Holding

A suspension of the conviction under Section 389 does not stay the conviction; therefore the disqualification under Section 8(3) of the Representation of the People Act continues to operate.

Summary

Lal Saij Khunte was elected to the Chhattisgarh Legislative Assembly but his election was challenged on the ground that he had been convicted under IPC sections 420, 34 and 468 and sentenced to two years' rigorous imprisonment, which under Section 8(3) of the Representation of the People Act, 1951 disqualifies a person. Khunte contended that the conviction was stayed because the appellate court, while granting bail, suspended the order of the trial court. The Chhattisgarh High Court held that suspension of the sentence does not stay the conviction and therefore set aside the election. On appeal, the Supreme Court examined whether a suspension under Section 389 of the Code of Criminal Procedure, 1973 amounts to a stay of conviction for the purpose of disqualification. Relying on its earlier decisions, the Court held that suspension only stays the execution of the sentence, not the conviction itself, and a specific order staying the conviction is required. Consequently, the High Court's decision was affirmed and the appeal dismissed.

Issues considered

Does a suspension of the conviction/sentence under Section 389 of the CrPC constitute a stay of conviction for the purpose of disqualification under Section 8(3) of the Representation of the People Act, 1951?

Legislation cited

Code of Criminal Procedure, 1973s. 389
Companies Act, 1956s. 267
Indian Penal Code, 1860s. 34, s. 420, s. 468, s. 471
Representation of the People Act, 1951s. 8(3)

Subjects

election disqualificationconviction suspensionstay of convictionRepresentation of the People ActCriminal Procedure Codelegislative assembly election

Judgment

A LALSAJ KHUNTE

NIRMAL SINHA AND ORS.

FEBRUARY 27, 2007

B [A.K. MA THUR AND V.S. SJRPURKAR, JJ.]

Representation of the People Act, 1951:
j

C S. 8(3)-Disqualification on conviction-Suspension of sentence while
granting bail-Held, suspension does not amount to temporary stay of
conviction-Conviction still remains-Specific order staying conviction has
to be sought which was not done-Election rightly set aside by High Court-
Code of Criminal Procedure, 1973-s.389-Penal Code, 1860-ss. 420134,
468.
D
Appellant was elected as a Member of Legislative Assembly. His election
was challenged in an election petition on the ground that he was convicted
under ss. 420/34 and 468 IPC and was sentenced to two years rigorous ~
imprisonment about 1 Yz years before his filing the nomination papers for
the said elect' Jn and, as such, he was disqualified under s.8(3) of the
E Representation of the People Act, 1951. The appellant resisted the challenge
stating that execution of the judgment and the conviction was stayed by the
appellate court. The single Judge of the High Court set aside the election of
the appellant holding that his conviction was not stayed but suspended.
Aggrieved, the returned candidate filed the appeal.
F
Dismissing the appeal, the Court

HELD: The appellate Court while granting the appellant bail only
suspended the order of the trial court. Thus, suspension does not amount to
temporarily washing out the conviction. The conviction still remains, only the
G operation of the order and the sentence remain suspended; that does not
amount to temporary stay of the conviction. A specific order staying conviction
has to be sought, which has not betn done. The view taken by the single Judge
of the High Court is correct and there is no ground to interfere with the same.
[Paras 14 and 15] [335-E, F]

H 328
LALSAI KHUNTE v. NIRMAL SINHA [A.K. MATHUR, J.] 329
K. Prabhakaran v. P. Jayarajan, [2005] 1 SCC 754; Ravikant S. Patil A .
v. Sarvabhouma S. Bagali, (2006) 12 SCALE 295; Navjot Singh Sidhu v. State
f
" of Punjab, JT (2007) 2 SC 382 and Rama Narang v. Ramesh Narang and
Ors., [1995] 2 SCC 513, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4055 of2006.
B
From the Final Judgment and Order dated 1.8.2006 of the High Court of
Judicature of Chhattisgarh at Bilaspur in EP No. 9/2004.

Ravindra Shrivastava, Dharam Bir Raj Vohra, Rajkumar Gupta, Kuna!
Verma, M. Mannan, Arjun Garg and Raju! Shrivastava for the Appellant.
c
Satya Pal Jain, Vivek Goyal and Gopal Prasad for the Respondents.

The Judgment of the Court was delivered by

A.K. MATHUR, J. 1. This appeal is directed against the order dated
1.8.2006 passed by the learned Single Judge of the Chhattisgarh High Court D
at Bilaspur in Election Petition No. 9/2004 whereby the learned Single Judge
has allowed the election petition in part and set aside the election of the
}
appellant for Malkharaud Assembly Constituency No. 38 to the Chhattisgarh
State Legislative Assembly. Aggrieved against the said order the present
appeal was filed.
E
2. The Election Commission of India by Notification dated 7.11.2003,
notified the election to the Legislative Assembly of the State of Chhattisgarh
inviting persons t<:> submit their nomination papers between 7.11.2003 to
14.11.2003 and 15.11.2003 was the date of scrutiny of the nomination papers
& the last date for withdrawal of candidature was 17.11.2003. The election was
F
fixed for 2nd December, 2003. Nine candidates filed their nominations. After
scrutiny, petitioner along with respondents Nos. 1 to 7 remained in contest.
y
The polling took place on 2nd December, 2003 and the result was declared
on 4th December, 2003 declaring the appellant as elected for constituency.
The appellant was convicted by the Court of Additional Chief Judicial
Magistrate, Sakti in Criminal Case No. 208/91- State of Chhattisgarh Vs. Lal G
Sai and two others under Section 420 read with Sections 34 and 468 read with
Section 34 of the IPC and punished for two years. , rigorous imprisonment
,. on each count and convicted under section 471 of the IPC and punished with
rigorous imprisonment for one year by judgment and order dated 9.5.2002.
Aggrieved against this order appellant filed appeal before District Judge and
H
330 SUPREME COURT REPORTS [2007) 3 S.C.R.

A learned Additional Sessions Judge by his order dated 31.5.2002 released
appellant on furnishing Bond & Security & suspended judgment & Order of
Addittional Chief Judicial Magistrate dated 9.5.2002. All candidates were
required to submit their nomination alongwith their declaration and affidavit
wherein they were required to disclose particulars of conviction for two years
or more. The appellant Lalsai though he was convicted and was disqualified
B but mislead the returning officer and concealed the vital information in the
affidavit of his conviction. Therefore, the returning officer could not cancel
his nomination.

3. The lost candidate filed the present election petition raising the
C question of disqualification of appellant under Section 8(3) of the
Representation of People Act, 1951 (hereinafter referred as 'the R.P. Act'). The
defence of the appellant was that the execution of judgment and conviction
dated 9.5.2002 was stayed by the appellate Court by its order dated 31.5.2002.
Therefore, the returning Officer rightly rejected the objection raised before
him during the scrutiny and he was not disqualified and is not guilty of
D suppression of the facts. He also took the plea that the election petitioner did
not deposit the security amount within the prescribed time period, therefore,
petition be dismissed being barred by time. The security deposit was made
on 19.1.2004 whereas the election petition was filed on 17.1.2004. As such
election petition is barred by time. However, it may be stated at the outset
E that so far as this objection is concerned we ourselves checked up the date
and we find that the election petition was filed on 19 .1.2004 with security
amount. Hence, this objection is factually incorrect and overruled.

4. The question before us is whether the order passed by the appellate
Court in a Criminal Case on 9.5.2002 whereby the conviction and sentence of
p the appellant was suspended, whether this amounts to staying the conviction
or not? All other questions are not relevant except the aforesaid question.
However, learned Single Judge after relying on decision of this Court in the
case of K. Prabhakaran v. P. Jayarajan reported in [2005] I SCC 754, held
that the returning officer committed an illegality in accepting the nomination
of the appellant because the appellant's conviction was not stayed but
G suspended. Therefore, incumbent was disqualified at the time of scrutiny and
accordingly the learned Judge decided this issue in favour of the election
petitioner and consequently the election petition was allowed and election
was set aside. Hence, the present appeal.

5. We have heard learned counsel for the parties and perused the
H
LALSAI KHUNTE v. NIRMAL SINHA [A.K. MATHUR, J.] 331
record. A
6. The main question before us is whether the view taken by the learned
single Judge of the High Court is correct or not?

7. Section 8(3) of the Representation of People Act, 1951 is reproduced
hereunder: B
"8. Disqualification on conviction for certain offences.-

(I) ............ .

(2) ........... .
c
(3) A person convicted of any offence and sentenced to
imprisonment for not less than two years (other than any offence
referred to in sub-section (I) or sub-section (2) shall be disqualified
from the date of such conviction and shall continue to be disqualified
for a further period of six years since his release.
D
(4) ............. "

8. The legal position is already crystallized by this Court in the case of
K. Prabhakaran (Supra) wherein it was held as under:

"42. What is relevant for the purpose of Section 8(3) is the actual E
period of imprisonment which any person convicted shall have to
undergo or would have undergone consequent upon the sentence of
imprisonment pronounced by the court and that has to be seen by
reference to the date of scrutiny of nominations or date of election.
All other factors are irrelevant. A person convicted may have filed an p
appeal. He may also have secured an order suspending execution of
the sentence or the order appealed against under Section 3 89 of the
Code of Criminal Procedure, 1973. But that again would be of no
consequence. A court of appeal is empowered under Section 389 to
order that pending an appeal by a convicted person the execution of
the sentence or order appealed against be suspended and also, if he G
is in confinement, that he be released on bail or bond. What is

.
'
suspended is not the conviction or sentence; it is only the execution
of the sentence or order which is suspended. It is suspended and not
obliterated. It will be useful to refer in this context to a Constitution
Bench judgment of this Court in Saraf Chandra Rabha v. H
332 SUPREME COURT REPORTS (2007] 3 S.C.R.

A Khagendranath Nath? The convict had earned a remission and the
period of imprisonment reduced by the period of remission would
have had the effect of removing disqualification as the period of
actual imprisonment would have been reduced to a period of less than
two years. The Constitution Bench held that the remission of sentence
B under Section 40 I of the Criminal ~rocedure Code (old) and his release
from jail before two years of actual imprisonment would not reduce the
sentence to one of a period of less than two years and save him from
incurring the disqualification.

"An order of remission thus does not in any way interfere with the
c order of the court; it affects only the execution of the sentence passed
by the court and free the convicted person from his liability to undergo
the full term of imprisonment inflicted by the court, though the order
of conviction and sentence passed by the court. still stands as it was.
The power to grant remission is executive power and cannot have the
effect which the order of an appellate or revisional court would have
D of reducing the sentence passed by the trial court and substituting
in its place the reduced sentence adjudged by the appellate or
revisional court."

9. Recently this Court in the case of Ravikant S. Patil v. Sarvabhouma
E S. Bagali reported in (2006) 12 SCALE 295 has clearly beld that the Court has
enough power to stay the conviction. It was held as urider:-'

"it deserves to be clarified that an order granting stay of conviction
is not the rule but is an exception to be resorted to in rare cases
depending upon the facts of a case. Where the execution of the
F sentence is stayed, the conviction continues to operate. But where
the conviction itself is stayed, the effect is that the conviction will not
be operative from the date of stay. An order of stay, of course, does
not render the conviction non-existent, but only non-operative. Be
that as it may, insofar as the present case is concerned, an application
was filed specifically seeking stay of the order of conviction specifying
G that consequences if conviction was not stayed, that is, the appellant
would incur disqualification to contest the election. The High Court
after considering the special reason, granted the order staying the
conviction. As the conviction itself is st"lyed in contrast to a stay of
execution of the sentence, it is not possible to accept the contention
H of the respondent that the disqualification arising out of conviction
LALSAI KHUNTE v. NIRMAL SINHA [A.K. MATHUR. J.] 333
continues to operate even after stay of conviction." A
__...
• 10. Again recently in the case of Navjot Singh Sidhu v. State of Punjab,
reported in T (2007) 2 SC 382, Hon'ble Cou11 while entertaining the appeal of
accuse stayed the conviction. The relevant portion of the judgment reads as
under:
B
"13.l The Act provides not only the eligibility and qualification for
membership of House of People and Legislative Assembly but also for
disqualification on conviction and other matters. The Parliament in its
wisdom having made a specific provision for disqualification on
conviction by enacting Section 8, it is not for the Court to abridge or
expand the same. The decisions of this Court rendered in Rama c
Narang V. Kant S. Patil v. Sarvabhouma S. Bagali (Supra) having
recognized the power possessed by the Court of appeal to suspend
or stay an order of the conviction and having also laid down the
parameters for exercise of such power, it is not possible to hold, as
a matter of rule, or to lay down, that in order to prevent any person D
who has committed an offence from entering the Parliament or the
Legislative Assembly the order of the conviction should not be
suspended. The Courts have to interpret the law as it stands and not
on considerations which may be perceived to be morally more correct
or ethical."
E
11. Therefore, this Court in recent decisions held that the appellate
Court has power to stay the execution of the conviction and if appellate Court
has stayed the conviction then in that case, this will not operate as a
disqualification. But simply order of suspension of the sentence will not
operate as staying the conviction. It was specifically mentioned that the stay
of order of the conviction will mean it is temporarily non-operative. F

12. As already mentioned above, in the present case it is clearly transpired
that the appellate Court suspended the order of the trial court dt. 9th May,
2002 and granted the bail to the accused appellant. The suspension does not
mean the stay of the conviction. We have .ourselves seen the application for G
suspension of sentence. The said application is a routine application under
Section 389 whereby the appellant sought for the suspension of sentence.
,. There is nothing in that application to suggest that the applicant therein had
sought the stay of conviction in contra-distinction to the suspension of
sentence. In Ravi Kant Patel's case cited supra, it will be seen that an
application for stay of conviction was specifically filed specifying the H
334 SUPREME COURT REPORTS (2007) 3 S.C.R.

A consequences if the conviction was not stayed. This Court had taken that
fact into consideration while holding that in that case the conviction was
specifically stayed. Such is not the case here. If the incumbent had been .,j...
vigilant enough, he could have moved the court even later on after obtaining
the stay of conviction particularly in view of the fact that he wanted to
contest the election but that was not done.
B
13. In the case of Rama Narang v. Ramesh Narang and Ors., reported
in [1995] 2 SCC 513 their Lordships were examining the effect of conviction
under the Companies Act, 1956, that what is the effect of the conviction of
Managing Director for an offence involving moral turpitude as disqualification
C and suspension of that conviction by the appellate court. This Court after
examining the question took the view that Section 389(1) of the CR.P.C.
confers the power on appellate Court to stay the operation of the order of
the conviction. If the order of conviction is to result to some disqualification
of the type mentioned in Section 267 of the Companies act, a narrow meaning
should not be given to Section 389(1) of the Code to bar the Court from
D granting an order staying operation of order of .:onviction in a fit case.
Therefore, their Lordships were very clear that Section 389(1) of the Code
empowers the appellate court to stay the conviction also. But suspension will
not amount to staying the conviction. It was held as under:

That takes us to the question whether the scope of Section 389(1) of
E the Code extends to conferring power on the Appellate Court to stay
the operation of the order of conviction. As stated earlier, ifthe order
of conviction is to result in some disqualification of the type mentioned
in section 267 of the Companies Act, we see no reason why we should
give a narrow meaning to Section 389(1) of the Code to debar the
court from granting an order to that effect in a fit case. The appeal
F
under Section 374 is essentially against the order of conviction because
the order of sentence is merely consequential thereto; albeit even the
order of sentence can be independently challenged if it is harsh ana
disproportionate to the established guilt. Therefore, when an appeal
is preferred under Section 374 of the Code the appeal is against both
G the conviction and sentence and therefore, we see no reason to place
a narrow interpretation on Section 389(1) of the Code not to extend
it to an order of conviction, although that issue ip the instant case
recedes to the background because High Courts can exercise inherent
"\
jurisdiction under Section 482 of the Code if the power was not to be
found in Section 389(1) of the Code. We are, therefore, of the opinion
H
..., LALSAI KHUNTE v. NIRMAL SINHA [A.K. MATHUR. J.] 335

.... that the Division Bench of the High Court of Bombay was not right
in holding that the Delhi High Court could not have exercised
A
jurisdiction under Section 482 of the Code if it was confronted with
a situation of there being no other provision in the Code for staying
the operation of the order of conviction. In a fit case ifthe High Court
feels satisfied that the order of conviction needs to be suspended or
stayed so that the convicted person does not suffer from a certain B
disqualification provided for in any other statute, it may exercise the
power because otherwise the damage done cannot be undone; the
-le disqualification incurred by Section 267 of the Companies Act and
given effect to cannot be undone at a subsequent date if the conviction
is set aside by the Appellate Court. But while granting a stay of (sic c
or) suspension of the order of conviction the Court must examine the
pros and cons and if it feels satisfied that a case is made out for grant
of such an order, it may do so and in so doing it may, if it considers
it appropriate, impose such conditions as are considered appropriate
to protect the interest of the shareholders and the business of the
company." D

).
14. As already pointed out above that on 3 lst May, 2002, the appellate
Court while granting him the bail only suspended the impugned order dated
t 9th May, 2002. Thus suspension does not amount to temporarily washing out
the conviction. The conviction still remains, only the operation of the order
and the sentence remain suspended that does not amount to temporary stay
E
of the conviction. A specific order staying conviction has to be sought.

15. Hence, the view taken by the learned Single Judge of the Chhattisgarh
High Court is correct and there is no ground to interfere. This appeal is
dismissed with no order as to costs. F
__,,,.
R.P. Appeal dismissed.