LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S.N. SHUKLA versus ELECTION COMMISSION OF INDIA & ORS.

Citation: [2018] 12 S.C.R. 169 · Decided: 26-09-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Dismissed

Cited by 1 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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LOK PRAHARI, THROUGH
ITS GENERAL SECRETARY S.N. SHUKLA
v.
ELECTION COMMISSION OF INDIA & ORS.
(Writ Petition (Civil) No.330 of 2016)
SEPTEMBER 26, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Representation of the People Act, 1951 – s.8 – Disqualification
u/s.8 on conviction for certain offences – Stay of conviction by the
Appellate Court – Effect of – Held:  Upon the stay of a conviction
u/s. 389 of Cr.P.C., the disqualification u/s.8 will not operate – The
Appellate Court has power, in an appropriate case, to stay the
conviction u/s.389 of Cr.P.C. besides suspending the sentence –
The power to stay conviction is by way of an exception – Before, it
is exercised, the Appellate Court must be made aware of the
consequence which will ensue if the conviction were not to be stayed
– Once the conviction has been stayed by the Appellate Court, the
disqualification under sub-sections 1, 2 and 3 of s.8 of the Act will
not operate – In other words, the disqualification which operated
as a consequence of the conviction cannot take or remain in effect
– Code of Criminal Procedure, 1973 – s.389 – Penal Code, 1860 –
ss. 353, 504 and 506 – Constitution of India – Arts.102(1)(e) and
191(1)(e).
An erstwhile member of the State Legislative Assembly
was convicted u/ss. 353, 504 and 506 of IPC and was sentenced
to imprisonment. In appeal, District Court stayed the execution
of the sentence and of  the conviction. The Petitioner filed PIL
before the High Court seeking  declaration that MLA was
disqualified   u/s.8 of the Act notwithstanding the stay granted by
the Sessions Judge. PIL dismissed by the High Court. Hence,
the present writ petition.
Dismissing the Writ petition, the Court
HELD: 1. The Supreme Court has settled the position on
the effect of an order of an appellate court staying a conviction
 [2018] 12 S.C.R. 169
169
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SUPREME COURT REPORTS
[2018] 12 S.C.R.
pending the appeal in its various judgments. Upon the stay of a
conviction under Section 389 of Cr.P.C., the disqualification
under Section 8 of Representation of People Act, 1951 will not
operate. The decisions in Ravi Kant Patil and Lily Thomas
conclude the issue. Since the decision in Rama Narang, it has
been well-settled that the appellate court has the power, in an
appropriate case, to stay the conviction under Section 389 of
Cr.P.C. besides suspending the sentence. The power to stay a
conviction is by way of an exception. Before it is exercised, the
appellate court must be made aware of the consequence which
will ensue if the conviction were not to be stayed. Once the
conviction has been stayed by the appellate court, the
disqualification under sub-sections 1, 2 and 3 of Section 8 of the
Representation of the People Act 1951 will not operate. Under
Article 102(1)(e) and Article 191(1)(e) of the Constitution, the
disqualification operates by or under any law made by Parliament.
Disqualification under the above provisions of Section 8 follows
upon a conviction for one of the listed offences. Once the
conviction has been stayed during the pendency of an appeal, the
disqualification which operates as a consequence of the
conviction cannot take or remain in effect. In view of the
consistent statement of the legal position in Rama Narang and in
decisions which followed, there is no merit in the submission
that the power conferred on the appellate court under Section
389 does not include the power, in an appropriate case, to stay
the conviction. Clearly, the appellate court does possess such a
power. Moreover, it is untenable that the disqualification which
ensues from a conviction will operate despite the appellate court
having granted a stay of the conviction. The authority vested in
the appellate court to stay a conviction ensures that a conviction
on untenable or frivolous grounds does not operate to cause
serious prejudice. As the decision in Lily Thomas has clarified, a
stay of the conviction would relieve the individual from suffering
the consequence inter alia of a disqualification relatable to the
provisions of sub-sections 1, 2 and 3 of Section 8 of the 1951 Act.
[Para 14] [181-D-H; 182-A-B]
Lily Thomas v. Union of India (2013) 7 SCC 653 :
[2013] 10 SCR 1130 ; Rama Narang v. Ramesh Narang
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(1995) 2 SCC 513 : [1995] 1 SCR  456 ; Ravikant S
Patil v. Sarvabhouma S Bagali (2007) 1 SCC 67 :
[2006] 8 Suppl.  SCR 1156 – relied on.
B R Kapur v. State of Tamil Nadu (2001) 7 SCC 231 :
[2001

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