ORDER
1. Petitioner is a Councillor of the Kasipalayam Town Panchayat. He had been convicted and sentenced to undergo imprisonment for life by the Principal Sessions Judge in S.C.No. 36 of 1998 dated 5.4.1999. Consequently, the Secretary of the Town. Panchayat informed the petitioner that he has ceased to be a member and disqualified to continue as member under Sections
49, 50(1) (a) and 50(3) of the Tamil Nadu District Municipalities Act, 1920 (hereinafter referred to as the Act).
2. Petitioner filed an application before the Principal District Judge under Section 51 of the Act praying to declare the disqualification made by the Panchayat as illegal. The learned Principal District Judge held that there is no doubt regarding the conviction and that Section 51 (1) of the Act will not apply to the petitioner. The correctness of this order is challenged in this revision under Article 227 of the Constitution of India.
3. The learned counsel for the petitioner endeavoured to and made a fervent plea that in the light of the order of the High Court in Criminal Appeal Nos. 320 and 321 of 1991 suspending the sentence of imprisonment, there is no question of the petitioner being disqualified under Section 50(1 )(a) of the Act. According to him, Section 49 will apply only in case of contest for election of a Councillor, whereas Section 50 deals with disqualification. The Councillor will cease to hold office only if there is a sentence existing. In this case, the sentence had been suspended. In the eye of law, there is no sentence at all so as to disqualify the petitioner being the Councillor. In any event, according to him, the Principal Sessions Judge ought to have considered the matter on merit. He ought not have dismissed the petitioner in limine without even numbering the same.
4. I have heard the Counsel for the petitioner and considered the matter carefully. The petitioner is an existing member of the Town Panchayat. He has been convicted for an offence under Section 302, I.P.C. in S.C. No. 36 of 1998 on the file of the First Additional and Sessions Judge. Erode and by judgment dated 5.4.1999, he was sentenced to undergo life imprisonment. The only question that arises for consideration is whether in consequence of this conviction and sentence, petitioner is liable to be disqualified.
5. Section 50(1)(a) of the Act reads as follows:
“Subject to the provisions of Section 51, [the chairman of] a councillor [or a person referred to in clauses (b) and (c) of sub-section (2) of section 3-C or clauses (b) and (c) of sub- section (3) of section 7] shall cease to hold his office, if he-
(a) is sentenced by a [criminal] Court to such punishment [and for such offence] as is described in sub-section (1) of section 49.
Clause (3) and (4) of Section 50 reads as follows:
“(3) Where a person ceases to be a councillor under [Clause (a) [or clause (aa)] of sub-section (1) or under section 60,] [such person shall be restored to office for such portion of the period for which such person was elected (…..)] […..] as may remain unexpired at the date of such restoration, if and when the [conviction] sentence of order is annulled on appeal or revision or [the disqualification caused by the [conviction or] sentence or incurred under section 60 is removed by an order of [the State Election Commission)] [and any person elected […..] to fill the vacancy in the interim shall on such restoration vacate office].
[ (4) Where a person ceases to be [the chairman or] a Councillor under clause (i) of sub-section (1) the [executive authority] shall at once intimate the fact in writing to such person and report the same to the council at its next meeting. If such person applied for restoration suo motu to the council on or
before the date of its next meeting or within fifteen days of the receipt by him of such intimation, the Council may at the meeting next after receipt of such application restore him to his office of [the chairman or] councillor:
Provided that [the chairman or] a councillor shall not be so restored more than twice during his term of office.]”
From the above, it is clear that a Councillor shall cease to hold office if he is sentenced by a criminal court to a punishment of an imprisonment for period more than six months. Section 49 of the Act deals with the disqualification of candidates prior to the election. But, the provision that applies to the case on hand is only Section 50.
6. The order granting bail by the High Court was strongly relied upon to say that the sentence is suspended. Unless the operation of the conviction and sentence is specifically stayed, the order of the High Court has to be treated only as an order for the purpose of granting bail. The suspension of a sentence in this context does not obliterate the order of conviction and sentence. Petitioner has obtained suspension of sentence under Section 389 of the Code of Criminal Procedure, 1973. As per this provision, the appellate court has got the power to suspend the sentence pending the appeal. But, this provision makes it clear that the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. So, the sentence is deemed to be suspended for the purpose of releasing the appellant on bail. In other words, the sentence is not stayed or suspended. The bail granted by the appellate court cannot be taken so as to mean that the sentence of the criminal court had been suspended to enable the petitioner to continue as a Member of the Town Panchayat. As a matter of fact, the moment sentence had been imposed, he had ceased to hold the office.
7. In Banubhai M. Rawal v. Union of India, A.I.R. 1991 Bom. 1991, a Division Bench of the Bombay High Court held that mere filing of appeal against conviction does not remove disqualification. The Division bench followed the judgment of the Madhya Pradesh High Court reported in Purushotham Lal Kaushik v. Vidhya Charan Shukla. which held that the disqualification is not lifted by mere filing of an appeal against the order of conviction. The Division Bench held as follows:
“It must be assumed that the legislature did not want, at the helm of affairs of the State, persons with unwiped off convictions of offences”.
………
Giving clean administration to the Citizenary is ex hypothezi, the object of every election statute.
Another Division Bench of the Assam High Court in Gajendranath v. Umesh Chandra, A.I.R. 1958 Asm. 183 held that the fact that person had preferred an appeal against the conviction and sentence and the appeal was pending could not remove the disqualification. The emphasis is on the conviction for any offence in which the person is sentenced imprisonment. In that case, prima facie, the disqualification will attach to the person so convicted and sentenced. The Division Bench refused to accept even a remission of punishment as a ground to remove the disqualification.
8. In Sachindranath Tripathi v. Doodhanath, A.I.R. 1987 All. L.J. 667, Om Prakash, J. (as he then was), dealing with the suspension of sentence, held that disqualification is the immediate effect of conviction, and the order of the appellate court staying the execution of the sentence would not wipe out the conviction. According to the learned Judge, the only effect of the stay order passed by the appellate court was that the execution of sentence awarded and the conviction orders remained under suspension. After the conviction, the accused person was to suffer the sentence and that part of the order was suspended by the stay order. The stay order, being prospective in operation, did not and could not affect the conviction order, which automatically gave birth to disqualification. Grant of bail to the accused person does not interfere with the finding of conviction and that cannot render the disqualification automatically merging from conviction inoperative.
9. Another learned Judge of the Himachal Pradesh High Court, in Vikaram Anand v. Rakesh Singhal, , held that the judgment of conviction consists of, inter alia, the order of conviction which is declaration of the guilt of the accused, followed by the order of sentence, if the court decides to punish the convicted person. In a given case, when a convicted person challenges the judgment against him, besides asking for suspension of execution of sentence in grant of bail, he may also ask for suspension of the order of conviction to save him from its recourse during the pendency of the appeal. But, there cannot be any doubt that the order of suspensions of conviction cannot be passed in a routine manner. The appellate court may pass such an order in an exceptional case in which it is satisfied that even by accepting the entire findings given by the trial court in its judgment, prima facie, no case is made out against the appellant. Learned Judge refused to accept the argument that the disqualification is attracted only when a person is convicted by the final court and not the trial court. Disqualification starts from the order of conviction passed by any court whether final or not.
10. In a recent Judgment in K. Venkatachalam v. A. Swamickan and another, A.I.R. 1998 S.C. 1723, the Supreme Court upheld the decision of the High Court under Article 226 that a person who is disqualified, even if he gets elected, is not entitled to sit in the State Assembly, Sub clause 3 and 1 of Section 50 make it clear that the person ceases to be a councillor the moment conviction is ordered, and he can be restored to office if the order is reversed or annulled. No person elected to the vacancy shall vacate the office. Therefore, the intention of the legislature is clear that on sentence by a criminal court, the Member will cease to hold the office and he can be restored only after the order is reversed.
11. For all these reasons, no grounds are made out to interfere with the order of the Sessions Judge. The civil revision petition fails and if is accordingly dismissed. No costs. Consequently, C.M.P.No. 11710 of 1999 is closed.