Skip to content


Narendra Kumar Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberSpecial Appeal No. 581 of 1982
Judge
Reported inAIR1984Raj29; 1983()WLN217
ActsRajasthan Panchayat Samitis and Zilla Parishads Act, 1959 - Sections 13; Rajasthan Panchayat and Up-Samitis (Election) Rules, 1960 - Rule 3; Constituion of India - Article 226; Rajasthan Panchayat Act, 1953 - Sections 11(9)
AppellantNarendra Kumar
RespondentState of Rajasthan and ors.
Appellant Advocate Marudhar Mridul, Adv.
Respondent Advocate M.M. Singhvi, Adv. and; R.P. Dave, Dy. Govt. Adv.
DispositionAppeal dismissed
Cases ReferredSohan Das v. Sampat Singh
Excerpt:
.....he cannot challenge election of pradhan.;the appellant is not a member of the panchyat samiti, shahpura. he, therefore, is not entitled to challenge the election of sampat sing, respondent no. 2 to the office of pradhan, panchayat samiti, shahpura, by way of election petition under section 13 of the act of 1959 read with rule 3 of the rules.;(b) rajasthan panchayat samitis & zila parishad act, 1959 - section 13 and rajasthan panchayat act, 1953--section 11 and penal code--section 406 & 409--disqualification conviction for 6 years starts from date when is convicted by trial court and not when conviction h upheld held, respondent no. 2 was not disqualified on date of his election as pradhan.;when the convictions of respondent no. 2 are upheld by the appellate court and..........release of the appellant on bail. if it had been the intention of the legislature that pending his appeal conviction of the appellant would remain suspended and it would revive only from the date of the judgment of the appellate court, if his appeal is dismissed, and his conviction by the trial court is upheld, the legislature would have expressly said so in the cr. p. c. or in any other law. on the other hand, the legislature enacted sub-sec. (4) of section 389 which says that when the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time, during which his sentence remains suspended and the time during which he is at large, shall be excluded in computing the period of imprisonment to be still undergone by him. hence, we have no doubt in our.....
Judgment:

Alyan Dutta Sharma, C.J.

1. This is a special appeal filed by Narendra Kumar Somani under Section 18 of the Rajasthan High Court Ordinance against the judgment of the learned single Judge of this Court dt. May 5, 1982, by which the writ petition of the appellant was dismissed on the basis of the judgment dt. April 9, 1982, given in S. B. Civil Writ Petitions Nos. 7 of 1982 and 80 of 1982 : (AIR 1983 NOC 220) (Rai).

2. The relevant facts giving rise to the writ petition, out of which this appeal arises, may be briefly stated as follows:--

Shri Sampat Singh, respondent No. 2 was elected Pradhan, Panchavat Samiti, Shahpura. District Bhilwara, on Dec. 26, 1981. The votes were polled on Dec. 26,1981 and the result was announced the very day while the nomination papers were filed on Dec. 25. 1981. Respondent No. 2 was convicted of the offence punishable under Section 406. I.P.C. and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000, in default of payment of fine to further suffer imprisonment for three months, by the Judicial Magistrate, Fir t Class, Shahpura. vide his judgment dated Sept 24, 1974, certified photo-stat copy of which is enclosed with the writ petition and marked Ex. 3. Aggrieved by his conviction and sentence, respondent No. 2 preferred an appeal to the Sessions Judge. Bhilwara. but the same was rejected vide judgment of the Sessions Judge, dt. August 3, 1976. Respondent No. 2 thereafter moved the High Court in revision but his revision petition also was dismissed by the High Court vide its judgment dt. August 20, 1976.

3. In another case respondent No. 2 was found guilty by the Munsif Magistrate. Shahpura. of having committed an offence punishable under Section 400. I.P.C. and was sentenced to undergo rigorous imprisonment for four months and to pay a fine of Rs. 200, in default thereof to further suffer rigorous imprisonment for 20 days. Respondent No. 2 preferred an appeal to the Sessions Judge. Bhilwara, against the judgment of the Munsiff Magistrate. Shahpura, dt. April 10, 1974. but the Sessions Judge. Bhilwara upheld the conviction and reduced the sentence to one month's rigorous imprisonment. A revision petition was filed by respondent No. 2 against the judgment of the Sessions Judge before the High Court. The High Court confirmed the conviction of respondent No. 2 under Section 409. I.P.C. but reduced the sentence to the term of imprisonment already undergone by him.

4. At the time of scrutiny of the nomination papers, an objection was raised by one Shri Sukh Deo Jat in regard to the validity of the nomination of respondent No. 2 on the ground of convictions of respondent No. 2 by competent court of jurisdiction, of an offence involving moral turpitude. The Returning Officer rejected the objection raised by Sukh Deo Jat on Dec. 25. 1981, vide his order marked Ex. 2. Thereafter, as already stated above the election was held and the result of the election was declared in favour of respondent No. 2.

5. Aggrieved by the election of respondent No. 2 to the office of the Pradhan. Panchavat Samiti, Shahpura. and by his holding the said office the appellant filed a writ petition in the High Court on the following grounds:--

(1) That respondent No. 2 was not qualified to be elected as Pradhan and to hold the said office because on the day he filed the nomination paper or on the day the nomination papers were scrutinised or on the day he was declared elected as Pradhan he was disqualified to be elected to the office of Pradhan of the Panchavat Samiti by virtue of Section 11 (g) of the Rajasthan Panchayat Act hereinafter referred to as the Act. Section 15 (k) of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1059, hereinafter referred to as the Act of 1959, further lays down that a person who is disqualified to be elected to the office of the Pradhan of a Panchayat Samiti will also be disqualified to become a member of the Panchavat Simiti. As the period of 6 years not having elapsed from the date of conviction or respondent No. 2 on the date of filing of the nomination paper disqualification incurred, under the Act had not come to an end and was subsisting :

(2) That the Returning Officer wrongly held that the period of 6 years: commenced from the Hate when the respondent No. 2 was convicted by the trial court. A person can be deemed to be convicted only when all the remedies available to him under the law have exhausted so as to make his conviction final. The convictions of respondent No. 2 became final when his appeals and revision petitions were dismissed:

(3) That the respondent No. 2 is ex facie a usurper of the office of Pradhan. Panchavat Samiti. Shahpura and is therefore, liable to be ousted.

6. The petitioner therefore, prayed that a writ in the nature of quo warranty be issued against respondent No. 2 ousting him from the office of Pradhan, Panchavat Samiti. Shahpura and till then he may be restrained from functioning as Pradhan till the decision of the writ petition.

7. Notices were issued to the respondents to show cause why the writ petition be not, admitted. In response to the notice, respondent No. 2 Shri Sam-pat Singh appeared in Court through his Advocate Shri M. M. Singhvi and raised a preliminary objection to the maintainability of the writ petition. The objection was that the remedy againstimproper acceptance of nomination paper is by way of an election petition under Rule 78 of the Rajasthan Panchayat and Up-Samitis (Election) Rules, 1960 and that Narendra Kumar petitioner's real brother Shri Shyam Sunder Somani had already filed an election petition in the Court of the District Judge. Bhilwara. on this very ground that the nomination paper of Sampat Singh was improperly accepted by the Returning Officer on Dec. 25, 3981 and therefore the extraordinary writ remedy under Article 226 of the Constitution cannot be availed of by Shri Narendra Kumar. petitioner, for challenging the election of Shri Sampat Singh. The learned single Judge of this Court heard arguments advanced by the learned counsel for the parties at the state of admission and came to a conclusion that the writ peti-tion was liable to be dismissed in virw of the derisions of the High Court in S. B. Civil Writ Petition No. 7 of 1982 Mahaveer Singh v. Raghunath and S. B. Civil Writ Petition No. P.O of 1982. Laxmi-dan v. Narpat Karan decided on April 9, 1982 : (AIR 1981? NOC 220). Aggriev-ed by this order. Narendra Kumar has filed this special appeal, as stated above.

8. Notices were issued to the respondents to show cause why this special appeal be not admitted. Mr, M. M. Singhvi, learned counsel for Sampat Singh respondent No. 2 and Mr. R. P. Dave. Deputy Government Advocate, for the State of Rajasthan and the Returning Officer, appeared in response to the show cause notices and arguments advanced by the learned counsel for the parties were heard by us at the stage of admission. Upon perusal of the record and hearing the arguments of both the sides, we are of the opinion that this special appeal has no substance and is liable to be dismissed at the stage of admission for the following reasons:--

The first contention put forward by Mr. Marudhar Mridul. learned counsel for the appellant, is that the appellant being a tax-payer of the Panchavat Samiti. Shahpura. has a vital interest in all the matters pertaining to the said Panchayat Samiti and has a right to challenge the election of Sampat Singh. respondent No. 2 by way of a writ petition under Article 226 of the Constitution of India. It was further urged that the appellant cannot be deprived of his right to challenge the election of Sampat Singh, respondent No. 2 to the office of the Pradhan. Panchavat Samiti, Shahpura merely because Section 13 of the Act of 1959 provides that, the election of a Pradhan or Up-Pradhari of a Panchavat Samiti can be called in question by any member thereof by way of an election petition on the prescribed grounds and within the prescribed period. Mr. Maru-dhar Mridul further submitted that the right to file a writ petition of quo warranto is recognised by Article 226 of the Constitution of India and this right cannot be taken away by any ordinary law made by the State Legislature. According to his submission, the learned single Judge of this Court, committed an error in dismissing the writ petition of the appellant on the basis of the decision Riven by this Court in S. B. Civil Writ Petitions Nos. 7/82 Mahaveer Sinch v. Raghunath and S. B. Civil Writ Petition No. 80 of 1982 Laxmidan v. Narpat Karan, decided by this Court on April 9, 1982 : (AIR 1983 NOC 2201 because in the two decisions the question involved was whether the election was vitiated on account of the vole being cast by one voter, twice over. On the other hand-in the instant case the question involved is whether Sampat Sinch respondent No. 2 was disqualified to be elected to the office of Pradhan Panchayat Samiti. Shahpura.

9. Mr. M. M. Singhvi, learned counsel for Sampat Singh. respondent No. 2 refuted the above contention of Mr. Marudhar Mridul. learned counsel for the appellant by arguing that the election of Sampat Singh. respondent No, 2 to the office of Sarpanch Gram Panchayat Sangaria. was challenged by Sohan Das, a defeated candidate, in the Court of the Munsif and Judicial Magistrate First Class. Shahpura. by way of an election petition on the ground that at the date of filing the nomination form or at the date of scrutiny there of or at the date of election Sampat Singh stood convicted of an offence involving moral turpitude. This election petition filed by Sohan Das was dismissed with costs by the learned Munsif vide his iudgment dated July 21. 1982 (certified copy of which has been produced by Mr. M. M. Singhvi in this special appeal). Mr. M. M. Singhvi further urged that the election of Sampat Singh respondent No. 2 to the office of Pradhan. Panchavat Samiti. Shahpura. also was challenged by Shvam Sunder, (who is none else but the brother of Narendra Kumar appellant) a defeated candidate by wav of an election petition under Section 13 of theAct on this very ground of his having been convicted of offences punishable under Sections 409 and 406 read with Section 109. I.P.C. but this election petition also was dismissed by the District Judge, Bhil-wara. vide his judgment dated Sept. 24, 1982 (Photo-stat certified copy of which has been filed in this special appeal). It was further urged by Mr. M. M. Singhvi. learned counsel for respondent No. 2. on the strength of the referred-to-above two decisions given in the election petitions filed by Sohan Das and Shvam Sunder that the appellant is not entitled to challenge the election of Sampat Singh respondent No. 2 to the office of the Pradhan. Panchavat Samiti. Shahpura. on these very grounds on which basis the election was challenged by Sohan Das and Shyam Sunder.

10. We have considered the rival contentions mentioned above. At the outset, we may observe that the appellant is not a member of the Panchavat Samiti. Shahpura. He therefore, is not entitled to challenge the election of Sampat Singh. respondent No. 2 to the office of Pradhan. Panchavat Samiti, Shahpura, by way of election petition under, Section 13 of the Act of 1959 read with R. 3 of the Rules.

11. The next question that arises for determination is whether a writ in the nature of quo warranto can be issued in respect of an elective office like the present one. After taking into consideration a good number of authorities on this point our answer to this question is that the High Court is empowered in an appropriate case to issue such a writ regarding an election dispute, but it will not ordinarily assume to itself this function which has been adequately provided for in the statutory provisions dealing with the conduct of an election except for strong and compelling reasons, because interference with elections on mere technicalities would amount to interference with the decisions of the people who have recorded their votes and expressed their confidence in their representatives. The matter would be entirely different if the elected candidate suffered from any disqualification at the date of the election rendering his election invalid or if any irregularity committed in the course of elections is of a nature touching the substance of an election and has resulted in the voters not being able to express their views freely and properly and if there was any corrupt practicewhich has materially affected the result of the election or if the basis of the election, namely, the electoral roll is illegal and no election on its basis canthe permitted to stand or if the delimitations of the constituencies was invalid resulting in a considerable number of voters having been disenfranchised or if there was shown to have existed some such other material circumstance having the effect of rendering the election invalid.

12. Keeping the aforesaid principles in view we proceed to find outwhether there exists grave and compelling reasons justifying our interference with the election of the returned candidate, i. e, respondent No. 2. Mr. Marudhar Mridul invited our attentionto Section 11 of the Act which lays down the qualifications for election or appointment of a Panch. It reads as follows:--

'Section 11. Qualification of Panchas--Every person, who is entitled to vote at an election in any Panchavat circle or a ward thereof for the purpose of this Act. shall be qualified for election or appointment as a Panch unless suchperson :

(a) to (f) are not relevant for our purposes.

(g) has been convicted by a competent court, of an offence involving moral turpitude.'

There are 3 Provisos added to this section, Clause (ii) of which is quoted below in extenso:--

'(ii) For the purposes of Clause (c) (g). (i) and (m) any person shall become eligible after lapse of six years from the date of his dismissal or conviction, as the case may be, or earlier if he is declared eligible for election by a general orspecial order of the State Government in this behalf, and'

From a bare reading of Clause (g) of Section 11 and Clause (ii) of its proviso, it is obvious that a person though convicted by a competent court of an offence involving moral turpitude becomes eligible for election or appointment as a panch after a lapse of 6 years from the date of his conviction, or earlier, if he is declared eligible for election by a general or special order of the StateGovernment in this behalf. Mr. Marudhar Mridul vehemently contended before us that in the case of respondent No. 2, namely Kampat Singh six yearsmust be counted from the date on which the revision petition filed by him against his convictions and sentences in both the criminal cases were decided by the High Court. Mr. M: M. Singhvi, learned counsel for respondent No. 2, on the other hand, contended that the period of 6 years could be computed from the date of his conviction by the trial Court and the confirmation of his conviction by the revisional court will not provide a fresh date for commencement of the said period.

13. We have applied our minds to this controversy. In our opinion. 6 years will be counted from the date of the convictions of the respondent No. 2 by the trial court because in an appeal or revision from a conviction the appellate Court or the revisional Court, as the case may be. may reverse the finding and the sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction subordinate to such appellate Court or revisional Court or commit for trial or alter the finding maintaining the sentence or with or without altering the sentence, alter the nature of the extent of the sentence, but not so as to enhance the same. In the instant case, the appellate Court and the revisional Court upheld the convictions of respondent No. 2 while reducing the extent of the sen-tences awarded to him by the trial Court If the appellate or the revisional Court had reversed the findings of conviction and the sentence and acquitted respondent No. 2. his acquittal would have taken effect retrospectively from the date on which his conviction was recorded by the trial Court, Reference in this connection may be made to Manni Lal v. Parmai Lal. AIR 1971 SC 330. In our opinion, when the convictions of respondent No. 2 are upheld by the appellate Court and the revisional Court, it cannot be said that the date of his conviction should be treated as the date on which his convictions were upheld by the superior court in support of our above view, we may refer to a decision of this Court in Sohan Das v. Sampat Singh, 1982 Rajasthan LR 918 wherein Hon'ble Mr. Justice G. M. Lodha expressed a similar view. The relevant portion of the judgment of His Lordship is quoted below:--

'In the instant case, the controversyis only about the date of conviction andundoubtedly the trial Court's judgment recorded the conviction and the appellate or revisional Court refused to interfere so far as the finding about the conviction is concerned. and he only confirmed it.

In that view of the matter. I am firmly of the view that the date of conviction for the purposes of counting the period of six years, as mentioned in sub-Clause (2) of the proviso to Section 11 of the Rajasthan Panchayat Act, is the date when the accused is first convicted by the trial Court The judgment of the Election Tribunal therefore requires no interference and the writ petition is dismissed summarily.'

14. It will not be out of place to mention that under Section 389. Cr, P. C. the appellate Court may, for reasons to be recorded by it in writing, order that the execution of sentence appealed against be suspended during the pendency of an appeal by a convicted person and also if the convicted person is in confinement that he be released on bail or on his own bond. Under this section the appellate Court has no power to pass an order that the conviction of the appellant, who has been tried in due course of law by a subordinate court should be treated as suspended pending the disposal of his appeal. The section deals merely with the suspension of sentence pending decision of the appeal and release of the appellant on bail. If it had been the intention of the Legislature that pending his appeal conviction of the appellant would remain suspended and it would revive only from the date of the judgment of the appellate Court, if his appeal is dismissed, and his conviction by the trial Court is upheld, the Legislature would have expressly said so in the Cr. P. C. or in any other law. On the other hand, the Legislature enacted Sub-sec. (4) of Section 389 which says that when the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time, during which his sentence remains suspended and the time during which he is at large, shall be excluded in computing the period of imprisonment to be still undergone by him. Hence, we have no doubt in our minds that the date of conviction does not change in a case where the appellate or the revisional Court, as the case may be. has upheld or confirmed the conviction of any appellant or the petitioner, as the case may be while dismissing his appeal or revision petition. In such a case the date of judgment of the appellate or the revisional Court cannot legally be the date of his conviction which starts from the date when he was convicted by the trial Court.

15. Consequently, respondent No. 2 became eligible for election as Panch after lapse of 6 years from the date of his conviction by the trial Court although earlier he was disqualified on account of having been convicted for of fences involving moral turpitude punishable under Sections 406 and 409. I.P.C. it will not be out of place to mention that the defeated candidate, namely. Shyam Sunder, who is no other person but the brother of the petitioner, challenged the election of respondent No. 2 to the office of Pradhan. Panchayat Samiti. Shah-pura. on this very ground but his election petition was dismissed by the District Judge, Bhilwara. after full trial thereof. In the absence of any material on the record, we cannot say that this writ petition has been filed by the petitioner at the instance of the defeated candidate but we can say that this is not an appropriate case for invoking jurisdiction of this Court for issuance of a writ of quo warranto to respondent No. 2. as, in our opinion, respondent No. 2 was not disqualified to be elected as Pradhan. Panchavat Samiti. Shahpura. at the date of his election, because of the lapse of the period of 6 years from the date of his convictions by the trial Court of offences involving moral turpitude punishable under Sections 406 and 409. I.P.C.

16. The special appeal has, therefore, no substance and is hereby dismissed at the stage of admission.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //