JUDGMENT
N.K. Sodhi, J.
1. In criminal case FIR No. 686 dated 9.8.1992 Police Station City. Karnal under Sections 148/149/323/325/307/506 1PC respondent No. 4 was arrested on 20.8.1992 and later released on bail on 8.10.1992. The case remained pending in the court of Additional Sessions Judge, Karnal for a few years. The
trial concluded on 5.5.2000 and this respondent was convicted amongst others for an offence under Section 307 IPC and was sentenced to undergo rigorous imprisonment for seven years and to paj a fine of Rs. 2,000/-. The sentence was pronounced by the Additional Sessions Judge on 8.5.2000 and he was then taken in custody. It was during the pendency of this case that respondent No. 4 contested the elections in March. 2000 and was elected Sarpanch of Village Balu Block Nissing District Kamal. Since he was convicted soon after his election as Sarpanch, the Deputy Commissioner. Karnal by his order dated 14.6.2000 passed under Section 51(1)(a) of the Haryana Panchayati Raj Act, 1994 (for short ‘the Act’) suspended him from the office of Sarpanch as according to the Deputy Commissioner the conviction and sentence of respondent No. 4 was likely to embarrass him in the discharge of his duties as Sarpanch. He directed that an acting Sarpanch should take over the affairs of the Gram Panchayat. Accordingly, the petitioner was appointed the acting Sarpanch as he had the support of the majority of the Panchaes. Feeling aggrieved by the order of suspension, respondent No. 4 preferred an appeal before the State Government under Section 51(5) of the Act. He had also challenged his conviction and sentence by filing Criminal Appeal No. 405-SB of 2000 in this Court which came up for hearing before a learned single Judge on 2.11.2000. The counsel appearing for respondent No. 5 (appellant therein) did not challenge the conviction recorded by the Additonal Sessions Judge and addressed arguments only in regard to . the quantum of sentence. Since the parties therein had arrived at a compromise the learned single Judge took a lenient view and allowed the appeal partly reducing the sentence to the period already undergone by respondent No. 4. After the criminal appeal was disposed of. the other appeal filed by this respondent against his suspension came up for hearing before the Financial Commissioner and Secretary’ to Government. Haryana, Development and Panchayats Department and the same was allowed on 23.1.2001 because by that time the petitioner had been released from Jain and the Financial Commissioner took the view that with his release he could perform the duties of Sarpanch and that there would be no embarrassment involved in the discharge of his duties as he was not to go back to Jail. It is against this order that the present petition has been filed by the petitioner who is that acting Sarpanch.
2. It is strenuously contended by the learned counsel for the petitioner that since respondent No. 4 stood convicted for a criminal offence and had undergone the sentence of imprisonment for mort than six months, he could not continue as Sarpanch in view of the disqualification incurred by him under Section 175(1)(a)(ii) of the Act and therefore, the State Govenment was in error in allowing the appeal filed by respondent No. 4. On the other hand the learned counsel appearing for respondent No. 4 urged that the sentence undergone by his client was less than six months and therefore, he was not disqualified.
3. We have heard counsel for the parties and the short question that arises for our consideration is whether respondent No. 4 was disqualified to continue as Sarpanch. The answer to this question depends upon the interpretation of Section 175(1)(a) of the Act read with Section 428 of the Code of the Criminal Procedure (hereinafter referred to as the Code) which prescribes the method of calculating the period of detention undergone by an accused. These provisions read as under:
“175. Disqualifications.-
(1) No person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who-
(a) has, whether before or after the commencement of this Act, been convicted-(i) of an offence under the Protection of Civil Rights Act, 195 (Act 22 of 1955). unless a period of live years, or such lesser period as the Government may allow in any particular case, has elapsed since his conviction; or
(ii) of any other offence had been sentenced to imprisonment for not less than six months, unless a period of five years, or such lesser period as the Government may
allow in any particular case, has elapsed since his release; or
(b)…………
Section 428 of the Code : Period of detention undergone by the accused to be set off against the sentence of imprisonment-
Where an accused person has, on conviction been sentenced to imprisonment for a term (not being imprisonment in default of payment of fine) the period of detention, if any, undergone by him during the investigation enquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed of him of such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any of the term of the imprisoiment imposed of him.”
A perusal of the aforesaid provisions makes it clear that no person shall continue as a Sarpanch if he has whether before or after the commencement of the Act been convicted of an offence and sentenced to imprisonment for not less than six months. The question as to how this period of six months is to be counted is answered by Section 428 of the Code. According to this provision if an accused person has on conviction been sentenced to imprisonment for term the period of detention, if any, undergone by him during the investigation of the same case and before the date of such conviction has to be set off against the term of imprisonment imposed on him on such conviction and he will be liable to undergo imprisonment on conviction for the remaining period of the term of the imprisonment imposed on him in the case before us, there is no gain saying the fact that respondent No. 4 was convicted under Section 307 IPC to undergo rigorous imprisonment for a period of seven years by the Additional Sessions Judge, Karnal. In appeal filed in this Court the sentence was reduced to the one already undergone by him. It is common case of the parties that the case was registered against this respondent on 9.8.1992 and he was arrested on 20.8.1992 and released on bail on 8.10.1992. Thereafter, he was convicted on 5.5.2000 and the sentence was pronounced on him on 8.5.2000 on which date he was taken in custody. He filed an appeal in this Court which was allowed on 2.11.2000 and the sentence was reduced to the one already undergone. It is thus, clear that the respondent remained in custody for 40 days from 20.8.1992 to 8.10.1992 during the period when the case was being investigated. Thereafter, he remained in prison for another 179 days from 8.5.2000 the date on which the sentence was pronounced on him till 2.11.2000 when his appeal was allowed by this court reducing the sentence to the one already undergone. Thus, the total period during which he remained in prison comes to 219 days.
4. The argument of the learned counsel for the respondent No. 4 is that the period during which he remained in custody during the investigation of the case is not to be counted towards the term of sentence undergone by him and, therefore, the total period of sentence is less than six months. According to the learned counsel respondent No. 4 was not disqualified from continuing as a Sarpanch. We are unable to agree with this contention it is clear from the provisions of Section 428 of the Code that if an accused person has on conviction been sentenced to imprisonment for a term the period of detention undergone by him during the investigation of the case and before the date of his conviction has to be set off against the term of imprisonment imposed on him on such conviction and he wou d be liable to undergo imprisonment for the remaining term only. In other words, the period of imprisonment undergone during the investigation of the case has to be counted towards the term of sentence awarded to the accused. In the present case, the term of sentence awarded was the one already undergone and respondent No. 4 had undergone imprisonment from 20.8.1992 till 8.10.1992 and again from 8.5.2000 to 2.11.2000. the total period of sentence undergone by him thus, exceeds six months and, therefore, in terms of Section 175(IXa)(iii) of the Act respondents No. 4 is disqualified from continuing as Sarpanch.
5. In the result, the writ petition is allowed the impugned order dated 23.1.2001 passed by the Financial Commissioner set aside and it is directed that this respondent be
removed from the office of the Sarpanch forthwith. There is no order as costs. Sd/- Jasbir Singh, J.