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TMI Blog2005 (1) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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? - C.A. 8213 OF 2001 WITH CIVIL APPEAL NO. 6691 OF 2002 - - - Dated:- 11-1-2005 - LAHOTI, R.C PATIL, S.V BALAKRISHNAN, K.G SRIKRISHNA, B.N MATHUR, G.P,JJ. JUDGMENT 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 decide his criminal appeal so that in the event of his being exonerated of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viction 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. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lified 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 urge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 nom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 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 pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 imprisonme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntext; 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) 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, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 disquali ..... X X X X Extracts X X X X X X X X Extracts X X X X
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