Jharkhand High Court
Yogendra Mahto @ Yogendra Prasad vs Jharkhand Vidhan Sabha Through The ... on 30 April, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 819 of 2018
Yogendra Mahto @ Yogendra Prasad, aged about 50 years, son of
Vishwanath Mahto, resident of Murubanda, P.O. & P.S.-Rajrappa,
District-Ramgarh, Jharkhand ... ... Petitioner
Versus
1. Jharkhand Vidhan Sabha through the Speaker, having office at
Jharkhand Vidhan Sabha Premises, Jagannathpur, P.O.-Dhurwa,
P.S.-Jagannathpur, District-Ranchi
2. Secretary, Jharkhand Vidhan Sabha, having office at Jharkhand
Vidhan Sabha Premises, Jagannathpur, P.O.-Dhurwa, P.S.-
Jagannathpur, District-Ranchi
3. In-charge Secretary, Jharkhand Vidhan Sabha, having office at
Jharkhand Vidhan Sabha Premises, Jagannathpur, P.O.-Dhurwa,
P.S.-Jagannathpur, District-Ranchi
4. Election Commission of India through its Principal Secretary, having
its office at Nirvachan Sadan, Ashok Road, P.O. & P.S.-Ashok Road,
New Delhi ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate Mr. Kumar Vaibhav, Advocate For Jharkhand Vidhan Sabha : Mr. Jai Prakash, Sr. Advocate Mr. Aditya Raman, Advocate For the Election Commission : Dr. Ashok Kumar Singh, Advocate
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Order No. 06 Dated: 30.04.2018 The present writ petition has been filed for issuance of writ of certiorari for quashing the notification bearing no. 523 dated 10.02.2018, whereby the petitioner has been removed as a member of the Jharkhand Legislative Assembly. Alternatively, the petitioner has prayed for staying the operation of the impugned notification till the outcome of the appeal preferred by the petitioner against his conviction and sentence or at least till the outcome of the application for stay of conviction of the said appeal. It has further been prayed for restraining the respondents particularly the respondent-Election Commission of India from declaring the legislative assembly seat for the "Gomia Constituency" as vacant and announcing bye-polls/bye election for the same till the outcome of the appeal or at least till the outcome of the application for stay of the conviction in the said appeal.
2. The factual background of the case as stated in the writ 2 petition is that the petitioner was elected as a member of Legislative Assembly from Gomia Constituency for the term 2014-19 and had been serving as a member of the Jharkhand Legislative Assembly. He has been convicted for the offence u/s 414 and 120(B) of the Indian Penal Code vide judgment of conviction dated 31.01.2018 passed in Rajrappa P.S Case No. 53 of 2010, G.R No. 2478 of 2010 (T.R No. 325 of 2016) by the learned S.D.J.M, Ramgarh and has been sentenced to undergo R.I for three years and a fine of Rs. 5,000/- u/s 414 of I.P.C and R.I for three years and a fine of Rs. 5,000/- u/s 120B of the Indian Penal Code. Against the judgment of conviction and order of sentence, the petitioner preferred appeal before the learned Sessions Judge, Ramgarh which has been registered as Criminal Appeal No. 06 of 2018. In the said appeal, the petitioner has also filed an interlocutory application seeking stay or suspension of operation, execution and implementation of the order of sentence and conviction dated 31.01.2018 till the disposal of the appeal. The said application was heard on 03.02.2018 and 06.02.2018 and posted for the pronouncement of order on 19.02.2018. In the meantime, the petitioner has been served a copy of notification bearing no. 523 dated 10.02.2018 issued by the order of the Speaker, Jharkhand Legislative Assembly by the respondent no. 3, whereby the petitioner has been removed as a member of the Jharkhand Legislative Assembly.
3. Mr. R.S. Mazumdar, learned Senior Counsel for the petitioner contends that the impugned notification has been issued without affording any opportunity of hearing to the petitioner as no show-cause notice has been issued before passing the said impugned notification. It is further submitted that if an appeal is preferred under Section 374 of the Code of Criminal Procedure, 1973, the same is against both the conviction and sentence and, therefore, the appellate court in exercise of its power under Section 389(1) Cr.P.C can also stay the order of conviction. It is further submitted that by virtue of the provision of Section 8(3) of the Representation of People Act, 1951 (hereinafter referred to as "the Act, 1951"), the petitioner stands disqualified from the date of his conviction, however, if such 3 conviction is stayed by a court of law, the same ceases to operate as a disqualification. The learned Senior Counsel for the petitioner also submits that the petitioner has preferred a writ petition being W.P.(Cr.) No. 61 of 2018 for staying the order of conviction passed by the learned trial court. The said case was heard by a Bench of this Court on 28.03.2018 and the order has been reserved. However, subsequently the Election Commission of India in its press note dated 26.04.2018 had decided to hold the bye elections to fill the vacancies in the legislative assemblies of various states including the Gomia and Silli assembly constituencies of the State of Jharkhand.
4. It is further submitted that the impugned notification has been issued by the respondent no. 3 by the order of the Speaker purportedly under Section 8 of the Act, 1951 and Article 191(1)(e) of the Constitution of India, however, the Speaker is not empowered under the Constitution of India to issue any order or take any decision on the question of disqualification of member of the Legislative Assembly and the said prerogative power has expressly been reserved with the Governor of the State under Article 192 of the Constitution of India. It is further submitted that the impugned notification is per se de-hors the provisions of the Constitution of India and as such, all the consequential action pursuant to the impugned notification i.e., declaration of Gomia Constituency to be vacant, announcement of bye-polls for the said Constituency would amount to perpetration of illegality causing irreparable and irreversible injustice to the petitioner more so in light of the fact that the petitioner is awaiting the outcome from the concerned Court on the application preferred by him for stay of the conviction during the pendency of the appeal. It is further submitted that the Jharkhand Legislative Assembly has framed "Jharkhand Vidhansabha Ke Prakriya Tatha Karya Sanchalan Ke Niyam" in exercise of the power conferred under Article 208 of the Constitution of India and the said rule does not contain any provision empowering the Speaker to issue the impugned notification. Even if it is assumed that the impugned notification has been issued under the said rule, the same falls foul of 4 the stipulation under Article 208(1) of the Constitution of India as said rules are "subject to the provisions of the Constitution" and the prerogative in this regard has been reserved with the Governor under Article 192 of the Constitution of India. It is further contended that the Speaker of the Legislative Assembly cannot usurp the power reserved to the Governor under the Constitution of India as the same would amount to violation of the specific powers conferred to the constitutional functionaries by the Constitution of India. It is also contended that the impugned notification dated 10.02.2018 will have irreversible consequences for the petitioner and will render the outcome of the writ petition preferred by the petitioner for stay of conviction infructuous and thereby nullifying the right of appeal to the petitioner. The Speaker has got no power at all to decide the question of disqualification of a member of a Legislative Assembly in view of the provisions of the Constitution of India particularly Article 191 and 192 read with Article 188 of the Constitution of India.
5. The learned Senior Counsel for the petitioner in support of his argument puts reliance on the following judgments:
(i) "Brundaban Nayak Vs. Election Commission of India & Anr." reported in AIR 1965 SC 1892
(ii) "Lily Thomas Vs. Union of India & Ors." reported in (2013) 7 SCC 653
6. Mr. Jai Prakash, the learned Senior Counsel for the respondent-Jharkhand Vidhan Sabha, submits that the law with regard to the provisions of Article 190 and 192 of the Constitution of India and Section 8(3) of the Act, 1951 has been settled in the case of "P.V Narsimbha Rao Vs. State (CBI/SPE)" reported in (1998) 4 SCC 626 and "Lily Thomas" (supra), wherein it has been held that as per the provisions of Article 101 of the Constitution, the seat of a Member of Parliament immediately gets vacant upon his becoming subject to the disqualification mentioned in Article 102. The removal of a Member of Parliament is occasioned by operation of law and is self-operative. Reference to the President under Article 103 is required only if a question arises as to whether a Member of Parliament has earned such disqualification, that is to say, if the same is disputed.
57. Mr. Jai Prakash further submits that Article 101, 102 and 103 as applicable on the Members of Parliament, so far as vacation of seats, disqualification of membership and decision on the question as to disqualifications of members of Legislative Assembly are concerned, the same are found under Article 190, 191 and 192 of the Constitution of India. Adopting the law laid down in the case of "P.V Narsimbha Rao" (supra) the provisions of Article 190 makes it clear that the seat of a member of Legislative Assembly becomes vacant immediately upon his becoming subject to the disqualification mentioned under Article 191 i.e., if he is disqualified by or under any law made by the Parliament. The provisions of Section 8(3) of the Act, 1951, is a law made by the Parliament, is referable as it provides that a person convicted of any offence and sentenced to imprisonment for not less than 2 years (other than any offence referred to in sub-section (1) or sub-section (2), shall be disqualified from the date of such conviction and shall be continued to be disqualified for a further period of 6 years since his release. Thus, the removal of a Member of Legislative Assembly is occasioned by operation of law and is self-operative. In the case in hand, it is an admitted position that the petitioner has been convicted and sentenced to undergo R.I for three years and a fine of Rs. 5,000/- u/s 414 of I.P.C and R.I for three years and a fine of Rs. 5,000/- u/s 120B of the Indian Penal Code vide judgment dated 31.01.2018 passed in G.R. No. 2478 of 2010 by the trial court. Thus, his removal from the membership of the Legislative Assembly is occasioned by operation of law and has to be treated as self-operative on account of his conviction and sentenced w.e.f. 31.01.2018 itself. As such, no flaw or illegality can be found in the notification no. 523 dated 10.02.2018 issued by the Jharkhand Legislative Assembly. It is further submitted that in terms with the ratio laid down by the Hon'ble Supreme Court in the case of "P.V Narsimbha Rao" (surpa), the question of reference to the Governor would have arisen in the matter only if the Jharkhand Legislative Assembly had any doubt as to whether the member of the House of Legislature of the State has become subject to any disqualification mentioned in Clause (1) of Article 191.
6However, in the present case, the said question did not arise in view of the judgment of conviction and sentence of Yogendra Mahto @ Yogendra Prasad (the petitioner herein). Since the petitioner has been disqualified and removed by the operation of law with effect from the date of his conviction i.e., 31.01.2018 itself, the Jharkhand Legislative Assembly has rightly issued the impugned notification dated 10.02.2018 without choosing to refer the said matter to the Governor under Article 192 of the Constitution of India. It is further submitted that the provisions as contained in Article 101, 102, 190 and 191 vis-a-vis the provisions as contained in Section 8(3) of the Act, 1951 have been re-emphasized by the Hon'ble Supreme Court in the case of "Lily Thomas" (supra), wherein it has been held that when the conviction is stayed the by appellate court under Section 389(1) of the Cr.P.C, the effect of the conviction and sentence ceases to operate and becomes non-operative from the date of stay of conviction by the appellate court under Section 389 of the Cr.P.C or by the High Court under Section 482 of the Cr.P.C, but admittedly in the case of the petitioner, his order of conviction does not appear to have been stayed and thus, the question of any relief to the petitioner does not arise.
8. Heard the learned counsel for the parties and perused the materials available on record. The petitioner was the member of Legislative Assembly from Gomia Constituency for the term 2014-19. In the meantime, he was convicted for the offence u/s 414 and 120(B) of the Indian Penal Code and sentenced to undergo R.I for three years and a fine of Rs. 5,000/- u/s 414 and R.I for three years and a fine of Rs. 5,000/- u/s 120B of the Indian Penal Code. Thereafter, by the order of the Speaker, Jharkhand Legislative Assembly, the impugned notification was issued for disqualification of the petitioner from the membership of the Jharkhand Legislative Assembly in purported exercise of power conferred u/s 8 of the Act, 1951 and Article 191 (1) (e) of the Constitution of India, which is under challenge in the present writ petition.
9. I have perused the relevant provisions of the Constitution of India and the Act, 1951. Section 8(3) of the Act, 1951 reads as 7 follows:-
(3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-
section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
10. Article 190 of the Constitution of India : Vacation of seats (1) ********* (2) ********* (3) If a member of a House of the Legislature of a State
(a) becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of Article 191; or
(b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant:
Provided that in the case of any resignation referred to in sub-clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation.
(4) **********
11. 191. Disqualifications for membership.
(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State
(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation. For the purposes of this clause, a person 8 shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.
12. Article 192: Decision on questions as to disqualifications of members (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.
13. On bare perusal of Article 191 of the Constitution of India, it would be evident that the same provides for the situation under which a member of the Legislative Assembly or Legislative Council of a State shall be disqualified. Apart from other circumstances like holding of office of profit, unsoundness of mind, insolvency and ceasing of citizenship, Clause (e) of Article 191 provides that if the member is disqualified by or under any law made by the Parliament, he shall be regarded as disqualified under Article 191 of the Constitution of India. Further, Clause (3) of Article 190 provides that if a member of a House of the Legislature of a State has become subject to any of the disqualification mentioned in Clause (1) or Clause (2) of Article 191 or resigns from his seat, then his seat shall thereupon become vacant. Thus, on conjoint reading of both Article 191 and 190, it would appear that the moment a member of the Legislative Assembly or Legislative Council of a State has become disqualified under the circumstances mentioned under Article 191, his seat shall become vacant and thus, no formal order is required for giving effect to such disqualification.
14. In the present case, the petitioner has been disqualified from the membership of Legislative Assembly by reason of the 9 judgment of conviction and order of sentence passed by the S.D.J.M, Garhwa in view of Clause (3) of Section 8 of the Act, 1951 and as such, he is also regarded as disqualified under Clause (e) of Article 191 as the Act, 1951 is the law made by the Parliament.
15. The learned Senior Counsel for the petitioner has given much emphasis on his argument that the Speaker has no power to disqualify the petitioner from the member of Legislative Assembly as in view of Article 192(2) of the Constitution of India, it is only the Governor of the State who is empowered to issue such direction after obtaining opinion from the Election Commission of India.
16. Article 192 of the Constitution provides that if any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in Clause (1) of Article 191, the question shall be referred to the decision of the Governor and the Governor thereafter shall obtain the opinion of the Election Commissioner and take a decision.
17. In the case of "Election Commission of India Vs. Bajrang Bahadur Singh & Ors." reported in (2015) 12 SCC 570, the Hon'ble Supreme Court had the occasion to interpret Article 192, wherein it has been held as under:
29. It can be seen from the language of sub-section (3) that if a Member of a House of the legislature becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of Article 191, his seat shall thereupon become vacant. In other words, the vacancy occurs the moment a person incurs the disqualification by operation of law. The duration of the currency of the disqualifying event is irrelevant. While Article 191 deals with the disqualifications for two classes of people (i) those who are aspiring to be the Members of the legislature,
(ii) those who are already Members of the legislature, Article 190(3) deals only with the vacation of the seats by the Members of the legislature, therefore, applicable only to the second of the two classes covered by Article 191. Acquisition of a disqualification contemplated under Article 191 is an incident which entails a legal consequence of rendering the seat (occupied by such a legislator who acquired the disqualification) vacant by operation of law. Article 192 only prescribes the forum and stipulates the procedure for determination of the fact whether a legislator has incurred the disqualification. As pointed out by this Court in Narasimha Rao case, Article 192 10 does not provide for removal of a Member from the legislature by an action of the Governor. The removal takes place by virtue of the operation of law on the happening of the event, that is, the acquisition of a disqualification. The fact that the disqualification under Section 9-A subsists only for a limited period of time in our view makes no difference to the consequences flowing from the occurrence of such disqualifying event.
30. Each one of the events contemplated under the various clauses of Article 191(1) can subsist for a limited period of time depending upon the facts and circumstances of the case. For example, under clause
(a), the holding of office of profit specified therein renders a person disqualified. Goes without saying, the tenure of such an office of profit may differ from case to case. Under clause (b), a person who is of unsound mind and stands so declared by a competent court is disqualified. The event which renders a person disqualified has two components in it -- (i) a person must be of unsound mind, and (ii) stands so declared by competent court. It is only on the happening of both the events, such a person becomes disqualified. But there is nothing in nature that a person who is of unsound mind and declared so by a competent court need to continue in the same state of mind forever. It is possible in some cases that with appropriate medical treatment, that unsoundness of mind could be cured and on proof of the same, an appropriate declaration from the competent court revoking the earlier declaration can always be obtained; upon such declaration, the disqualification ceases. So is the case of status of undischarged insolvency and citizenship of India. The citizenship status of a person can change from time to time.
31. In all the above mentioned situations on the happening of the disqualifying event, a legislator ceases to be legislator and his seat falls vacant by operation of law but not because of any declaratory adjudication. Article 192 does not contemplate the Governor making a declaration that the seat has fallen vacant. It only obligates the Governor to decide whether a legislator has incurred anyone of the disqualifications mentioned in clause (1) of Article
191. The vacancy occurs by virtue of constitutional declaration contained in Article 190 clause (3) which we have already noticed.
34. Therefore, now it is a settled proposition of law that the happening of any one of the disqualifying events has the effect of making the seat occupied by such a disqualified person vacant immediately by operation of law. The effect of the decision of the Governor under Article 192 is only to decide whether a 11 legislator acquired the disqualification on a particular date on the happening of one of the disqualifying events contemplated under Section 191. The consequence is that the legislator who acquires the disqualification ceases to be a Member of the legislature with effect from the date of the acquisition of the disqualification.
35. We have already noticed that there are two classes of disqualification contemplated under Article 191, (i) disqualifications which last only for a limited period, that is, during the currency of certain events specified under Article 191, (ii) statutory disqualifications prescribed under Sections 8, 8-A, 9 and 10-A which render a person ineligible for a period specified under each of the abovementioned provisions. The disqualifications under Sections 9-A and 10 of the Act are akin to the disqualifications contemplated under clauses (a) to (d) of Article 191(1) where the period of disqualification is coterminous with the currency of the event which renders a person ineligible both for being chosen as or for being a Member of the legislature. Nonetheless, on the acquisition of the disqualification by a legislator, he ceases to be a legislator forthwith by operation of law. However, the cessation of the disqualifying factor cannot put such a person back in the legislature without his being elected once again, of course such person is entitled to contest any election under the R.P Act, the moment the disqualifying factor ceases to exist as the disqualification is coterminous with the disqualifying event.
18. The judgment of the Hon'ble Supreme Court rendered in the case of "Lily Thomas" (supra) has been relied upon by both the parties, wherein it has been held thus:
31. We cannot also accept the submission of Mr. Kuhad that until the decision is taken by the President or Governor on whether a member of Parliament or State Legislature has become subject to any of the disqualifications mentioned in clause (1) of Article 102 and Article 191 of the Constitution, the seat of the member alleged to have been disqualified will not become vacant under Articles 101(3)(a) and 190(3)(a) of the Constitution. Articles 101(3)(a) and 190(3)(a) of the Constitution provide that if a member of the House becomes subject to any of the disqualifications mentioned in clause (1), "his seat shall thereupon become vacant". Hence, the seat of a member who becomes subject to any of the disqualifications mentioned in clause (1) will fall vacant on the date on which the member incurs the disqualification and cannot await the decision of the President or the Governor, as the case may be, under Articles 103 and 192 respectively of the Constitution. The filling of the 12 seat which falls vacant, however, may await the decision of the President or the Governor under Articles 103 and 192 respectively of the Constitution and if the President or the Governor takes a view that the member has not become subject to any of the disqualifications mentioned in clause (1) of Articles 102 and 191 respectively of the Constitution, it has to be held that the seat of the member so held not to be disqualified did not become vacant on the date on which the member was alleged to have been subject to the disqualification.
19. In the aforesaid judgments, the Hon'ble Supreme Court in specific terms has held that Article 192 does not provide for removal of a member from the legislature by an action of the Governor. The removal takes place by virtue of the operation of law on happening of the event. Article 192 only obligates the Governor to take any decision on a question as to whether a legislator has incurred anyone of the eventualities of disqualification mentioned in Clause (1) of Article 191. Thus, the argument of the learned Senior Counsel for the petitioner that any decision with regard to disqualification of a member from the Legislative Assembly can only be taken by the Governor is liable to be rejected. Since it is an admitted fact that the petitioner has been convicted for an offence and sentenced to undergo R.I. for a period more than two years, he is disqualified from the membership of the Legislative Assembly, the moment he was convicted and sentenced. By the impugned notification, no question has been decided by the Speaker which obligates to be decided by the Governor on the opinion of the Election Commission of India.
20. The learned Senior Counsel for the petitioner puts heavy reliance on the judgment rendered by the Hon'ble Supreme Court in the case of "Brudaban Nayak" (supra) and submits that the order of disqualification of a member of Legislative Assembly can only be passed by the order of the Governor in view of Article 192 of the Constitution of India.
21. I have perused the said judgment, the relevant paragraphs of which are quoted hereunder:-
13. Then as to the argument based on the words "the question shall be referred for the decision of the Governor", these words do not import the assumption that any other authority has to receive the complaint 13 and after a prima facie and initial investigation about the complaint, send it on or refer it to the Governor for his decision. These words merely emphasise that any question of the type contemplated by clause (1) of Art. 192 shall be decided by the Governor and Governor alone; no other authority can decide it, nor can the decision of the said question as such fall within the jurisdiction of the Courts. That is the significance of the words "shall be referred for the decision of the Governor". If the intention was that the question must be raised first in the Legislative Assembly and after a prima facie examination by the Speaker it should be referred by him to the Governor, Art.192(1) would have been worded in an entirely different manner. We do not think there is any justification for reading such serious limitations in Art.
192(1) merely by implication.
14. It is true that Art. 192(2) requires that whenever a question arises as to the subsequent disqualification of a member of the Legislative Assembly, it has to be forwarded by the Governor to the Election Commission for its opinion. It is conceivable that in some cases, complaints made to the Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway. The object of Art. 192 is plain. No person who has incurred any of the disqualifications specified by Art. 191(1), is entitled to continue to be a member of the Legislative Assembly of a State, and since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself by Art. 190 (3) (a), there should be no difficulty in holding that any citizen is entitled to make a complaint to the Governor alleging that any member of the Legislative Assembly has incurred one of the disqualifications mentioned in Art.191(1) and should, therefore, vacate his seat. The whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status, and if any member forfeits that status by reason of a subsequent disqualification, it is in the interests of the constituency which such a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of Art. 192(2). Therefore, we must reject Mr. Setalvad s argument that a question has not arisen in the present proceedings as required by Art. 192(1).
15. The next point which Mr. Setalvad has raised is that even if a question is held to have arisen under Art. 192(1), it is for the Governor to hold the enquiry and not for the Election Commission. He contends that Article 192(1) requires the question to be referred to 14 the Governor for his decision and provides that his decision shall be final. It is a normal requirement of the rule of law that a person who decides should be empowered to hold the enquiry which would enable him to reach his decision, and since the Governor decides the question, he must hold the enquiry and not the Election Commission. That, in substance, is Mr. Setalvad's case. He concedes that Art. 192(2) require that the Governor has to pronounce his decision in accordance with the opinion given by the Election Commission; that is a Constitutional obligation imposed on the Governor. He, however, argues that the Election Commission which has to give an opinion, is not competent to hold the enquiry but it is the Governor who should hold the enquiry and then forward to the Election Commission all the material collected in such an enquiry to enable it to form its opinion and communicate the same to the Governor.
16. We are satisfied that this contention also is not well-founded, the scheme of Article 192(1) and (2) is absolutely clear. The decision on the question raised under Art. 192(1) has no doubt to be pronounced by the Governor, but that decision has to be in accordance with the opinion of the Election Commission. The object of this provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. When the Governor pronounces his decision under Article 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself, he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, "he shall act according to such opinion". In regard to complaints made against the election of members to the legislative Assembly, the jurisdiction, to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals constituted by the Election Commission. Similarly, all complaints in respect of disqualifications subsequently incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. If this scheme of Art. 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvad s contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive; and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission, and the Election Commission 15 should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied that respondent No. 1 acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereof.
22. The fact situation of the aforesaid case was that a complaint by an individual was received by the Governor of Odisha against one member of the Legislative Assembly alleging that such member has incurred a disqualification pursuant to his election which was subsequently forwarded to the Election Commission of India observing that a question had arisen as to whether the member in question had been subjected to the disqualification. In the said case, action of the Governor and the inquiry of the Election Commission of India was challenged by contending that a question as to disqualification of any member of a Legislative Assembly can be raised only on the floor of the Legislative Assembly and can only be raised by the members of the Assembly and not by an ordinary citizen or voter in the form of a complaint to the Governor. The Hon'ble Supreme Court declined to accept the said argument of the appellant of that case and held that if there had been the intention of the constitution framers that the question must be raised first in the Legislative Assembly and after a prima facie examination by the Speaker, it should be referred by him to the Governor, the provisions of Article 192(1) would have been worded in an entirely different manner. The Hon'ble Apex Court further observed that no person who has incurred any of the conditions of disqualification specified by Article 191(1), is entitled to continue to be a member of the Legislative Assembly of a State, and since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself under Article 190 (3) (a), there should be no difficulty in holding that any citizen is entitled to make a complaint to the Governor alleging that any member of the Legislative Assembly has incurred one of the conditions of disqualification mentioned in Article 191(1) and should, therefore, vacate his seat. It has further been held that all the complaints in respect of disqualification subsequently incurred by the members of the legislature who have 16 been validly elected, have in substance, to be tried by the Election Commission though the decision in the form has to be pronounced by the Governor.
23. The aforesaid decision was rendered by the Hon'ble Apex Court in the different fact situation, wherein a question fell for consideration as to whether the member of the legislature has acquired disqualification. However, no such determination is required in the present case as admittedly in view of the conviction and sentence of the petitioner, he acquired disqualification in terms with Section 8 of the Act, 1951.
24. I have also perused the judgment rendered in the case of "P.V Narsimbha Rao" (supra), wherein it is held as under:-
180. The question for our purposes is whether, having regard to the terms of Articles 101, 102 and 103, the President can be said to be the authority competent to remove a Member of Parliament from his office. It is clear from Article 101 that the seat of a Member of Parliament becomes vacant immediately upon his becoming subject to the disqualifications mentioned in Article 102, without more. The removal of a Member of Parliament is occasioned by operation of law and is self-operative. Reference to the President under Article 103 is required only if a question arises as to whether a Member of Parliament has earned such disqualification; that is to say, if it is disputed.
The President would then have to decide whether the Member of Parliament had become subject to the automatic disqualification contemplated by Article 101. His order would not remove the Member of Parliament from his seat or office but would declare that he stood disqualified. It would operate not with effect from the date upon which it was made but would relate back to the date upon which the disqualification was earned. Without, therefore, having to go into the connotation of the word "removal" in service law, it seems clear that the President cannot be said to be the authority competent to remove a Member of Parliament from his office.
25. In the aforesaid judgment, the Hon'ble Supreme Court while interpreting Article 101, 102 and 103 of the Constitution has held that the seat of a Member of Parliament becomes vacant immediately upon his becoming subject to the disqualifications mentioned in Article 102 and the question of reference under Article 103 is required only when there arises any question of determination.
17Though Mr. Mazumdar, learned Senior Counsel for the petitioner tried to distinguish the fact of the present case from that of the case of "P.V Narsimbha Rao" (supra) by contending that the said judgment does not lay down a proposition that the Speaker has jurisdiction to issue a notification pertaining to disqualification of a member of Legislative Assembly. Further, the said judgment is in relation to Article 101-103 of the Constitution of India which relates to disqualification of members of Parliament of the Union Legislature and not the member of the State Legislature. Moreover, in the present case, the matter relates to Article 191 to 193 of the Constitution which is entirely different from Article 101 to 103 of the Constitution. I do not find any force in the submission of Mr. Mazumdar particularly due to the reason that Article 101 to 103 of the Constitution is quite similar to the provisions of Article 191 to 193 of the Constitution. So far as Article 101 to 103 are concerned, the same deal with the provisions of the disqualification of Member of Parliament, whereas the provisions of Article 191 to 193 provide for the disqualification of member of both Houses of the State Legislature. The interpretation made by the Hon'ble Supreme Court in the case of "P.V Narsimbha Rao" is equally applicable to the case of the petitioner. Since on the date of conviction and sentence itself, the petitioner became disqualified from being the member of the Legislative Assembly, there was no dispute with regard the petitioner's disqualification so as to refer the said issue to the Governor for final decision.
26. The next contention of the learned Senior Counsel for the petitioner is that the appeal preferred by the petitioner is pending before the Sessions Judge and the issue relating to stay of conviction of the petitioner is also the subject matter in W.P.(Cr.) No. 61/2018, wherein the hearing has been completed by a Bench of this Court and the order has been kept reserved. Thus, till the decision on the application for stay of the conviction or the disposal of the appeal, the respondent authorities may be directed not to declare seat for the Gomia Constituency of the Jharkhand Legislative Assembly as vacant.
27. The Hon'ble Supreme court in the case of "Lily Thomas"
18(supra) has also examined the validity of Clause (4) of Section 8 of the Act, 1951 which provides for suspension of disqualification for three months from the date of conviction 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. The Hon'ble Supreme Court declared sub-section (4) of Section 8 as ultra vires by holding that the seat of a member who becomes subject to any of the disqualifications mentioned in Article 191(1) of the Constitution, will fall vacant on the date on which the member incurs the disqualification and thus cannot await the decision of the President or the Governor, as the case may be, under Article 103 and 192 respectively of the Constitution. However, it is contended by the learned Senior Counsel for the petitioner that if a sitting Member of Parliament or the State Legislature suffers from a frivolous conviction by the trial court for the offences provided under sub-section (1), (2) or (3) of Section 8 of the Act, 1951, he will be remediless. The Hon'ble Apex Court while dealing with said issue by referring to the judgment of a three-Judge Bench rendered in the case of "Rama Narang Vs. Ramesh Narang & Ors." reported in (1995) 2 SCC 513, has held that when an appeal is preferred under Section 374 of the Code of Criminal Procedure, the appeal is both against the conviction and sentence and, therefore, the Appellate Court in exercise of its power under Section 389(1) of the Code can stay the order of conviction and if such power was not to be found in Section 389(1) of the Code, the High Court in exercise of its inherent jurisdiction under Section 482 of the Code, can also stay the order of conviction. If the order of conviction is stayed, the disqualification under sub-section (1), (2) or (3) of Section 8 of the Act will not operate from the date of the 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. The position thus emerges that under no circumstance, the disqualification acquired by the operation of law can be kept pending.
28. The next limb of the argument of Mr. Mazumdar is that if the election process commenced by the respondent-Election 19 Commission of India is not stayed, the petitioner would suffer irreparable loss and injury in case the conviction of the petitioner is stayed in W.P.(Cr.) No. 61 of 2018 which is now pending before a Bench of this Court for judgment. While relying on paragraph nos. 34 and 35 of the judgment of "Lily Thomas" (supra), Mr. Mazumdar submits that once the conviction is stayed, the petitioner would be put back in the legislature once again. The learned Senior Counsel for the petitioner has perhaps misconstrued the said judgment, wherein it has specifically been held;
"35. .............Therefore, the disqualification under sub- section (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)
29. It can thus be construed that in "Lily Thomas" (supra), it has not been held that the stay of conviction would put any disqualified person back to be the member of the Legislative Assembly. The term 'from the date of stay' would mean that the member of the legislature would be entitled to contest any subsequent election. The judgment rendered by a three-Judge Bench of the Hon'ble Supreme Court in the case of "Ravikant S. Patil Vs. Sarvabhouma S. Bagali" reported in (2007) 1 SCC 673, has been relied upon in the case of "Lily Thomas" (supra), wherein a disqualified member of the Legislative Assembly of Karnataka was denied to contest the election even after the stay of conviction and in that context, the Hon'ble Supreme Court held that it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.
30. Learned Senior Counsel for the petitioner while producing a copy of the letter of the Election Commission of India dated 06.09.2013 has relied upon para 2(ii) of the same. In the said letter, it has been mentioned that when the conviction is stayed, the disqualification will also remain suspended. I am of the view that the said letter cannot be read to comprehend that after stay of 20 conviction, the petitioner would once again become the member of the Legislative Assembly, rather he would be entitled to contest the subsequent election. Moreover, the letter dated 06.09.2013 is prior to the judgment rendered by the Hon'ble Apex Court in the case of "Bajrang Bahadur Singh" (supra), wherein it has been held that if any disqualification is acquired by the operation of law, the person cannot be put back in the legislature even after the cessation of the disqualification without his being elected once again. However, he would be entitled to contest an election under the Act, 1951, the moment his disqualifying factor ceases to exist.
31. Considering the aforesaid facts and circumstances of the case, I find no merit in the writ petition and the same is accordingly dismissed.
Consequently, I.A No. 1499 of 2018 and I.A No. 2362 of 2018 also stand dismissed.
(Rajesh Shankar, J.) Manish/A.F.R.