The Hindu : National : Convicted can contest poll only if conviction is stayed

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Convicted can contest poll only if conviction is stayed

Legal Correspondent

Apex court sets aside High Court order

New Delhi: The Supreme Court has held that a person convicted in a criminal case can contest elections only if an appellate court stays the conviction and not merely stays the execution of the sentence imposed.

A three-judge Bench, comprising Chief Justice Y.K. Sabharwal, Justices C.K. Thakker and R.V. Raveendran, said: "Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative."

The Bench said that if on the date of filing of the nomination the conviction of a candidate was stayed by a competent court, he could contest the polls, because as on that date there was no disqualification as contemplated under the Representation of the People Act.

The Bench noted that an order of conviction by itself was not capable of execution under the Code of Criminal Procedure. But in certain situations, the order of conviction could become executable in a limited sense, inasmuch as it might result in incurring of some disqualification under other enactments. In such cases, it was permissible under the Cr.P.C. to stay the conviction also.

The Bench, however, cautioned the appellate courts that an order granting stay of conviction was not the rule but an exception to be resorted to in rare cases depending upon the facts of a case.

Election challenged

Ravikant S. Patil was declared elected to the Karnataka Legislative Assembly on May 13, 2004. His election was challenged in the Karnataka High Court by Sarvabhouma S. Bagali on the ground that on the date when he filed the nomination he was disqualified as he was convicted in a criminal case. Accepting the contention, the High Court set aside Mr. Patil's election. The present appeal by Mr. Patil was against that judgment.

The Bench held that as on the date of filing of the nomination there was an order staying the conviction, the appellant was not disqualified.

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