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Suspension of sentence by HC crucial for Bharti against disqualification: Legal experts

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By Sumit Saxena

New Delhi, Jan 23 (IANS) After a Delhi court on Saturday sentenced Aam Aadmi Party (AAP) MLA Somnath Bharti to two years imprisonment for assaulting AIIMS security staff in a 2016 case, the issue over his disqualification has come into the fore.

According to legal experts, the suspension of the sentence and his conviction in the case by the high court is essential to protect Bharti against disqualification.

According to Section 8 of the Representation of the People Act, Clause 3, 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 after his release.

The Act also clarifies that a disqualification shall not, in case the person on the date of conviction is either MP/MLA, take effect until three months have elapsed from the date or, if within that period an appeal for revision is brought with respect to the conviction or the sentence, until that appeal or application is disposed of by the court.

Therefore, it is important that conviction in the case and the sentence awarded is suspended for a lawmaker, to protect him/her against disqualification.

Senior advocate Rakesh Dwivedi said that Bharti will not be immediately disqualified as an MLA, and he can file an appeal seeking suspension of the sentence.

“He should immediately file an appeal seeking suspension of the sentence. If the court suspends the sentence, he may not be disqualified as an MLA,” Dwivedi said.

Usually, 30 days’ time period is available to the petitioner to appeal a court order in a higher court.

Senior advocate Vikas Singh said that the first hearing in the Delhi High Court will be very crucial for Bharti, and it could decide whether he continues as an MLA or faces disqualification.

“If he does not get a stay on the sentence, he will be disqualified from the date of conviction. If he manages to get a stay, then it will be crucial to see the terms of the stay order. Therefore, the first hearing in the high court is very important,” Singh said.

Advocate Ashwini Upadhyay, who had filed a PIL in the Supreme Court seeking speedy trial in cases involving MP/MLAs, said: “He (Bharti) does not face disqualification immediately. In fact, he has 30 days to file an appeal in the high court. But the first hearing in the Delhi High Court will be very crucial. If he does not get a stay on the sentence, he will be disqualified. Therefore, suspension of conviction and sentence is important to protect him against disqualification.”

Upadhyay insisted that Bharti’s conviction is a result of his PIL where he had sought speedy trial in cases involving MP/MLAs, while another of his PIL seeking lifetime ban for convicted lawmakers is pending before the top court.

The court has convicted Bharti for various offences under the Indian Penal Code, including Sections 323 (voluntarily causing hurt), 353 (assault or use of criminal force to deter public servant from discharge of his duty) and 147 (rioting).

Bharti has also been held guilty under Section 3 (mischief causing damage to public property) of the Prevention of Damage to Public Property Act. These offences carry a maximum punishment of five years in jail.

(Sumit saxena can contacted at sumit.s@ians.in)

–IANS

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