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Judgment
Fakhruddin, Vacation J.
Heard.
In the instant case the petitioners have been convicted for the commission of the offence punishable under Sections 225/34, IPC and have been sentenced to undergo Simple Imprisonment for two years with fine of Rs. 200/-, in default of payment of fine to further undergo SI for one month each and such conviction attracts the Provision of Section 35 & Section 38 (1) (b) of the M.P. Nagarpalika Adhiniyam, 1961 which reads as under:--
"Section 35(hh) : No person shall be eligible for election or as a President or election or nomination as a Councillor, if he has been convicted by Court in India for any offence not falling under clause (h) and sentenced to imprisonment for a period not less than two years unless a further period of six years has elapsed since his release after under going the sentence."
"Section 38 (1) (b): If any Councillor becomes subject to any of the disqualification specified in Section 35 and such disqualification is not removable or being removable is not removed."
The conviction has not been stayed or suspended. The applicant has preferred an Appeal No. 676/2001. Counsel for the applicant has filed the only document Annexure P-1, which does not contain the copy of the order.
It is stated in para 5.4 of the application that an appeal bearing number Cr.A. No. 676/2001 is still pending against the order dated 17-7-2001 passed by the Special Judge (SC/ST Prevention of Atrocities Act), Bilaspur in Hon''ble High Court of Bilaspur. It is submitted that the High Court was pleased to suspend the sentences vide order dated 13-8-2001. However, the copy of the said order has been perused by calling the case though not filed by applicant.
Learned Counsel for the applicant relied on the decision reported in Jamuna Prasad Jaisani v. Smt Shikha Dubey, Collector 1999 II LLJ 382 , which is not applicable in the present case because in the above cited case conviction was stayed. So far as this case is concerned the law as laid down by the Supreme Court in the case of K.C. Sareen Vs. C.B.I., Chandigarh, , is applicable.
Having regard to the facts and circumstances of the case, Provisions of Section 35(hh) & Section 38(1)(b) of the Act and in view of the decision of the Supreme Court in the case of K.C. Sareen Vs. C.B.I., Chandigarh, , the applicant is not entitled for the stay since the conviction has not been suspended but the sentences have been suspended. The applicant is not entitled for grant of interim relief and the interim order granted on 20-5-2002 stands vacated.
However, the petitioners are at liberty to file application for early hearing of the criminal appeal itself.
Certified photocopy as per rules.