YOGENDRA MAHTO Vs. JHARKHAND VIDHAN SABHA

JUDGEMENT

(1.) 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 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 under section 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. 5,000.00 under section 414 of I.P.C and R.I for three years and a fine of Rs. 5,000.00 under section 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 03.02018 and 06.02018 and posted for the pronouncement of order on 19.02018. In the meantime, the petitioner has been served a copy of notification bearing no. 523 dated 10.02018 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 Sec. 389(1) Cr.P.C , 1973can also stay the order of conviction. It is further submitted that by virtue of the provision of Sec. 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 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 28.02018 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.