Case: Lalsai Khunte Vs. Nirmal Sinha

This appeal is directed against the order dated 1.8.2006 passed by the learned Single Judge of the Chhattisgarh High Court at Bilaspur in Election Petition No. 9/2004 whereby the learned Single Judge has allowed the election petition in part and set aside the election of the appellant for Malkharaud Assembly Constituency No. 38 to the Chhattisgarh State Legislative Assembly. Aggrieved against the said order the present appeal wasElection Commission of India by Notification dated 7.11.2003, notified the election to the Legislative Assembly of the State of Chhattisgarh inviting persons to submit their nomination papers between 7.11.2003 to 14.11.2003 and 15.11.2003 was the date of scrutiny of the nomination papers & the last date for withdrawal of candidature was 17.11.2003. The election was fixed for 2nd December, 2003. Nine candidates filed their nominations. After scrutiny, petitioner along with respondents Nos. 1 to 7 remained in contest. The polling took place on 2nd December, 2003 and the result was declared on 4th December, 2003 declaring the appellant as elected for constituency. The appellant was convicted by the Court of Additional Chief Judicial Magistrate, Sakti in Criminal Case No. 208/91- State of Chhattisgarh Vs. Lal Sai and two others under Section 420 read with Section 34 and 468 read with Section 34 of the IPC and punished for two years. , rigorous imprisonment on each count and convicted under section 471 of the IPC and punished with rigorous imprisonment for one year by judgment and order dated 9.5.2002. Aggrieved against this order appellant filed appeal before District Judge and learned Additional Sessions Judge by his order dated 31.5.2002 released appellant on furnishing Bond & Security & suspended judgment & Order of Additional Chief Judicial Magistrate dated 9.5.2002. All candidates were required to submit their nomination alongwith their declaration and affidavit wherein they were required to disclose particulars of conviction for two years or more. The appellant Lalsai though he was convicted and was disqualified but mislead the returning officer and concealed the vital information in the affidavit of his conviction. Therefore, the returning officer could not cancel hislost candidate filed the present election petition raising the question of disqualification of appellant under Section 8(3) of the Representation of People Act, 1951 (hereinafter referred as the R.P. Act). The defence of the appellant was that the execution of judgment and conviction dated 9.5.2002 was stayed by the appellate Court by its order dated 31.5.2002. Therefore, the returning Officer rightly rejected the objection raised before him during the scrutiny and he was not disqualified and is not guilty of suppression of the facts. He also took the plea that the election petitioner did not deposit the security amount within the prescribed time period, therefore, petition be dismissed being barred by time. The security deposit was made on 19.1.2004 whereas the election petition was filed on 17.1.2004. As such election petition is barred by time. However, it may be stated at the outset that so far as this objection is concerned we ourselves checked up the date and we find that the election petition was filed on 19.1.2004 with security amount. Hence, this objection is factually incorrect and

Reasoning:
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 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. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no otherhe Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; thed by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay ofsuspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.