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CASE NO.:

Appeal (civil) 8213 of 2001

PETITIONER:

K.Prabhakaran

RESPONDENT:

P.Jayarajan

DATE OF JUDGMENT: 11/01/2005

BENCH:

R.C.Lahoti CJI & Shivaraj V.Patil & K.G.Balakrishnan & B.N.Srikrishna &

G.P. Mathur

JUDGMENT:

JUDGMENT

DELIVERED BY:

R.C.LAHOTI, (CJI)

K.G.BALAKRISHNAN, (J)

WITH

C.A.6691 of 2002

Appellants: Ramesh Singh Dalal

Vs.

Respondent: Nafe Singh and Ors.

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 R.I. for a period of

Section 149 IPC one month

Under Section 148 read with R.I. for six months

Section, 149 IPC

Under Section 447 read with R.I. for one month

Section 149 IPC

Under Section 353 read with R.I. for six months

Section 149 IPC

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Under Section 427 read with R.I. for three months

Section 149 IPC

Under Section 3(2)(e) under R.I. for one year

the P.D.P.P. Act read with

Section 149 IPC

--------------------------------------------------------------------

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 v. Shri Parmai Lal and Ors. and Vidya Charan

Shukla v. Purshottam Lal Kaushik.

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. and 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

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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

a 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 the charges

and being acquitted, he could gain the benefit of the decisions of this

Court in Shri Manni Lal v. Shri Parmai Lal and Ors. and Vidya Charan

Shukla v. Purshottam Lal Kaushik. 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. 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

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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.

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.

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 - "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

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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 - (1) A person shall be

disqualified for being chosen as, and for being, 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,

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

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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 9 th or 11 th 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 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 Dailp Kumar Sharma v. State of M.P. to hold that an

order of acquittal, particularly one passed on merits, wipes off the

conviction and sentence for ail 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

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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 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

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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

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

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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 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 2.0.6.1973 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 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

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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 v. Himathbhai

Gomanbhai Patel and Anr. 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 - 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. v. State of Bihar. 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 - "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 for which the

legal fiction was created. These observations are useful for the purpose of

dealing with 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.

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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 and Ors. v. Khagendranath Nath and Ors.. 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 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 v. State of T.N. and Anr.AIR 2001 SC 3435, 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

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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 Section 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 therefore which such Court is competent to inflict; such

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

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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 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 v. M.N. Shanmugham Chetty and Ors. 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) - "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

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

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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 (3)(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

-- 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 and Anr. v. Bombay Gas Co. Ltd. and

Ors. which has held Section 630 of the Companies Act, 1956 not to 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

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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 application is disposed of by the court

in appeal or revision.

In Shibu Soren v. Dayanand Sahay and Ors. 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". What is at stake is the right to contest an

election and hold office. "A practical view, hot 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),

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(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 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 v.

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

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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.

___________________________________________________________________________

Separate Dissenting Judgment

K.G. Balakrishnan,J.

I had the advantage of reading the Judgment in draft prepared by noble and

learned Brother, Lahoti, CJ, and I regret that I am unable to agree with

the interpretation placed on Section 8(3) of the Representation of People's

Act, 1951. On all other points, I respectfully agree with the decision.

Under Section 8(3) of the Representation of the People's Act, 1951, 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. If at the time of the scrutiny of the nomination papers,

a person concerned was found disqualified, his nomination paper will be

rejected and he would be unable to contest the election. Under Section 100

of the Representation of People's Act, 1951, any improper acceptance of

nomination is a valid ground for declaring the election void, if the result

of the election, insofar as it concerns the returned candidate, has been

materially affected.

The question for consideration is whether in a case where the accused

person has been convicted on various counts and the total period of the

sentence of imprisonment is two years or more and the Magistrate orders the

sentence of imprisonment for various periods to run consecutively, and if

the total period of such imprisonment to which the person convicted will

have to undergo is two years or more, whether he could be disqualified

under Section 8(3) of the Representation of People's Act. In other words,

even if the sentence of imprisonment does not exceed two years or more for

any one of the offences for which he is convicted, whether still he could

be disqualified under Section 8(3) of the Representation of the People's

Act, 1951 based on the order of the Magistrate/Judge to the effect that the

sentence on various counts shall run consecutively.

The argument of the learned counsel for the appellant in Civil Appeal No.

8213 of 2001 is that it is the total period of the sentence on various

counts which is material and in the instant case, the respondent was found

guilty of offences on six counts. For the offence under Section 143 read

with Section 149 IPC, he was sentenced to undergo R.I. for a period of one

year while for the offence under Section 3(2)(e) of the Prevention of the

Damage of the Public Property Act, 1984, he was sentenced to undergo R.I.

for a period of one year, and for various other offences he had been

sentenced to imprisonment for a period ranging from one month to six months

and as the Judicial Magistrate First Class directed that the sentences on

various counts shall run consecutively. It is argued by the appellant's

learned Counsel that the respondent is convicted and sentenced to

imprisonment for a period of more than two years and therefore disqualified

under Section 8(3) of the Representation of People's Act, 1951. The

question for consideration is whether the respondent in Civil Appeal No.

8213 of 2001 had been convicted for any offence and sentenced to

imprisonment for not less than two years. I am unable to subscribe to the

contention advanced by the appellant's learned Counsel that the word "any"

used in Section 8(3) of the Representation of the People's Act, 1951 should

be construed so as to mean "more than one" or "all" or in a sense of

plurality. It is also difficult to construe the words "not less than two

years" used in Section 8(3) of the Representation of the People's Act by

giving emphasis to the total period of imprisonment that a convict may

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undergo if all the periods of imprisonment for various offences are put

together, when it is ordered to run consecutively.

From the words used in the first part of Section 8(3), viz. "a person

convicted of any offence", it is clear that in order to incur

disqualification, the person must have been convicted of any offence and

sentenced to imprisonment for not less than two years. Out of the offences

on six counts, for which the respondent had been found guilty, if all of

them are taken individually, the respondent is not a person convicted of

any offence, for which the sentence imposed on him is more than two years.

In the case of the respondent, the Magistrate ordered that the sentence on

various counts shall run consecutively. That does not mean that the

respondent had been convicted of any offence, for which the sentence of

imprisonment is two years or more. The direction for the sentence to run

concurrently or consecutively is a direction as to the mode in which the

sentence is to be executed. That does not affect the nature of the

sentence. It is also important to note that in the Code of Criminal

Procedure, there are no guidelines or specific provisions to suggest under

what circumstances the various sentences of imprisonment shall be directed

to run concurrently or consecutively. There are no judicial decisions, to

my knowledge, by superior courts laying down the guidelines as to what

should be the criteria for directing the convict to undergo imprisonment on

various counts concurrently or consecutively. In certain cases, if the

person convicted is a habitual offender and he had been found guilty of

offences on various counts and it is suspected that he would be a menace if

he is let loose on the society, then the Court would direct that such

person shall undergo the imprisonment consecutively. Merely because the

Magistrate ordered that the sentence shall run consecutively, and the

aggregate period exceeds two years or more, a person convicted would not

incur the disqualification under Section 8(3) of the Representation of the

People's Act, 1951. If that be so, a Magistrate may order the sentence on

various counts to run concurrently in one case and for the same type of

offences, if another Magistrate directs the sentence on various counts to

run consecutively, the person in the latter case would incur the

disqualification whereas the former will not have any such disqualification

under Section 8(3) of the Representation of the People's Act, 1951. The

disqualification under Section 8(3) of the Representation of the People's

Act, 1951 shall not be solely dependent on the direction as to the mode in

which the sentence is to be executed, especially when there are no

statutory or judicial guidelines in this regard.

Moreover, if the argument of the appellant's learned Counsel is to be

accepted, the words used in Section 8(3) of the Representation of People's

Act, 1951 are inadequate and the Legislature would have expressed its

intention by stating that the total period of the sentence on various

counts shall be taken into consideration to consider whether the

imprisonment is for two years or more.

Section 8(3) of the Representation of People's Act, 1951 is a provision by

which a person is disqualified from contesting the election. These words

are to be strictly interpreted and if only the person squarely comes within

the four corners of the ordinary meaning of the words used in the section,

the disqualification could be used against him. If he has not been

convicted for any offence, for not less than two years, he is not liable to

be disqualified from contesting the election. Of course, the

criminalization of politics has become a serious problem to be tackled and

nobody would dispute that it affects the very foundation of our democratic

institutions, but that by itself is not sufficient to interpret the words

in a very expansive manner so as to include within its ambit the persons

who are strictly not coming within its purview, especially when the

disqualification is not only from contesting the election and the

disqualification would continue for a further period of six years since the

release.

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It is the gravity of the offence that matters and not the conviction for

various minor offences and the total period of two years or more to be

calculated by not putting together all sentences for various minor

offences. "Any offence" used in Section 8(3) of the Representation of

People's Act, 1951 is to be taken as "out of many offences" and the

respondent in Civil Appeal No. 8213 of 2001 has not been convicted for any

offence, for which the imprisonment is for a period of not less than two

years and he was not disqualified and, in my opinion, the High Court

rightly decided the question in his favour. The Election Petition filed by

the appellant in Civil Appeal No. 8213 of 2001 was rightly rejected. Civil

Appeal No. 8213 of 2001 is liable to be dismissed.

ORDER

In view of the majority opinion, Civil Appeal No. 8213 of 2001, K.

Prabhakaran v. 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.