Kerala High Court
Prabhakaran vs Jayarajan on 5 October, 2001
Equivalent citations: AIR 2002 KERALA 82, ILR(KER) 2001 (3) KER 585, (2001) 3 KER LT 641, (2002) 1 CIVLJ 207
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
JUDGMENT M.R. Hariharan Nair, J.
1. A question of great constitutional importance arises in this case, namely, whether a person who has been convicted for various offences and sentenced for each offence to periods of less than two years; but cumulatively and consecutively for a period of over 2 years in one and the same trial, is disqualified to contest an election under Section 8(3) read with Section 100(1)(a) of the Representation of the People Act, 1951 (for short 'the Act')?
2. The petitioner challenges the election of the respondent to the Kerala Legislative Assembly in the recent General Elections, the polling of which took place on 10th May, 2001 from No. 14 Kuthuparamba Assembly Constituency. The petitioner was sponsored by the United Democratic Front (UDF) and the respondent was a candidate of the Communist Party of India (Marxist) who contested as the Left Democratic Front (LDF) candidate. The respondent was declared elected with a margin of 18620 votes in so far as he obtained 71240 votes while the petitioner got only 52620 votes. There was a third candidate; but he got only 1391 votes.
3. The petitioner contends that the respondent was disqualified from contesting the election by virtue of Ext. P1 judgment rendered by the Judicial First Class Magistrate-I, Kuthuparamba, in C.C. No. 629/94 whereby he was convicted for the offences punishable under Sections 143, 148, 427 and 353 read with Section 149 of the Indian Penal Code as also for the offence under Section 3(2) of the Prevention of Damage to Public Property Act 1984 read with Section 149 of the IPC. He was sentenced to undergo rigorous imprisonment for one month for the offence under Section 143; for six months under Section 148; for one month under Section 447; for six months under Section 353 and three months under Section 427 all read with Section 149 of the IPC. He was also sentenced to undergo rigorous imprisonment for one year for the offence under Section 3(2)(e) of the PDPP Act read with Section 149 of the IPC. The total period of sentence which the respondent was directed to undergo consecutively as per the said judgment, was 29 months.
4. Sri. Ramakumar, learned counsel for the petitioner, argued that in view of the said judgment, the Returning Officer erred in rejecting Ext. P2 objections raised by the petitioner and in passing Ext. P3 order on 24.4.2001 finding that the nomination tendered by the respondent was accepted. The further contention of the petitioner is that the nomination having been accepted in violation of the prohibition contained in Section 8(3) of the Representation of the People Act, 1951, the result of the election should be declared void applying Section 100(1)(a) of the R.P. Act, 1951 which provides that if the High Court is of opinion 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 under the R.P. Act, 1951 or the Government of Union Territories Act, 1963 (Act 20 of 1963) the High Court could declare the election of the returned candidate to void.
5. Sri. T.P. Kelu Nambiar, who appeared for the respondent, submitted that there was no disqualification on the part of the respondent under Ext. P1 judgment and that the Returning Officer was well justified in rejecting Ext. P2 objection and in taking the view that the nomination tendered by the respondent was acceptable. According to him, the reference to "any offence" in Section 8(3) of the R.P. Act applies to conviction for any single offence and the sentence imposed therefor and not to the cumulative effect of various sentences awarded for different offences albeit in one and the same trial. He would therefore contend that the question to be looked into is whether under Ext. P1 judgment the respondent was sentenced for any single offence for a period of not less than two years and viewed from that perspective, the Returning Officer, according to him, was correct in his conclusion that there was no disqualification.
6. It is further argued by the respondent's counsel that as per Ext. R1 judgment passed on 25.7.2001, the Sessions Court, Thalassery, while upholding the conviction for the aforesaid offences, has declared that the sentences for the various offences would run concurrently instead of consecutively as directed by the trial court. It is therefore pointed out that even if the cumulative effect of all the sentences mentioned in Ext. P1 judgment are taken into account, the total period that the respondent will have to undergo in case the revision field by him challenging Ext. R1 before this Court which is presently pending, is dismissed, and that becomes final, is only rigorous imprisonment for one year which is below the limit contemplated in Section 8(3) of the R.P. Act.
7. The Issues raised in the case are:
(1) Whether the E.P. is liable to be dismissed in limine under Section 86 of the Representation of the People Act, 1951 or for defective verification or for any other reason?
(2) Whether the respondent was disqualified to contest the election under Article 191(1)(e) of the Constitution of India read with Section 8(3) of the R.P. Act, 1951 in view of the conviction under Annexure I judgment?
(3) Whether the conviction and sentence under Annexure I judgment was in force on the date of filing the nomination?
(4) Whether the election of the respondent is liable to be declared void for any of the reasons alleged in the Election Petition?
(5) Reliefs and costs.
8. The evidence adduced in the case consist of the depositions of the parties as PW.1 and RW1 respectively and Exts. P1 to P4, R1 and R2.
9. Issue No. 1:- In the absence of any argument advanced during hearing justifying dismissal of the E.P. under Section 86 of the Representation of the People Act, 1951 the Issue is answered in favour of the petitioner.
10. Issue Nos. 2 and 3:- These are considered together for the sake of convenience. Ext. P1 is the certified copy of the judgment of the Judicial First Class Magistrate's Court, Kuthuparamba, passe don 9.4.1997 convicting the respondent, as stated in para 3 above, for various offences and imposing consecutive sentences stretching to a total period of 29 months; the longest of any individual sentence being for one year only. As already mentioned, Ext. P2 objection raised by the petitioner on the strength of Ext. P1 judgment was overruled by the Returning Officer vide Ext. P3. Ext. P4 is an order of the Election Commission of India relating to criminalisation of politics and pointing out, inter alia, that in view of the decision of the Apex Court in Sarat Chandra's case ISLP No. 6303/94 dated 9.4.96) suspension of sentence does not wipe out the conviction and sentence and that the disqualification arising from conviction under Section 8(3) of the R.P. Act, in the case of sentence for not less than 2 years, is not automatically suspended in spite of an order of suspension passed by the Appellate Court and that Returning Officers shod take note of this legal position at the time of scrutiny of nominations. Ext. R2 shows that on 24.4.97 the Appellate Court (Sessions Court, Thalassery) suspended Ext. P1 sentence. Ext. R1 proves that the said court on 25.7.2001 disposed of the appeal itself. The conviction were sustained; but the sentences was made concurrent. The question then is whether Ext. R1 judgment casts any disability under Section 8(3) of the Act as suggested in Ext. P4 order of the Election Commission or under Article 191(1)(e) of the Constitution of India which reads as follows:
"191. Disqualifications for membership.-
(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Counsel of a State-
xxx xxx xxx xxx
(e) if he is so disqualified by or under any law made by Parliament".
11. Both sides relied heavily on case law on the subject in support of the respective contention though the exact point arising for decision in this case, namely, whether the reference to the crucial words "convicted of any offence and sentenced to imprisonment for not less than two years" refers to conviction and sentence for each individual offence or whether it applies cumulatively with regard to the sentences imposed for all the offences charged and tried together in one and same trial, did not arise for decision in any previous case. To understand the scope, purport and intent of the disqualification, reference is necessary to Section 8(3) of the R.P. Act which is extracted hereunder:
"8. Disqualification on conviction for certain offences.-
xxx xxx xx (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".
(emphasised supplied)
12. I shall now refer to the case law on the point. Sarat Chandra Rabha v. Khagendranath (1961 SC 334) relied on by the petitioner related to a case where the successful candidate had been convicted for the offence under Section 4(b) of the Explosive Substances Act (Act 6 of 1996) and sentenced to undergo rigorous imprisonment for three years. His sentence was subsequently remitted by the Government of Assam on 8.11.1954 and that was the position that prevailed as on the date when he filed the nomination. The question that arose was the impact of the order of remission i.e., whether the sentence of rigorous imprisonment for three years subsisted as on the date on which he tendered the nomination. The Supreme Court held that 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 tem of imprisonment inflicted by the court; and that the order of conviction and sentence passed by the court will stand as it was in spite of order or remission which of course enables the convict to be free from suffering the sentence. The said decision dies not have any direct impact on the present case in so far as thee is no remission involved here and the impact of Ext. R1 judgment was only in rendering the sentence mentioned in Ext. P1 to run concurrently instead of consecutively.
13. Manni Lal v. Parmai Lal and Ors. (1970 (2) SCC 462) was a case where the successful candidate was convicted and sentenced for 2 years prior to the polling and declaration of results; though as on the date when the nomination papers were filed, he had not been convicted or sentenced. During the pendency of the E.P. alleging disqualification under Section 8(3) of the Act, the appellate court reversed the finding of the trial court and acquitted him. The question that arose was whether he was actually disqualified as at the time of election and the impact of the orders of the appellate court. It was found that once an order of acquittal is made by the appellate court, it has to be held that the conviction had been wiped out and did not exist at all. The disqualification which existed on the date of polling was therefore wiped out and the order of acquittal has to be related to the date of conviction of the trial court. In other words, the conviction and sentence had been retrospectively wiped out and as such neither on the date of accepting nomination; nor on the date of pronouncing judgment in the E.P. there existed any disqualification. The reasoning in the said judgment, if applied to the facts of the present case, would mean that the benefit of the sentences running concurrently would date back to the date of Ext. P1 judgment itself and if that is so, the total sentence that the respondent had to suffer even on the date of passing Ext. P3 order has to be taken as for less than two years.
14. Rakesh Singha v. State of Himachal Pradesh (JT 1996 (4) SC 53) relied on by the petitioner was one where the successful candidate was convicted for the offences under Sections 148, 452, 427 and 325 read with Section 149 of the Indian Penal Code; but instead of sentencing him, he was given the benefit of probation invoking Section 360 of the Code of Criminal Procedure. The State challenged the aspect of sentence and it was during the pendency of that State appeal before the High Court that the nomination was accepted on the ground that there was no sentence coming within the purview of Section 8(3) of the R.P. Act, ie., overruling the election petitioner's objection against such acceptance. The appeal from the E.P. was heard by the Apex Court along with the Criminal Appeal challenging the finding of the High Court which had set aside the finding of the trial court granting the benefit of Section 360 of the Cr.P.C. and instead awarded sentence of rigorous imprisonment for a period of three years. The Apex Court found that there was no justification in interfering with the finding of the High Court and on that basis dismissed the appeal which had been filed against the order of the High Court in the E.P. unseating the said convict. The said decision also shows that the High Court, while deciding the E.P. can take note of the developments in the situation with regard to the aspect of sentence and that even if there was no sentence granted to the convict as on the date of acceptance of nomination, if he is sentenced for a period of over two years subsequently by the Appellate Court, that would date back to the date of judgment of the trial court and apply as such on the date of acceptance of nomination affecting the declaration of results as well. In view of the aforesaid decision, it appears very clear that this Court would be justified in looking into Ext. R1 judgment to decide what exactly was the sentence that the respondent was imposed as on the date of acceptance of the nomination and to decide his competence to file nomination on that basis.
15. Vidya Charan Shukla v. Purushottam Lal Kaushik (AIR 1981 SC 547) is a decision on which both sides placed reliance heavily. The petitioner relied on the observation in the said decision that the crucial date under Section 36(2)(a) of the R.P. Act with reference to which the existence or non-existence of disqualification is to be enquired into by the Returning Officer is the date of scrutiny of the nomination of the candidate. The respondent, on the other hand, relied on the further observation in the same judgment that the words "for being chosen" available in Section 100(1)(a) of the R.P. Act with reference to disqualification has to be restricted to "the date of his election" i.e., the date of declaration of the result.
16. After surveying the case law on the point, the Apex Court found in the above judgment that if the successful candidate was disqualified for being chosen at the date of his election or at any earlier stage of any step in the election process on account of his conviction and sentence exceeding two years' imprisonment; but his conviction and sentence are set aside and he is acquitted on appeal before the pronouncement of the judgment in the E.P. pending against him, his disqualification will stand annulled and be rendered non est with retrospective force from its very inception and the challenge to his election on the ground that he was so disqualified will no longer be sustainable. The subsequent developments from the judgment of conviction and till decision on the E.P., it was observed, could be taken note of by the High Court while deciding the election petition. It was also found that in case of acquittal of the successful candidate by the appellate court during the pendency of the E.P. his disqualification alleged by the other side has to be taken as completely and effectively wiped out and the validity of his election liable to be upheld. In this regard it is useful to quote para 35 of the judgment which reads as follows:
"35. It is true that in order to adjudicate upon the validity of the challenge to the appellant's election under Clause (d)(i) of Section 100(1), what was required to be determined by the High Court was whether the nomination of the appellant was properly or improperly accepted by the Returning Officer. But in order to determine this question, it was necessary for the High Court to decide, as a preliminary step, whether the appellant was disqualified at the date of scrutiny of the nomination papers, for if he was disqualified, his nomination could not be said to have been properly accepted by the Returning Officer and if, on the other hand, he was not disqualified, his nomination would have to be regarded as properly accepted by the Returning Officer. The primary question before the High Court, therefore, was whether or not the appellant was disqualified at the date of scrutiny of the nomination papers and it is difficult to see how the determination of this question could be made on any principle other than that governing the determination of a similar question under Clause (a) of Section 100(1). If, as laid down in Mani Lal's case (AIR 1971 SC 330) the returned candidate cannot be said to be disqualified at the date of the election, if before or during the pendency of the election petition in the High Court his conviction is set aside and he is acquitted by the appellate court, it must be held, on the application of the same principle, that, in like circumstances, the returned candidate cannot be said to be disqualified at the date of the scrutiny of the nomination papers. On this view, the appellant could not be said to be disqualified at the date of scrutiny of the nomination paper since his conviction was set aside in appeal by this Court and if that be so, the conclusion must inevitably follow tat the nomination of the appellant was properly accepted by the Returning Officer. The position is analogous to that arising where a case is decided by a Tribunal on the basis of the law then prevailing and subsequently the law is amended with retrospective effect and it is then held by the High Court in the exercise of its writ jurisdiction that the order of the Tribunal discloses and error of law apparent on the face of the record, even though having regard to the law as it then existed, the Tribunal was quite correct in deciding the case in the manner it did, vide Venkatachalam v. Bombay Dyeing & Mfg. Co. Ltd., (1958) 34 ITR 143: (AIR 1958 SC 875)."
17. The decision in V.C. Shukla's case aforementioned came up before a Constitution Bench of 5 learned Judges in the recent decision in Jayalalitha's case (B.R. Kapur v. State of Tamil Nadu and Anr., Writ Petition (C) No. 242 of 2001). That was case where the competence of the 2nd respondent - Ms. J. Jayalalitha to hold the office of Chief Minister of Tamil Nadu was under challenge. She had been convicted by the Special Court in two cases for the offences under Section 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and for the offence under Section 409 of the Indian Penal Code and awarded sentence of rigorous imprisonment for three years and fine of Rs. 10,000/- in C.C. No. 4/97 besides another sentence of rigorous imprisonment for two years imposed under the same section in C.C.No. 13/97. The Apex Court referred to V.C. Shukla's case (cited supra) in para 44 of its judgment and found as follows:
"44.....This case (V.C. Shukla's case) dealt with an election petition and it must be understood in that light. What it laid down does not have a bearing on the question before us; the construction of Article 164 was not an issue. There can be not 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 competently obliterated; but the does not mean that the fact of the conviction and sentence by the lower court is obliterated until the conviction and sentence are set said by an appellate court. The conviction and sentence stand pending decision in the appeal and for the purposes of a provision such as Section 8 of the R.P. Act, determinative of the disqualifications provided for therein."
It can, thus, be seen that the decision in V.C. Shukla's case was approved by the Constitution Bench in Jayalalitha's case as regards retrospective operation of appellate decision on conviction and sentence imposed by the trial court. In view of the decisions aforementioned, it appears to me that the position is beyond doubt that this Court has to decide the disqualification or otherwise of the respondent herein to contest the election taking into account Ext. R1 judgment as well. In other words, the respondent, as on Ext. P4 date, has to be taken as one who suffered the convictions already mentioned for various offences and sentenced to undergo a total period of 29 months for various offences; but liable to undergo actual sentence only for a period of one year on all counts together in view of the direction in Ext. R1 that the sentences are to run concurrently.
18. I shall now consider the novel question whether the "imprisonment for not less than two years" referred to in Section 8(3) of the Act refers to the sentence for each single offence suffered by the respondent or to the cumulative period of sentence awarded as per Ext. P1 judgment. It may straightaway be mentioned that in view of the finding under the previous point that Ext. R1 dates back to Ext. P4 date the respondent cannot be taken as having suffered sentence of not less than two years even assuming that it is the cumulative period that is to be taken into consideration.
19. Sri T.P. Kelu Nambiar, representing the respondent, tried to draw a distinction between the wording appearing in Section 8(1) and 8(2) on the one part and the wording in Section 8(3) on the other. Section 8(1) referring to 'disqualification' speaks of conviction for 'an offence' by a person while Section 8(2)(c) and (d) refer to the words "any provisions" of the Act concerned. Section 8(3) on the other hand refers to "a person convicted of any offence". According to him, the word "any" appearing in Section 8(3) indicates 'one out of many' and the disqualification refers to sentence for any one offence and not to many offences. If the intentions were to the contrary following the wording in Section 8(2) instead of the word "offence", the word "offences" would have been referred to in Section 8(3) also. In this regard, he also referred to the definitions of the word "offence" appearing in Section 40 of the IPC as "a thing made punishable by this Code"; in Section 2(n) of the Code of Criminal Procedure, as "any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871"; in Section 3(38) of the General Clause Act, 1897 where "offence" is defined as "any act or omission made punishable by any law for the time being in force" and to the definition of "offence" available in Section 2(25) of the Interpretation and General Clauses Act, 1125 as "any act or omission made punishable by any law for the time being in force". According to him, the word "offence", thus refers to a single act alone and not to a series of offences and in that perspective the sentence refused to in Section 8(3) of the R.P. Act, 1951 also has to be taken as referring to a single Act. If more than one such at is alleged against the accused in a single trial, according to him, the sentence should exceed not less than two years for any one of the said offences, if at all the disqualification under Section 8(3) should apply. The contention, according to me, is well justified when the purport and intent of Section 8(3) is considered in the background of Sections 8(1) and 8(2) also. Therefore, even if it is assumed that the position revealed by Ext. P1 was binding on the Returning Officer, that being the position prevent on the date of scrutiny of nomination papers, still the sentences imposed for any one of the offences mentioned therein did not exceed two years and as such the Returning Officer was right in arriving at the conclusion which he did while passing Ext. P4. I hold that in order to attract the disqualification under Section 8(3) as person should have been convicted to a sentence of not less than two years and that the cumulative period, even if they are to run consecutively is not to be taken into account.
20. Issue No. 4:- I have already found that the Returning Officer was right in accepting the nomination given by the respondent as valid. There is wide disparity in the votes secured by the respondent and the petitioner. The only ground on which the result of the election is attacked is by invoking Section 100(1)(a) read with Section 8(3) of the R.P. Act, 1951. In these circumstances, the only possible conclusion is that there is no merit in the contention of the petitioner that respondent's election is liable to be declared as void.
21. The Election Petition is without merit and it is accordingly dismissed. In the nature of the case I also direct the petitioner to pay costs of Rs. 5000/- to the respondent.
The Registrar shall intimate the substance of this decision to the Election Commission and to the Speaker of the Kerala Legislature Assembly and shall send to the Election Commission an authenticated copy of this decision as soon as possible as required by Section 103 of the R.P. Act, 1951.