.35(a) has to be read subject to what has been