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2005 (1) TMI 674 - SC - Indian LawsDisqualification from contesting the election - conviction and sentence to imprisonment for a term exceeding 2 years - Expression 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? - legal fiction - HELD THAT - 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 presupposes 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. 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 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.
ISSUES PRESENTED and CONSIDERED
The Court considered three primary legal issues: 1. Whether an appellate judgment rendered after the date of election, affecting the conviction of a candidate and sentence of imprisonment, would retrospectively nullify disqualification if a candidate was disqualified due to a conviction and sentence of imprisonment for at least two years at the time of nomination and election. 2. The interpretation of the phrase "A person convicted of any offence and sentenced to imprisonment for not less than two years" in Section 8(3) of the Representation of the People Act, 1951 (RPA). Specifically, whether this applies only when the sentence for a single offence is two years or more. 3. The scope of sub-section (4) of Section 8 of the RPA, particularly whether the protection against disqualification for a sitting member extends even if the individual is no longer a member of Parliament or a State Legislature at the time of nomination or election. ISSUE-WISE DETAILED ANALYSIS Issue 1: Retrospective Effect of Appellate Judgments The Court analyzed the legal framework under Section 100(1)(a) of the RPA, which requires determining disqualification by reference to the date of election. The Court noted that the right to contest an election is statutory, with qualifications and disqualifications prescribed by legislation. The Court rejected the precedents set in Manni Lal and Vidya Charan Shukla cases, which allowed appellate acquittals to retrospectively nullify disqualifications. The Court emphasized that the determination of disqualification should be based on facts existing at the time of nomination scrutiny, not influenced by subsequent appellate decisions. The Court overruled the previous decisions, establishing that an appellate judgment cannot retroactively affect disqualification determined at the time of nomination. Issue 2: Interpretation of "Any Offence" in Section 8(3) of the RPA The Court examined whether Section 8(3) applies when multiple sentences collectively exceed two years, even if individual sentences do not. Section 31 of the Code of Criminal Procedure permits consecutive sentences, and for appeals, the aggregate of such sentences is treated as a single sentence. The Court concluded that disqualification under Section 8(3) is triggered by the total period of imprisonment, not limited to a single offence. The term "any offence" refers to the nature of the offence, not the number, and the cumulative sentence is considered for disqualification purposes. Issue 3: Scope of Sub-section (4) of Section 8 of the RPA The Court analyzed the classification of candidates into those who are members of a House at the time of conviction and those who are not. Sub-section (4) provides a temporary protection against disqualification for sitting members, allowing time to appeal. The Court held that this protection ceases if the House is dissolved or the individual is no longer a member. The purpose of sub-section (4) is to protect the functioning of the House, not to confer an advantage on individuals. Therefore, once a person ceases to be a member, they are treated like any other candidate concerning disqualification. SIGNIFICANT HOLDINGS The Court established several core principles and determinations: 1. The determination of disqualification under Section 8(3) of the RPA should be made based on the facts as they existed on the date of scrutiny of nominations, not influenced by subsequent appellate decisions. 2. The phrase "any offence" in Section 8(3) refers to the nature of the offence, and disqualification is triggered by the cumulative sentence of imprisonment, not limited to a single offence. 3. Sub-section (4) of Section 8 provides temporary protection against disqualification for sitting members, which ceases once the House is dissolved or the individual is no longer a member. CONCLUSION The Court allowed both appeals. In C.A. No. 8213/2001, the election of the respondent P. Jayarajan was set aside due to disqualification under Section 8(3) of the RPA. Similarly, in C.A. No. 6691/2002, the election of the respondent Nafe Singh was declared void due to disqualification. The Court mandated the respondents to bear the costs of the appellants throughout the proceedings.
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