Parshottamdas Patel (Vakil) Vs. State of Gujarat & Ors  Insc 225 (14 April 2003)
Contempt Petition (Civil) No.452 of 2002] RAJENDRA BABU, J.:
had the privilege of perusing the judgment proposed by my learned brother S.B.Sinha,
J. However, with respect, I express my inability to concur with the same and I
propose to deliver a separate judgment in the following terms.
facts and provisions of the relevant law have been set out in the judgment of
my learned brother S.B.Sinha, J. I do not propose to reiterate them.
petition in hand calls for interpretation of Section 40 of the Gujarat
Municipalities Act, 1963 (for short 'the Act').
40(1) is disjunctive in nature. First part of this sub-Section says that a
President or Vice-President of a municipality can be suspended if any criminal
proceeding has been instituted against him/her in respect of any offence
alleged to have been committed under the Prevention of Corruption Act or the
Bombay Prohibition Act or while acting or purporting to act in discharge of
his/her duties under the Act. Whereas, the second part deals with the
suspension of a President or Vice-President who has been detained in a prison
during trial under the provisions of any law. The present petition falls under
the second part. Here the appellant was suspended from the President's office
of Anand Municipality owing to his detention in judicial custody for alleged offences
under Sections 307, 143, 147, 148 and 149 of the Indian Penal Code read with
Section 25 (c) of the Arms Act and under Section 135 of the Bombay Police Act.
To the appellant, his suspension is bad in law since his detention was not
'during trial' as contemplated in Section 40(1) of the Act. It is also his case
that the words 'during trial' should be given a strict meaning so as to cover
detention only after commencement of trial of a case as envisaged in the Code
of Criminal Procedure.
manifest intention and obvious purpose of Section 40 is to ensure the proper functioning
of the Office of the President or Vice-President of the Municipalities by
keeping the public confidence. A person, who is detained in prison, will not be
able to effectively discharge his public duties. So the Act aims to keep those
persons, against whom serious criminal proceedings are initiated or who are
detained in prisons, away from the public office of the President or
Vice-President of the Municipalities until they are cleared of the charge.
Actual conviction for the alleged offence is not a necessary pre-condition for
any suspension under Section 40. For the purpose of suspension under part I of
Section 40(1), initiation of criminal proceeding in respect of any offence
alleged to have been committed by him/her is sufficient. Section 40 (2) deals
about the stopgap arrangement that has to be made in the eventuality of a
suspension under sub-Section (1). This sub-Section provides for electing a
councilor to perform the functions of a President or Vice-President as the case
may be. And sub-Section (3) provides for the appeal from a decision of
suspension under sub- Section (1). Reading of sub-Sections (2) and (3) along
with part I of sub-Section (1) go on to show that immediately after the
initiation of any criminal proceeding, a President or Vice President could be
suspended from office. At the same time they could re-occupy the office
immediately after clearing the charges against them. By virtue of Section 40, a
person who is alleged to have committed an offence under part I of sub-Section (1)
will have to be kept away from office. The cardinal dictum that the legislature
laid down vide Section 40 is to allow only those persons, against whom there
are no criminal proceedings, to man the office of the Municipal President or
proper meaning of words "detained in prison during trial" in part II
of sub-Section 40(1) could only be deciphered in the above contextual backdrop.
meaning of these words should be in perfect tune with the spirit of Section 40.
Otherwise, the purpose of section will be defeated. Therefore, word
"trial" used in the expression "detained in prison during
trial" cannot be singled out and cannot be accorded with a restricted
meaning. The meaning will have to promote the reason and spirit of Section 40
of the Act.
the entire issue boils down to the exercise of finding the true meaning of the
word 'trial' as portrayed in the broad canvass of Section 40 of the Act.
State of Bihar v. Ram Naresh Pandey 1957 SCR 279
at 289 this Court observed:
words 'tried' and 'trial' appear to have no fixed or universal meaning. No
doubt, in quite a number of sections in the Code to which our attention has
been drawn the words 'tried' and 'trial' have been used in the sense of
reference to a stage after the inquiry. That meaning attaches to the words in
those sections having regard to the context in which they are used. There is no
reason why where these words are used in another context in the Code, they
should necessarily be limited in their connotation and significance. They are
words which must be considered with regard to the particular context in which
they are used and with regard to the scheme and purpose of the provision under
consideration." (Emphasis supplied) Following this view, this Court in Omprakash
Shivaprakash v. K I Kuriakose, (1999) 8 SCC 633 ruled that:
term 'trial' cannot be given a fixed meaning to be applied in all cases
uniformly." Therefore, the word 'trial' in Section 40 of the Act cannot be
supplanted with a straight jacket meaning so as to cover all situations. No
doubt, the word "trial" used in part II of sub-Section 40(1) is
capable of two interpretations in the context of the present case. One is the
restricted interpretation so as to cover only the period after framing of the
charge. This view is what the appellant advances. The second possibility is to
assign a liberal meaning so as to cover 'detention at any stage of the case'.
the purpose of the Section 40 is to 'ensure the proper functioning of the
Office of the President or Vice-President of the Municipalities by keeping the
public confidence', the concentration is on the expression "detention in
obvious reasons a person who is detained in prison cannot effectively function
as a President or Vice-President of a Municipality. So any person 'detained in
prison' cannot be allowed to hold the office. This is the purpose of part II in
Section 40(1). The words "during trial" is used so as to exclude the
situations like preventive detention or detention in police custody. If the
words employed in a provision are capable of two meanings or casts doubts as to
the actual meaning, then it has to be interpreted in the light of the object of
the legislation. Word by word interpretation is not a welcome method of interpretation.
Words, vehicles of legislative intentions, take colour from the context in
which it is used. Hence the interpretation of the words 'during trial' will
have to promote the purpose of Section 40. As already pointed out, object of
this Section is to keep shady characters away from local bodies and to pave way
to persons with high integrity and good moral conduct to hold public offices.
This large interest could only be promoted if the word 'trial' is given a broad
intention is vividly displayed by choosing the expression "under the
provisions of any law for the time being in force" in part II of Section
40(1). Which means the provision is designed to cover any 'detention in prison'
under provisions of any law. Only by this interpretation, the textual meaning
of 'during trial' matches the contextual spirit of Section 40 that aims to
ensure the smooth functioning of the office and to keep confidence of people in
result, the word 'trial' should not be given a restricted meaning so as to
include only proceedings after the accused is actually arraigned before the
competent court for framing and facing of charges. Thus, detention in the
present case took place during the process of trial. It served as a step in aid
distinction between two parts of Section 40(1) of the Act regarding offences
under the Prevention of Corruption Act, Bombay Prohibition Act, Gujarat
Municipalities Act on the one hand and other enactments on the other is
strongly relied upon on behalf of the appellant. Many offences arising under
other laws adverted to in the latter part of Section 40(1) of the Act are no
less serious than those adverted to in the former part of Section 40(1) of the
Act. For that matter they may be far more serious. For example, drunkenness may
be an offence under Bombay Prohibition Act, while murder and sedition are
offences under the Indian Penal Code. Further, for practical reasons, if a
person is kept in prison, whatever may be the nature of the offence whether falling
under the first part or the second part of Section 40(1) of the Act, the
working of the Act will be put in jeopardy unless he is suspended. While the
one who has committed an offence under the Bombay Prohibition Act is liable to
be suspended immediately on being accused of such an offence and arrested,
while the other who has committed a murder is not so liable. Thus a literal
interpretation of the provision would lead to anomalous results as in the categorisation
of offences no scientific basis is discernible. The object of Section 40(1) of
the Act is to prevent a President/Vice- President of a Municipality from
functioning in event of a criminal case being launched and arrested. However,
in one set of cases, immediately on arrest such officer bearer can be
suspended, while in the other only on detention during trial. Thus two classes
are created one more onerous than the other and, therefore, may lead to being
irrational and arbitrary so as to violate Article 14 of the Constitution. Such
an interpretation can be avoided if we accept the interpretation suggested by
the High Court.
the foregoing reasons, with regret, I cannot agree with the judgment of brother
S.B. Sinha, J. that assigns a restricted meaning to the word 'trial' in Section
40 of the Act. Therefore, the conclusion arrived at by the High Court does not
call for our interference. The petition shall stand dismissed accordingly.
agree, with respect, with brother S.B.Sinha, J. that the contempt petition (C)
No.452 of 2002 should be dismissed. The appellant's presidential term expired
on 30.6.2002. The concerned authorities conducted the election only on
11/7/2002. So they cannot be said to have violated the order of this Court.
in contempt petition shall stand discharged and proceedings dropped.