This SLP is filed against the common judgment passed by high court while dismissing election petition on the ground of incurable defects and disqualification U/S 8(3) of the Representation of ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.10678 OF 2020
SARITHA S. NAIR … PETITIONER(S)
VERSUS
HIBI EDEN …RESPONDENT(S)
J U D G M E N T
V. Ramasubramanian, J.
1.As against a common order passed by the High Court of Kerala
throwing out 2 election petitions filed by the petitioner herein, on
the ground of incurable defects, the election petitioner has come up
with the above Special Leave Petition. This SLP arises out of
Election Petition No.4 of 2019. Another Election Petition filed by the
very same petitioner against the very same common order, but
arising out of Election Petition No.3 of 2019 was dismissed by this
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Court on 02.11.2020 for nonprosecution. Therefore, this order
covers Election Petition No.4 of 2019.
2.Heard Ms. D. Geetha, learned counsel for the petitioner.
3.In the elections held to the Lok Sabha in AprilMay, 2019, the
petitioner filed her nomination on 04.04.2019 in the Ernakulam
Constituency. The petitioner was to contest as an independent
candidate.
4.On 06.04.2019 the nomination of the petitioner was rejected
on the ground that she was convicted in 2 criminal cases, one in CC
No.1300 of 2013 on the file of the JFMCI, Pathanamthitta and
another in CC No.102 of 2014 on the file of the JFMCI,
Perumbavoor. In the first case the petitioner was imposed with a
punishment of imprisonment for 3 years, with a fine of Rs.45 lakhs,
by a judgment dated 08.06.2015. In the second case she was
imposed with a punishment of imprisonment for 3 years, with a fine
of Rs.10 lakhs, by a judgment dated 16.02.2016.
5.The petitioner filed Criminal Appeal No.87 of 2015 before the
Sessions Court, Pathanamthitta, against her conviction in CC
No.1300 of 2013. But the appeal was dismissed and the petitioner
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filed a revision before the High Court in Criminal R.P.No.9 of 2018.
On 04.01.2018, the High Court merely suspended the execution of
the sentence and enlarged the petitioner on bail, subject to her
executing a bond for Rs.5 lakhs with 2 solvent sureties and also
upon her depositing Rs.10 lakhs towards the fine amount.
6.Similarly, the petitioner filed Criminal Appeal No.25 of 2017
before the Sessions Court, Ernakulam against her conviction in CC
No.102 of 2014. The Appellate Court stayed the execution of the
sentence on condition of the appellant executing a bond for Rs.1
lakh with 2 sureties.
7.The Returning Officer, noted in his order dated 06.04.2019
that the petitioner stood disqualified in terms of Section 8(3) of the
Representation of the People Act, 1951, as the period of
disqualification had not lapsed.
8.Aggrieved by the order of rejection of the nomination, the
petitioner filed an appeal to the Chief Electoral Officer. Thereafter,
the petitioner moved a writ petition in W.P.(C)No.11282 of 2019.
But the Writ Petition was dismissed on 09.04.2019. The petitioner
filed a writ appeal but the same was also dismissed on 12.04.2019.
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9.Therefore, after the elections were over, the petitioner filed an
election petition in Election Petition No.4 of 2019, primarily
contending that the rejection of her nomination was illegal and
unjustified and that such rejection materially altered the outcome
of the election in which the Respondent herein was declared elected.
The main contention of the petitioner in her election petition was
that she had simultaneously filed a nomination in the Amethi
Constituency of Uttar Pradesh and that despite disclosure of the
very same information about her conviction and pendency of
appeals, her nomination was accepted there. Therefore, she
contended that 2 different yardsticks cannot be applied and that in
any case, so long as the sentence of imprisonment remained
suspended, the disqualification under Section 8(3) of the
Representation of the People Act, 1951, may not be attracted.
10.It is to be noted at this stage that the petitioner filed her
nomination from one more constituency, namely Wayanad
Constituency and her nomination was rejected even in the said
Constituency, for the very same reasons. Therefore, she filed
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another election petition in Election Petition No.3 of 2019 as
regards the election from the Wayanad Constituency.
11.It appears that lot of defects were noticed by the Registry of
the High Court in both the election petitions. The defects noticed in
both the election petitions were more or less the same. But in so far
as Election Petition No.4 of 2019 is concerned, out of which the
present SLP arises, the Registry noted one additional defect namely
that the prayer of the petitioner was incomplete.
12.Therefore, both the election petitions were posted before the
Court without being numbered. However, the Court, by order dated
29.07.2019 directed the election petitions to be numbered subject
to the condition that the petitioner should address arguments on
the question of curability of the defects. Thereafter, notices were
issued to the Election Commission, the respective Returning
Officers and the respective returned candidates.
13.It may be relevant to note at this stage that the fact that the
petitioner was convicted in 2 independent criminal cases and
sentenced to imprisonment for 3 years in each of those cases and
the fact that though the execution of the sentence was suspended
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in both the cases, the conviction was not suspended, were all
admitted by the petitioner herself. The case of the petitioner was
that it is enough if an appellate/revisional court had suspended the
sentence and not the conviction.
14.In view of the aforesaid stand of the petitioner, the High Court
framed a preliminary issue on 01.10.2019 as to whether the
election petitions were maintainable, when the conviction was not
suspended in appeal or revision. The High Court decided to take up
this preliminary issue also for consideration along with the question
relating to curability of defects noticed in the election petitions.
15.Thereafter, the High Court heard the learned counsel for the
petitioner and learned counsel for the returned candidates and
passed an order dated 31.10.2019 rejecting both the election
petitions on 2 grounds namely:
(i)that there were incurable defects in the election
petitions in terms of Section 86(1) of the Representation
of the People Act, 1951; and
(ii)that the petitioner was disqualified in view of the
inhibitions contained in Section 8(3) of the Act read with
Article 102(1)(e) of the Constitution.
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16.Aggrieved by the common order passed on 31.10.2019 in
Election Petition Nos. 3 and 4 of 2019, the petitioner filed SLP(C)
Diary No.4200 of 2020 and SLP(C) No.10678 of 2020. The SLP in
SLP(C) Diary No.4200 of 2020, arising out of the order in Election
Petition No.3 of 2019, was dismissed for nonprosecution on
02.11.2020. The present SLP arising out of Election Petition No. 4 of
2019 came up thereafter for hearing.
17.As pointed out above, the election petition of the petitioner was
dismissed on 2 grounds namely (i) that it contained incurable
defects; and (ii) that in any case, the petitioner admittedly suffered
from a disqualification. Let us now examine the correctness of the
findings of the High court in regard to these 2 issues.
Issue1 (Incurability of defects)
18.On the first issue, the High court noted that some of the
defects in the election petition are covered by Sections 81 and 82
and that there was no semblance of any verification in terms of
section 83 (1) (c) read with Order VI, Rule 15 of the CPC. The High
court held that there were 3 defects which were incurable. They
were:
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(i) Petitioner has not signed in the declaration portion of
verification of the election petition;
(ii) In verification portion, in respect of Annexures,
affidavits and petitions, it is stated that the index has
been verified instead of Annexures, affidavits and
petitions;
(iii) Annexures are not verified by the petitioner as
mandated and instead of verification, annexures are seen
certified as true copies by the petitioner and the counsel.
19.In addition to the above 3 defects, which the High Court
considered as incurable in both the election petitions, the High
Court noted that in Election Petition No. 4 of 2019, even the relief
sought was incomplete and meaningless. Prayer (a) made in the
election petition was “To declare that the election of the 5
th
respondent from Ernakulam Lok Sabha Constituency ”. It
actually meant nothing, unless the word “void” had been added
thereto. Since the word “void” was not there in prayer (a), the High
Court thought that the election petition had been prepared and filed
in a casual manner. Coupled with this, was the fact that the
election petition also contained some allegations of serious nature
against the former Chief Minister of Kerala. Therefore, the High
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Court thought that the petitioner had malafide intentions to malign
the reputation of third parties, through the election petition without
proper verification and prayer and that this is nothing but a ruse
for the petitioner to escape at a later stage from owning up the
pleadings.
20.In other words, what weighed with the High Court were:
(i)Lack of proper verification;
(ii)An incomplete prayer; and
(iii)Allegations of serious nature made against the
former Chief Minister with a possible leverage not to own
up the pleadings.
To hold that the defects stated above are incurable, the High Court
relied upon Sections 81, 82 and 83 read with Section 86 of the
Representation of the People Act, 1951. Let us now test the
correctness of the approach of the High Court, with regard to the
statutory provisions.
21.ChapterII, PartVI of the Representation of the People Act,
1951, contains provisions for “Presentation of election petitions to
High Court” and Chapter III contains provisions for “Trial of election
petitions”. Section 86(1), with which ChapterIII begins, obliges the
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High Court to dismiss an election petition which does not comply
with the provisions of Section 81 or Section 82 or Section 117. The
dismissal of an election petition under Section 86(1) is deemed by
the Explanation under Section 86(1) to be a decision under Section
98(a). Section 98 speaks about 3 types of orders that could be
passed at the conclusion of the trial of an election petition. They
are:
(i)The dismissal of the election petition; or
(ii)A declaration that the election of the returned
candidate is void; or
(iii)A declaration not only that the election of the
returned candidate is void, but also that the petitioner or
any other candidate was duly elected.
22.It is important to note that the above 3 different types of
decisions under Section 98, can be rendered by the High Court only
at the conclusion of the trial. But the dismissal under Section 86(1)
is an exception. The reference in the Explanation under Section
86(1) to Section 98(a), makes it clear that the power of the
High Court to dismiss an election petition which does not
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comply with the provisions of Section 81 or Section 82 or
Section 117, is available at the pretrial stage.
23.As stated earlier, the procedure for presentation of election
petitions to the High Court are dealt with in Sections 80 to 84
falling in ChapterII of PartVI. For our present purpose, Sections
81(3), 83(1), 83(2) and 84 are relevant.
24.Section 81(3) makes it mandatory for every election petition to
be accompanied by as many copies as there are respondents. Every
such copy is required to be attested by the petitioner under his own
signature to be a true copy of the petition. Section 81(3) reads as
follows:
“81. Presentation of petitions. (1)….
(2) Omitted
(3) Every election petition shall be accompanied by as
many copies thereof as there are respondents
mentioned in the petition, and every such copy shall
be attested by the petitioner under his own signature
to be a true copy of the petition.”
25.Section 83 speaks about:
(i)The contents of the election petition;
(ii)The signature and verification of the election
petition; and
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(iii)The signature and verification of any schedule or
annexure to the election petition.
Section 83 reads as follows :
“83. Contents of petition.—(1 ) An election petition—
(a) shall contain a concise statement of the material
facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt
practice that the petitioner alleges including as full a
statement as possible of the names of the parties
alleged to have committed such corrupt practice and
the date and place of the commission of each such
practice; and
(c) shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908
(5 of 1908) for the verification of pleadings:
[Provided that where the petitioner alleges any corrupt
practice, the petition shall also be accompanied by an
affidavit in the prescribed form in support of the
allegation of such corrupt practice and the particulars
thereof.]
(2) Any schedule or annexure to the petition shall also
be signed by the petitioner and verified in the same
manner as the petition.”
26.Section 84 indicates the relief/reliefs that could be claimed in
an election petition. It reads as follows:
“84. Relief that may be claimed by the petitioner.—
A petitioner may, in addition to claiming a declaration
that the election of all or any of the returned
candidates is void, claim a further declaration that he
himself or any other candidate has been duly elected.”
27.In the trial of an election petition, the High Court is bound to
follow the procedure as applicable to the trial of suits under the
Code of Civil Procedure, 1908, as nearly as may be. This is by virtue
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of Section 87(1). The provisions of Indian Evidence Act, 1872 are
made applicable in all respects to the trial of all elections petitions,
under Section 87(2). Section 87 reads as follows:
“87. Procedure before the High Court .—(1) Subject
to the provisions of this Act and of any rules made
thereunder, every election petition shall be tried by the
High Court, as nearly as may be, in accordance with
the procedure applicable under the Code of Civil
Procedure, 1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion
to refuse, for reasons to be recorded in writing, to
examine any witness or witnesses if it is of the opinion
that the evidence of such witness or witnesses is not
material for the decision of the petition or that the
party tendering such witness or witnesses is doing so
on frivolous grounds or with a view to delay the
proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1
of 1872), shall subject to the provisions of this Act, be
deemed to apply in all respects to the trial of an
election petition.”
28.It is relevant to note that the Act keeps in two separate
compartments
(i)the presentation of election petitions; and
(ii)the trial of election petitions.
The presentation of election petitions is covered by Sections 80 to
84 falling in ChapterII. The trial of election petitions is covered by
Sections 86 to 107 and they are contained in ChapterIII.
29.This compartmentalization, may be of significance, as seen
from 2 facts namely:
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(i)That under Section 80 no election shall be called in
question except by an election petition presented in
accordance with the provisions of “this part”; and
(ii)That a limited reference is made to the provisions of
the Code of Civil Procedure, 1908 in ChapterII, only in
places where signature and verification are referred to.
30.In so far as presentation of election petitions is concerned,
ChapterII is a complete code. This is because, the various
provisions of ChapterII cover all aspects of the presentation of an
election petition, such as:
(i)The person(s) who is/are entitled to file;
(ii)Person(s) who could be joined as respondents;
(iii)The types of different reliefs that can be sought;
(iv)The grounds on which such reliefs could be sought;
(v)Period of limitation for filing an election petition;
(vi)The court where the petition could be filed;
(vii)Contents of such petition; and
(viii)Format of the election petition and the manner in
which it is to be signed and verified.
31.Some of the rules contained in Chapter II are inflexible and
inviolable. But some may not be. Whether the manner of signing
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and verifying an election petition is an inflexible rule, is what is to
be seen here.
32.Section 83 (1) (c) mandates that an election petition shall be
signed by the petitioner and verified in the manner laid down in the
Code of Civil Procedure for verification of pleadings. Signing a
petition and verifying the petition are 2 different aspects. While
Order VI, Rule 14 deals with the signing of the petition, Order VI,
Rule 15 deals with the verification of pleading. Rule 14 mandates
that every pleading shall be signed by the party as well as the
pleader, if any. But the proviso carves out an exception by
stating that where a party is unable to sign the pleading, by
reason of absence or for other good cause, it may be signed by
any person duly authorized by him to sign the same or to sue
or defend on his behalf. Order VI, R.14 reads as follows:
“14. Pleading to be signed.Every pleading shall be
signed by the party and his pleader(if any):
Provided that where a party pleading is, by reason of
absence or for other good cause; unable to sign the
pleading, it may be signed by any person duly
authorized by him to sign the same or to sue or defend
on his behalf.”
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33.Order VI, R.15 which speaks about verification of pleadings
reads as follows:
“15. Verification of pleadings. (1) Save as otherwise
provided by any law for the time being in force, every
pleading shall be verified at the foot by the party or by
one of the parties pleading or by some other person
proved to the satisfaction of the court to be acquainted
with the facts of the case.
(2) The person verifying shall specify, by reference to
the numbered paragraphs of the pleading, what he
verifies of his own knowledge and what he verifies
upon information received and believed to be true.
(3) The verification shall be signed by the person
making it and shall state the date on which and the
place at which it was signed.
(4) The person verifying the pleading shall also furnish
an affidavit in support of his pleadings.”
34.It is to be noted that Subrule (1) of Rule 15 of Order VI also
permits the verification of pleading to be done by a person
other than the party pleading, provided it is proved to the
satisfaction of the Court that such other person was acquainted
with the facts of the case.
35.Section 86(1) empowers the High Court to dismiss an election
petition which does not comply with the provisions of Section 81,
Section 82 or Section 117 and it does not include Section 83 within
its ambit. Therefore, the question whether or not an election
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petition which does not satisfy the requirements of Section 83, can
be dismissed at the pretrial stage under section 86(1), has come up
repeatedly for consideration before this Court. We are concerned in
this case particularly with the requirement of Clause (c) of Sub
section (1) of Section 83 and the consequence of failure to comply
with the same.
36.In Murarka Radhey Shyam Ram Kumar vs. Roop Singh
Rathore
1
, a preliminary objection to the maintainability of the
election petition was raised on the ground that the verification was
defective. The verification stated that the averments made in some
paragraphs of the petition were true to the personal knowledge of
the petitioner and the averments in some other paragraphs were
verified to be true on advice and information received from legal and
other sources. There was no statement that the advice and
information received by the election petitioner were believed by him
to be true. Since this case arose before the amendment of the Act
under Act 47 of 1966, the election petition was dealt with by the
Tribunal. The Tribunal held the defect in the verification to be a
curable defect. The view of the Tribunal was upheld by this Court in
1 AIR (1964) SC 1545
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Murarka Radhey Shyam Ram Kumar (supra). This Court held
that “it is impossible to accept the contention that a defect in
verification which is to be made in the manner laid down in
the Code of Civil Procedure for the verification of pleadings as
required by Clause (c) of Subsection (1) of Section 83 is fatal
to the maintainability of the petition”.
37.The ratio laid down in Muraraka was reiterated by a three
member Bench of this Court in F.A. Sapa vs. Singora
2
holding
that “the mere defect in the verification of the election petition
is not fatal to the maintainability of the petition and the
petition cannot be thrown out solely on that ground” . It was
also held in F.A. Sapa that “since Section 83 is not one of the
three provisions mentioned in Section 86(1), ordinarily it
cannot be construed as mandatory unless it is shown to be an
integral part of the petition under Section 81”.
38.In F.A. Sapa (supra) this Court framed two questions in
paragraph 20 of the Report, as arising for consideration. The first
2 (1991) 3 SCC 375
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question was as to what is the consequence of a defective or
incomplete verification. While answering the said question, this
Court formulated the following principles: –
(i) A defect in the verification, if any, can be cured
(ii) It is not essential that the verification clause at the foot
of the petition or the affidavit accompanying the same
should disclose the grounds or sources of information in
regard to the averments or allegations which are based on
information believed to be true
(iii) If the respondent desires better particulars in regard to
such averments or allegations, he may call for the same,
in which case the petitioner may be required to supply the
same and
(iv) The defect in the affidavit in the prescribed Form 25
can be cured unless the affidavit forms an integral part of
the petition, in which case the defect concerning material
facts will have to be dealt with, subject to limitation,
under section 81(3) as indicated earlier.”
39.It was also held in F.A. Sapa (supra) that though an allegation
involving corrupt practice must be viewed very seriously and the
High Court should ensure compliance with the requirements of
Section 83 before the parties go to trial, the defective verification
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of a defective affidavit may not be fatal. This Court held that
the High Court should ensure its compliance before the parties go
to trial. This decision was followed by another threemember Bench
in R.P. Moidutty vs. P.T. Kunju Mohammad
3
.
40.In Sardar Harcharan Singh Brar vs. Sukh Darshan
Singh
4
, this Court held that though the proviso to Section 83(1)
is couched in a mandatory form, requiring a petition alleging
corrupt practice to be accompanied by an affidavit, the
failure to comply with the requirement cannot be a ground for
dismissal of an election petition in limine under Section 86(1).
The Court reiterated that noncompliance with the provisions of
Section 83 does not attract the consequences envisaged by Section
86(1) and that the defect in the verification and the affidavit is
a curable defect. The following portion of the decision is of
significance:
“14. xxxx
Therefore, an election petition is not liable to be
dismissed in limine under Section 86 of the Act, for
alleged noncompliance with provisions of Section
3 (2000) 1 SCC 481
4 (2004) 11 SCC 196
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83(1) or (2) of the Act or of its proviso. The defect in
the verification and the affidavit is a curable
defect. What other consequences, if any, may follow
from an allegedly "defective" affidavit, is required to be
judged at the trial of an election petition but Section
86(1) of the Act in terms cannot be attracted to such a
case.”
41.In K.K. Ramachandran Master vs. M.V. Sreyamakumar
5
,
this Court followed F.A. Sapa (supra) and Sardar Harcharan
Singh Brar (supra) to hold that defective verification is curable.
The Court again reiterated that the consequences that may flow
from a defective affidavit is required to be judged at the trial of an
election petition and that such election petition cannot be
dismissed under Section 86(1).
42.Though all the aforesaid decisions were taken note by a two
member Bench in P.A. Mohammed Riyas vs. M.K. Raghavan
6
, the
Court held in that case that the absence of proper verification may
lead to the conclusion that the provisions of Section 81 had not
been fulfilled and that the cause of action for the election petition
would remain incomplete. Such a view does not appear to be in
conformity with the series of decisions referred to in the previous
5 (2010) 7 SCC 428
6 (2012) 5 SCC 511
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paragraphs and hence P.A. Mohammed Riyas cannot be taken to
lay down the law correctly. It appears from the penultimate
paragraph of the decision in P.A. Mohammed Riyas (supra) that
the Court was pushed to take such an extreme view in that case on
account of the fact that the petitioner therein had an opportunity to
cure the defect, but he failed to do so. Therefore, P.A. Mohammed
Riyas (supra) appears to have turned on its peculiar facts. In any
case P.A. Mohammed Riyas was overruled in G.M.Siddeshwar vs.
Prasanna Kumar
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on the question whether it is imperative for an
election petitioner to file an affidavit in terms of Order VI Rule 15(4)
of the Code of Civil Procedure, 1908 in support of the averments
made in the election petition in addition to an affidavit (in a case
where resort to corrupt practices have been alleged against the
returned candidate) as required by the proviso to Section 83(1). As a
matter of fact, even the filing of a defective affidavit, which is not in
Form 25 as prescribed by the Rules, was held in G.M. Siddeshwar
to be a curable defect and the petitioner was held entitled to an
opportunity to cure the defect.
7 (2013) 4 SCC 776
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43.The upshot of the above discussion is that a defective
verification is a curable defect. An election petition cannot be
thrown out in limine, on the ground that the verification is defective.
44.Therefore, the High Court committed a grave error in holding
the 3 defects mentioned in paragraph 18 hereinabove as incurable.
The defects are curable and as rightly contended by the learned
counsel for the petitioner, an opportunity to cure the defects ought
to have been given. Instead, the election petition was posted before
Court without numbering, in view of the defects noticed. The Court
directed the petition to be numbered subject to arguments on the
curability of defects. Thereafter notices were issued to the
respondents in the election petition and finally the order impugned
herein was passed after hearing both sides. The High Court did not
even rely upon any rule framed by the High court to follow the said
procedure.
45. The Rules of the High Court of Kerala, 1971 contains a set of
Rules from Rule Nos.207 to 219 in Chapter XVI. These Rules govern
the procedure for institution and trial of election petitions. Rule 210
of these rules reads as follows:
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“210.Summons.Immediately after registering, the
petition shall be placed before the Judge for such
orders as may be required to be passed under Section
86 of the Act. If the petition is not dismissed under
Section 86(1) of the Act, a summons, on the direction
of the Judge shall be issued to the respondents to
appear before the High Court on a fixed date and
answer the claim or claims made in the petition. Such
date shall not be earlier than three weeks from the
date of the issue of the summons. The summons shall
be for written statement and settlement of issues and
shall be served on the respondents by the process staff
of the High Court or the District Courts, all steps being
taken to effect service with the utmost expedition.”
46.The manner in which Rule 210 has been worded gives an
impression as though an election petition should be placed before
the Judge, immediately after it is registered, for passing Orders
under Section 86(1). If the petition is not dismissed under Section
86(1), summons should be issued to the respondents on the
direction of the Judge. In the case on hand the learned designated
Judge before whom the election petition was listed as defective,
chose to issue summons to the respondents, calling upon them to
argue on the curability of defects as well as the maintainability of
the petition. There is nothing to indicate in the Rules that the
learned designated Judge was powerless to return the petition to
the petitioner for curing the defects.
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47.The procedure adopted by the High Court of Kerala cannot be
approved. The High Court was wrong in thinking that the defective
verification of the election petition was a pointer to the game plan of
the election petitioner to disown the pleadings at a later stage,
especially after making serious allegations against the former Chief
Minister. If only the High Court had given an opportunity to the
petitioner to cure the defects in the verification and if, despite such
an opportunity, the petitioner had failed to come up with a proper
verification, the High Court could have then held the petitioner
guilty of playing hide and seek. The failure of the High Court to give
an opportunity to cure the defects is improper.
48.The defect in the prayer made by the petitioner was also a
curable defect, as the words “as void” were omitted to be included,
making the prayer as it existed, meaningless. It is true that the
election petitioner should have been more careful and diligent in
incorporating an appropriate relief and making a proper verification.
But no motives could have been attributed to the petitioner, only
because she made serious allegations against someone. Hence we
hold on the first issue that the defects in the verification and prayer
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made by the petitioner were curable and an opportunity ought to
have been given to the petitioner to cure the defects.
Issue2 (effect of punishment by criminal court)
49.That takes us to the next issue regarding the punishments
imposed upon the petitioner in two criminal cases and the
suspension of execution of sentence alone granted by the
appellate/revisional Courts.
50.Admittedly the petitioner was imposed with a punishment of
imprisonment for a period not less than two years in two
independent criminal cases. Therefore, her case is covered by
Section 8(3) of the Act.
51.What was suspended by the appellate Court in one case and
the revisional Court in another case was only the execution of the
sentence of imprisonment and not the conviction. The contention of
the petitioner is that the suspension of the sentence was sufficient
to save her from the applicability of Section 8(3).
52.But we do not think so. Section 8(3) reads as follows:
“Disqualification on conviction for certain offences.
(1) …
(2) …
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(3) A person convicted of any offence and sentenced to
imprisonment for not less than two years [other than
any offence referred to in subsection (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.”
53.It is seen from a reading of Section 8(3) that it deals with two
aspects namely (i) the conditions for disqualification; and (ii) the
period of disqualification. The conditions for disqualification are (i)
conviction for any offence other than an offence referred to in Sub
sections (1) and (2); and (ii) sentence of imprisonment for not less
than two years.
54.In so far as the period of disqualification is concerned, Section
8(3) says that the disqualification will commence from the date of
conviction. This is made clear by the usage of the words “shall be
disqualified from the date of such conviction”. It is needless to state
that the words “the date” appearing in Section 8(3) refers to the
event of conviction and it is post facto. The disqualification which
commences from the date of conviction, continues till the expiry of a
period of six years from the date of his release.
28
55.In other words, the date of conviction is what determines
the date of commencement of the period of disqualification.
However, it is date of release which determines the date on
which the disqualification will cease to have effect.
56.When viewed in that context, it will be clear that the mere
suspension of the execution of the sentence is not sufficient to take
the rigour out of Section 8(3).
57.In fact, a Constitution Bench of this Court held in B.R. Kapur
vs. State of Tamil Nadu
8
that an order of the appellate/revisional
Court suspending the sentence of imprisonment has to be read in
the context of Section 389 of the Code of Criminal Procedure and
that under the said provision, what is suspended is only the
execution of the sentence and not the sentence itself. The
Constitution Bench made it clear that the suspension of the
execution of the sentence would not alter or affect the conviction
and that therefore such a person would remain disqualified under
Section 8(3). In fact, in B.R. Kapur (supra) a person whose
nomination was rejected on the ground of disqualification, got
8 (2001) 7 SCC 231
29
elected as the leader of the party which secured majority in the
elections and became the Chief Minister and hence Article 164 was
pressed into service. But even the same was rejected on the ground
that a person who was disqualified from contesting the elections,
cannot take the route of Article 164.
58.A contention was raised in B.R. Kapur (supra) that the sitting
members of Parliament or Legislatures are granted by Section 8(4)
of the Act, with a protection against removal from office, during the
pendency of their appeal or revision against conviction and that it is
violative of the guarantee of equality under the Constitution, if the
class of persons getting convicted before elections are placed at a
disadvantageous position than the class of persons who are
convicted after getting elected to the Parliament or the State
Legislatures. But the Constitution Bench rejected this contention in
B.R. Kapur (supra) on the ground that the constitutional validity of
Subsection (4) of Section 8 was not in question.
59.Possibly taking cue from what was observed in B.R. Kapur (in
Para 38 and 39 of the Report), a challenge was made to Section 8(4)
30
in Lily Thomas vs. Union of India
9
, on the ground that it is ultra
vires the Constitution. While declaring the said provision to be
unconstitutional, this Court held in Lily Thomas (supra) that a
Member of Parliament or the State Legislature who suffers a
frivolous conviction, will not be remediless. Taking note of the
decisions in Rama Narang vs. Ramesh Narang
10
and Ravikant
S. Patil vs. Sarvabhouma S. Bagali
11
, this Court held in Lily
Thomas (supra) that the appellate Court has ample powers under
Section 389(1) of the Code, to stay the conviction as well as the
sentence and that wherever a stay of conviction itself has been
granted, the disqualification will not operate.
60.Just as the observations made in B.R. Kapur (supra) led to a
challenge to Section 8(4) of the Act in Lily Thomas (supra), the
discussion in Lily Thomas (supra) about the power of the appellate
Court to stay the conviction as well as the execution of sentence,
led to another bout of litigation. In Lok Parhari vs. Election
Commissioner of India
12
, the petitioner sought a declaration that
9 (2013) 7 SCC 653
10 (1995) 2 SCC 513
11 (2007) 1 SCC 673
12 (2018) AIR 4675
31
even a stay of conviction by the appellate Court will not have the
effect of wiping out the disqualification. The contention of the
petitioner was that the law does not provide for stay of conviction.
But this Court rejected the challenge on the ground that the
decisions in Rama Narang (supra) and Lily Thomas (supra)
clinched the issue in this regard.
61.Therefore, in effect, the disqualification under Section 8(3) will
continue so long as there is no stay of conviction. In the case on
hand, the petitioner could not obtain a stay of conviction but
obtained only a stay of execution of the sentence. Hence her
nominations were validly rejected by the Returning Officer. Merely
because the Returning Officer in Amethi Constituency committed
an error in overlooking this fact, the petitioner cannot plead
estoppel against statutory prescription.
CONCLUSION
62.Therefore, in fine, we hold that the petitioner was disqualified
from contesting the elections in terms of Section 8(3) of the Act. In
such circumstances, she could not have maintained an election
petition as “a candidate at such election” in terms of Section
32
81(1). Therefore, the High Court was right in not venturing into an
exercise in futility, by taking up the election petition for trial,
though the High Court was wrong in rejecting the election petition
on the ground of existence of incurable of defects.
63.In view of the above, the Special Leave Petition is dismissed.
There will be no order as to costs.
…………………………..CJI
(S.A. Bobde)
…………………………….J.
(A.S. Bopanna)
……………………………..J.
(V. Ramasubramanian)
New Delhi
December 9, 2020
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