IMPORTANT POINT
Appellate court has the power to stay conviction besides suspending the sentence; and upon such stay of a conviction under Section 389 of the Cr.P.C., disqualification under Section 8 of RP Act will not operate.

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 The petitioner, Lok Prahari, is a society registered under the Societies’ Registration Act 1860 with objects pertaining to public governance and administration. It has invoked the jurisdiction of this Court under Article 32 of the Constitution, in the present Public Interest Litigation through its General Secretary, who appeared in person. The following amongst other reliefs have been sought:

1 “Declare that since the law does not provide for stay of conviction, even in case of stay of conviction by the appellate court for an offence attracting disqualification under Section 8 of RP Act, 1951, any such stay order does not have the effect of wiping out the disqualification and reviving the membership with retrospective effect and consequently, the seat of the concerned member is deemed to have beome vacant with effect from the date of conviction in terms of Article 101(3)(a) and 190(3)(a) of the Constitution.

2 Declare that as a consequence of the declaration as per 1 above, any member of Parliament of State legislature who becomes subject to disqualification mentioned in Article 102(1)(e) or 190(1)(e) shall be liable to penalty under Article 104/193 notwithstanding any order of the appellate/ revisional court purporting to stay his conviction for an offence attracting disqualification mentioned in Section 8 of RP Act, 1951....

3 issue a writ, order of direction in the nature of Mandamus to the respondent no. 1 to issue within 24 hours of receipt of certified copy of the judgment and order regarding sentence the notification regarding disqualification and consequent vacancy of the seat of the concerned MP/MLA/MLC with effect from the date of his/her conviction as a result of his/her disqualification for an offence under Section 8(1)(2) and (3) of the Representation of the People Act, 1951.

4 issue a writ, order or direction in the nature of Mandamus to the respondent no. 1 to ensure action for filing the vacancy of the seat of a member of Parliament/State legislature as per Section 151 of the RP Act, 1951 disregarding any order of the appellate/ revisional court purporting to stay of conviction for an offence attracting disqualification mentioned in Section 8 of RP Act, 1951....”

2. An erstwhile member of the Legislative Assembly in the State of Uttar Pradesh was convicted of offences under Sections 353, 504 and 506 of the Penal Code and was sentenced to imprisonment. In appeal, the District Court stayed the execution of the sentence and of the conviction.

3. The petitioner instituted a Public Interest Litigation before the Lucknow Bench of the High Court of Allahabad, seeking a declaration that the MLA stood disqualified notwithstanding the stay granted by the Sessions Judge. The PIL was dismissed by the High Court on the ground that since the appellate court stayed the conviction, the disqualification, which would otherwise stand attracted, would not operate from the date on which the conviction has been stayed.

4. The petitioner urges that the seat held by a Member of Parliament or of the State legislature becomes vacant upon a disqualification being incurred under Article 102 or Article 191, respectively. According to the petitioner, once the disqualification is incurred under Section 8 of the Representation of the People Act 1951 read with Article 102(1)(e) or Article 191(1)(e), the seat becomes vacant effective from the date of conviction. Relying on the decision of this Court in B R Kapur v State of Tamil Nadu, (2001) 7 SCC 231 the petitioner contends that under Section 389 of Cr.P.C. the appellate court does not have the power to stay conviction and can stay only the execution of sentence.

Article 102 of the Constitution provides thus:

“102. (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—

(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared b