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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.782 OF 2015
Karimuddin @ Karimlala Kazi,
Aged about 50 years,
Occ: Business, R/o Ghutkala Ward,
Chandrapur, Tah. & Dist. Chandrapur. ....... PETITIONER
...V E R S U S...
1]
Deepak s/o Shankarlal Jaiswal,
Aged about 54 years, Occ: Business,
R/o Bazar Ward, Saibaba Ward,
Chandrapur, Tah. & Dist. Chandrapur.
2] Returning Officer,
Chandrapur Municipal Corporation,
Chandrapur, Tah. & Dist. Chandrapur.
3] Vikki Navnit Dikondwar,
Aged about 36 years, Occ: Business,
R/o Ekori Ward, Chandrapur,
Tah. & Dist. Chandrapur.
4] Gaus Mohammad Kadarkhan Pathan,
Aged about 50 years, Occ: Business,
R/o Near Juber Khan House, Baba Ice
Factory Shindhaban, Ekori Ward,
Chandrapur, Tah. & Dist. Chandrapur.
5] Ravindra Bhagwan Pachhai,
Aged about 44 years, Occ: Business,
R/o Ekori Ward, Chandrapur,
Tah. & Dist. Chandrapur.
6] Sau. Veena Abhay Khanke,
Aged about 42 years, Occ: Household,
R/o Ekori Ward, Chandrapur,
Tah. & Dist. Chandrapur.
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7] Sau. Archana Sanjiv Chahare,
Aged about 38 years, Occ: Household,
R/o Binba Ward, Chandrapur,
Tah. & Dist. Chandrapur.
8] Sau. Shalini Devendra Shastrakar,
Aged about 44 years, Occ: Household,
R/o in front of Sidharth School,
Ghutkala Ward, Chandrapur,
Tah. & Dist. Chandrapur. ....... RESPONDENTS
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Shri Anil Mardikar, Senior Counsel with Shri A.S. Kilor, Advocate
for Petitioner.
Shri F.T. Mirza, Advocate for Respondent No.1.
Shri Shailesh A. Sahu, Advocate holding for Shri M.I. Dhatrak,
Advocate for Respondent No.2.
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CORAM: R.K. DESHPANDE, J.
th AUGUST, 2015.
DATE: 26
ORAL JUDGMENT
1] Rule, made returnable forthwith. Heard finally by consent
of the learned counsels appearing for the parties.
2] The petitioner was elected as the Member of the Municipal Corporation from Prabhag No.21-B on 16.04.2012. On 20.04.2012, an Election Petition No.1 of 2012 under Section 16 of the Maharashtra Provincial Municipal Corporation Act, 1949 (for short "the said Act") was preferred challenging his election on the ground that, on the date of his election, the petitioner was disqualified under Section 10 of the said Act, ::: Uploaded on - 01/09/2015 ::: Downloaded on - 10/09/2015 20:07:08 ::: wp782.15.J.odt 3/8 because the order of conviction passed by the Sessions Court against him on 25.06.2007 sentencing him to suffer an imprisonment for a period of one year, was operating. This election petition has been allowed by the learned Civil Judge, Senior Division, Chandrapur on 16.01.2015 declaring that the petitioner was disqualified for being a Councilor from Prabhag No.21-B of the Municipal Corporation of City Chandrapur and his election is set aside. Hence, this writ petition challenging the decision of the Election Tribunal.
3] It is not disputed that the petitioner was prosecuted for the offences punishable under Sections 147, 148, 307 r/w 149, 323, 336, 427 and 448 of the IPC and under Section 4 r/w 25 of the Indian Arms Act in Sessions Case No.31 of 2006. The Sessions Court convicted the petitioner for the offence punishable under Section 448 r/w 34 of the Indian Penal Code ("IPC") and was sentenced to suffer simple imprisonment for one year. He was also convicted for an offence punishable under Section 323 r/w 34 of the IPC and was sentenced to suffer simple imprisonment for one year. He was further convicted for an offence punishable under Section 4 r/w 25 of the Indian Arms Act and was sentenced to suffer simple imprisonment for one year. All the sentences were directed to run concurrently. This decision of the Sessions Court delivered on 25.06.2007 was the subject-matter of challenge in Criminal Appeal No.261 of 2007 preferred before this Court ::: Uploaded on - 01/09/2015 ::: Downloaded on - 10/09/2015 20:07:08 ::: wp782.15.J.odt 4/8 by the petitioner. It was decided on 27.07.2012. This Court maintained the conviction, but set aside the sentence.
4] Paragraph 6 and 7 of the aforesaid judgment delivered by this Court being relevant are reproduced below:
"6. I have gone through the evidence led on record. It is not in dispute that there was previous enmity between the parties. Considering the evidence and facts and circumstances of the case, in my opinion, one chance to reform should be given to the appellants and instead of sending the appellants to jail, they be released on probation of good conduct. Hence, the following order.
7. Impugned judgment and order of conviction is maintained. However, order of jail sentence imposed on the appellants is set aside. It is directed that appellants be released on their entering int a bond of good behaviour and conduct for a period of one year. Bond shall include an undertaking that if the appellants failed to keep peace and maintain good conduct for a period of one year, they will surrender before the trial Court to receive the sentence inflicted by the impugned judgment & order as and when called upon to do so. Bonds be furnished before the trial Court. Appeal stands disposed of accordingly."::: Uploaded on - 01/09/2015 ::: Downloaded on - 10/09/2015 20:07:08 :::
wp782.15.J.odt 5/8 In view of the aforesaid judgment it is clear that the benefit under Section 12 of the Probation of Offenders Act, 1958 has been granted by this Court to the petitioner.
5] Section 12 of the Probation of Offenders Act being relevant, is reproduced below:
12. Removal of disqualification attaching to conviction.---
Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law:
Provided that nothing in this section shall apply to a person who, after his release under section 4, is subsequently sentenced for the original offence.
In view of the aforesaid provision, if the offences are dealt with under Section 3 or Section 4 of the Probation of Offenders Act, the person found guilty shall not suffer disqualification. In the present case, the offences against the petitioner are dealt with under Section 3 and Section 4 of the Probation of Offenders Act, by this Court in Criminal Appeal No.261 of 2007 decided on 27.07.2012.
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6] Therefore, the question involved in the present petition is
whether the benefit granted by this Court to the petitioner in Criminal Appeal No.261 of 2007 under Section 12 of the Probation of Offenders Act on 27.07.2012 operates from the date of conviction of the petitioner by the Sessions Court on 25.06.2007, so as to save him from disqualification to contest the election.
7] Shri Mirza, the learned counsel appearing for the respondent No.2 does not dispute the position of law that the order passed by this Court under Section 12 shall operate from the date of the judgment delivered by the Sessions Court on 25.06.2007. Though, the order of conviction passed by the trial Court is maintained in appeal by this Court, the effect of Section 12 would be that the disqualification attached to the conviction gets suspended till the event as contemplated by proviso to Section 12 operates. It is not the case of any of the parties that such event had occurred in the present case on 16.04.2012.
8] Para 13 in the case of Union of India and others vs. Bakshi Ram reported in AIR 1990 SC 987, which is relied upon by Shri Anil Mardikar, the learned senior counsel for the petitioner, is relevant and hence the same is reproduced below:
13. Section 12 is thus clear and it only directs that the offender ::: Uploaded on - 01/09/2015 ::: Downloaded on - 10/09/2015 20:07:08 ::: wp782.15.J.odt 7/8 "shall not suffer disqualification, if any, attaching to a conviction of an offence under such law". Such law in the context is other law providing for disqualification on account of conviction. For instance, if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of S. 12 stands removed. That in effect is the scope and effect of S. 12 of the Act. But that is not the same thing to state that the person who has been dismissed from service in view of his conviction is entitled to reinstatement upon getting the benefit of probation of good conduct.
Apparently, such a view has no support by the terms of S. 12 and the order of the High Court cannot, therefore, be sustained.
9] In view of the aforesaid position of law the disqualification of the petitioner was removed by virtue of Section 12 of the Probation of Offenders Act and such removal operated from 25.06.2007. It cannot therefore, be said that the petitioner was disqualified under Section 10 of the Maharashtra Provincial Municipal Corporation Act, on the date of his election i.e. on 16.04.2012 as a Member of the Municipal Corporation from Prabhag No.21-B. The trial Court has committed an error of law in setting aside the election petition of the petitioner on such ground. The judgment and order passed by the trial Court cannot, therefore, be sustained.
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10] In the result, the writ petition is allowed. The judgment and
order dated 16.01.2015 passed by the Election Tribunal in Election Petition No.1 of 2012, is hereby quashed and set aside. Election Petition No.1 of 2012 is dismissed.
11] Rule is made absolute in these terms. No order as to costs.
ig JUDGE
NSN
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