TMI Blog2006 (11) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... f nomination : 31.03.2004 Date of scrutiny of nomination : 02.04.2004 Last date for withdrawal : 05.04.2004 Date of polling : 20.04.2004 Date of declaration of result : 13.05.2004 The appellant moved an application in the pending appeal, for stay of the order of conviction dated 28th July, 2000, so that he can contest the election. The Bombay High Court, by order dated 26th March, 2004, stayed the conviction pending appeal. Thereafter, the appellant filed his nomination on 29th March 2004. The respondent raised an objection to the acceptance of appellant s nomination, contending that the appellant was disqualified under Section 8(1) and (3) of the Act. The said objection raised by the respondent was rejected by the Returning Officer. The appellant was declared elected on 13th May 2004. (3) The election of the appellant was challenged by the respondent before the Karnataka High Court on the ground that the appellant was not qualified to contest the election. In the Election Petition, the case set up by the respondent was that on the date of filing of nominations and on the date of declaration of the results, the elected candidate was disqualifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convicted of any offence and sentenced to imprisonment for not less than two years 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. If the nomination of a person is improperly accepted under the Act, it is a ground for seeking declaration that the election of such disqualified candidate be void. The qualification or disqualification is to be determined with reference to the date fixed for scrutiny of the nomination. The subsequent acquittal is not relevant to remove the disqualification as on the date of the scrutiny of the nomination. (7) In Prabhakaran s case (supra), one of the questions examined by the Constitution Bench was as under: Whether an appellate judgment of a date subsequent to the date of election and having a bearing on conviction of a candidate and sentence of imprisonment passed on him would have the effect of wiping out disqualification from a back date if a person consequent upon his conviction of any offence and sentenced to imprisonment for not less than 2 years was disqualified from filing nomination and contesting the election on the dates of nominat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal appeal or revision. (8) In the present case, however, the appellant s stand of being qualified to contest the election was not either on the basis of subsequent acquittal or on the basis of stay of execution of sentence, but based on the stay of the conviction. It is evident that before the last date of filing nomination, the appellant had filed an application (Criminal Application No.487 of 2004) in his pending Criminal Appeal No.658 of 2000 praying therein that his conviction be stayed pending appeal since he had to contest the ensuing election, and that if his conviction was not stayed, he would not be able the contest the election resulting in deprivation of his right to so contest. The Bombay High Court by order dated 26th March, 2004, considering the facts and circumstances of the case, inter alia noticing that there was a voluntary marriage between the victim girl and the accused-appellant, and other relevant facts for the purpose of deciding that application, granted the order of stay of conviction of the appellant, in addition to the order of stay of execution of sentence which was already operative when the appellant filed the application for stay of convi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code to debar the court from granting an order to that effect in a fit case. The appeal 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 and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both 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 in 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. This Court, however, clarified that the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed; and that unless the attention of the court to the specific consequences that are likely to fall upon conviction, the person convicted cannot obtain an order of stay of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State challenged the order of the High Court which had granted suspension of the conviction as also the sentence, relying on Rama Narang (supra). This Court held that the principle laid down in Ram Narang (supra) was that conviction and sentence can both be suspended only if non-grant of suspension of conviction would result in damage which could not be undone if ultimately the appeal/revision was allowed. On facts, it was found that even if stay of conviction was not granted, no prejudice would be caused to the convicted person, having regard to the fact that when the revisions against the conviction and sentences were ultimately allowed, the damage, if any, caused to the respondents therein with regard to payment of stipends etc. could well be revived and made good to the them. This Court noted that if such trifling matters involving slight disadvantage to the convicted person were to be taken into consideration, every conviction would have to be suspended pending appeal or revision. It was further noted that the High Court did not consider at all the moral conduct of the respondents inasmuch as the respondent Jaganathan who was a Police Inspector had been convicted under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he discretion ought not to have been exercised by the High Court by passing such an order suspending the conviction. (12.5.) All these decisions, while recognising the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences. (13) Reverting to the present case, we are not called upon to decide the correctness of the order of stay of conviction dated 26th March, 2004. All that requires to be noticed is that on the dates of nomination and election, in view of the said order staying conviction, the appellant was not disqualified. The question whether subsequently the conviction was set aside in appeal or whether the matter is in further challenge before this Court is of no relevance for deciding the point in issue. (14) In view of the above, the decision of the High Court that the appellant was disqualified as on the date of nomination and that his nomination was improperly accepted cannot be sustained. Resultantly, we allow the civil appeal and set aside the impugned judgment of the High Court and dismiss the El ..... X X X X Extracts X X X X X X X X Extracts X X X X
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