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N. Manickam Vs. Arunagiri and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Reported in(1960)2MLJ583
AppellantN. Manickam
RespondentArunagiri and ors.
Excerpt:
- - 50. the petitioner's attempt to have the conviction and sentence set aside in revision by the high court failed, and the high court dismissed the petition preferred by him, criminal revision case no. 386 of 1959. 2. the petitioner's contention, that since the term of imprisonment was less than six months, the imprisonment awarded was only till the rising of the court, the requirements of section 16(1) of the act were not satisfied, was overruled by the election commissioner, and he allowed o. in the case of the petitioner the latter test was not satisfied......conviction must be followed by a sentence. the conviction itself must be for an offence involving moral delinquency. if the conviction and sentence were for an offence not involving moral delinquency, section 16(1) did not come into play at all, whatever was the nature of the sentence. in cases involving moral delinquency section 16(1) further stipulated that the sentence should be for a period of more than six months duration. it would therefore follow that, even in cases involving moral delinquency, if there was a conviction but no sentence at all, the person would not incur the disqualification under section 16(1). again, if in a case involving moral delinquency the conviction was followed up by a mere sentence of fine, the disqualifi-cacation imposed by section 16(1) would not come.....
Judgment:
ORDER

Rajagopalan, J.

1. The petitioner and respondents 1 to 3 contested the election for Block No. 2 in Ward No. 2 of the Bhavani Panchayat. 10th October, 1958 was the date of the poll. On 13th October, 1958, the petitioner who had secured 274 votes as against his nearest rival, the first respondent who got 216 votes was declared elected. The first respondent filed O.P. No. 73 of 1958 to set aside the election of the petitioner. The contention was that even on the date of the nomination the petitioner was disqualified under Section 16(1) of the Madras Village Panchayats Act (X of 1950). It was not disputed that on 31st December, 1957, the petitioner was convicted by the Second Presidency Magistrate, Madras, in C.C. No. 7227 of 1957 under Section 409, Indian Penal Code. The petitioner was sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 50. The petitioner's attempt to have the conviction and sentence set aside in Revision by the High Court failed, and the High Court dismissed the petition preferred by him, Criminal Revision Case No. 387 of 1959. Along with C.C. No. 7227 of 1957 there was another case, C.C. No. 7226 of 1957 in which also the petitioner was convicted, but that conviction was eventually set aside in Revision by the High Court in Criminal Revision Case No. 386 of 1959.

2. The petitioner's contention, that since the term of imprisonment was less than six months, the imprisonment awarded was only till the rising of the Court, the requirements of Section 16(1) of the Act were not satisfied, was overruled by the Election Commissioner, and he allowed O.P. No. 73 of 1958 and set aside the election. The petitioner applied under Article 226 of the Constitution for the issue of a writ of certiorari to set aside the order of the Election Commissioner, dated 29th January, i960.

3. Section 16(1) provides

A person who has been sentenced by a criminal Gouft to transportation or to imprisonment for a period of more than six months for any offence other than an offence not involving moral delta* quency, such sentence not having been reversed or the offence pardoned, shall be disqualified for election as a member while undergoing the sentence and for five years from the date of the expiration thereof.

Provided that the Government may direct that such sentence shall not operate as a disqualification.

4. This is not a case which came within the scope of the Proviso; nor was it a case of the sentence in G.G. No. 7227 of 1957 having been reversed or the offence involved therein having been pardoned.

5. To satisfy the requirements of Section 16(1) it is not enough if there is a.conviction. The conviction must be followed by a sentence. The conviction itself must be for an offence involving moral delinquency. If the conviction and sentence were for an offence not involving moral delinquency, Section 16(1) did not come into play at all, whatever was the nature of the sentence. In cases involving moral delinquency Section 16(1) further stipulated that the sentence should be for a period of more than six months duration. It would therefore follow that, even in cases involving moral delinquency, if there was a conviction but no sentence at all, the person would not incur the disqualification under Section 16(1). Again, if in a case involving moral delinquency the conviction was followed up by a mere sentence of fine, the disqualifi-cacation imposed by Section 16(1) would not come into play. On the same lines I have to hold that in cases involving moral delinquency, if a sentence of imprisonment was imposed, but that sentence was less than six months in duration, the disqualification imposed by Section 16(1) did not come into play. To incur the disqualification under Section 16(1) of the Act not only must the offence of which the person has been convicted involve moral delinquency, but the sentence imposed following the conviction for such an offence involving moral delinquency must have been one of imprisonment for a period of more than six months. In the case of the petitioner the latter test was not satisfied. He was no doubt convicted under Section 409, Indian Penal Code. It was an offence that involved moral delinquency. But the sentence was less than six months. The petitioner did not incur the disqualification imposed by Section 16(1).

6. The learned Counsel for the first respondent urged that the use of the expression ' for any offence other than an offence not involving moral delinquency ' justified the interpretation, that where any sentence is passed for an offence involving moral delinquency the disqualification imposed by Section 16(1) came into play irrespective of the nature of the sentence or the duration of the imprisonment. The learned Counsel pointed out that in Act XXXV of 1958, Section 25(1), which to some extent corresponds to Section 16(1) of Act X of 1950, the provision made was:

A person who has been sentenced by a criminal Court to imprisonment for any offence involving moral delinquency, such sentence not having been reversed, shall be disqualified for election as member while undergoing the sentence and for five years from the date of the expiration thereof.

7. The expression used there is ' for any offence involving moral delinquency.' The expression used in Section 16(1) of Act X of 1950 is for an offence other than an offence not involving moral delinquency. The effect is the same. I am unable to look upon Section 25 of Madras Act XXXVof 1958 as throwing any light on the interpretation of Section 16(1) of Act X of 1950. Certainly it does not support the contention of the learned Counsel for the first respondent, that where a person is convicted of an offence involving moral delinquency he incurs the disqualification under Section 16(1) whatever might have been the sentence imposed upon him. Once again I have to emphasise that what Section 16(1) requires is not only a conviction but also a sentence, and the extent of the sentence has also been specified in Section 16(1).

8. The Election Commisisoner's interpretation of the scope of Section 16(1) constitutes a clear error of law apparent on the face of the record. The petitioner did not incur the disqualification imposed by Section 16(1) of Act X of 1950. The rule nisi is confirmed and a writ of certiorari will issue to set aside the order of the Election Commissioner, dated 29th January, i960, in O.P. No. 73 of 1958. No order as to costs.


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