In this post we’ll read about staying of former Kalka MLA Pradeep Chaudhary’s conviction in a rioting case, following which his membership to the Haryana assembly will be restored.

Facts:

  1. Former Kalka MLA Pradeep Chaudhary faced disqualification from Haryana assembly on account of his conviction in a rioting case, as “exceptional”.
  2. In January, a Nalagarh court had convicted and sentenced Chaudhary three years’ imprisonment on charges of rioting.
  3. The disqualification provision says that a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
  4. The Congress leader was subsequently unseated as a member of the Haryana assembly as per Section 8 (3) of the Representation of the People Act.
  5. The appeal has been filed by the appellant before the appellate court in the totality of evidence available on record.

Legal Provision:

Section 8(3) in The Representation of the People Act, 1951

(3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.] 9[(4)] Notwithstanding anything 10[in sub-section (1), sub-section (2) or sub-section (3)] a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court. Explanation.—In this section—

(a) “law providing for the prevention of hoarding or profiteering” means any law, or any order, rule or notification having the force of law, providing for—

(i) the regulation of production or manufacture of any essential commodity;

(ii) the control of price at which any essential commodity may be brought or sold;

(iii) the regulation of acquisition, possession, storage, transport, distribution, disposal, use or consumption of any essential commodity;

(iv) the prohibition of the withholding from sale of any essential commodity ordinarily kept for sale;

(b) “drug” has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of 1940);

(c) “essential commodity” has the meaning assigned to it in the Essential Commodities Act, 1955 (10 of 1955);

(d) “food” has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of 1954).

Opinion:

The MLA will be disqualified as per Section 8 (3) of the Representation of the People Act. The disqualification provision says that a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

Since the Supreme Court in a 2013 judgment had declared sub-section 4 of Section 8 of the Act ultra vires (beyond legal power), Chaudhary will not be saved from disqualification under this provision.

Section 8(4) provided that disqualification of an MP or MLA will not take effect until three months have elapsed from that date or if within that period an appeal or application for revision is brought in respect of the conviction of the sentence, until the appeal is disposed off by the court.

Conclusion:

 The Himachal Pradesh HC has observed that in case Chaudhary’s conviction is not stayed, he would suffer the consequences “that cannot be compensated subsequently.

The court is further of the view that the case at hand comes under the category of ‘exceptional’ case and, in case conviction is not stayed, petitioner’s political career would be ruined even though the appeal of the appellant is to be decided.

The Court also observed that appellant has been rendered disqualified to be a member of legislative assembly and, in case conviction is not stayed, he would not be able to contest the elections, which are otherwise bound to be held within six months of the occurrence of the vacancy. Conclusion of appeal pending before appellate court may take some time, and in the event of an appeal being allowed and petitioner being acquitted, he cannot be compensated for the loss of the term as MLA, which may even end by the time the appeal concludes.

The HC therefore stayed the findings of conviction recorded by the trial court against the petitioner till the final adjudication of the appeal. With these orders, the membership of Pradeep Chaudhary would be restored in Haryana state assembly. On January 14, a Nalagarh court had convicted him for rioting and sentenced him to three years in prison.