Bombay High Court
Karimuddin @ Karimlala Kazi vs Deepak S/O Shankarlal Jaiswal And ... on 26 August, 2015
Bench: Ravi K. Deshpande
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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,
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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
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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."
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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
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"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
