Orissa High Court
Surendranath Jena vs Presiding Officer, State Co-Operative ... on 12 December, 1989
Equivalent citations: AIR1990ORI204, AIR 1990 ORISSA 204
Author: D.P. Mohapatra
Bench: D.P. Mohapatra, A. Pasayat
JUDGMENT D.P. Mohapatra, J.
1. The petitioner who was elected as the President of the Kadebaranga Service Co-operative Society (opp. party No. 5) (for short 'the Society') filed this application under Articles 226 and 227 of the Constitution of India seeking to quash the order dated 21-11-86 (Annexure 3) of the Asstt. Registrar, Co-operative Societies, Bhadrak Circle (opp. party No. 2) holding that the petitioner was disqualified to be elected as a member of the Committee and the order dated 17-7-89 (Annexure 5) of the Member, Co-operative Tribunal confirming the said order of the Asstt. Registrar.
2. The petitioner and opp. party No. 3 Purna Chandra Sahu filed nominations for election of a member to the Committee of the Society. The nominations were filed on 27-1-86, scrutiny of nomination papers was held on 1-2-86 and the election was held on 12-2-86. The petitioner having polled larger number of votes was declared to be elected. Subsequently he became the President of the Society. On the petition dated 17-2-86 filed by opp. party No. 3 challenging the election of the petitioner as member the Asstt. Registrar registered Dispute Case No. 5360/85-86. The main ground of challenge stated in the application was that the petitioner was convicted in a criminal case, viz. S.T. No. 7/39 of 1981 by the Asstt. Sessions Judge, Bhadrak on 30-9-81 under Sections 323 and 379, I.P.C. and therefore was disqualified under Section 28(3)(b) of the Orissa Co-operative Societies Act, 1962 (hereinafter referred to as 'the Act) and the said decision of the Asstt. Sessions Judge was confirmed in part in appeal by the Sessions Judge, Balasore who by his judgment dated 29-1-82 set aside the conviction under Sectinon 323, I.P.C. but confirmed that under Section 379, I.P.C. and sentenced the petitioner to pay a fine of Rs. 100/-. The Asstt. Registrar accepted the contention of the opp. party No. 3 and held that the petitioner was not qualified to continue as a member as well as the President of the Society as per the provisions of Section 28(3)(a) of the Act - - vide order in Annexure 3. On appeal by the petitioner the Tribunal upheld the decision and dismissed the appeal vide order in Annexure 5.
3. Shri M. K. Mallick appearing for the petitioner contended that the statutory authorities erred in holding that the petitioner was disqualified to continue as a member and also as the President of the Society on the ground of his conviction in the criminal case which was set aside on 2-5-86 by this Court in Criminal Revision No. 172 of 1982 wherein the petitioner's revision was allowed, the order of the learned Sessions Judge was set aside and the petitioner was acquitted of the charge under Section 379, l.P.C. The learned Counsel further submitted that the Tribunal erred in ignoring this fact which was specifically brought to his notice.
4. On perusal of the order of the Tribunal (Annexure 5) it appears that the main reason why the Tribunal rejected the contention regarding the subsequent acquittal of the petitioner of the charge under Section 379, l.P.C. was that the disqualification of the petitioner was to be considered as on 27-1-86 when he filed the nomination paper or on 1-2-86 when the said nomination paper was scrutinised or on 12-2-86 when the election was held and since the petitioner stood sentenced under Section 379, l.P.C. on these relevant dates he also stood disqualified for being chosen as member of the Committee of the Society in terms of the provisions of Section 28(3)(b) of the Act. In the opinion of the Tribunal the subsequent reversal of the sentence on 2-5-86 could not waive the disqualification of the petitioner. The Tribunal further observed that the effect of the order of the acquittal passed on 2-5-86 will be that the disqualification under Section 28(3)(b) will not debar the petitioner from being chosen as a member of the Committee or to continue as a member of the Committee from that date.
5. The learned Counsel appearing for the opp. parties, on the other hand, submitted that the impugned orders are based on sound reasons and hence not liable to be interfered with.
6. The question that-arises for determination is whether the subsequent acquittal of the petitioner in the criminal case has any effect on the disqualification incurred by him under Section 28(3)(b) of the Act on the date of filing of nomination as well as on the date of election. Since the decision on the question turns on interpretation of the provision in Section 28(3)(b) it will be appropriate and convenient to quote the said provision :
"Section 28(3). No individual shall, whether by himself or as a respresentative of the Society, be eligible for being chosen or for continuing as a member or President of the Committee of a society, if he --
(a).............
(b) has been sentenced for an offence involving moral turpitude such sentence not having been reversed."
On a plain reading of the provision, it is clear that the legislative intent is that in order to attract the disqualification the individual concerned must not only have been sentenced for an offence involving moral turpitude but also such sentence has not been reversed. Ordinarily the position will be that whether this disqualification is attracted in the case of a particular individual will be examined with reference to the date of filing of his nomination for the election or on the date of scrutiny of the nomination paper or at the latest on the date of the election. If on these dates it is found that the disqualification has been incurred by the individual he cannot be chosen as a member or as President of the Committee or if already chosen cannot continue as such. But the further question that is relevant in this connection is the effect of the subsequent order of acquittal passed in favour of the individual (petitioner in this case). Does it have only prospective operation as held by the Tribunal or it wipes out the effect of the order of conviction right from the inception. The Supreme Court in the case of Vidya Charan. Shukla v. Purshottam Lal Kaushik, reported in AIR 1981 SC 547, construing the provision of Section 109 of the Representation of the People Act, 1951 ruled that the acquittal of the returned candidate in appeal prior to the pronouncement of the judgment by the High Court in the election petition filed against such candidate had the result of wiping out his disqualification as completely and effectively as if it did not exist at any time including the date of the scrutiny of the nomination papers and that his nomination paper was properly accepted by the Returning Officer. Elucidating the point the Court further observed that the acquittal of the returned candidate before the decision of the election petition pending in the High Court, had with retrospective effect, made his disqualification non-existent, even at the date of scrutiny of nominations and this being the position the High Court could not at the time of deciding the election petition form an opinion as to the existence of a non-existent ground and sustain the challenge to the candidate's election under Section 100(l)(d)(i). In view of the clear exposition of law by the highest Court the position has to be taken as well-settled that the revisional order passed by this Court acquitting the petitioner in the criminal case had the effect of retrospectively wiping out the disqualification as provided in Section 28(3)(b) of the Act with effect from the date of filing of nomination and the relevant dates subsequent thereto. The Tribunal therefore clearly erred in refusing to take note of this position though the order of acquittal was pointedly brought to his notice and that the point was urged before him.
7. To crep up the above conclusion, I may refer to a few more decisions of the Supreme Court. In the case of Manni Lal v. Parmai Lal, reported in AIR 1971 SC 330, construing the expression "disqualifed from the date of such conviction" in Section 8(2) of the Representation of the People Act, 1951 the Court held that an appellate order of acquittal takes effect retrospectively and the conviction and sentence are deemed to be set aside from the date they were recorded; once an order of acquittal has been made, it has to be held that the conviction has been wiped out and did not exist at all.
In the case of Dilip Kumar Sharma v. State of Madhya Pradesh, reported in AIR 1976 SC 133, construing the meaning of the expression "under sentence of imprisonment for life" in S. 303, Indian Penal Code the Court observed that a sentence once imposed but later set aside is not executable and therefore the Court convicting an accused of murder cannot take such a sentence into account for imposing the sentence of death by the application of Section 303 and further that the connotation of the expression 'sentence' in the phrase must be restricted to a sentence which is final, conclusive and ultimate so far as the judicial remedies are concerned. A sentence of life imprisonment which at the time of the commission of the murder in question, is defeasible or capable of being, or liable to be voided, annulled or undone by way of appeal, revision or other judicial process known to law, is outside the purview of the phrase "being under sentence of imprisonment for life" in Section 303.
Another decision which needs to be noticed is the case of Banchhanidhi Sahu v. State of Orissa, reported in (1975) 41 Cut LT 744, wherein construing the phrase "is convicted" in clause (g) of Section 25(1) of the Orissa Gram Panchayat Act, 1964 it was held :
"The phrase 'is convicted' for an offence occurring in Clause (g) of Section 25(1) of the Act, envisages conviction which is recorded at the trial stage. Once there is conviction of a particular type, the disqualification starts operating; the possibility of acquittal does not suspend the disqualification.
To interpret 'conviction' as 'conviction which has become final' would necessarily require incorporation of words not in the statute."
(Quoted from placitum) This case is clearly distinguishable. Therein the Court was not considering the question of impact of the subsequent order of acquittal on the disqualification provided under the statute. Further, the language of Section 25(l)(g) is clearly different. The phrase "such sentence not having been reversed" in Section 28(3)(b) of the Orissa Co-operative Societies Act is absent in Section 25(l)(g).
8. On the above analysis, the writ application is allowed and the order dated 21-11-86 passed by the Asstt. Registrar, Co-operative Societies, Bhadrak Circle (Annexure 3) and the order dated 17-7-89 of the Member, Cooperative Tribunal (Annexure 5) are quashed. There will however be no order for costs.
Pasayat, J.
9. I agree.