Md. Shafiqul Islam Vs. Md. Abdus Salam, 3 LNJ (2014) 178

Case No: Civil Revision No. 347 of 2012

Judge: Gobinda Chandra Tagore,

Court: Appellate Division ,,

Advocate: Mr. Md. Alamgir Mostafizur Rahman,Mr. Taj Muhammad Shaikh,,

Citation: 3 LNJ (2014) 178

Case Year: 2014

Appellant: Md. Shafiqul Islam

Respondent: Md. Abdus Salam

Subject: Local Government,

Delivery Date: 2012-12-03


HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
Gobinda Chandra Tagore, J.
 
Judgment on
03.12.2012
}
 
}
}
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Md. Shafiqul Islam
. . .Petitioner
Versus
Md. Abdus Salam
. . . Opposite Party
 
 
Local Government (Pourasava) Act, (LVIII of 2009)
Section 19 (2) (Dauntanya Na)
The petitioner and the opposite party were contesting candidate for the post of Councillor (General) of ward No. 9, Shibgonj Pourasava. The opposite party was convicted by Special Tribunal No. 02, Chapai Nawabgonj in Special Tribunal Case No. 85 of 1997, under section 19-A and 19 (f) of the Arms Act and sentenced to suffer rigorous imprisonment of 10 years. The opposite party, by the judgment and order dated 26.10.1999, passed by the learned additional Sessions Judge, Chapai Nawabgonj in Session Case No. 149 of 1997, was also convicted under section 364 of the Penal Code and sentenced to suffer rigorous imprisonment for 3(three) years. The opposite party preferred Appeals No. 2862 and 3022 of 1999 before the High Court Division and since before the submission of the nomination papers, he was on bail in both the Appeals.
It appears from the Affidavit filed by the opposite party with his nomination paper that even he did not fill up the column no. 2, Kha of the prescribed form of the Affidavit which provides for giving information on any pending criminal case filed against the concerned candidate and the position of the case. Thus the Affidavit gives an information as if no case was pending against the opposite party on the date of submission and scrutiny of the nomination paper.
The opposite-party provided untrue information in the said affidavit filed along with his nomination paper and also deliberately concealed from the affidavit the said two criminal cases, which at the stage of appeal were pending in the High Court Division. Section 19(2)(Dauntanya Na) of the said Ain, 2009 stipulates that a person shall be disqualified for election as, or for being, the Mayor or a Councillor of any Pourasava if he provides any untrue information in or deliberately conceals any information from the affidavit filed along with the nomination paper. Therefore, in view of the facts and the provisions of Section 19(2) (Dauntanya Na) of the said Act, 2009, the opposite-party was disqualified for election as, or for being, the Councillor (General), Ward No.9, Shibgonj Pourasava.... (16, 18, 20 and 25)
 
Local Government (Pourasava) Act (LVIII of 2009)
Section 19 (2)(Gha)
Code of Criminal Procedure (V of 1898)
Sections 426 (1), (2), 366 and 367 (1)(2)
Explaining the law relating to the qualifications and disqualifications of the candidates for the Pourasava Election, 2010-2011, the Election Commission vide Memo No. নিকস/ পৌরসভা-পরিঃ /২(১)/২০১০/২০১১ dated 09.12.2010 made Circular No. 6. Clause (2) of the said Circular made explaining section 19(2)(Gha) of the said Act, 2009 stipulates that any candidate shall remain disqualified for such election even if he has been, on filing appeal against the conviction for any criminal offence or for any offence involving moral turpitude and the sentence to imprisonment for a term of not less than two years, released on bail, unless the execution of the judgment or  conviction is suspended. On mere suspending the execution of the sentence and releasing the appellant on bail or on his own bond by the Appellate Court, the execution of the order appealed against does not become ifso facto suspended under section 426(1) of the Code of Criminal Procedure, but the Appellate Court is to pass a specific order assigning reasons in writing for suspending the execution of the order appealed against. As per section 367(1), (2) read with section 366(1) of the Code of Criminal Procedure, the ordering portion of the judgment of any Criminal Court of original jurisdiction in every trial on the case filed on the allegation of any offence contains the order of conviction and sentence. Therefore, unless the order of conviction and sentence is set aside or the execution thereof is suspended on appeal, the same remains in force in all its rigour. Consequently, the disqualification attached to such conviction and sentence also applies to the appellant pending decision on the appeal unless otherwise specifically provided in the relevant statute. . . .(29, 32, 34 and 44)
 
Local Government (Pourasava) Act (LVIII of 2009)
Sections 19(2)(Gha), 19(2)(Dauntanya Na), 32(1) (Uma), 32(1)(Ja) and 33(1)(Ka).
The disqualification stipulated under Section 19(2)(Gha) of the said Act, 2009 for election as, or for being, a Councillor of the Pourasava has been operative all along against opposite party No. 1, who was disqualified under section 19(2) (Gha) and 19(2) (Dauntanya Na) of the said Act, 2009 for election, and he provided untrue information in the affidavit filed along with his nomination paper and also deliberately concealed from the affidavit two criminal cases and as such, he is removable from the said office of Councillor under section 32(1)(Uma) and section 32(1) (Ja) of the said Act, 2009. Since the opposite-party is disqualified under section 19(2) (Gha) and 19(2)(Dauntanya Na) for being elected as, or for being, the said Councillor, the office has become vacant as per the provision of section 33(1)(Ka) of the said Act, 2009. Since the circular was made for conducting the Pourasava election, it was generally applicable to all such elections and as such, the Returning Officer of Shibgonj was also bound to follow the circular. In such view of the matter, the opposite party is disqualified on two scores firstly, under section 19(2) (Gha) of the said Act, 2009 for being convicted and sentenced to imprison-ment for not less than two years; and secondly, under section19(2)(Dauntanya Na) of the said Act, 2009 for providing untrue information in the affidavit filed along with his nomination paper and for deliberately concealing from the affidavit the two criminal cases, which were pending at the stage of appeal in the High Court Division at that relevant time....(55, 59, 64, 68 and 75)
 
Mr. Md. Alamgir Mostafizur Rahman, Advocate
. . . For the petitioner

Mr. Taj Muhammad Shaikh, Advocate
. . . For the opposite party

Civil Revision No. 347 of 2012
 
JUDGMENT
Gobinda Chandra Tagore, J:
 
On an application under section 115(1) of the Code of Civil Procedure, the Rule was issued calling upon the opposite party to show cause as to why the judgment and order dated 11.01.2012 passed by learned Election Appellate Tribunal and Additional District Judge, Chapai Nawabgonj in Election Appeal No.1 of 2011 reversing the judgment and order dated 24.07.2011 passed by learned Election Tribunal and Joint District Judge, 1st Court, Chapai Nawabgonj in Election Case No.1 of 2011, allowing the Election Case should not be set aside and/or such other or further order or orders as to this court may seem fit and proper, shall not be passed.
 
The present petitioner as election petitioner filed Election Case No.1 of 2011 in the Election Tribunal and 1st Court of Joint District Judge, Chapai Nowabgonj for cancellation of the election of the opposite party to the post of the Councillor (General) of Ward No.9, Shibgonj Pourasava and for further declaration that the petitioner was elected to the said post.
 
The averments made in the Election Petition in short is that as per the schedule of election the date of election of Shibgonj Pourasava was 12.01.2011, the last date for submission of nomination papers was 13.12.2010 and the dates of filing objection if any against any nomination papers were 18.12.2010 to 20.12.2010. The petitioner and the opposite party were candidates for the post of Councillor (General) of Ward No.9 of that Pourasava. Section 19(1) and 19(2) of the স্থানীয় সরকার (পৌরসভা) আইন, ২০০৯’ [Local Government (Pourasava) Act, 2009, hereinafter referred to as the said Act, 2009] respectively provides for the qualifications and disqualifications of the contesting candidates for the election of any Pourasava. In Circular No.6 dated 09.12.2010 the provisions of qualifications and disqualific-ations of such candidates were elaborately explained. As per section 19(3) of the said Act, 2009, any candidate requires to file an affidavit as to that he is not disqualified under section 19 (2) of the said Act, 2009. Rule 12 of the স্থানীয় সরকার (পৌরসভা) নির্বাচন বিধিমালা, ২০১২ [Local Government (Pourasava) Election Rules, 2010, hereinafter referred to as the said Election Rules, 2010] provides for submission of nomination papers to which the affidavit is to be attached. Rule 12 of the said Election Rules, 2010 also provides for filling up a prescribed form providing information, amongst others, that whether at present the concerned candidate is an accused in any criminal case and whether there is any record of past criminal case against him and if any what was the judgment therein. After expiry of the stipulated period for filing objection against nomination papers, the petitioner came to know that the opposite party was convicted in a Criminal Case and he was sentenced to suffer 10 years’ imprisonment and though he was on bail, his conviction was not suspended. In addition thereto, in another Criminal Case, the opposite party was convicted and though in that case he was granted bail, the conviction was not suspended. Soon after coming to know about the said convictions and sentences of opposite party No.1, on 22.12.2010 the petitioner filed an objection petition against the nomination paper of the opposite-party to the Returning Officer. As per Circular No.6 dated 09.12.2010, any candidate even if is on bail, he shall be disqualified from the election, unless the conviction and sentence are suspended. But after receiving the said objection, the Returning Officer himself did not take any action in this regard, but he forwarded the said objection to the Secretary of the Election Commission vide Memo No. অ/শিবঃ/পৌর নির্বাচন/২০১০/১২৯ dated 23.12.2010. However, the Secretary, Election Commission also did not take any action in this regard. Even, in the absence of any objection filed by the petitioner, the Returning Officer ought to have cancelled the nomination paper of the opposite party  upon considering the provision of and the information given in the column Nos. ‘2.Kha.’ and ‘3.Kha.’. Conceal-ment of information was a violation of the provision of the said Act, 2009, Election Rules, 2010 and said Circular No.6 as well. Since the convictions of the opposite party were not suspended, he was disqualified for the election. The Returning Officer in his memo dated 23.12.2010 mentioned that the  opposite party was convicted and sentenced to suffer rigorous imprisonment for 10 years in G.R. No.97 of 1997 arising out of Mostafapur Police Station Case No.13 dated 31.03.1997, and he was on bail granted by the High Court Division. In addition thereto, the  opposite party was also convicted and sentenced in G.R.No.96 of 1997. He was also on bail in that case. The Returning Officer also mentioned in his memo that though the opposite party was on bail, the convictions were not suspended and as such, the opposite party did not provide the correct information in his affidavit. As the convictions passed against him were not suspended on the date of filing of the nomination paper, the opposite party was not qualified for contesting the election, but the election of the Pourasava was held on 12.01.2011 in which the opposite party obtained 1307 votes, while the petitioner secured 1215 votes. Since the Returning Officer and the Election Commission did not take any step against the opposite party the petitioner had to wait for publication of the Gazette Notification declaring the result of the election. On 24.01.2011 the Gazette Notification containing the result of the election of Shibgonj Pourasava was published. By the said Gazette Notification, the opposite party was declared elected Councillor of Ward No.9 of the Pourasava. Since the opposite party was disqualified from contesting the election, the petitioner filed the Election Case for cancellation of the election of the opposite party and for a declaration that he is the elected Councillor of the said Ward. The cause of action of the Election Case arose on 24.01.2011, when the Gazette Notification containing the result of the election of Shibgonj Pourasava was published.
 
The opposite party contested the Election Case by filing a Written Objection denying all the material allegations made in the Election Petition and contended, inter alia, that at the time of submission and scrutiny of the nomina-tion papers, neither the election petitioner nor anybody else raised any objection against his nomination paper and as such, the Returning Officer found his nomination paper valid. Since he secured 1307 votes and the election petitioner secured only 1215 votes, he was rightly declared elected. After publication of the Gazette Notification, he has been condu-cting and performing the function of the post of Councillor. It was totally false that he provided any false information in his affidavit. The High Court Division acquitted him of the charge on which he was convicted and sentenced to suffer 10 years’ imprisonment by the Trial Court and as such, the Election Petition containing false and harassing statements is liable to be dismissed.
 
During trial the election petitioner himself was examined as P.W.1 and a Steno-Typist of the Upazila Election Office namely Md. Robiul Islam was examined as P.W.2; while, the opposite party was examined as O.P.W.1. Both the parties adduced some documentary evidences in support of their respective cases.
 
Having considered the material evidence on record, the Election Tribunal by the judgment and order dated 24.07.2011 allowed the Election Case cancelling the election of the opposite party and declaring the petitioner as the elected Councillor (General) of Ward No.9, Shibgonj Pourasava.
 
Against the judgment and order of the Election Tribunal, the  opposite party  preferred Election Appeal No.1 of 2011 in the Election Appellate Tribunal, Chapai Nawabgonj.
 
Then, after hearing the appeal, the Election Appellate Tribunal by the judgment and order dated 11.01.2012 allowed the appeal setting aside the judgment and order of the Election Tribunal.
 
Being aggrieved by the judgment and order of the Election Appellate Tribunal, the election-petitioner preferred the instant Civil Revision and obtained the Rule.
 
Mr. Md. Alamgir Mostafizur Rahman, learned Advocate appearing for the petitioner submits that the Election Appellate Tribunal having misconstrued section 426(1) of the Code of Criminal Procedure came to the erroneous finding that on granting bail the conviction and sentence become suspended and thereupon the Election Appellate Tribunal failed to appreciate that opposite party No.1 being convicted and sentenced to imprisonment for not less than two years was disqualified for election as, or for being, the Councillor as per section 19(2)(Gha) of the said Act, 2009, and thus, the Election Appellate Tribunal committed errors of law resulting in errors in the decision occasioning failure of justice.
 
The learned Advocate for the petitioner further submits that it is apparent from the face of the affidavit solemnized before the Notary Public by opposite party, which was filed with his nomination paper, that even he did not fill up Column ‘2.Kha.’of the prescribed form of the affidavit, which requires providing infor-mation whether the candidate is an accused in any Criminal Case and if so, what is the position thereof, and as such the opposite party concealed the information in his affidavit that he was convicted in two Criminal Cases and thereupon the Election Appellate Tribunal failed to appreciate that for deliberately providing untrue information in or concealing the information from the affidavit, his nomination paper as well as his candidature was liable to be cancelled as per section 19(2) (Dauntanya Na) of the said Act, 2009 and Rule 14(3)(Uma) read with Rule ‘12(3) (Ga) (Dirgha-E) (2)’ of the said Election Rules, 2010 inasmuch as for the same reason the election of the  opposite party is liable to be cancelled and he also is liable to be removed from his office as per 32(1)(Uma), (Ja) read with section ‘19(2)(Gha), (Dauntanya Na)’of the said Act, 2009 and thereupon the Election Appellate Tribunal came to the erroneous decision occasioning failure of justice.
 
On the other hand, Mr. Taj Muhammad Shaikh, learned Advocate appearing for the opposite party submits that since upon preferring appeal against the conviction and sentence, the opposite party was released on bail, the conviction and sentence awarded against him became automatically suspended and as such, he was not disqualified for election to the post and therefore, the Election Appellate Tribunal rightly allowed the appeal.
 
The learned Advocate for the opposite party further submits that section 19(2)(Gha) of the said Act, 2009 contemplates the final conviction, and appeal preferred against any judgment and order of conviction and sentence being the continuation of the original proceeding, during pendency of the appeal the conviction and sentence appealed from cannot be legally contemplated as final and as such, section 19(2) of the said Act, 2009 does not attract the present case and therefore, the Election Appellate Tribunal rightly allowed the appeal setting aside the judgment and order of the Election Tribunal and hence, the Rule is liable to be discharged.
 
In support of his contention, the learned Advocate referred to the case of Hussain Muhammad Ershad Vs. Abdul Muqtadir Chowdhury and another, reported in 10 BLT 148.
 
I have perused the Civil Revision Application and also perused the records of the Election Tribunal and those of the Election Appellate Tribunal and heard the learned Advocates from both the sides.
 
Admittedly, the petitioner and the opposite party were contesting candidates for the post of Councillor (General) of Ward No.9, Shibgonj Pourasava. It is also not disputed that the opposite party was convicted by Special Tribunal No.2, Chapai Nawabgonj in Special Tribunal Case No. 85 of 1997 arisen out of G.R. No. 97 of 1997 corresponding to Gomostapur Police Station Case No.13 dated 31.03.1997 under section 19-A and 19(f) of the Arms Act, and sentenced to suffer rigorous imprisonment for 10 years. By the judgment and order dated 26.10.199 passed by the Court of the learned Additional Sessions Judge, Chapai Nawabgonj in Sessions Case No. 14 of 1997 arisen out of G.R. No.96 of 1997 corresponding to Shibgonj Police Station Case No.19 dated 31.03.1997 he was also convicted under section 364 of the Penal Code and sentenced to suffer rigorous imprisonment for 3(three) years and to pay a fine of Taka-1000/-, in default to pay the fine, to suffer further rigorous imprisonment for 3 (three) months. It is also not disputed that the opposite party preferred appeals being Criminal Appeal Nos. 2862 of 1999 and 3022 of 1999 against the convictions and sentences passed in the said two Criminal Cases respectively, and since before the date of submission of the nomination papers, he was on bail in both the appeals.
 
Therefore, on the dates of submission and scrutiny of the nomination papers, both the criminal appeals were pending.
 
But it appears from the affidavit filed by the opposite party with his nomination paper that even he did not fill up Column No. ‘2.Kha.’ of the prescribed form of the affidavit, which provides for giving information on any pending Criminal Case filed against the concerned candidate and the position of the case. Thus, the affidavit gives an impression as if no case was pending against the opposite-party on the dates of submission and scrutiny of the nomination papers.
 
Therefore, the opposite-party provided untrue information in the said affidavit filed along with his nomination paper and also deliberately concealed from the affidavit the said two criminal cases, which at the stage of appeal were pending in the High Court Division.
 
Section 19(2)(Dauntanya Na) of the said Ain, 2009 stipulates that a person shall be disqualified for election as, or for being, the Mayor or a Councillor of any Pourasava if he provides any untrue information in or deliberately conceals any information from the affidavit filed along with the nomination paper. Section 19(2)(Dauntanya Na) of the said Act, 2009 reads as follows:
 
১৯। মেয়র এবং কাউন্সিলরগণের যোগ্যতা ও অযোগ্যতা।-(১)------------------------------------------------------------------------ -------------
(২) কোন ব্যক্তি মেয়র বা কাউন্সিলর পদে নির্বাচিত হইবার জন্য এবং উক্তরূপ মেয়র বা কাউন্সিলর পদে থাকিবার যোগ্য হইবেন না, যদি তিনি-
(ক) --------------------------------------------------------------------------------------------------------
(ন) মনোনয়নপত্রের সাথে দাখিলকৃত হলফনামায় কোন অসত্য তথ্য প্রদান করেন বা ইচ্ছাকৃতভাবে কোন তথ্য গোপন করেন।”
 
Section 19(2)(Dauntanya Na) construes that no person shall furnish any untrue inform-ation in or deliberately conceal any information from the affidavit filed along with the nomination paper, but if he does so, he shall be disqualified for election as, or for being, the Mayor or a Councillor of any Pourasava.
 
Thus, Section 19(2)(Dauntanya Na) entails the consequence of furnishing  any untrue information in or deliberately concealing any information from the affidavit filed along with the nomination paper by any person as to rendering himself disqualified for election as, or for being, the Mayor or a Councillor of any Pourasava.
 
Hence, the provision of section 19(2) (Dauntanya Na) of the said Act, 2009 is mandatory in nature without any ambiguity.
 
It has already been found that the opposite-party provided untrue information in the affidavit filed along with his nomination paper and also deliberately concealed from the affidavit the two criminal cases, which at the stage of appeal were pending in the High Court Division at that relevant time.
 
Therefore, in view of the facts and the provisions of Section 19(2)(Dauntanya Na) of the said Act, 2009, the opposite-party was disqualified for election as, or for being, the Councillor (General), Ward No.9, Shibgonj Pourasava.
 
It also appears from the records as well as from the Written Objection filed by the opposite party that after the election, he was acquitted of the charge brought against him in G.R. No.97 of 1997. But, he concealed G.R. No.96 of 1997, the conviction and sentence passed therein and Criminal Appeal No.3022 of 1999 preferred against the same from the Written Objection and his deposition as well. From the record of Criminal Appeal No.3022 of 1999 it appears that the appeal is still pending in the High Court Division.
 
Now, the question arises, while the opposite party was on bail whether or not he was disqualified for election as, or for being, a Councillor under the said Act, 2009.
 
It has already been found that the opposite party No.1 was convicted in two Criminal Cases and sentenced to two separate terms each not less than two years and, he was also on bail upon preferring appeals against the same. Section 19(2)(Gha) of the said Act, 2009 stipulates that a person shall be disqualified for election as, or for being, the Mayor or a Councillor of any Pourasava if he has been, on conviction for any criminal offence or for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release. Section 19(2)(Gha) of the said Act, 2009 reads as follows:
 
১৯। মেয়র এবং কাউন্সিলরগণের যোগ্যতা ও অযোগ্যতা।-(১)-----------------------------------------------------------------------------------------------------------
(২) কোন ব্যক্তি মেয়র বা কাউন্সিলর পদে নির্বাচিত হইবার জন্য এবং উক্তরূপ মেয়র বা কাউন্সিলর পদে থাকিবার যোগ্য হইবেন না, যদি তিনি-
(ক) --------------------------------------------------------------------------------------------------------
(ঘ) কোন ফৌজাদরী বা নৈতিক স্খলনজনিত অপরাধে দোষী সাব্যস্থ হইয়া অন্যুন দুই বৎসর কারাদন্ডে দন্ডিত হন এবং তাঁহার মুক্তি লাভের পর পাঁচ বৎসর কাল অতিবাহিত না হইয়া থাকে;
----------------------------------------------”
 
Further explaining the law relating to the qualifications and disqualifications of the candidates for the Pourasava Election, 2010-2011, the Election Commission vide Memo No. wbKm/‡cŠimfv-cwit/2(1)/2010/2011 dated 09.12.2010 made Circular No.6. Clause (2) of the said Circular made explaining section 19(2)(Gha) of the said Act, 2009 stipulates that any candidate shall remain disqualified for such election even if he has been, on filing appeal against the conviction for any criminal offence or for any offence involving moral turpitude and the sentence to imprisonment for a term of not less than two years, released on bail, unless the execution of the judgment or  conviction is suspended. The said Clause (2) reads as follows:
 
(২) ফৌজদারী মামলার সাজা আইনের ধারা ১৯(২)(ঘ): কোন প্রার্থী ফৌজদারী বা নৈতিক স্খলনজনিত অপরাধে দোষী সাব্যস্থ  হয়ে অন্যুন ২ বৎসর কারাদন্ডে দন্ডিত হলে এবং উক্ত অধ্যাদেশের বিরুদ্ধে উচ্চ আদালতে আপীল হলে এবং আপীল আদালত নিমণ আদালতের রায় বা সাজা স্থগিত না করলে সংশ্লিষ্ট প্রার্থী নির্বাচনে অযোগ্য হবেন। এক্ষেত্রে উচ্চ আদালত আপীল গ্রহণ করলেও তিনি অযোগ্য হবেন বা সংশ্লিষ্ট প্রার্থী জামিন পেলেও অযোগ্য হবেন অর্থাৎ সংশ্লিষ্ট সাজা স্থগিত না হওয়া পর্যন্ত নির্বাচনে অযোগ্য হবেন।”

With regard to suspension of the execution of the sentence or order appealed against and releasing the appellant on bail or on his own bond pending the appeal, section 426(1) of the Code of Criminal Procedure provides as under:-
 
426. Suspension of sentence pending appeal, Release of appellant on bail.- (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond.”
 
The above-quoted section 426(1) of the Code of Criminal Procedure confers power to the Appellate Court to suspend the execution of the sentence and grant bail, and also to suspend the execution of the order appealed against.
 
Thus, on mere suspending the execution of the sentence and releasing the appellant on bail or on his own bond by the Appellate Court, the execution of the order appealed against does not become ifso facto suspended under section 426(1) of the Code of Criminal Procedure, but the Appellate Court is to pass a specific order assigning reasons in writing for suspending the execution of the order appealed against.
 
As per section 367(1) read with section 366(1) of the Code of Criminal Procedure the judgment in every trial in any Criminal Court of original jurisdiction contains the point or points for determination, the reasons for coming to the decision thereon and the decision. The decision, as practiced, is passed in the form of an order. Section 367(2) of the Code dictates that every such judgment shall specify the offence (if any) of which, and the section of the Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced.
 
Therefore, as per section 367(1), (2) read with section 366(1) of the Code of Criminal Procedure, the ordering portion of the judgment of any Criminal Court of original jurisdiction in every trial on the case filed on the allegation of any offence contains the order of conviction and sentence.
 
Accordingly, in such a case, an appeal is filed against the judgment and, order of conviction and sentence; although the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt, in that case the order of conviction is deemed to have been conceded by the convict-appellant.
 
Moreover, no accused can be sentenced unless he is convicted. Therefore, the order of conviction is the substantive order and the order of sentence is merely consequential thereto.
 
No doubt, on releasing the appellant on bail or on his own bond, the execution of the order of sentence to imprisonment practically becomes ifso facto suspended inasmuch as even it is beyond the power of the Appellate Court to suspend the sentence itself; because, under section 426(1) of the Code of Criminal Procedure the Appellate Court can only suspend the execution of the sentence pending disposal of the appeal and thus, on mere suspension of the execution of the sentence the order of conviction does not ifso facto lose its effect.
 
Hence, even after releasing the appellant on bail or on his own bond the order of conviction still remains operative.
 
Therefore, the ‘order appealed against’ as appears in section 426(1) of the Code of Criminal Procedure includes the order of conviction in every criminal appeal, which is preferred against the judgment and, order of conviction and sentence.
 
Usually, after being released on bail or on his own bond a convict-appellant does not need to get the order of conviction suspended or stayed. But in certain situations, the order of conviction may incur a disqualification provided for in any other statute and unless the execution of the order of conviction is suspended or stayed the damage done thereupon cannot be undone. In similar situations, the Supreme Court of India in the case of B.R. Kapur v. State of T.N. & another, (2001) 7 SCC 231 held as under:
 
“It is not within the power of the appellate court to suspend the sentence; it can only suspend the execution of the sentence pending the disposal of appeal. The suspension of the execution of the sentence does not alter or affect the fact that the offender has been convicted of a grave offence and has attracted the sentence of imprisonment of not less than two years. The suspension of the  execution of the sentences, therefore, does not remove the disqualification against the second respondent. The suspension of the sentence, as the Madras High Court erroneously called it, was in fact only the suspension of the execution of the sentences pending the disposal of the appeals filed by the second respondent. The fact that she secured the suspe-nsion of the execution of the sentences against her did not alter or affect the convictions and the sentences imposed on her and she remained disqualified from seeking legislative office under Section 8(3).”
 
 
In the present case, on filing appeal, though the opposite party has been released on bail under section 426(1) of the Code of Criminal Procedure, at his peril he has not even sought for and obtained any order of suspension of the execution of the order of conviction passed in the said Sessions Case No. 14 of 1997 arisen out of G.R. No.96 of 1997 corresponding to Shibgonj Police Station Case No.19 dated 31.03.1997 under section 364 of the Penal Code. Consequently, the said order of conviction, which is even now under challenge in Criminal Appeal No. 3022 of 1999, is still in force.
 
Therefore, the conviction was in force on the dates of submission and scrutiny of the nomination paper and, on the dates of holding of the election and publication of the Gazette Notification containing the result of the election and is still in force as well.
 
The learned Advocate for opposite party No.1 submitted that section 19(2)(Gha) of the said Act, 2009 contemplates the final conviction, and the appeal preferred against any judgment and order of conviction and sentence being the continuation of the original proceeding, during pendency of the appeal the conviction and sentence appealed against cannot be legally contemplated as final. It has already been found that even after releasing the appellant on bail or on his own bond the order of conviction still remains operative. Thus, the conviction and sentence passed by the Trial Court do not remain in limbo automatically when they are challenged in appeal. It is settled that in criminal jurisprudence an accused is presumed to be innocent until he is found guilty upon trial. Accordingly, when the accused is convicted and sentenced such presumption of innocence ends and thus, it cannot be legally said that the presumption of innocence continues even after the conviction. Again the Supreme Court of India held in the said case of B.R. Kapur v. State of T.N. & another, (2001) 7 SCC 231 as under:
 
“In much the same vein, it was submitted that the presumption of innocence continued until the final judgment affirming the conviction and sentence was passed and, therefore, no disqualification operated as of now against the second respondent. Before we advert to the four judgments relied upon in support of this submission, let us clear the air. When a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo the sentence. The execution of the sentence can be stayed by an appellate court and the accused released on bail. In many cases, the accused is released on bail so that the appeal is not rendered infructuous, at least in part, because the accused has already undergone imprisonment. If the appeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that it is not to say that the presumption of innocence continues after the conviction by the trial court. That conviction and the sentence it carries operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well.”
 
Therefore, unless the order of conviction and sentence is set aside or the execution thereof is suspended on appeal, the same remains in force in all its rigour. Consequently, the disqualification attached to such conviction and sentence also applies to the appellant pending decision on the appeal unless otherwise specifically provided in the relevant statute.
 
Section 19(2)(Gha) of the said Act, 2009 contemplates conviction and sentence and not ‘final’ conviction and sentence. Since the legislature in its wisdom made a specific provision for disqualification on conviction by enacting section 19(2)(Gha), it is not for the Court to abridge or expand it. In fact, every conviction and sentence stand final unless the same are set aside on appeal or on revision.
 
Nevertheless, section 35 of the said Act, 2009 provides that if having been declared disqualified or removed as per the provisions of this Act the elected Mayor or any elected Councillor of any Pourasava vacates his office, he shall be reinstated in his office for the remaining period of his tenure after such removal is set aside or such disqualification is stamped out on appeal. Section 35 reads as under:
 
৩৫। মেয়র ও কাউন্সিলরের সদস্যপদ পুনর্বহাল।-পৌরসভার কোন নির্বাচিত মেয়র বা কাউন্সিলর এই আইনের বিধান অনুসারে অযোগ্য ঘোষিত হইয়া অথবা অপসারিত হইয়া সদস্যপদ হারাইবার পর আপিলে তাহার উক্তরূপ অপসারণ বাতিল হইলে, বা তাহার অযোগ্যতা অবলোপন হইলে, তিনি অবশিষ্ট মেয়াদের জন্য স্ব-পদে বহাল হইবেন।
 
Section 35 of the said Act, 2009 contemplates that on the removal or on the declaration as disqualified as per the provisions of this Act, the Mayor or a Councillor of any Pourasava shall vacate his office at once and once thus he vacates his office, he shall not be reinstated in the office until such removal is set aside or such disqualification is stamped out on appeal.
 
Therefore, as per section 35 of the said Act, 2009 the disqualifications contemplated under the Act may remain operative even pending consideration of the appeal and such disqualifications may be wiped out only upon disposal of the appeal and not before it. Accordingly, it cannot be said that unless the conviction becomes final it does not entail the disqualification under section 19(2)(Gha) of the said Act, 2009.
 
Moreover, section 31(1) of the said Act, 2009 provides that when any proceeding for removal of the Mayor or any Councillor of any Pourasava has been started or Charge Sheet has been accepted by the Court in any criminal case against him, if in the opinion of the concerned authority it appears that the exercise of the power of the Mayor or Councillor by him would be detrimental to the interest of the Pourasava or would not be just and proper in the administrative point of view, the Government may by a written order suspend the Mayor or the Councillor from his office. Section 31(1) reads as under:
 
৩১। মেয়র ও কাউন্সিলরের সাময়িক বরখাস্ত। (১)।- যেক্ষেত্রে কোন পৌরসভার মেয়র অথবা কোন কাউন্সিলর অপসারণের কার্যক্রম আরম্ভ করা হইয়াছে অথবা তাহার বিরুদ্ধে ফৌজদারী মামলায় অভিযোগপত্র আদালত কর্তৃক গৃহীত হইয়াছে, সেই ক্ষেত্রে নির্ধারিত কর্তৃপক্ষের বিবেচনায় মেয়র অথবা কাউন্সিলর কর্তৃক ক্ষমতা প্রয়োগ পৌরসভার স্বার্থের পরিপন্থী অথবা প্রশাসনিক দৃষ্টিকোণে সমীচীন না হইলে, সরকার লিখিত আদেশের মাধ্যমে মেয়র অথবা কাউন্সিলরকে সাময়িকভাবে বরখাস্ত করিতে পারিবে।”
 
While, such sensitive being the implications of the said Act, 2009, it cannot be the intention of the same Act to allow any person, who has already been convicted and the execution of the conviction has not been suspended, to exercise such power of the Mayor or Councillor.
 
Hence, section 19(2)(Gha) of the said Act, 2009 does not contemplate any ‘initial’ or ‘final’ conviction and sentence, but the conviction and sentence, which are effective pending consideration of the matter before the election authority, Tribunal or Court.
 
The Division Bench of this Court, which passed the judgment and order in the case of Hussain Muhammad Ershad Vs. Abdul Muqtadir Chowdhury and another, reported in 10 BLT 148 differed on the issue whether Article 66 (2) (d) of the Constitution contemplates ‘final’ conviction and sentence. His Lordship Mr. Justice Joynul Abedin held that such disqualification starts when the conviction becomes final and conclusive; while, his Lordship Mr. Justice A.B.M. Khairul Haque observed that a Court of Law has got no power to add or omit anything to what is provided in the law itself and this Court can always explain and expound the Constitutional provisions and other laws of the country, but in doing so certainly would never make a detour from such laws or even from the spirit of such laws, and held as under:
 
“In this case even the plain meaning of the provision contained in sub-clause (d) of clause (2) under Article 66 is very clear and without any ambiguity. There is no room for doubt in the said provision that on conviction and sentence for a period of not less than two years for an offence involving moral turpitude, a member shall be disqualified at once. Of course, if they are acquitted in appeal, it will be effective retrospectively and the disqualification, if any, would at once cease to exist.”
 
Since the two learned Judges of the said Division Bench differed on the issue, this Bench may adopt and rely on either of the views, which may be seemed to be more rational and prudent.
 
In view of the discussions made above, the dissenting views taken in the said case of Hussain Muhammad Ershad Vs. Abdul Muqtadir Chowdhury and another, do not come in aid of  the opposite party; rather the view taken by his Lordship Mr. Justice A.B.M. Khairul Haque is adoptable in the contexts of the discussions made above.
 
Therefore, the disqualification stipulated under Section 19(2)(Gha) of the said Act, 2009 for election as, or for being, a Councillor of the Pourasava has been operative all along against opposite party No.1.
 
Hence, opposite party No.1 has been disqualified under section 19(2)(Gha) of the said Act, 2009 for election as, or for being, the said Councillor.
 
In view of the discussions made above, it appears that clause (2) of the said Circular No.6 was made in conformity with the provisions of section 19(2)(Gha) of the said Act, 2009 read with the provision of section 426(1) of the Code of Criminal Procedure. Accordingly, I also do not find any legal infirmity in making the said circular, and in the contents and implications thereof.
 
For any one or more than one of the 8 (eight) reasons enumerated under section 32 of the said Act, 2009, a Mayor or Councillor of any Pourasava may be removed from his office. Particularly, section 32(1)(Uma) and section 32(1)(Ja) respectively stipulates that a Mayor or Councillor shall be removable from his office if after the election, it is proved that he was disqualified under section 19(2) for the election and that he furnished any untrue information in or deliberately concealed any information from the affidavit filed along with the nomination paper. Section 32(1)(Uma) and section 32(1)(Ja) respectively run as follows:
 
“৩২। মেয়র ও কাউন্সিলর অপসারণ।-(১)মেয়র অথবা কাউন্সিলর তাহার নিজ পদ হইতে অপসারণযোগ্য হইবেন, যদি তিনি-
(ক) ------------------------------------------------------------
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(ঙ) নির্বাচনের পর ইহা প্রমানিত হয় যে, তিনি ধারা ১৯(২) অনুযায়ী নির্বাচনে অযোগ্য ছিলেন;
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(জ) নির্বাচন অনুষ্ঠানের পর হইতে পৌরসভার মেয়াদকালের মধ্যে যে কোন সময় যদি প্রমানিত হয় যে, কোন নির্বাচিত প্রাথী মনোনয়নপত্রের সাথে দাখিলকৃত সাতটি তথ্য সম্বলিত হলফনামায় কোন অসত্য তথ্য প্রদান করিয়াছেন বা ইচ্ছাকৃতভাবে কোন তথ্য গোপন করিয়াছেন।”
 
It has already been found that opposite-party No.1 was disqualified under section 19(2)(Gha) and 19(2)(Dauntanya Na) of the said Act, 2009 for election, and he provided untrue information in the affidavit filed along with his nomination paper and also deliberately concealed from the affidavit two criminal cases and as such, he is removable from the said office of Councillor under section 32(1)(Uma) and section 32(1)(Ja) of the said Act, 2009. 
 
In any one or more than one of the 6 (six) situations delineated under section 33 of the said Act, 2009, a Mayor or Councillor shall vacate his office, in particular, section 33(1) (Ka) and section 33(1)(Gha) respectively stipulates that the office of a Mayor or Councillor shall fall vacant if he is disqualified under section 19(2) for being such a Mayor or Councillor as the case may be and removed from his office under section 32. Section 33(1)(Ka) and section 33(1)(Gha) read as under:
 
৩৩। মেয়র এবং কাউন্সিলরের পদ শূন্য হওয়া এবং পুনঃনির্বাচন।-(১) পৌরসভার মেয়র বা কাউন্সিলর পদ শূন্য হইবে, যদি তিনি-
(ক)  ধারা ১৯(২) এর অধীনে মেয়র অথবা কাউন্সিলর থাকিবার অযোগ্য হন; বা
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(ঘ) ধারা ৩২ অনুযায়ী অপসারিত হন;”
 
Section 33(1)(Ka) and section 33(1) (Gha) also respectively entail consequences of being disqualified under section 19(2) for being a Mayor or Councillor and of being removed under section 32 from such office as to falling the office vacant.
 
Thus, the provisions of section 33(1)(Ka) and section 33(1)(Gha) are also mandatory in nature.
 
Though the opposite-party is removable from the said office of Councillor, he has yet not been removed and consequently, the said office of Councillor has not been vacant for the reason stipulated under section 33(1)(Gha) of the said Act, 2009.
 
However, since the opposite-party  is disqualified under section 19(2)(Gha) and 19(2)(Dauntanya Na) for being elected as, or for being, the said Councillor, the office has become vacant as per the provision of section 33(1)(Ka) of the said Act, 2009.
 
It is an established principle of law that circular is not a law and it has no general binding effect of a law. However, it is another long established principle of law that a circular is binding upon the makers thereof and the persons or authority to whom the same is applicable. In this regard the decisions made in the cases of (i) Muzaffar Ali and another Vs. Government of Bangladesh and another, reported in 43 DLR (AD) 137, (ii) Administrator, M/s. Delta Constructions Ltd. Vs. Chairman, 2nd Labour Court and another, reported in 28 DLR 365, (iii) Md. Solaiman Khan and others Vs. Government of Bangladesh and others, reported in 12 BLT 342 and (iv) Ezahar Ali Mondol and others Vs. Golam Rasul and others, reported in 45 DLR 653, may be referred to.
 
In the case of R.v. Secretary of State for Home Department Ex parte Khan, (1985) 1 All ER 40 (CA), it was held that if the authority had made a statement that a certain criterion or procedure would be followed the people can legitimately expect that it would be followed in the decision-making process of the authority, therefore, the authority is under an obligation to follow that criterion or procedure. In that case, in violation of the provision of the circular regarding entry of adopted children in England, the authority had refused entry to the adopted child of Mr. Khan. The court quashed the order of the authority as it was on consideration of policy, which was not in existence when the circular had been issued.
 
As the Election Commission by the circular made a statement that the certain criterion or procedure would be followed in scrutinizing the qualification and disqualification of the candidates in any Pourasava election, that very criterion or procedure was binding upon the officers, staff and persons bestowed with the duty to conduct the elections.
 
Since the circular was made for conducting the Pourasava election, it was generally applicable to all such elections and as such, the Returning Officer of Shibgonj was also bound to follow the circular.
But the Election Appellate Tribunal having misconstrued section 426(1) of the Code of Criminal Procedure came to the erroneous findings that on granting bail the conviction and sentence awarded against any convict became suspended, and in that case neither any separate order of suspension is required nor does any criminal Court pass such order of suspension, in the Rules (contained in the circular) the provisions under section 426 (1) of the Code was misinterpreted and thereby the Election Appellate Tribunal committed errors of law resulting in errors in the decision occasioning failure of justice.
 
Upon elaborate discussion, it has already been found that the opposite-party provided untrue information in the said affidavit filed along with his nomination paper and also deliberately concealed from the affidavit the said two criminal cases, which at the stage of appeal were pending in the High Court Division. But the Election Appellate Tribunal further having misconstrued section 426(1) of the Code came to the erroneous finding that the  opposite party did not furnish any untrue information in the affidavit submitted along with his nomination paper and thereby committed an error of law occasioning failure of justice.
 
The opposite party preferred Criminal Appeal Nos. 2862 of 1999 against the judgment and order of conviction and sentence passed in Special Tribunal Case No. 85 of 1997 and pending disposal of the Election Case the appeal was allowed and he was acquitted of the charge. Accordingly, the acquittal wiped out the conviction with retrospective effect from the date it was recorded and the Election Appellate Tribunal rightly came to the decision so far it relates to Criminal Appeal Nos. 2862 of 1999.
But the Election Appellate Tribunal did not at all consider that Criminal Appeal No. 3022 of 1999 preferred against the judgment and order of conviction and sentence dated 26.10.199 passed in Sessions Case No. 14 of 1997 is still pending, the execution of the conviction appealed against has not been suspended and the disqualification attached to the conviction applies as well and thereby the Election Appellate Tribunal further committed an error of law resulting in an error in the decision occasioning failure of justice.
 
Having failed to appreciate that the doctrine of estoppels cannot be attracted to a case of violation of a statutory provision, the learned Election Appellate Tribunal wrongly held that having admitted the validity of the nomination paper of the opposite party-appellant, as the election petitioner participated in the election and conceded his candidature, he cannot raise the question of validity of the nomination paper of the opposite party-appellant as per section 115 of the Evidence Act.
 
It is another established principle of law that the election period starts from the declaration of the election schedule and ends at the publication of the election result in the official Gazette. But having misconceived the election period, the Election Appellate Tribunal erroneously held that the allegation raised against the validity of the nomination paper was a ‘post election dispute’, which occasioned a failure of justice. 
 
In such view of the matter, the opposite party is disqualified on the following two scores for election as, or for being, the Councillor (General) of Ward No.9, Shibgonj Pourasava:-
  1. Under section 19(2)(Gha) of the said Act, 2009 for being convicted and sentenced to imprisonment for not less than two years; and
  2. Under section19(2)(Dauntanya Na) of the said Act, 2009 for providing untrue information in the affidavit filed along with his nomination paper and for deliberately concealing from the affidavit the two criminal cases, which were pending at the stage of appeal in the High Court Division at that relevant time. 
Accordingly, I find merit in the Rule. Hence, the Rule is made absolute.
 
The judgment and order passed by the Election Appellate Tribunal is set aside and the judgment and order passed by Election Tribunal is hereby maintained with the findings and observations made above.
 
However, there would be no order as to costs.
 
Send down the records to the concerned Tribunals at once.
 
Send a copy of this judgment to the Election Commission to do the needful in accordance with this judgment and law as well.
 
Ed.