# Lok Prahari Thru. General Secy. [PIL] v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 658
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-11
- **Case number:** Bench No. 1779 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lok-prahari-thru-general-secy-pil-v-state-of-u-p-ors-43268
- **Pages:** 6

## Headnote

Constitution of India, Art. 226-Public
Interest
Litigation-Petitioner
seeking
direction-to declare MLA seat vacant-on
disqualification after conviction-in criminal
case-although conviction and execution of
sentense stayed-suspended by Appellate
Court-in view of provisions Section 8(3) of
Representation of people Act-held-once
similar prayer refused in shape of PILkeeping in view of decision of Lily Thomas
case-petition misconceived.
Held: Para-13
Thus, it is clear that notwithstanding the
declaration of Section 8(4) of the Act as
ultra
vires,
the
Supreme
Court
has
protected the consequence of the exercise
of the power contained in Section 389(1)
of the Code so that where the appellate
court in the exercise of the power stays
the conviction, the disqualification which
would otherwise stand attracted will not
operate from the date on which the
conviction has been stayed.
Case Law discussed:
(2007) 2 SCC 574; (2013) 7 SCC 653; (1995) 3
SCC 513; (2007) 1 SCC 673; (2001)7 SCC 231.
2 All] Lok Prahri Thru. General Secy. [PIL] Vs. State of U.P. & Ors.
659

## Text

658
 INDIAN LAW REPORTS ALLAHABAD SERIES
14. In Nivedita Sharma Versus
Cellular Operator Assn Of India and
others; (2001)14 SCC 337 the Apex Court
noticed that when a statutory forum is
created by law for redressal of grievances,
a writ petition should not be entertained
ignoring the statutory dispensation.
15. In Cicily Kallarackal vs. Vehicle
Factory 2012(8) SCC 524 the Apex Court
issued a direction of caution that it will not
be proper exercise of the jurisdiction by the
High Court to entertain a writ petition
against such orders against which statutory
appeal lies before the Apex Court.
16. Before parting, it may be pointed
out that the law declared by Hon'ble
Supreme Court is binding on all courts,
including High courts, and High courts
cannot ignore it on the ground that
relevant provisions were not brought to
the notice of the Apex Court or that the
Apex Court laid down the legal position
without considering all the points, and
therefore its decision is not binding. See:
[Ballabhdas versus Municipal Committee,
(1970) 2 SCC 267].
17.
In view of the aforesaid legal
proposition, it is imminently clear that the
writ petition filed by the petitioner assailing
the order of the Tribunal is not maintainable
and as such this Court is not inclined to
exercise discretionary writ jurisdiction under
Article 226 of the Constitution and the writ
petition is liable to be dismissed.
18. For the reasons aforesaid, the
writ petition is dismissed being not
maintainable. It is clarified that this Court
has not delve into the merits of the case.
19. Costs easy.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.05.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
HON'BLE SHRI NARAYAN SHUKLA, J.
Misc. Bench No. 3146 of 2015 with Misc.
Bench No. 1779 of 2015
Lok Prahari Thru. General Secy. [PIL]
.Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
S.N. Shukla (In Person)
Counsel for the Respondents:
C.S.C., Abhinav N. Trivedi, V.K. Dubey
Constitution of India, Art. 226-Public
Interest
Litigation-Petitioner
seeking
direction-to declare MLA seat vacant-on
disqualification after conviction-in criminal
case-although conviction and execution of
sentense stayed-suspended by Appellate
Court-in view of provisions Section 8(3) of
Representation of people Act-held-once
similar prayer refused in shape of PILkeeping in view of decision of Lily Thomas
case-petition misconceived.
Held: Para-13
Thus, it is clear that notwithstanding the
declaration of Section 8(4) of the Act as
ultra
vires,
the
Supreme
Court
has
protected the consequence of the exercise
of the power contained in Section 389(1)
of the Code so that where the appellate
court in the exercise of the power stays
the conviction, the disqualification which
would otherwise stand attracted will not
operate from the date on which the
conviction has been stayed.
Case Law discussed:
(2007) 2 SCC 574; (2013) 7 SCC 653; (1995) 3
SCC 513; (2007) 1 SCC 673; (2001)7 SCC 231.
2 All] Lok Prahri Thru. General Secy. [PIL] Vs. State of U.P. & Ors.
659
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.
1. The third respondent was elected as
a Member of the State Legislative Assembly
on 8 March 2012 from the Mirzapur Sadar -
396 seat. Presently, he holds the office of a
Minister of State in the State Government.
On 28 February 2015, he was convicted by
the Chief Judicial Magistrate of offences
under Sections 353, 504 and 506 of the Penal
Code. The third respondent was sentenced to
imprisonment of two years under Section
353 and to a fine of rupees two thousand (or
in default to imprisonment of three months);
to imprisonment for two years in respect of
the offence under Section 504 and to a fine
of rupees two thousand (or in default to
imprisonment of three months); and in
respect of the offence under Section 506 to
imprisonment for three years and to a fine of
rupees five thousand (or in default to
imprisonment of six months).
2. On 10 March 2015, while
admitting the appeal filed by the third
respondent, the District and Sessions
Judge, Mirzapur directed his release on
bail and that the execution of the sentence
would remain suspended. The third
respondent had also sought a suspension
of the conviction during the pendency of
the criminal appeal specifically stating
that he was a Member of the Legislative
Assembly from the Mirzapur Assembly
Constituency and that if the judgment and
conviction were not stayed, he would
incur a disqualification under Section 8(4)
of the Representation of the People Act,
19511. The application for stay of the
conviction was heard on 10 March 2015
and was deferred to 13 March 2015. The
relevant part of the order of the District
and Sessions Judge dated 10 March 2015
reads as follows:
"5[k izkFkZuk i= vihykFkhZ dh vksj ls bl
vk'k; dk izLrqr fd;k x;k gS fd vihykFkhZ orZeku
esa fetkZiqj fo/kkulHkk {ks= ls fo/kk;d gS vkSj ;fn
mlds fo:) mijksDr fu.kZ;kns'k dk izHkko LFkfxr
ugha
fd;k
x;k
rks
Section
8(4)
of
Representation of People Act, 1951 ds
v/khu fo/kkulHkk ls mldh lnL;rk lekIr gks
tk;sxh vkSj Hkfo"; esa pquko ugha yM+ ldsxk rFkk
mldh viw.kZuh; {kfr gksxhA vr,o vk{ksfir
nks"kflf) dk vkns'k rFkk mldk fdz;kUo;u vihy
ds fuLrkj.k rd LFkfxr djus dh d`ik dh tk;sA
mHk; i{k dks lquk x;k ,oa vk{ksfir
fu.kkZ;kns'k dk voyksdu fd;kA
i=koyh okLrs vkns'k fnukad & 13-3-2015 dks
izLrqr gksA voj U;k;ky; dh i=koyh rRdky dh
tk;sA"
3. On 13 March 2015, the Sessions
Judge referred to the submission of the
third respondent that if the judgment of
conviction was not stayed, he would incur
a disqualification. The Sessions Judge
also noted that the third respondent had
already been released on bail on 10 March
2015. After referring to the judgment of
the Supreme Court in Navjot Singh Sidhu
Vs. State of Punjab and another2; Lily
Thomas Vs. Union of India and others3;
and Basant Kumar Chaudhary Vs. Union
of India and others4, the Sessions Judge
passed the following order.
"vkns'k
vk{ksfir fu.kZ;kns'k dk fdz;kUo;u vihy ds
fuLrkj.k rd fuyfEcr fd;k tkrk gSA izkFkZuk i= 5
[k dk fuLrkj.k rnuqlkj fd;k tkrk gSA
i=koyh vfxze fu;r frfFk fnukad & 10-42015 dks lquokbZ gsrq izLrqr gksA"
4. A writ petition was filed before
this Court at Allahabad, inter alia, seeking
a declaration that the third respondent
stood disqualified as a Member of the
Legislative Assembly; for the withdrawal
of all facilities provided as a State
Minister; for a declaration of the seat as
660
 INDIAN LAW REPORTS ALLAHABAD SERIES
vacant to facilitate a bye-election; and a
restraint against the third respondent from
functioning either as a Member of the
Legislative Assembly or as a State
Minister.
5. The effect of the order of the
District
and
Sessions
Judge
was
considered in a judgment of a Division
Bench of this Court dated 21 April 2015,
where it was held as follows:
"In the present case, as the record
before the Court indicates, initially by an
order dated 10 March, 2015 the fifth
respondent was enlarged on bail and the
execution of the sentence or "n.Mkns'k" was
suspended. The order of the Sessions
Judge dated 10 March, 2015 specifically
notes that an application had been filed by
the fifth respondent stating that he was a
sitting
member
of
the
Legislative
Assembly
and
would
incur
a
disqualification if the conviction was not
stayed. An application for stay of the
conviction and sentence was moved by
the fifth respondent on 10 March, 2015
specifically drawing the attention of the
Sessions court to the legal position. Upon
hearing the application, the Sessions
Judge by a separate order dated 13 March,
2015 directed that the implementation of
the judgment under challenge would stand
suspended pending the disposal of the
appeal. There was no occasion for the
Sessions Judge, Mirzapur to pass this
order if the conviction, as prayed, was not
being stayed. The execution of the
sentence had already been suspended by
the previous order dated 10 March, 2015
and if the application for stay of the order
of the conviction was to be rejected, the
Sessions Judge would have proceeded to
pass an order of rejection of the
application. On the contrary, the order of
the Sessions Judge would indicate that the
implementation of the entire judgment
under appeal was suspended pending the
disposal of the appeal and the application
was accordingly disposed of. Having
regard to this background and the plain
terms of the order dated 13 March, 2015
we are unable to accept the submission of
the petitioner that what was stayed, was
only the implementation of the order,
resulting only in a suspension of the
sentence. The record and the plain
terminology of the order would indicate to
the contrary."
6. Consequently, the Division Bench
held that the disqualification under
Section 8(3) of the Act would not be
attracted once the Sessions Judge had
stayed the conviction on 13 March 2015.
The
writ
petition
was
accordingly
dismissed.
7. Two writ petitions are before the
Court in these proceedings. The first writ
petition by Lok Prahri seeks (i) a
mandamus to the Principal Secretary in
the Vidhan Sabha to issue a notification
that
the
third
respondent
stands
disqualified
as
a
Member
of
the
Legislative Assembly with effect from the
date of his conviction; (ii) a writ of quo
warranto to the third respondent; (iii) a
declaration that the continuance of the
third respondent after his conviction is
illegal; and (iv) a direction to the Election
Commission of India to take further
action for filling up the seat. Similar relief
has been sought in the companion writ
petition in which a writ of quo warranto
has been sought.
8. The submission which has been
urged on behalf of the petitioners is that in
the judgment of the Division Bench at
2 All] Lok Prahri Thru. General Secy. [PIL] Vs. State of U.P. & Ors.
661
Allahabad, this Court construed the order
of the Sessions Judge, Mirzapur dated 13
March 2015 as having stayed the
conviction. This aspect has not been
reagitated. However, it has been sought to
be urged that notwithstanding the stay of
conviction, the disqualification of the
third respondent would not stand obviated
since (i) the consequence of the seat
falling vacant under Article 190(3)(a) of
the Constitution stands attracted upon the
disqualification under Article 191(1)(e)
and the seat shall thereupon automatically
become vacant; and (ii) the subsequent
order of stay granted by the Sessions
Judge, by which the conviction was
stayed
would
not
obliterate
the
disqualification which was attracted the
moment
the
third
respondent
was
convicted of an offence punishable with
imprisonment of a term of not less than
two years under Section 8(3) of the Act.
9. At the outset, we must note that
though strictly as a matter form, no writ
of quo warranto was sought in the
proceedings which took place before this
Court at Allahabad, the basis and
foundation of these proceedings as in
those which were filed at Allahabad, is
the same. The submission is that the third
respondent incurred a disqualification
under Section 8(3) of the Act upon his
conviction and sentence for an offence
carrying a term of imprisonment of not
less than two years and that the order of
the Sessions Judge dated 13 March 2015
did not obliterate the disqualification. We
must of course note the distinction in the
submissions which were urged before the
Court at Allahabad and in the present
proceedings.
In
the
proceedings
at
Allahabad, what was sought to be urged
was that the Sessions Judge by his order
dated 13 March 2015 had not stayed the
conviction. This submission was inquired
into and specifically rejected by the
Division Bench at Allahabad. Those
proceedings were in the nature of a
petition filed in the public interest as are
the two writ petitions which form the
subject matter of these proceedings at
Lucknow. All the issues which could and
ought to have been raised at Allahabad
must be treated as having been governed
by and adjudicated upon by the Division
Bench in its judgment dated 21 April
2015. The remedy of a party which is
aggrieved by the judgment delivered by
the Division Bench at Allahabad on 21
April 2015 would be to espouse the
remedies available in law against that
judgment.
10. Be that as it may, and since the
submission which has been urged before
this Court has been canvassed on merits
as well, for the completeness of the
record, we deem it appropriate to deal
with the submission. The submission
proceeds on the basis that under Section
8(3) of the Act, a person who is convicted
of
an
offence
and
sentenced
to
imprisonment for not less than two years
shall be disqualified from the date of the
conviction and shall continue to be
disqualified for a further period of six
years since his release. Article 190(1) of
the
Constitution
provides
for
disqualifications for membership. Subclause (e) of clause (1) of Article 191 of
the Constitution provides that a person
shall be disqualified for being chosen as
and for being a Member of the Legislative
Assembly or a Legislative Council of a
State if he is so disqualified by or under
any law made by Parliament. Article
190(3) of the Constitution provides that in
such a situation, if a Member of a House
of the Legislature of a State becomes
662
 INDIAN LAW REPORTS ALLAHABAD SERIES
subject to any of the disqualifications
mentioned, inter alia, in clause 1 of
Article 191, his seat shall thereupon
becomes vacant. The submission which is
urged is that the disqualification stands
attracted the moment an order of
conviction is passed with the result that
the seat would fall vacant and a
subsequent stay which is granted of the
conviction would not obliterate this effect.
11.
In Lily Thomas (supra), the
Supreme Court held the provisions of
Section 8(4) of the Representation of the
People Act to be ultra vires. Section 8(4) of
the Act stipulated that notwithstanding
anything contained in sub-sections (1), (2) or
(3) a disqualification under either sub-section
shall not, in the case of a person who on the
date of the conviction is a Member of
Parliament or the Legislature of a State take
effect until three months have elapsed from
that date or, if within that period an appeal or
application for revision is brought in respect
of the conviction or the sentence, until that
appeal or application is disposed of by the
Court. In paragraph 30 of the judgment in
Lily Thomas (supra), the Supreme Court
noted that once a person who was a Member
of either House of Parliament or the House
of the State Legislature becomes disqualified
by or under any law made by Parliament
under Article 102(1)(e) and Article 191(1)(e)
of
the
Constitution,
his
seat
would
automatically fall vacant by virtue of Article
101(3)(a) and Article 190(3)(a) of the
Constitution and it was not open to
Parliament to make a provision under
Section 8(4) of the Act to defer the date on
which the disqualification of a sitting
Member would have effect. Having held this,
the Supreme Court also dealt with the
submission that if this interpretation would
be adopted, a sitting Member of Parliament
or of the State Legislature who suffers from a
frivolous conviction by the trial court of an
offence under sub-sections (1), (2) or (3) of
Section 8 of the Act, would be remediless
and would suffer immense hardship as he
would stand disqualified on account of the
conviction in the absence of sub-section (4)
of Section 8 of the Act. This submission in
regard to the severe consequences of the
declaration of Section 8(4) of the Act as
ultravires was dealt with in the judgment of
the Supreme Court by adverting to the power
conferred under Section 389 (1) of the Code
of Criminal Procedure, 19735 upon the
appellate court. The Supreme Court adverted
to the decision in Rama Narang Vs. Ramesh
Narang6 as having laid down the principle of
law that the appellate court under Section
389(1) of the Code has the jurisdiction to
stay the execution not only of the order of
sentence but of the conviction itself. In fact,
for convenience of reference, we extract
hereinbelow from the decision in Rama
Narang's case:
"19. That takes us to the question
whether the scope of Section 389(1) of the
Code extends to conferring power on the
appellate court to stay the operation of the
order of conviction. As stated earlier, if the
order of conviction is to result in some
disqualification of the type mentioned in
Section 267 of the Companies Act, we see no
reason why we should give a narrow
meaning to Section 389(1) of the Code to
debar the court from granting an order to that
effect in a fit case. The appeal under Section
374 is essentially against the order of
conviction because the order of sentence is
merely consequential thereto; albeit even the
order of sentence can be independently
challenged if it is harsh and disproportionate
to the established guilt. Therefore, when an
appeal is preferred under Section 374 of the
Code the appeal is against both the
conviction and sentence and therefore, we
2 All] Ravi Vs. State of U.P. & Anr.
663
see no reason to place a narrow interpretation
on Section 389(1) of the Code not to extend
it to an order of conviction, although that
issue in the instant case recedes to the
background because High Courts can
exercise inherent jurisdiction under Section
482 of the Code if the power was not to be
found in Section 389(1) of the Code."
12. This power of the appellate court
under Section 389(1) of the Code was
specifically adverted to in the decision of
the Supreme Court in Lily Thomas
(supra) while holding provisions of
Section 8(4) of the Representation of the
People Act as ultra vires. In fact, after
referring to the judgment in Ravikant S.
Patil Vs. Sarvabhouma S Bagali7, the
Supreme Court held as follows:
"...Therefore,
the
disqualification
under sub-sections (1), (2) or (3) of
Section 8 of the Act will not operate from
the date of order of stay of conviction
passed by the appellate court under
Section 389 of the Code or the High Court
under
Section
482
of
the
Code."
(emphasis supplied)
13.
Thus,
it
is
clear
that
notwithstanding the declaration of Section
8(4) of the Act as ultra vires, the Supreme
Court has protected the consequence of the
exercise of the power contained in Section
389(1) of the Code so that where the
appellate court in the exercise of the power
stays the conviction, the disqualification
which would otherwise stand attracted will
not operate from the date on which the
conviction has been stayed.
14.
The reliance which has been
placed on behalf of the petitioners upon the
judgment of the Supreme Court in B.R.
Kapur Vs. State of Tamil Nadu and another8,
would not advance the case any further. In
that case before the Constitution Bench, there
was a conviction under Section 120-B of the
Penal Code read with Sections 13(1)(c),
13(1)(d) and 13(2) of the Prevention of
Corruption Act, 1988 and of offences under
Section 409 of the Penal Code. The Madras
High Court while suspending the sentence of
imprisonment, dismissed the petition seeking
a stay of the conviction. The Supreme Court
held that the suspension of the execution of
the sentence consequently did not remove the
disqualification. B.R. Kapur's case was
therefore one where there was no stay of the
conviction but only a suspension of the
sentence of imprisonment.
15. For these reasons and upon
careful consideration of the submissions
which have been urged on behalf of the
petitioners, we find no merit in the writ
petition. We hence also see no reason to
accede to the prayer of the petitioner in
person to refer the case to a larger bench.
The petition is, accordingly, dismissed.
There shall be no order as to costs.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.05.2015
BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
Criminal Revision No. 3312 of 2013
Ravi
 ...Revisionist
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Revisionist:
Sri Ravindra Sharma, Sri A.C. Srivastava,
Sri A.P. Singh Raghav, Sri Saurabh Gour,
Sri Sushil Shukla, Sri A.B.L. Gaur.
Counsel for the Opp. Parties:
A.G.A., Sri Gaurav Kakkar.