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CASE NO.:

Appeal (civil) 5034 of 2005

PETITIONER:

Ravikant S. Patil

RESPONDENT:

Sarvabhouma S. Bagali

DATE OF JUDGMENT: 14/11/2006

BENCH:

Y.K. Sabharwal, CJ. & C.K. Thakker & R.V. Raveendran

JUDGMENT:

JUDGMENT

ORDER

This appeal under Section 116A of the Representation of the People Act,

1951 (for short, the Act) has been preferred by the elected candidate. The

facts are brief and few. The appellant was an elected member of the

Karnataka Legislative Assembly which was dissolved in February 2004. By

judgment and order dated 28th July 2000, the appellant was convicted and

sentenced to undergo imprisonment for a period of seven years by the VI

Addl. Sessions Judge, Solapur, in S.C.No.203/1999. Immediately thereafter,

Criminal Appeal No.658 of 2000 was preferred by the appellant challenging

the judgment of conviction and order of sentence. Pending the appeal, the

Bombay High Court granted stay of the execution of the sentence.

(2) The fresh elections to Karnataka Legislative Assembly were notified.

The election programme notified was as under:

Last date of nomination : 31.03.2004

Date of scrutiny of nomination : 02.04.2004

Last date for withdrawal : 05.04.2004

Date of polling : 20.04.2004

Date of declaration of result : 13.05.2004

The appellant moved an application in the pending appeal, for stay of the

order of conviction dated 28th July, 2000, so that he can contest the

election. The Bombay High Court, by order dated 26th March, 2004, stayed

the conviction pending appeal. Thereafter, the appellant filed his

nomination on 29th March 2004. The respondent raised an objection to the

acceptance of appellant's nomination, contending that the appellant was

disqualified under Section 8(1) and (3) of the Act. The said objection

raised by the respondent was rejected by the Returning Officer. The

appellant was declared elected on 13th May 2004.

(3) The election of the appellant was challenged by the respondent before

the Karnataka High Court on the ground that the appellant was not qualified

to contest the election. In the Election Petition, the case set up by the

respondent was that on the date of filing of nominations and on the date of

declaration of the results, the elected candidate was disqualified for

being chosen as a member of the Legislative Assembly, in view of Section

8(1)(3)(4) of the Act, as he had been convicted for an offence punishable

under Sections 366 and 376 of the Indian Penal Code and sentenced to

imprisonment for more than two years.

(4) During the pendency of the election petition, the appellant's appeal

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against conviction was allowed by the Bombay High Court by judgment dated

10th September, 2004 and he was acquitted.

(5) By the judgment under appeal, the High Court, relying upon the decision

of this Court in K.Prabhakaran v. P. Jayarajan, [2005] 1 SCC 754, came to

the conclusion that the appellant was disqualified to contest the election,

in view of the fact that as on the date of nomination, there was a

conviction against the appellant which had not been set aside by a higher

court. The High Court has opined that 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 against it. Accordingly, the

election petition was allowed and it was declared that the election and

declaration of result of the appellant to the Indi Assembly Constituency

were null and void.

(6) Article 191 of the Constitution of India provides for disqualification

for being chosen as, and for being, a member of the Legislative Assembly of

a State, if a person is disqualified by or under any law made by the

Parliament. The Representation of People Act, 1951 is the law contemplated

by Article 191 (1)(e) of the Constitution. Section 7(b) of the Act

defines the expression "disqualified" as under:

"disqualified" means disqualified for being chosen as, and for

being a member of either House of Parliament or of the Legislative

Assembly or Legislative Council of a State."

Section 8 of the Act provides for disqualification on conviction for

certain offences. Section 8(1), inter alia, provides that a person

convicted of an offence punishable under clauses (a) to (n) thereof shall

be disqualified where the affected person is sentenced to imprisonment,

from the date of such conviction and shall continue to be disqualified for

a further period of six years since his release. The offence punishable

under Section 376(1) or (2) is one of the offences enumerated in clause (a)

of Sub-section (1) of Section 8. Sub-Section (3) of Section 8 provides

that a person convicted of any offence and sentenced to imprisonment for

not less than two years shall be disqualified from the date of such

conviction and shall continue to be disqualified for a further period of

six years since his release. If the nomination of a person is improperly

accepted under the Act, it is a ground for seeking declaration that the

election of such disqualified candidate be void. The qualification or

disqualification is to be determined with reference to the date fixed for

scrutiny of the nomination. The subsequent acquittal is not relevant to

remove the disqualification as on the date of the scrutiny of the

nomination.

(7) In Prabhakaran's case (supra), one of the questions examined by the

Constitution Bench was as under:

"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 of 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?"

As the formation of the aforesaid question itself shows the relevant date

for ascertaining disqualification is the date of nomination and election.

The Constitution Bench, while answering the aforesaid question, has held

that under clause (a) of sub-Section (1) of Section 100 of the Act, the

High Court is called upon to decide whether on the date of election a

returned candidate was not qualified or was disqualified to be chosen to

fill the seat and, if the answer being in the affirmative, the High Court

is mandated to declare the election of the returned candidate to be void.

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It is further held that the focal point by reference to which the question

of disqualification shall be determined is the date of election. The

Constitution Bench overruled the decisions in the cases of Manni Lal v.

Parmai Lal, [1970] 2 SCC 462, and Vidya Charan Shukla v. Purshottam Lal

Kaushik, [1981] 2 SCC 84, which had taken the view 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

that an acquittal subsequent to nomination and election, had retrospective

effect of making the disqualification non-existent even at the time of

scrutiny of the nomination. The Constitution Bench observed that the

correctness or otherwise of the decision of the Returning Officer, on the

question of qualification or disqualification of a candidate, could not be

left to be determined by any event which may have happened between the date

of scrutiny and date of pronouncement of the judgment by the High Court.

The uncertainty, anomaly, confusion or practical difficulties in accepting

the view that the acquittal would relate back to the date of scrutiny of

nomination, insofar as the election laws were concerned, were examined by

the Constitution Bench, and it was held thus:

"The correct position of law is that nomination of a person

disqualified within the meaning of sub-section (3) of Section 8 of

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 RP Act consequent upon a decision of a

subsequent date in a criminal appeal or revision."

(8) In the present case, however, the appellant's stand of being qualified

to contest the election was not either on the basis of subsequent acquittal

or on the basis of stay of execution of sentence, but based on the stay of

the conviction. It is evident that before the last date of filing

nomination, the appellant had filed an application (Criminal Application

No.487 of 2004) in his pending Criminal Appeal No.658 of 2000 praying

therein that his conviction be stayed pending appeal since he had to

contest the ensuing election, and that if his conviction was not stayed, he

would not be able the contest the election resulting in deprivation of his

right to so contest. The Bombay High Court by order dated 26th March,

2004, considering the facts and circumstances of the case, inter alia

noticing that there was a voluntary marriage between the victim girl and

the accused-appellant, and other relevant facts for the purpose of deciding

that application, granted the order of stay of conviction of the appellant,

in addition to the order of stay of execution of sentence which was already

operative when the appellant filed the application for stay of conviction.

The question, under these circumstances, is as to the effect of stay of

conviction even before nomination, insofar as the disqualification provided

under Section 8 of the Act.

(9) Section 374 of the Code of Criminal Procedure (for short, the Code)

provides for a remedy of filing appeal by any person convicted for trial by

Sessions Judge. Section 389 of the Code, inter alia, provides that pending

any appeal by a convicted person, the appellate court may, for reasons

recorded by it in writing, order that the execution of sentence or order

appealed against be suspended and, also, if he is in confinement, that he

be released on bail or on his own bond.

(10) The question whether an order of conviction can be stayed, in the

absence of a specific provision for such stay in the Code, came up for

consideration before this Court in the case of Rama Narang v. Ramesh Narang

& Ors., [1995] 2 SCC 513. In the said case, the order that had been

passed, while admitting the appeal, by the High Court purporting to be one

under Section 389(1) of the Code was to the following effect:-

"Accused be released on bail on his furnishing a personal bond in

the sum of Rs.10,000 with one surety in the like amount to the

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satisfaction of the trial Judge. The operation of the impugned

order shall remain stayed."

One of the questions that was examined in that case was whether the power

under Section 389(1) of the Code could be invoked to stay the conviction.

This Court held that an order of conviction by itself is not capable of

execution under the Code of Criminal Procedure, but in certain situations,

the order of conviction can become executable in a limited sense, inasmuch

as it may result in incurring of some disqualification under other

enactments; and that in such cases, it was permissible to invoke the power

under Section 389(1) of the Code for staying the conviction also. We

extract below the reasoning for such a conclusion, given by this Court:

"That takes us to the question whether the scope of Section 389(1)

of the Code extends to conferring power on the Appellate Court to

stay the operation of the order of conviction. As stated earlier,

if the order of conviction is to result in some disqualification of

the type mentioned in Section 267 of the Companies Act, we see no

reason why we should give a narrow meaning to Section 389(1) of the

Code to debar the court from granting an order to that effect in a

fit case. The appeal under Section 374 is essentially against the

order of conviction because the order of sentence is merely

consequential thereto; albeit even the order of sentence can be

independently challenged if it is harsh and disproportionate to the

established guilt. Therefore, when an appeal is preferred under

Section 374 of the Code the appeal is against both the conviction

and sentence and therefore, we see no reason to place a narrow

interpretation on Section 389(1) of the Code not to extend it to an

order of conviction, although that issue in the instant case

recedes to the background because High Courts can exercise inherent

jurisdiction under Section 482 of the Code if the power was not to

be found in Section 389(1) of the Code."

This Court, however, clarified that the person seeking stay of conviction

should specifically draw the attention of the appellate court to the

consequences that may arise if the conviction is not stayed; and that

unless the attention of the court to the specific consequences that are

likely to fall upon conviction, the person convicted cannot obtain an order

of stay of conviction. In fact, if such specific consequences are not

brought to its notice, the court cannot be expected to grant stay of

conviction or assign reasons relevant for staying the conviction itself,

instead of merely suspending the execution of the sentence. In that case,

it was found on facts that the appellant therein had not specified the

disqualification he was likely to incur under Section 267 of the Companies

Act, if his conviction was not stayed. Therefore, this Court refused to

infer that the High Court had applied its mind to this specific aspect of

the matter and had thereafter granted stay of conviction or the operation

of the impugned judgment. Consequently, the order of stay was not

construed as a stay of conviction.

(11) It deserves to be clarified that an order granting stay of conviction

is not the rule but is an exception to be resorted to in rare cases

depending upon the facts of a case. Where the execution of the sentence is

stayed, the conviction continues to operate. But where the conviction

itself is stayed, the effect is that the conviction will not be operative

from the date of stay. An order of stay, of course, does not render the

conviction non-existent, but only non-operative. Be that as it may.

Insofar as the present case is concerned, an application was filed

specifically seeking stay of the order of conviction specifying that

consequences if conviction was not stayed, that is, the appellant would

incur disqualification to contest the election. The High Court after

considering the special reason, granted the order staying the conviction.

As the conviction itself is stayed in contrast to a stay of execution of

the sentence, it is not possible to accept the contention of the respondent

that the disqualification arising out of conviction continues to operate

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even after stay of conviction.

(12) We may now refer to the several other decisions of this Court, cited

by the parties.

(12.1) The decision in B.R.Kapur v. State of Tamil Nadu, [2001] 7 SCC 231,

will have no application as it was not a case of stay of conviction. In

that case, only an order of suspension of sentence was made under Section

389 of the Code. In fact, the petitions seeking stay of the operation of

the judgment in the criminal cases were dismissed by the High Court.

(12.2.) In State of Tamil Nadu v. A.Jaganathan, [1996] 5 SCC 329, the State

challenged the order of the High Court which had granted suspension of the

conviction as also the sentence, relying on Rama Narang (supra). This

Court held that the principle laid down in Ram Narang (supra) was that

conviction and sentence can both be suspended only if non-grant of

suspension of conviction would result in damage which could not be undone

if ultimately the appeal/revision was allowed. On facts, it was found that

even if stay of conviction was not granted, no prejudice would be caused to

the convicted person, having regard to the fact that when the revisions

against the conviction and sentences were ultimately allowed, the damage,

if any, caused to the respondents therein with regard to payment of

stipends etc. could well be revived and made good to the them. This Court

noted that if such trifling matters involving slight disadvantage to the

convicted person were to be taken into consideration, every conviction

would have to be suspended pending appeal or revision. It was further

noted that the High Court did not consider at all the moral conduct of the

respondents inasmuch as the respondent Jaganathan who was a Police

Inspector had been convicted under Sections 392, 218 and 466 IPC, while the

other respondents who were also public servants had been convicted under

the provision of Prevention of Corruption Act. Under those circumstances,

the discretion exercised by the High Court in suspending the conviction was

reversed.

(12.3.) In K.C.Sareen v. CBI, Chandigarh, [2001] 6 SCC 584, it was held

that though the power to suspend an order of conviction, apart from the

order of sentence, is not alien to Section 389(1) of the Code, its exercise

should be limited to very exceptional cases. It was further held that

merely because the convicted person files an appeal to challenge his

conviction, the court should not suspend the operation of the conviction

and the court has a duty to look at all aspects including the ramifications

of keeping such conviction in abeyance. The Bench also noted that the evil

of corruption has reached a monstrous dimension. While declining the

prayer of the appellant for grant of an order of stay of conviction, the

Bench observed that when conviction is on a corruption charge against a

public servant, the appellate court should not suspend the order of

conviction during the pendency of the appeal, even if the sentence of

imprisonment is suspended. The Bench further observed that it would be a

sublime public policy that the convicted public servant is kept under

disability of the conviction in spite of keeping the sentence of

imprisonment in abeyance till the disposal of the appeal or revision.

These observations would equally apply when a prayer for stay of order of

conviction is made so as to remove the disability to contest an election

except, as already noted, in a very exceptional and rare case.

(12.4.) Lastly, reference may also be made to the decision of this Court in

State of Maharashtra v. Gajanan & Anr., [2003] 12 SCC 432. In the said

case, relying on the case of K.C.Sareen (supra), it was reiterated that

only in exceptional cases, the court should exercise the power of stay of

conviction. Since the High Court in the said case had not pointed out any

exceptional fact or looked into the ramification of keeping such conviction

in abeyance, the order of the High Court staying the conviction was set

aside. In the cited case of Union of India v. Atar Singh, [2003] 12 SCC

434, it was noted that the High Court had mechanically passed the order by

suspending the conviction and the discretion ought not to have been

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exercised by the High Court by passing such an order suspending the

conviction.

(12.5.) All these decisions, while recognising the power to stay

conviction, have cautioned and clarified that such power should be

exercised only in exceptional circumstances where failure to stay the

conviction, would lead to injustice and irreversible consequences.

(13) Reverting to the present case, we are not called upon to decide the

correctness of the order of stay of conviction dated 26th March, 2004.

All that requires to be noticed is that on the dates of nomination and

election, in view of the said order staying conviction, the appellant was

not disqualified. The question whether subsequently the conviction was set

aside in appeal or whether the matter is in further challenge before this

Court is of no relevance for deciding the point in issue.

(14) In view of the above, the decision of the High Court that the

appellant was disqualified as on the date of nomination and that his

nomination was improperly accepted cannot be sustained. Resultantly, we

allow the civil appeal and set aside the impugned judgment of the High

Court and dismiss the Election Petition. Since the election petitioner-

respondent No.1 has not appeared in this appeal and we were assisted by

learned counsel appearing for another contestant in the same election, we

leave the parties to bear their own costs.