Full Judgment Text
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CASE NO.:
Appeal (civil) 8213 of 2001
PETITIONER:
K. Prabhakaran
RESPONDENT:
P. Jayarajan
DATE OF JUDGMENT: 11/01/2005
BENCH:
CJI R.C. LAHOTI, SHIVARAJ V. PATIL, B.N. SRIKRISHNA & G.P. MATHUR
JUDGMENT:
J U D G M E N T
W I T H
CIVIL APPEAL NO. 6691 OF 2002
Ramesh Singh Dalal \005Appellant
Versus
Nafe Singh & Ors. \005Respondents
R.C. LAHOTI, CJI. (FOR SELF AND ON BEHALF OF HON.
SHIVARAJ V. PATIL, B.N. SRIKRISHNA AND G.P.
MATHUR JJ.)
Facts in C.A. No. 8213/2001
Election to the No. 14 Kuthuparamba Assembly
Constituency was held in the months of April-May, 2001. There
were three candidates, including the appellant K. Prabhakaran
and the respondent P. Jayarajan contesting the election.
Nominations were filed on 24.4.2001. The poll was held on
10.5.2001. The result of the election was declared on
13.5.2001. The respondent was declared as elected.
In connection with an incident dated 9.12.1991, the
respondent was facing trial charged with several offences. On
9.4.1997, the Judicial Magistrate First Class, Kuthuparamba held
the respondent guilty of the offences and sentenced him to
undergo imprisonment as under :-
Offences
Sentence
Under Section 143 read with
Section 149 IPC
R.I. for a period of one month
Under Section 148 read with
Section 149 IPC
R.I. for six months
Under Section 447 read with
Section 149 IPC
R.I. for one month
Under Section 353 read with
Section 149 IPC
R.I. for six months
Under Section 427 read with
Section 149 IPC
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R.I. for three months
Under Section 3(2) (e) under
the P.D.P.P. Act read with
Section 149 IPC
R.I. for one year
The sentences were directed to run consecutively (and not
concurrently). Thus the respondent was sentenced to undergo
imprisonment for a total period of 2 years and 5 months. On
24.4.1997, the respondent filed Criminal Appeal No. 118/1997
before the Sessions Court, Thalassery. In exercise of the power
conferred by Section 389 of the Code of Criminal Procedure,
1973 (hereinafter ’the Code’ for short) the Sessions Court
directed the execution of the sentence of imprisonment to be
suspended and the respondent to be released on bail during the
hearing of the appeal.
The nomination paper filed by the respondent was
objected to by the appellant on the ground that the respondent
having been convicted and sentenced to imprisonment for a term
exceeding 2 years was disqualified from contesting the election.
However, the objection was overruled by the returning officer
and the nomination of the respondent was accepted. The
returning officer formed an opinion that the respondent was
convicted for many offences and any of the terms of
imprisonment for which he was sentenced was not 2 years, and
therefore, the disqualification within the meaning of Section 8(3)
of the Representation of the People Act, 1951 (hereinafter ’RPA’,
for short) was not attracted.
On 15.6.2001, the appellant filed an election petition under
Chapter II of RPA mainly on the ground that the respondent was
disqualified, and therefore, neither his nomination was valid nor
could he have been declared elected.
On 25.7.2001, the Court of Sessions partly allowed the
appeal filed by the respondent. The conviction of the accused
and the sentences passed on him were maintained, subject to
the modification that the substantive sentences of imprisonment
for the several offences for which the respondent was found
guilty were made to run concurrently.
On 5.10.2001, a learned Designated Election Judge of the
High Court decided the election petition by directing it to be
dismissed. The learned Judge did not find any fault with the
view taken by the returning officer that Section 8(3) of RPA was
not attracted. The learned Judge also held that during the
pendency of the election petition, the sentence passed by the
trial court had stood modified by the appellate court which, while
maintaining the conviction and different terms of imprisonment
to which the respondent was sentenced, had directed the
sentences to run concurrently. In the opinion of the High Court,
the sentence, as modified by the appellate court, operated
retrospectively from the date of the judgment of the trial court,
and, therefore also the disqualification had in any case ceased to
exist. The High Court placed reliance on two decisions of this
Court namely Shri Manni Lal Vs. Shri Parmai Lal and others
1970 (2) SCC 462 and Vidya Charan Shukla Vs. Purshottam
Lal Kaushik 1981 (2) SCC 84.
Facts in C.A.6691/2002
On 18.9.1993, FIR No.386 for offences under Sections
148, 307, 323, 325, 326/149 of Indian Penal Code and Sections
25 and 27 of Arms Act 1959 was registered against Nafe Singh,
respondent No.1. One of the injured persons in the incident,
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died after the registration of the F.I.R. On 20.9.1993 the offence
was converted into one of murder under Section 302 I.P.C. and
other accused persons were arrested. Later on Nafe Singh was
released on bail. On 10.5.1996 while the charges against Nafe
Singh and other accused persons were being tried, elections took
place in the State of Haryana. Nafe Singh contested elections
and on 10.5.1996 he was declared elected as Member of
Legislative Assembly from Bahadargarh Constituency.
On 17.5.1999, the Sessions Court trying the accused and
others, held Nafe Singh guilty of an offence punishable under
Section 302 I.P.C. and other offences. On 19.5.1999 he was
sentenced to undergo imprisonment for life. On 25.5.1999 he
filed an appeal in the High Court against his conviction. On
8.10.1999 the High Court directed the execution of sentence of
imprisonment passed against Nafe Singh to be suspended and
also directed him to be released on bail. Nafe Singh furnished
bail bonds and was released on bail. By that time he had
undergone imprisonment for four months and twenty one days.
On 14.12.1999, the Governor of the State of Haryana
dissolved Haryana Assembly for mid term poll. In the first week
of January 2000 the Election Commission notified the election
programme. For 37-Bahadurgarh Assembly Constituency, the
last date for filing nominations was appointed as 3.2.2000. On
29.1.2000 Indian National Lok Dal, to which Nafe Singh
belonged, released the first list of its official candidates wherein
the name of Smt. Shiela Devi wife of Nafe Singh, respondent
No.1, was included. On 1.2.2000 Smt. Shiela Devi filed her
nomination paper on Indian National Lok Dal ticket. On
2.2.2000 Nafe Singh also filed his nomination paper as a dummy
candidate or an alternative to his wife Smt. Shiela. On the date
of the scrutiny of nomination papers the appellant objected to
the nomination of Nafe Singh submitting that the latter in view
of his conviction and sentence of life imprisonment passed under
Section 302 I.P.C. was disqualified for being chosen as a
member of Haryana Assembly under Article 191 of the
Constitution read with Section 8(3) of the RPA. The objection
was overruled by the Returning Officer who accepted as valid
the nomination paper filed by Nafe Singh. However, the
nomination paper of Smt. Shiela, wife of Nafe Singh was not
found to be in order and hence rejected. Indian National Lok Dal
then nominated Nafe Singh as its candidate from Bahadurgarh
Assembly Constituency. Polling was held on 22.2.2000. Results
were declared on 25.2.2000 wherein Nafe Singh was declared
elected over the appellant, the nearest rival, by a margin of
1,648 votes. There were, in all, eleven candidates in the election
fray.
On 8.4.2000, the appellant filed an election petition under
Chapter II of the RPA. One of the grounds taken in the election
petition was of improper acceptance of the nomination paper of
Nafe Singh by the Returning Officer. Nafe Singh contested the
election petition. The learned Designated Election Judge of the
High Court of Punjab and Haryana framed 13 issues arising from
the pleadings of the parties. Issues No.1 to 7 were heard as
preliminary issues not requiring any evidence.
Before we may proceed to notice the result of the election
petition as determined by the High Court, a few more dates need
to be noticed, as they are relevant. The hearing of the
preliminary issues commenced on 12.2.2001 and continued for
several dates of hearing. On 19.3.2001 Nafe Singh, in spite of
the hearing on all the issues having been already concluded,
made request to the High Court that the High Court may first
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decide his criminal appeal so that in the event of his being
exonerated of the charges and being acquitted, he could gain the
benefit of the decisions of this Court in Shri Manni Lal Vs. Shri
Parmai Lal and others 1970 (2) SCC 462 and Vidya Charan
Shukla Vs. Purshottam Lal Kaushik 1981 (2) SCC 84. The
prayer made by the respondent - Nafe Singh was opposed on
behalf of the appellant. However, the learned Designated
Election Judge adjourned the hearing to 27.4.2001 and then to
3.5.2001 on which date the judgment was reserved. When the
judgment in election petition was still awaited, on 1.8.2001 a
Division Bench of the High Court decided the criminal appeal
preferred by Nafe Singh, respondent No.1. The appeal was
allowed and respondent No.1 was directed to be acquitted.
Although the judgment of the Division Bench proceeds on its
own merits but one thing which is noticeable from the judgment
of the Division Bench of the High Court dated 1.8.2001 is that
the complainant and the other injured persons had come to
terms with the accused (respondent No. 1), settled their
differences and compromised. 15 persons, who had as
witnesses supported the prosecution case at trial, had now filed
their affidavits before the Appellate Court disowning their
statements earlier given by them in the trial court and stated (as
the High Court has recorded in its decision), "that the parties
had compromised their disputes and that the F.I.R. had been
lodged on account of suspicion and at the instigation of certain
persons and that no such occurrence had taken place."
On 21.8.2001 Nafe Singh, respondent No.1 placed the
appellate judgment of acquittal on record of the election petition
by moving an application in that regard. On 20.12.2001 the
appellant herein made a request to the Hon. Chief Justice of High
Court requesting for his indulgence in getting the judgment in
the election petition being pronounced. On 25.2.2002 the
appellant moved an application before the learned Designated
Election Judge praying for pronouncement of judgment at an
early date. The judgment was pronounced on 5.7.2002. The
election petition was directed to be dismissed. Out of several
findings recorded by the High Court the two, which are relevant
for the purpose of this appeal, are as under:-
(i) in view of the appeal preferred by the respondent
having been allowed his conviction and sentence
passed thereon respectively dated 17.5.1999 and
19.5.1999 stood wiped out as if no conviction had
taken place as is the view taken by this Court in
the case of Shri Manni Lal (supra) and Vidya
Charan Shukla (supra);
(ii) that on the date of his conviction Nafe Singh was
a Member of Legislative Assembly and, therefore,
in view of the provisions contained in sub-section
(4) of Section 8 of the RPA, the conviction did not
take effect for a period of three months and as
within that period an appeal was preferred which
was pending and not disposed of on the date of
nomination and election of Nafe Singh, he was
protected by the said provision and the
disqualification did not take effect.
Proceedings in the appeals :
The election petitioners in both the cases have preferred
these two statutory appeals under Section 116A of the RPA.
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On 1.10.2002, C.A. No. 8213/2001 came up for hearing
before a three-Judge Bench of this Court which expressed doubt
about the correctness of the view taken in the cases of Vidya
Charan Shukla (supra) and Manni Lal (Supra), the former
being a three-Judge Bench decision, and, therefore, directed the
matter to be placed for consideration by a Constitution Bench.
The Bench also felt that the other issue arising for decision in the
case as to whether the applicability of Section 8(3) of RPA would
be attracted only when a person is sentenced to imprisonment
for not less than 2 years for a single offence was also a question
having far reaching implications and there being no decided case
of this Court available on the issue, it would be in public interest
to have an authoritative pronouncement by a Constitution Bench
so as to settle the law, and hence directed such other question
also to be placed for consideration by the Constitution Bench.
The order of reference is reported as (2002) 8 SCC 79.
C.A. No. 6691/2002 came up for hearing before this Court
on 7.4.2003. It was directed to be tagged with C.A. No.
8213/2001 in view of one identical question arising for decision
in this appeal. This is how both the appeals have come up for
hearing before this Constitution Bench.
Three questions arise for decision :-
(1) Whether an appellate judgment of a date
subsequent to the date of election and having
a bearing on conviction of a candidate and
sentence of imprisonment passed on him
would have the effect of wiping out
disqualification from a back date if a person
consequent upon his conviction for any offence
and sentenced to imprisonment for not less
than 2 years was disqualified from filing
nomination and contesting the election on the
dates of nomination and election;
(2) What is the meaning to be assigned to the
expression \026 "A person convicted of any
offence and sentenced to imprisonment for not
less than 2 years" as employed in sub-section
(3) of Section 8 of the Representation of the
People Act, 1951? Is it necessary that the
term of imprisonment for not less than 2 years
must be in respect of one single offence to
attract the disqualification?
(3) What is the purport of sub-section (4) of
Section 8 of RPA? Whether the protection
against disqualification conferred by sub-
section (4) on a member of a House would
continue to apply though the candidate had
ceased to be a member of Parliament or
Legislature of a State on the date of
nomination or election?
Relevant Provisions
The relevant provisions of law may be set out as under :-
Constitution of India
Article 191. "Disqualification for
membership \026 (1) A person shall be
disqualified for being chosen as, and for being,
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a member of the Legislative Assembly or
Legislative Council of a State-
x x x
(e) if he is so disqualified by or under any law
made by Parliament."
x x x
The Representation of the People Act, 1951
"8. Disqualification on conviction for
certain offences-
x x x
(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.
(4) Notwithstanding anything in sub-section
(1), sub-section (2) of 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."
"100. Grounds for declaring election to be
void.-(1) Subject to the provisions of sub-
section (2) if the High Court is of opinion-
(a) that on the date of his election a
returned candidate was not qualified, or
was disqualified, to be chosen to fill the
seat under the Constitution or this Act;
or
(d) that the result of the election, in so far
as it concerns a returned candidate, has
been materially affected-
(i) by the improper acceptance or
any nomination, or
(ii) by any corrupt practice
committed in the interests of the
returned candidate by an agent
other than his election agent, or
(iii) by the improper reception,
refusal or rejection of any vote or
the reception of any vote which is
void, or
(iv) by any non-compliance with the
provisions of the Constitution or of
this Act or of any rules or orders
made under this Act,
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the High Court shall declare the election of the
returned candidate to be void.
We have briefly stated in the earlier part of the
judgment such facts relating to both the cases which are
not in dispute. Before dealing with the submissions made
by the learned counsel for the parties, it would be
appropriate to set out briefly the relevant facts and the law
laid down in the cases of Shri Manni Lal (supra) and
Vidya Charan Shukla (supra).
Shri Manni Lal’s case
Manni Lal’s case (supra) is a two-Judge Bench decision of
this Court. Parmai Lal, respondent No. 1 therein, filed his
nomination on 9.1.1969. Two days later, on 11.1.1969, he was
convicted for an offence under Section 304 I.P.C. and sentenced
to 10 years RI. On 16.1.1969 he filed an appeal against his
conviction in the High Court. Polling took place on 9.2.1969.
Parmai Lal was declared elected on 11.2.1969. On 30.9.1969 the
appeal filed by Parmai Lal was allowed by the High Court and his
conviction and sentence was set aside. At that point of time, an
election petition laying challenge to election of Parmai Lal was
pending which was decided by the judgment delivered on
27.10.1969. The High Court refused to hold Parmai Lal as
disqualified under Section 8(2) of RPA. Manni Lal filed an appeal
in this Court. This Court held that in a criminal case, acquittal in
appeal does not take effect merely from the date of the appellate
order setting aside the conviction; it has the effect of
retrospectively wiping out the conviction and the sentence
awarded by the lower court.
Bhargava, J., speaking for the Bench, observed __ "It is
true that the opinion has to be formed as to whether the
successful candidate was disqualified on the date of his election;
but this opinion is to be formed by the High Court at the time of
pronouncing the judgment in the election petition. In this case,
the High Court proceeded to pronounce the judgment on 27th
October, 1969. The High Court had before it the order of
acquittal which had taken effect retrospectively from 11th
January, 1969. It was, therefore, impossible for the High Court
to arrive at the opinion that on 9th or 11th February, 1969,
respondent No. 1 was disqualified. The conviction and sentence
had been retrospectively wiped out, so that the opinion required
to be formed by the High Court to declare the election void could
not be formed." In the opinion of Bhargava, J. the effect of
acquittal by the appellate court was similar to the effect of repeal
of an enactment. To quote His Lordship __ "The situation is
similar to one that could have come into existence if Parliament
itself had chosen to repeal Section 8(2) of the Act retrospectively
with effect from 11th January, 1969 (the day of conviction of
Parmai Lal). Learned counsel conceded that, if a law had been
passed repealing Section 8(2) of the Act and the law had been
deemed to come into effect from 11th January, 1969, he could
not have possibly urged thereafter, when the point came up
before the High Court, that respondent No. 1 was disqualified on
9th or 11th February, 1969. The setting aside of the conviction
and sentence in appeal has a similar effect of wiping out
retrospectively the disqualification. The High Court was,
therefore, right in holding that respondent No. 1 was not
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disqualified and that his election was not void on that ground."
On this reasoning this Court upheld the judgment of the High
Court that the election of Parmai Lal was not void on the ground
of his conviction on the date of the poll and the declaration of
the result.
Vidya Charan Shukla’s case
Vidya Charan Shukla’s case (supra) is a three-Judge
Bench decision of this Court. Vidya Charan Shukla was convicted
and sentenced to imprisonment exceeding two years by the
Sessions Court on the date of filing of nomination. Such
conviction and sentence were effective on the date of election as
also on the date of declaration of result. However, the execution
of sentence was stayed by the High Court. The unsuccessful
candidate filed an election petition and by the time the election
petition came to be decided, the criminal appeal filed by Vidya
Charan Shukla was allowed by the High Court and his conviction
and sentence were set aside. Reliance was placed on Manni
Lal’s case (supra) and the narrow question which arose for
decision before this Court was whether the case fell within the
ratio of Manni Lal’s case (supra) if the challenge was
considered to be one under clause (d)(i) and (iv) of Section 100.
The Court noticed the principle laid down in Dalip Kumar
Sharma vs. State of M.P., (1976) 1 SCC 560, to hold that an
order of acquittal, particularly one passed on merits, wipes off
the conviction and sentence for all purposes and as effectively as
it had never been passed and an order of acquittal annulling or
voiding a conviction operates from nativity. The conviction for
the offence having been quashed by the High Court in appeal it
"killed the conviction not then, but performed the formal
obsequies of the order which had died at birth."
Thereafter, this Court referred to the case of Manni Lal
and expressed agreement with the view taken therein, that,
once the disqualification of the returned candidate incurred on
account of his conviction and sentence exceeding two years
imprisonment which existed as a fact at the date of the election,
is subsequently set aside by the High Court prior to the date of
decision in election petition laying challenge to the validity of
election under Section 100(1)(a) of RPA, the election petition
must fail because the acquittal had the effect of retrospectively
wiping out the disqualification as completely and effectively as if
it never had existed. It did not make much difference that the
candidate stood convicted on the date of filing nomination as
also on the date of election and earned acquittal after the
election so long as it was before the date of pronouncement of
judgment in the election petition by the High Court.
The emphasis in Manni Lal’s case (supra), that the
opinion on the question of disqualification had to be formed by
the High Court at the time it proceeds to pronounce the
judgment in the election petition and, therefore, it was by
reference to the date of judgment in election petition by the High
Court that the factum of disqualification was to be decided, was
reiterated in Vidya Charan Shukla’s case (supra). The
acquittal had retrospective effect of making the disqualification
non-existent even at the time of scrutiny of the nominations.
However, it is pertinent to notice the dilemma which the
Court faced while dealing with an argument advanced before it
and dealt in paragraphs 39 and 40 of the judgment. A
submission was made, what would happen if nomination of a
candidate was rejected on account of his disqualification incurred
by his conviction and sentence exceeding two years
imprisonment and existing as a fact on the date of scrutiny of
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nomination and he brought an election petition to challenge the
election of the returned candidate on the ground that his
nomination was improperly rejected and if by the time the
election petition came to be heard and decided, the conviction of
the election petitioner was set aside in criminal appeal then, as a
result of his subsequent acquittal, his conviction and sentence
would stand annulled and obliterated with retrospective force
and he would be justified in submitting that his nomination was
illegally rejected and, therefore, the result of the election was
materially affected and was liable to be set aside. The Court
branded the said submission as ’hypothetical’ requiring an
academic exercise which was not necessary to indulge in. It
would be note-worthy, as recorded vide para 40 of the judgment
in Vidya Charan Shukla’s case, that correctness of the
decision in Manni Lal’s case was not disputed and there was
no prayer made for reconsideration of the ratio of Manni Lal’s
case by a larger bench. The only submission made before the
Court in Vidya Charan Shukla’s case was that the ratio in
Manni Lal’s case was distinguishable and hence inapplicable to
the facts of Vidya Charan Shukla’s case. In such
circumstances, the Court held "we would abide by the principle
of stare decisis and follow the ratio of Manni Lal’s case."
It is writ large that the position of law may have been
different and the three-Judge bench which decided Vidya
Charan Shukla’s case could have gone into the question of
examining the correctness of the view taken in Munni Lal’s
case if only that submission would have been made.
Now we proceed to deal with the three issues posed for
resolution before us.
QUESTION (1):
Under clause (a) of sub-section (1) of Section 100 of the
RPA, the High Court is called upon to decide whether on the date
of his election a returned candidate was not qualified or was
disqualified to be chosen to fill the seat under the Constitution or
the RPA. If the answer be in the affirmative, the High Court is
mandated to declare the election of the returned candidate to be
void. The focal point by reference to which the question of
disqualification shall be determined is the date of election.
It is trite that the right to contest an election is a statutory
right. In order to be eligible for exercising such right the person
should be qualified in the terms of the statute. He should also
not be subject to any disqualification as may be imposed by the
statute making provision for the elective office. Thus, the
Legislature creating the office is well within its power to
prescribe qualifications and disqualifications subject to which the
eligibility of any candidate for contesting for or holding the office
shall be determined. Article 191 of the Constitution itself lays
down certain disqualifications prescribed by clauses (a) to (d) of
sub-Article (1) thereof. In addition, it permits, vide clause (e),
any other disqualifications being provided for by or under any
law made by Parliament. The Representation of People Act,
1951 is one such legislation. It provides for the conduct of
elections of the Houses of Parliament and to the House or
Houses of the Legislature of each State and the qualifications
and the disqualifications for membership of those Houses.
Under sub-clause (i) of clause (d) of sub-section (1) of
Section 100 of the RPA the improper acceptance of any
nomination is a ground for declaring the election of the returned
candidate to be void. This provision is to be read with Section
36(2)(a) which casts an obligation on the returning officer to
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examine the nomination papers and decide all objections to any
nomination made, or on his own motion, by reference to the
date fixed for the scrutiny of the nominations. Whether a
candidate is qualified or not qualified or is disqualified for being
chosen to fill the seat, has to be determined by reference to the
date fixed for the scrutiny of nomination. That is the focal point.
The names and number of candidates who will be in the fray is
determined on the date of the scrutiny of the nomination papers
and the constituency goes to polls. Obviously, the decision by
the returning officer has to be taken on the facts as they exist
on that day. The decision must be accompanied by certainty.
The returning officer cannot postpone his decision nor make it
conditional upon what may happen subsequent to that date.
Under Section 100(1)(d)(i) of the Act the High Court has to test
the correctness of the decision taken by the returning officer and
the fact whether any nomination was improperly accepted by
reference to the date of the scrutiny of the nomination as
defined in Section 36(2)(a). An election petition is heard and
tried by a court of law. The proceedings in election petition are
independent of the election proceedings which are held by the
Executive. By no stretch of imagination the proceedings in
election petition can be called or termed as continuation of
election proceedings. The High Court trying an election petition
is not hearing an appeal against the decision of returning officer
or declaration of result of a candidate.
With respect to the learned judges who decided Shri
Manni Lal’s case (supra), the fallacy with which the judgment
suffers is presumably an assumption as if the election petition
proceedings are the continuation of the election proceedings.
Yet, another fallacy with which the judgment, in our humble
opinion, suffers is as if the High Court has to form opinion on the
disqualification of a candidate at the time of pronouncing the
judgment in the election petition. That is not correct.
Undoubtedly, the High Court is forming an opinion on the date of
judgment in election petition but that opinion has to be formed
by reference to the date of scrutiny, based not on such facts as
can be fictionally deemed to have existed on a back date
dictated by some subsequent event, but based on the facts as
they had actually existed then, so as to find out whether the
returning officer was right or wrong in his decision on scrutiny of
nomination on that date, i.e., the date of scrutiny. The
correctness or otherwise of such decision by the returning officer
cannot be left to be determined by any event which may have
happened between the date of scrutiny and the date of
pronouncement of the judgment by the High Court.
It is rather unfortunate that the correctness of the view
taken in Shri Manni Lal’s case was not questioned in Vidya
Charan Shukla’s case and an attempt was made only to
distinguish the case of Shri Manni Lal. While interpreting a
provision of law and pronouncing upon the construction of a
statutory provision the Court has to keep in mind that the view
of the law taken by it would be applied to myriad situations
which are likely to arise. It is also well-settled that such
interpretation has to be avoided as would result in creating
confusion, anomaly, uncertainty and practical difficulties in the
working of any system. A submission based on this principle
was advanced before the three-Judge Bench in Vidya Charan
Shukla’s case, but unfortunately did not receive the attention
of the Court forming an opinion that dealing with that submission
(though forceful) would amount to indulging in ’hypothetical and
academic exercise’.
We may just illustrate what anomalies and absurdities
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would result if the view of the law taken in Shri Manni Lal’s
case and Vidya Charan Shukla’s case were to hold the field.
One such situation is to be found noted in para 39 of Vidya
Charan Shukla’s case. A candidate’s nomination may be
rejected on account of his having been convicted and sentenced
to imprisonment for a term exceeding two years prior to the date
of scrutiny of nomination. During the hearing of election petition
if such candidate is exonerated in appeal and earns acquittal, his
nomination would be deemed to have been improperly rejected
and the election would be liable to be set aside without regard to
the fact whether the result of the election was materially
affected or not. Take another case. Two out of the several
candidates in the election fray may have been convicted before
the date of nomination. By the time the election petition comes
to be decided, one may have been acquitted in appeal and the
conviction of other may have been upheld and by the time an
appeal under Section 116A of the RPA preferred in this Court
comes to be decided, the conviction of one may have been set
aside and, at the same time, the acquittal of the other may also
have been set aside. Then the decision of the High Court in
election petition would be liable to be reversed not because it
was incorrect, but because something has happened thereafter.
Thus, the result of election would be liable to be avoided or
upheld not because a particular candidate was qualified or
disqualified on the date of scrutiny of nominations or on the date
of his election, but because of acquittal or conviction much after
those dates. Such could not have been the intendment of the
law.
We are also of the opinion that the learned judges deciding
Shri Manni Lal’s case (supra) were not right in equating the
case of appellate acquittal with the retrospective repeal of a
disqualification by statutory amendment.
In Vidya Charan Shukla’s case (supra) Dalip Kumar
Sharma’s case (supra) has been relied upon which, in our
opinion, cannot be applied to a case of election and election
petition.
Dalip Kumar Sharma’s case (supra) is a case of
conviction under Section 303 I.P.C.. One P was murdered on
24.10.1971. The accused was sentenced to life imprisonment on
18.5.1972. On 20.6.1973 the accused committed the murder of
A and was convicted for such murder on 24.1.1974 and
sentenced to death under Section 303 I.P.C. In appeal against
conviction for the murder of P, the accused was acquitted on
27.2.1974. On the same day the High Court confirmed the death
sentence of the accused under Section 303 I.P.C. holding that on
the date on which the accused had committed the murder of A
he was undergoing sentence of life imprisonment for the murder
of P. In appeal preferred before this Court, it was held that the
death sentence could not be upheld inasmuch as the accused
had stood acquitted from the offence of the first murder and the
acquittal in an appeal had the effect of wiping out the conviction
in the first murder. The mandatory sentence of death by
reference to Section 303 I.P.C. for the second offence could not
be maintained.
Four factors are relevant. Firstly, the sentence of death
was passed in judicial proceedings and the appeal against the
judgment of the trial court being a continuation of those judicial
proceedings, the court was not powerless to take note of
subsequent events. The sentence of death was passed based on
an event which had ceased to exist during the pendency of the
appeal. The court was, not only, not powerless but was rather
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obliged to take note of such subsequent event, failing which a
grave injustice would have been done to the accused. Secondly,
the court interpreted Section 303 I.P.C. which speaks of a
person "under sentence of imprisonment for life" as meaning a
person under an operative, executable sentence of imprisonment
for life. A sentence once imposed but later set aside is not
executable and, therefore, ceases to be relevant for the purpose
of Section 303 I.P.C. Thirdly, the focal point was the date of
conviction when the court is called upon to pronounce the
sentence. Fourthly, it is pertinent to note that the well
established proposition which the court pressed into service was
that __ "a court seized of a proceeding must take note of events
subsequent to the inception of that proceeding", which position,
the court held, is applicable to civil as well as criminal
proceedings with appropriate modifications. The emphasis is on
the events happening subsequent to the inception of that
proceeding. In the cases at hand, the principle laid down in
Dalip Kumar Sharma’s case (supra) will have no application
inasmuch as the validity of nomination paper is to be tested by
deciding qualification or disqualification of the candidate on the
date of scrutiny and not by reference to any event subsequent
thereto.
The decision of this Court in Amrit Lal Ambalal Patel vs.
Himathbhai Gomanbhai Patel & Anr., AIR 1968 SC 1455,
lends support to the principle that the crucial date for
determining whether a candidate is not qualified or is disqualified
is the date of scrutiny of nominations and a subsequent event
which has the effect of wiping out the disqualification has to be
ignored.
An appellate judgment in a criminal case, exonerating the
accused-appellant, has the effect of wiping out the conviction as
recorded by the Trial Court and the sentence passed thereon \026 is
a legal fiction. While pressing into service a legal fiction it
should not be forgotten that legal fictions are created only for
some definite purpose and the fiction is to be limited to the
purpose for which it was created and should not be extended
beyond that legitimate field. A legal fiction pre-supposes the
existence of the state of facts which may not exist and then
works out the consequences which flow from that state of facts.
Such consequences have got to be worked out only to their
logical extent having due regard to the purpose for which the
legal fiction has been created. Stretching the consequences
beyond what logically flows amounts to an illegitimate extension
of the purpose of the legal fiction (See, the majority opinion in
Bengal Immunity Co. Vs. State of Bihar AIR 1955 SC 661).
P.N. Bhagwati, J., as his Lordship then was, in his separate opinion
concurring with the majority and dealing with the legal fiction
contained in the Explanation to Article 286 (1) (a) of the Constitution
(as it stood prior to Sixth Amendment) observed \026 "Due regard must
be had in this behalf to the purpose for which the legal fiction has been
created. If the purpose of this legal fiction contained in the
Explanation to Article 286 (1) (a) is solely for the purpose of sub-
clause (a) as expressly stated it would not be legitimate to travel
beyond the scope of that purpose and read into the provision any
other purpose howsoever attractive it may be. The legal fiction
which was created here was only for the purpose of determining
whether a particular sale was an outside sale or one which could
be deemed to have taken place inside the State and that was the
only scope of the provision. It would be an illegitimate extension
of the purpose of the legal fiction to say that it was also created
for the purpose of converting the inter-State character of the
transaction into an intra-State one." His Lordship opined that
this type of conversion would be contrary to the express purpose
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for which the legal fiction was created. These observations are
useful for the purpose of dealing the issue in our hands.
Fictionally, an appellate acquittal wipes out the trial court
conviction; yet, to hold on the strength of such legal fiction that
a candidate though convicted and sentenced to imprisonment for
two years or more was not disqualified on the date of scrutiny of
the nomination, consequent upon his acquittal on a much later
date, would be an illegitimate extension of the purpose of the
legal fiction. However, we hasten to add that in the present case
the issue is not so much as to the applicability of the legal
fiction; the issue concerns more about the power of the
Designated Election Judge to take note of subsequent event and
apply it to an event which had happened much before the
commencement of that proceeding in which the subsequent
event is brought to the notice of the Court. An election petition
is not a continuation of election proceedings.
We are clearly of the opinion that Shri Manni Lal’s case
(supra) and Vidya Charan Shukla’s case (supra) do not lay
down the correct law. Both the decisions are, therefore,
overruled.
The correct position of law is that nomination of a person
disqualified within the meaning of sub-section (3) of Section 8 of
the RPA on the date of scrutiny of nominations under Section
36(2)(a) shall be liable to be rejected as invalid and such
decision of the returning officer cannot be held to be illegal or
ignored merely because the conviction is set aside or so altered
as to go out of the ambit of Section 8(3) of the RPA consequent
upon a decision of a subsequent date in a criminal appeal or
revision.
What is relevant for the purpose of Section 8(3) is the
actual period of imprisonment which any person convicted shall
have to undergo or would have undergone consequent upon the
sentence of imprisonment pronounced by the Court and that has
to be seen by reference to the date of scrutiny of nominations or
date of election. All other factors are irrelevant. A person
convicted may have filed an appeal. He may also have secured
an order suspending execution of the sentence or the order
appealed against under Section 389 of the Code of Criminal
Procedure 1973. But that again would be of no consequence. A
Court of appeal is empowered under Section 389 to order that
pending an appeal by a convicted person 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 bond. What is
suspended is not the conviction or sentence; it is only the
execution of the sentence or order which is suspended. It is
suspended and not obliterated. It will be useful to refer in this
context to a Constitution Bench judgment of this Court in Sarat
Chandra Rabha & Ors. Vs. Khagendranath Nath & Ors.,
(1961)2 SCR 133. The convict had earned a remission and the
period of imprisonment reduced by the period of remission would
have had the effect of removing disqualification as the period of
actual imprisonment would have been reduced to a period of less
than two years. The Constitution Bench held that the remission
of sentence under Section 401 of Criminal Procedure Code (old)
and his release from jail before two years of actual imprisonment
would not reduce the sentence into one of a period of less than
two years and save him from incurring the disqualification. "An
order of remission does not in any way interfere with the order
of the court; it affects only the execution of the sentence passed
by the court and frees the convicted person from his liability to
undergo the full term of imprisonment inflicted by the court,
though the order of conviction and sentence passed by the court
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still stands as it was. The power to grant remission is executive
power and cannot have the effect which the order of an appellate
or revisional court would have of reducing the sentence passed
by the trial court and substituting in its place the reduced
sentence adjudged by the appellate or revisional court."
In B.R. Kapur Vs. State of T.N. & Anr., (2001) 7 SCC
231, a similar question, though in a little different context, had
arisen for the consideration of the Constitution Bench. Vide para
44, the Court did make a reference to Vidya Charan Shukla’s
case but observed that it was a case of an election petition and,
therefore, did not have a bearing on the construction of Article
164 of the Constitution which was in issue before the
Constitution Bench. Obviously the consideration of the
correctness of the law laid down in Vidya Charan Shukla’s
case was not called for. However, still the Constitution Bench
has made a significant observation which is very relevant for our
purpose. The Constitution Bench observes (vide para 44) ___
"There can be no doubt that in a criminal case acquittal in appeal
takes effect retrospectively and wipes out the sentence awarded
by the lower court. This implies that the stigma attached to the
conviction and the rigour of the sentence are completely
obliterated, but that does not mean that the fact of the
conviction and sentence by the lower court is obliterated until
the conviction and sentence are set aside by an appellate court.
The conviction and sentence stand pending the decision in the
appeal and for the purposes of a provision such as Section 8 of
the Representation of the People Act are determinative of the
disqualifications provided for therein" (emphasis supplied). To
the same effect are observations contain in para 40 also.
We are, therefore, of the opinion that an appellate
judgment of a date subsequent to the date of nomination or
election (as the case may be) and having a bearing on conviction
of a candidate or sentence of imprisonment passed on him would
not have the effect of wiping out disqualification from a back
date if a person consequent upon his conviction for any offence
and sentenced to imprisonment for not less than two years was
actually and as a fact disqualified from filing nomination and
contesting the election on the date of nomination or election (as
the case may be).
Question No. (2)
What is the meaning to be assigned to the expression
"sentence to imprisonment for not less than 2 years" as
occurring in Sec. 8(3) of the RPA? In a trial a person may be
charged for several offences and held guilty. He may be
sentenced to different terms of imprisonment for such different
offences. Individually the term of imprisonment may be less
than 2 years for each of the offences, but collectively or taken
together or added to each other the total term of imprisonment
may exceed 2 years. Whether the applicability of Section 8(3)
above said would be attracted to such a situation.
Section 31 of the Code of Criminal Procedure, 1973 is
relevant to find an answer for this. It provides as under :-
"31. Sentence in cases of conviction of several
offences at one trial.__
(1) When a person is convicted at one trial of two
or more offences, the Court may, subject to the
provisions of section 71 of the Indian Penal Code
(45 of 1860), sentence him for such offences, to
the several punishments, prescribed therefor which
such Court is competent to inflict; such
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punishments when consisting of imprisonment to
commence the one after the expiration of the other
in such order as the Court may direct, unless the
Court directs that such punishments shall run
concurrently.
(2) In the case of consecutive sentences, it shall
not be necessary for the Court by reason only of
the aggregate punishment for the several offences
being in excess of the punishment which it is
competent to inflict on conviction of a single
offence, to send the offender for trial before a
higher Court:
Provided that __
(a) in no case shall such person be
sentenced to imprisonment for a longer
period than fourteen years;
(b) the aggregate punishment shall not
exceed twice the amount of punishment
which the Court is competent to inflict for a
single offence.
(4) For the purpose of appeal by a convicted person,
the aggregate of the consecutive sentences passed
against him under this section shall be deemed to
be a single sentence."
It is competent for a criminal court to pass several
punishments for the several offences of which the accused has
been held guilty. The several terms of imprisonment to which the
accused has been sentenced commence one after the other and
in such order as the court may direct, unless the court directs
that such punishments shall run concurrently. Each of the terms
of imprisonment to which the accused has been sentenced for
the several offences has to be within the power of the court and
the term of imprisonment is not rendered illegal or beyond the
power of the court merely because the total term of
imprisonment in the case of consecutive sentences is in excess
of the punishment within the competency of the court. For the
purpose of appeal by a convicted person it is the aggregate of
the consecutive sentences passed against him which shall be
deemed to be a single sentence. The same principle can be held
good and applied to determining disqualification. Under sub-
section (3) of Section 8 of the RPA the period of disqualification
commences from the date of such conviction. The disqualification
continues to operate for a further period of six years calculated
from the date of his release from imprisonment. Thus, the
disqualification commences from the date of conviction whether
or not the person has been taken into custody to undergo the
sentence of imprisonment. He cannot escape the effect of
disqualification merely because he has not been taken into
custody because he was on bail or was absconding. Once taken
into custody he shall remain disqualified during the period of
imprisonment. On the date of his release would commence the
period of continued disqualification for a further period of six
years. It is clear from a bare reading of sub-section (3) of
Section 8 of the RPA that the actual period of imprisonment is
relevant. The provisions of Section 8 of the Representation of
People Act, 1951 have to be construed in harmony with the
provisions of the Code of Criminal Procedure, 1973 and in such
manner as to give effect to the provisions contained in both the
legislations. In the case of consecutive sentences the aggregate
period of imprisonment awarded as punishment for the several
offences and in the case of punishments consisting of several
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terms of imprisonment made to run concurrently, the longest of
the several terms of imprisonment would be relevant to be taken
into consideration for the purpose of deciding whether the
sentence of imprisonment is for less than 2 years or not.
It was submitted by Shri K.K. Venugopal, the learned
Senior Counsel for the respondent in C.A. No. 8213/2001, that
the phrase "any offence" as occurring in Section 8(3) of the RPA
should be interpreted to mean a single offence and unless and
until the term of imprisonment for any one of the offences out of
the several offences for which the accused has been convicted
and sentenced is 2 years or more, the disqualification enacted
under Section 8(3) would not be attracted. We are not
impressed.
In Shri Balaganesan Metals vs. M.N. Shanmugham
Chetty & Ors., (1987) 2 SCC 707, the word "any" came up for
consideration of this Court. It was held that the word "any"
indicates "all" or "every" as well as "some" or "one" depending
on the context and the subject matter of the statue. Black’s Law
Dictionary was cited with approval.
In Black’s Law Dictionary (sixth Edition) the word ’any’ is
defined (at p.94) as under:-
"Any. Some; one out of many; an indefinite
number. One indiscriminately of whatever kind
or quantity.
One or some (indefinitely).
"Any" does not necessarily mean only one
person, but may have reference to more than
one or to many.
Word "Any" has a diversity of meaning
and may be employed to indicate "all" or
"every" as well as "some" or "one" and its
meaning in a given statute depends upon the
context and the subject matter of the statute.
It is often synonymous with "either",
"every", or "all". Its generality may be
restricted by the context; thus, the giving of a
right to do some act "at any time" is commonly
construed as meaning within a reasonable
time; and the words "any other" following the
enumeration of particular classes are to be
read as "other such like," and include only
others of like kind or character."
The word ’any’ may have one of the several meanings,
according to the context and the circumstances. It may mean
’all’; ’each’; ’every’; ’some’; or ’one or many out of several’. The
word ’any’ may be used to indicate the quantity such as ’some’,
’out of many’, ’an infinite number’. It may also be used to
indicate quality or nature of the noun which it qualifies as an
adjective such as ’all’ or ’every’. (See the Law Lexicon, P.
Ramanatha Aiyar, Second Edition, at p.116). Principles of
Statutory Interpretation by Justice G.P.Singh (9th Edition, 2004)
states (at p.302) \026 "When a word is not defined in the Act itself,
it is permissible to refer to dictionaries to find out the general
sense in which that word is understood in common parlance.
However, in selecting one out of the various meanings of a word,
regard must always be had to the context as it is a fundamental
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rule that "the meanings of words and expressions used in an Act
must take their colour from the context in which they appear".
Therefore, "when the context makes the meaning of a word
quite clear, it becomes unnecessary to search for and select a
particular meaning out of the diverse meanings a word is
capable of, according to lexicographers".
In Section 8(3) of the RPA, the word ’any’ has been used
as an adjective qualifying the word ’offence’ to suggest not the
number of offence but the nature of the offence. A bare reading
of sub-Section (3) shows that the nature of the offence included
in sub-Section (3) is ’any offence other than any offence referred
to in sub-Section (1) or sub-Section (2) (of Section 8)’. The use
of adjective ’any’ qualifying the noun ’offence’ cannot be pressed
in service to countenance the submission that the sentence of
imprisonment for not less than two years must be in respect of a
single offence.
Sub-Section (3) in its present form was introduced in the
body of the RPA by Act No.1 of 1989 w.e.f. 15.3.1989. The
same Act made a few changes in the text of sub-Section (4)
also. The Statement of Objects and Reasons accompanying Bill
No.128 of 1988 stated, inter alia, "Section 8 of the
Representation of the People Act, 1951 deals with
disqualification on the ground of conviction for certain offences.
It is proposed to include more offences in this section so as to
prevent persons having criminal record enter into public life".
(See the Gazette of India Extraordinary, Part II, Section 2,
pp.105, 114). The intention of Parliament is writ large; it is to
widen the arena of Section 8 in the interest of purity and probity
in public life.
The purpose of enacting disqualification under Section 8(3)
of the RPA is to prevent criminalization of politics. Those who
break the law should not make the law. Generally speaking, the
purpose sought to be achieved by enacting disqualification on
conviction for certain offences is to prevent persons with criminal
background from entering into politics, and the House \027 a
powerful wing of governance. Persons with criminal background
do pollute the process of election as they do not have many a
holds barred and have no reservation from indulging into
criminality to win success at an election. Thus, Section 8 seeks
to promote freedom and fairness at elections, as also law and
order being maintained while the elections are being held. The
provision has to be so meaningfully construed as to effectively
prevent the mischief sought to be prevented. The expression "a
person convicted of any offence" has to be construed as all
offences of which a person has been charged and held guilty at
one trial. The applicability of the expression "sentenced to
imprisonment for not less than 2 years" would be decided by
calculating the total term of imprisonment for which the person
has been sentenced.
Shri K.K. Venugopal, learned senior counsel appearing for
respondent in one of the appeals, submitted that Section 8 of
the RPA is a penal provision and, therefore, should be construed
strictly. We find it difficult to countenance the submission.
Contesting an election is a statutory right and qualifications and
disqualifications for holding the office can be statutorily
prescribed. A provision for disqualification cannot be termed a
penal provision and certainly cannot be equated with a penal
provision contained in a criminal law. If any authority is needed
for the proposition the same is to be found in Lalita Jalan &
Anr. Vs. Bombay Gas Co. Ltd. & Ors., (2003) 6 SCC 107
which has held Section 630 of the Companies Act, 1956 not to
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be a penal provision. The Court has gone on to say, "the
principle that statute enacting an offence or imposing a penalty
is to be strictly construed is not of universal application which
must necessarily be observed in every case."
In the case of P. Jayarajan the sentences of imprisonment
were to run consecutively in terms of the judgment of the trial
court. The periods of sentences of imprisonment for different
offences shall have to be totalled up. On such totalling, the
total term for which P. Jayarajan would have remained in Jail
did exceed a period of 2 years and consequently attracted the
applicability of Section 8(3) of the RPA which cast a
disqualification upon P. Jayarajan on the date of scrutiny of the
nomination papers. His nomination could not have been
accepted by the returning officer and he was not right in holding
him not disqualified. In the light of the view of the law taken by
us on Question-1 above, the subsequent event of the several
terms of imprisonment having been directed by the appellate
court to run concurrently on a date subsequent to the date of
scrutiny is irrelevant and liable to be ignored.
Question No. (3)
A comparative reading of sub-sections (3) and (4) of
Section 8 of the RPA shows that Parliament has chosen to
classify candidates at an election into two classes for the purpose
of enacting disqualification. These two classes are : (i) a person
who on the date of conviction is a member of Parliament or
Legislature of a State, and (ii) a person who is not such a
member. The persons falling in the two groups are well defined
and determinable groups and, therefore, form two definite
classes. Such classification cannot be said to be unreasonable as
it is based on a well laid down differentia and has nexus with a
public purpose sought to be achieved.
Once the elections have been held and a House has come
into existence, it may be that a member of the House is
convicted and sentenced. Such a situation needs to be dealt
with on a different footing. Here the stress is not merely on the
right of an individual to contest an election or to continue as a
member of a House, but the very existence and continuity of a
House democratically constituted. If a member of the House
was debarred from sitting in the House and participating in the
proceedings, no sooner the conviction was pronounced followed
by sentence of imprisonment, entailing forfeiture of his
membership, then two consequences would follow. First, the
strength of membership of the House shall stand reduced, so
also the strength of the political party to which such convicted
member may belong. The Government in power may be
surviving on a razor edge thin majority where each member
counts significantly and disqualification of even one member may
have a deleterious effect on the functioning of the Government.
Secondly, bye-election shall have to be held which exercise may
prove to be futile, also resulting in complications in the event of
the convicted member being acquitted by a superior criminal
court. Such reasons seem to have persuaded the Parliament to
classify the sitting members of a House into a separate category.
Sub-section (4) of Section 8, therefore, provides that if on the
date of incurring disqualification a person is a member of a
House, such disqualification shall not take effect for a period of 3
months from the date of such disqualification. The period of 3
months is provided for the purpose of enabling the convicted
member to file an appeal or revision. If an appeal or revision
has been filed putting in issue the conviction and/or the sentence
which is the foundation of disqualification, then the applicability
of the disqualification shall stand deferred until such appeal or
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application is disposed of by the court in appeal or revision.
In Shibu Soren Vs. Dayanand Sahay & Ors. (2001) 7
SCC 425, a three-Judge Bench of this Court was seized of the
question of examining a disqualification on account of the person
at that time holding an office of profit. The Court held that such
a provision is required to be interpreted in a realistic manner
having regard to the facts and circumstances of each case and
the relevant statutory provisions. While "a strict and narrow
construction" may not be adopted which may have the effect of
"shutting of many prominent and other eligible persons to
contest elections" but at the same time "in dealing with a
statutory provision which imposes a disqualification on a citizen,
it would not be unreasonable to take merely a broad and general
view and ignore the essential points". A balance has to be stuck
between strict construction and what is at stake is the right to
contest an election and hold office. "A practical view, not
pedantic basket of tests" must, therefore, guide courts to arrive
at appropriate conclusion. The disqualification provision must
have a substantial and reasonable nexus with the object sought
to be achieved and the provision should be interpreted with the
flavour of reality bearing in mind the object for enactment.
Sub-section (4) operates as an exception carved out from
sub-sections (1), (2) and (3) of Section 8 of the RPA. Clearly
the saving from the operation of sub-sections (1), (2) and (3) is
founded on the factum of membership of a House. The purpose
of carving out such an exception is not to confer an advantage
on any person; the purpose is to protect the House. Therefore,
sub-Section (4) would cease to apply no sooner the House is
dissolved or the person has ceased to be a member of that
House. Any other interpretation would render sub-section (4)
liable to be annulled as unconstitutional. Once a House has been
dissolved and the person has ceased to be a member, on the
date of filing the nomination there is no difference between him
and any other candidate who was not such a member. Treating
such two persons differently would be arbitrary and
discriminatory and incur the wrath of Article 14. A departure
from the view so taken by us would also result in anomalous
consequences not intended by the Parliament.
Conclusion
To sum up, our findings on the questions arising for
decision in these appeals are as under:-
1. The question of qualification or disqualification of a
returned candidate within the meaning of Section 100(1)(a) of
the Representation of the People Act, 1951 (RPA, for short) has
to be determined by reference to the date of his election which
date, as defined in Section 67A of the Act, shall be the date on
which the candidate is declared by the returning officer to be
elected. Whether a nomination was improperly accepted shall
have to be determined for the purpose of Section 100(1)(d)(i) by
reference to the date fixed for the scrutiny of nomination, the
expression, as occurring in Section 36(2)(a) of the Act. Such
dates are the focal point for the purpose of determining whether
the candidate is not qualified or is disqualified for being chosen
to fill the seat in a House. It is by reference to such focal point
dates that the question of disqualification under sub-Sections
(1), (2) and (3) of Section 8 shall have to be determined. The
factum of pendency of an appeal against conviction is irrelevant
and inconsequential. So also a subsequent decision in appeal or
revision setting aside the conviction or sentence or reduction in
sentence would not have the effect of wiping out the
disqualification which did exist on the focal point dates referred
to hereinabove. The decisive dates are the date of election and
the date of scrutiny of nomination and not the date of judgment
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in an election petition or in appeal thereagainst.
2. For the purpose of attracting applicability of disqualification
within the meaning of "a person convicted of any offence and
sentenced to imprisonment for not less than two years", - the
expression as occurring in Section 8(3) of the RPA, what has to
be seen is the total length of time for which a person has been
ordered to remain in prison consequent upon the conviction and
sentence pronounced at a trial. The word ’any’ qualifying the
word ’offence’ should be understood as meaning the nature of
offence and not the number of offence/offences.
3. Sub-Section(4) of Section 8 of the RPA is an exception
carved out from sub-Sections (1), (2) and (3). The saving from
disqualification is preconditioned by the person convicted being a
Member of a House on the date of the conviction. The benefit of
such saving is available only so long as the House continues to
exist and the person continues to be a Member of a House. The
saving ceases to apply if the House is dissolved or the person
ceases to be a Member of the House.
Result
For the foregoing reasons, Civil Appeal No.8213 of 2001,
K. Prabhakaran Vs. P. Jayarajan, is allowed. The judgment of
the High Court dated 5.10.2001 is set aside. The election
petition filed by the appellant is allowed. The election of the
respondent P. Jayarajan from No.14 Kuthuparamba Assembly
Constituency to the Kerala State Legislative Assembly, which
was declared on 13.5.2001, is set aside. The respondent No.1
shall bear the costs of the appellant throughout.
Civil Appeal No.6691 of 2002 is also allowed. The
judgment of the High Court dated 5.7.2002 is set aside. The
election petition filed by the appellant shall stand allowed. The
election of the respondent Nafe Singh from 37-Bahadurgarh
Assembly Constituency is declared void as he was disqualified
from being a candidate under Section 8(3) of the Representation
of the People Act, 1951. The respondent No.1 shall bear the
costs of the appellant throughout.