Judgment:
Ramesh Kumar Datta, J.
1. Heard learned Counsel for the petitioner, learned Counsel for the Bihar State Election Commission and learned Counsel for the State.
2. The petitioner seeks quashing of the order dated 19.3.2009 passed, in Case No. 02 of 2009, by the State Election Commissioner, by which he has declared the petitioner disqualified as Councillor in terms of Section 18(1)(g) of the Bihar Municipal Act, 2007 and for further consequential reliefs.
3. The facts of the case lie within a narrow compass and are not in dispute. The petitioner was elected as Ward Councillor for the Patna Municipal Corporation in the elections of the year 2007. Prior to the said election, the petitioner was made an accused in Sultanganj P.S. Case No. 441 dated 14.12.2005 under Section 25(1-B)/26 of the Arms Act. Subsequently by the judgment dated 22.12.2008 passed in Trial No. 1898 of 2008 by. the Judicial Magistrate, Ist Class, Patna City, Patna, the petitioner was convicted and sentenced to rigorous imprisonment for three years and also held liable to pay a fine of Rs. 3,000/-. The petitioner filed Criminal Appeal No. 06 of 2009 before the Sessions Judge, Patna and by order dated 12.1.2009, the appeal was admitted and the provisional bail granted by the trial Court was confirmed. Thereafter, respondent No. 5, Kalim Imam, filed a petition on 12.2.2009 before the State Election Commission, Bihar stating the aforesaid facts and praying that the petitioner should be disqualified with immediate effect in terms of the provisions of the Bihar Municipal Act, 2007. After hearing the parties, the State Election Commissioner by his impugned order dated 19.3.2009 in Case No. 02/2009 held the petitioner as disqualified under Section 18(1)(g) of the Bihar Municipal Act, 2007 from holding the post of Ward Councillor of the Patna Municipal Corporation.
4. Learned Counsel for the petitioner submits that the petitioner cannot be disqualified during the pendency of his appeal in which he has been granted bail also, as an appeal is a continuation of the original proceedings and the order of the trial Court will merge in the final order passed by the appellate Court. It is, thus, submitted that until the appeal is finally decided and unless the sentence passed by the trial Court is affirmed in appeal, there would be no occasion for the State Election Commissioner to disqualify the petitioner under Section 18(1)(g) of the Act.
5. In support of the aforesaid proposition, learned Counsel for the petitioner relies upon a decision of the Supreme Court in the case of Navjot Singh Sidhu v. State of Punjab and Anr. 2007 (1) PLJR 329 (S.C.), in the relevant part of paragraph No. 12 of which it has been held as follows:
If a person convicted of any offence enumerated in Sub-sections (1), (2) and (3) of Section 8 of the Act files an appeal within three months he continues to remain a Member of Parliament or Legislature of a Stale on the basis of protection afforded by Sub-section (4), but not on any moral authority because the electorate had exercised their franchise prior to the order of conviction and not when he had become a convict.
6. It is submitted on the basis of the aforesaid decision that in the case of the petitioner also the elector has exercised franchise prior to the order of conviction and the appeal having been filed against the said order of conviction and the petitioner having been enlarged on bail, hence, the impugned order dated 19.3.2009 ought to be set aside for the said reasons.
7. Learned Counsel for the State Election Commission, on the other hand, submits that the benefit of the aforesaid case is not available to the petitioner since the same was decided under very different provisions contained in the Representation of the People Act, 1951. It is submitted by learned Counsel that the present matter is squarely covered by a decision of the Division Bench of this Court in the Case of Shri Bhagwan Singh v. The State of Bihar and Ors. 2004(4) PLJR 482, in which the similar provision contained in the Bihar Panchayat Raj Act, 1993 was examined by this Court and it was held that once a person has been sentenced by the criminal Court for the aforesaid period, then irrespective of the fact that the appeal has been admitted and pending and he has been released on bail or even where the sentence has been suspended, the person would be held to be disqualified from holding the office under the Panchayat in terms of the provisions of Section 139(1)(g) of the Bihar Panchayat Raj Act, 1993. It is pointed out that the said provisions of 1993 Panchayat Raj Act are identical to the provisions of Section 18(1)(g) of the Bihar Municipal Act, 2007 and thus the same result will follow. For the said reasons, it is submitted by learned Counsel that the order of the State Election Commission is within the four corners of the law and not fit to be interfered with.
8. On a consideration of the aforesaid submissions, this Court does not find any force in the submissions of learned Counsel for the petitioner. The matter, in fact, is no longer res integra since the same is settled by the Division Bench decision of this Court in the case of Sri Bhagwan Singh (supra). In the said case, it was clearly held by interpreting the identical provisions of the Bihar Panchayat Raj Act, 1993 that a person convicted by a Court of law and sentenced for a period exceeding six months would be disqualified from holding the office under the Panchayat even if the appeal against his conviction has been admitted and either he has been released on bail or his sentence has been suspended. In fact in the said case, this Court came to the conclusion that even though with respect to pre-election disqualification the Slate Election Commission has no authority to pass an order of disqualification, yet it issued writs of quo warranto in the large number of cases before it and made the declaration that the appointment of such convicted persons as members of the Panchayat in question were not legal and valid and they cannot continue to function as such and steps be taken for filling up the posts by holding election to the said offices.
9. In the present matter, the Election Commission has passed an order with respect to a post election disqualification and the same is definitely within the statutory powers conferred upon it by the provisions of the Bihar Municipal Act, 2007 read with the provisions of Article 243V of the Constitution of India and there can be no question of interfering with the same in exercise of the writ jurisdiction of this Court.
10. Reliance placed by learned Counsel for the petitioner on the case of Navjot Singh Sidhu (supra) is wholly misconceived, since the Supreme Court pointed out that the benefit in the matter of Members of Parliament and State Legislatures is conferred by the provision under Section 8(4) of the Representation of the People Act, 1951 and is not based on any moral or other ground. No such benefit is provided under the provisions of the Bihar Municipal Act, 2007 for the persons convicted and sentenced as laid down therein in terms of what has already been decided by the Division Bench of this Court in Shri Bhagwan Singh's case (supra).
11. Thus, in the light of the aforesaid discussions, there does not appear to be any merit in the writ application and it is, accordingly, dismissed.