Rajasthan High Court - Jaipur
Narayan Lal vs State Of Rajasthan And Ors. on 3 April, 2002
Equivalent citations: RLW2003(2)RAJ876, 2002(3)WLC447, 2002(4)WLN15
Author: N.N. Mathur
Bench: N.N. Mathur
JUDGMENT Mathur, J.
1. In this Special Appeal directed against the judgment of the learned Single Judge dated 21st August, 2001, a short but interesting question of law of public importance which arises for consideration is-
"Whether a Sarpanch elected by a valid democratic process can be ousted from the office on the ground that he was disqualified to contest the election as on the date of nomination, viz; he was undergoing a trial before the competent court which had taken cognizance of the offence and framed a charge against him of the offence punishable with imprisonment for five years or more inviting applicability of Clause (gg) of Section 19 of the Rajasthan Panchayati Raj Act, 1994 inspite of the fact that on the date of Tribunal upset the election, he stood acquitted of the charges levelled against him?"
2. The question arises in the backdrop of the facts that the appellant - writ petitioner, hereinafter referred-to as 'the petitioner' filed nomination paper to contest the election of Sarpanch, village Denda on 3.2.2002. The nomination was scrutinized and accepted on the same day. There were five candidates in the fray. The appellant secured the highest votes i.e. 525, whereas the nearest rival viz; Shri Beenja secured 283 votes. Thus, he was declared elected. The said election was challenged by way of an Election Petition filed by the respondent No. 5 viz; Pukhraj under Section 43 of the Rajasthan Panchayat Raj Act, 1994' read with Rule 8 of the Rajasthan Panchayali Raj Rules, 1996, hereinafter referred to as 'the Rules of 1996' on the ground that the petitioner's nomination was wrongly accepted, inasmuch as he was disqualified in terms of Section 19(gg) of the act of 1994 as he was facing a criminal trial in the court of the Additional Chief Judicial Magistrate (Environment), Pali.
3. In reply, the petitioner averred that a compromise had taken place between the parties on 27.1.2000 i.e. a week prior to filing of the nomination but due to strike of the employees, the compromise could not be verified. It was verified on 5.8.2000. It was also averred that the defeated candidate challenging the election viz; Pukhraj was also a convict for the offence under Section 420 IPC. He was sentenced to imprisonment for a period of six months and to pay a fine of Rs. 500/-. He was also convicted for the offence Under Section 447 IPC and sentenced to imprisonment for a period of 45 days and to pay a fine of Rs. 200/-. Thus, it was contended that an Election Petition at the instance of such a person is not maintainable. However, the Election Tribunal allowed the Election Petition filed by respondent No. 5 on the ground that the petitioner was disqualified to contest the election of Sarpanch and the acceptance of his nomination form by the Returning Officer, has vitiated the process of election in view of disqualification provided under Clause (gg) of Section 19 of the Act of 1994.
Accordingly, the learned District Judge, Pali by judgment dated 7.8.2001 set aside the election of the petitioner. In the opinion of the learned Single Judge, Clause (gg) of Section 19, which provides a disqualification for contesting the election on the post of Sarpanch on mere pendency of the trial for an offence punishable with imprisonment for five years or more, makes a person ineligible to be elected as a member of the Panchayati Raj Institution and, as such, the result of the trial becomes irrelevant for the purpose of finding the qualification of the person to be elected. The learned Single Judge further expressed that a fact of conviction for an offence and fact of undergoing punishment of imprisonment, both may be deemed wiped out on acquittal, but a fact of undergoing a trial when the elections are held, cannot be wiped out, even after trial results in acquittal.
4. It is contended by Mr. P.P. Chaudhary, learned counsel for the petitioner that the learned Single Judge has committed error in distinguishing the two binding decisions of the Hon'ble Supreme Court viz; Manilal v. Parmai Lal (1) and Vidhya Charan Shukla v. Purshottam Lal Kaushik (2), on unsustainable grounds. On the other hand, it is submitted by Mr. Vijay Bishnoi learned counsel for the respondent, election petitioner, that both the decisions of the Apex Court have been rendered under the scheme of Representation of People Act, whereunder a disqualification was attached from the date of conviction and not on the basis of mere pendency of trial. It is asserted by the learned counsel that the leathed Single Judge has rightly observed that the intention of the legislature in introducing the Clause (gg) in Section 19 of the Act of 1994 was to deal with the qualification of a candidate at the time of nomination.
5. We have given a thoughtful and anxious consideration to the rival contentions. The amendment in Section 19of the Act of 1984 was introduced as follows:
"5. Amendment of Section 19, Rajasthan Act No. 13 of 1994. In Section 19 of the Principal Act."
(i) xxxxxxxxx
(ii) xxxxxxxx
(iii) for the existing Clause (g), the following shall be substituted, namely:
"(g) has been convicted of any offence by a competent court and sentenced to imprisonment for six months or more, such sentence not having been subsequently reversed or remitted or the offender pardoned."
(iv) After Clause (g) and before Clause (h), the following new clause shall be inserted, namely :
"(gg) is under trial in the competent court which has been taken cognizance of the offence and framed the charges against him of any offence punishable with imprisonment for five years or more."
(v) xxxxxxxxxxx
(vi) for the existing proviso (ii), the following shall be substituted, namely;
"(ii) for the purpose of Clause 9c), (g and (k), any person shall become eligible for election after a lapse of six years from the date of his dismissal or the date of conviction, as the case may be."
6. Thus, by amendment, a disqualification is provided for contesting the election on the post of Ranch or Sarpanch to a person, who has been sentenced to imprisonment for six months or more by a competent court or a person against whom, a competent court has taken cognizance of an offence and framed the charges of an offence punishable with imprisonment for five years or more. The proviso (ii) of Section 19 liberates a person from disqualification under Clause (c), (g) & (k) after a lapse of six years from the date of dismissal or the date of conviction as the case may be.
7. The constitutional validity of the said provision has been upheld by the judgment of the Division Bench of this Court in Shiv Ram v. State of Rajasthan (3). While considering the validity of the provision, this Court has taken into consideration the political scenario in the Country i.e. criminalisation in politics. This Court while rejecting the contention that there is a violation of the fundamental rights of a person in not permitting him to contest the election, held that to contest the election is not a fundamental right. It was also observed that as far as the violation of statutory right is concerned, a reasonable restriction can be imposed in the public interest. It appears that the Court was also conscious of the fact that while there is an increase in the criminalisation in the country, there is also growing tendency of false implication to achieve political, business or private motives. The Division Bench also held that the object of the amendment was to keep the persons under cloud, away from the election fray in the larger public interest. The Division Bench in detail examined the provisions of the Code of Criminal Procedure with respect to framing of charge, discharge of the accused person at the stage of charge and quashing of the proceedings. Thus, it appears that the object of the amended provisions of Clause (gg) in Section 19 is to keep away persons against whom on a judicial scrutiny, a prima facie substance is found in the allegations constituting any criminal offence levelled against them, to appear that purity is maintained in election. To say that the intention of the legislature was to completely delink the qualification of the candidate with the result of the trial, is going too far destroying the basics of criminal jurisprudence, so much so even if a person is declared innocent by a competent court, he will carry the stigma once levied by a jealous political opponent, forming a category of "deemed convict" without trial.
8. It is now well settled that the acquittal of an accused has the effect of wiping out the conviction with retrospective effect, as if he had never been convicted and sentenced. In Dilip Kumar Sharma v. State of Madhya Pradesh (4), the Court observed as follows:
"An order of acquittal particularly one passed on merits wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed. An order of acquittal annulling or voiding a conviction operates from nativity. As Kelson puts it, "it is a true annulment, an annulment with retroactive force." So when the conviction (for the offence) was 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,"
9. The Apex Court applied this principle to the question of disqualification of a candidate for being chosen to fill a seat in the Legislative Assembly in Mani Lal's case (supra). The Apex Court while examining the effect of acquittal in appeal of a returned candidate before the decision of an election-petition on his conviction and sentence in the said case, 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 but it will have the effect of retrospectively wiping out the conviction and the sentence awarded by the lower Court. The Court further observed that once the conviction is set aside, it will have the effect as if it never existed at all.
10. The Apex Court in Vidhya Charan Shukla's case (supra) has noticed the ratio decidendi logically deducible from the Mani Lal's case (supra) as follows:
"If the successful candidate is disqualified for being chosen, at the date of his election or at any earlier stage or 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 judgment in the election-petition pending against him, his disqualification is annulled and rendered non- est with retroactive force from its very inception, and the challenge to his election on the ground that he was so disqualified is no longer sustainable."
11. In Vidhya Charan Shukla's case (supra), the Apex Court held that acquittal of a returned candidate before the decision of the election petition pending in the High Court had the retrospective effect making his disqualification non-existent even on the date of scrutiny of nomination.
12. A learned Single Judge of this Court in Hanuman Prasacl v. District Judge, Merta (5) distinguished the decisions of the Apex Court in Mani Lal's case as well as Vidhya Charan Shukla's case (supra) on the ground that the said cases pertained to conviction resulting into acquittal, whereas the case under the Rajasthan Panchayati Raj Act pertained to a distinct happening of commencement of the trialon framing of charge. According to the learned Single Judge, the statutory disqualification provided under Section 19(gg) cannot be wiped off by a subsequent acquittal. We are unable to subscribe to the view of the learned Single Judge. We fail to understand the distinction drawn between 'conviction resulting into acquittal' or 'the commencing of a trial on framing of charge concluding into acquittal'. In our view, the learned Single Judge has erroneously distinguished both the decisions of the Apex Court. The ratio decidendi of both the cases is that if the successful candidate is disqualified for being chosen at the date of election or at any earlier stage of any step in the election process on account of his conviction and sentence but his conviction and sentence are set aside and he is acquitted on appeal before the pronouncement of judgment in the election petition pending against him, his disqualification is annulled and rendered non-est with retroactive effect from its very inception and the challenge to his election on the ground that he was disqualified, can no longer sustain. We are of the view that courts should be extremely slow in ousting a person elected by a democratic process. It is well settled that in the matter of challenge to the election, if two views are possible, the court will favour a a view sustaining the election particularly in a case where there are no allegations of misuse or corrupt practice. A distinction has to be made between 'a right to contest the election' and 'removal of a person duly elected by a democratic process' by. Court order. The constitutional mandate is in favour of the person in whom people have reposed confidence. The object of amended Clause (gg) of Section 19 is to keep a person under cloud away from election till he is facing a trial before the competent court. The purpose is not to punish a person because he is facing trial.
13. Electoral fraud and manipulation afflict development of a country, as it distorts election process. It includes rigging, terrorising voters at polling station etc. Thus, the State of Rajasthan in introducing Clause (gg) of Section 19 has taken lead in the matter of purification of election process. It is different from manipulation Rule of Representation. In democratic governance, an established criminal i.e. convict cannot be permitted to participate. A person inspite of the fact that he was under the cloud at the time of election and he has rightly or wrongly participated and got elected quietly without there being any allegations of electoral fraud or manipulation, cannot be thrown out of his role assigned to him by the people in democratic governance. A person is denied participation in election because he carries stigma of a "convict" but in case of a person facing trial, it does not carry stigma. In service jurisprudence, it is like person under suspension on account of criminal trial. If the theory of wiping off the disqualification can be made applicable to conviction being converted into acquittal, the case of pending trial concluded into acquittal stands still on a better footing. The trial concluded into acquittal can reasonably lead to the inference that a candidate was falsely implicated in a criminal case for an oblique purpose to keep him out of the election fray, by his political opponents or other person interested.
14. A hypothetical question can be posed that had the petitioner's nomination being rejected by the returning officer on the ground being charged in a criminal case, could he file an election petition after quashing of charges or acquittal on the ground that his nomination has been improperly rejected? Obviously, the answer would be in negative. But, this does not apply in case of a person whose nomination has been accepted for whatever reasons inspite of the fact that he was disqualified on the date of nomination as the trial was pending against him, who has been acquitted before the election petition is decided. Certain injuries which beyond repairing becomes fate accomply but such instance does not compel the court to necessarily cause injury for no reason except desire to bring at par with the unfortunate case of irreparable injury.
15. In view of the aforesaid, we are in respectful disagreement with the view expressed by the learned Single Judge and answer the question posed in negative. The learned District Judge has committed error in setting aside the election of the petitioner appellant.
16. We have prepared the judgment expressing our view on the question formulated in para I of the judgment. The case is to be fixed for pronouncement of judgment. At this juncture, Mr. Vijay Bishnoi, learned counsel for the respondents, has brought to our notice the judgment of the Division Bench of this Court dated 25.1.2002 rendered in Bangali @ Bangali Ram v. District Judge, Alwar (6), wherein the identical question has been answered against the elected Sarpanch. Having read the judgment, we find that the view taken by us is in conflict with the view taken by the Division Bench in Bangali's case (supra). Therefore, instead of straightway pronouncing the judgment, we feel that the matter requires to be considered by the larger Bench consisting of more than two judges for decision on the question already formulated in para 1 of the judgment.
17. Let this matter be placed before Hon'bie the Chief Justice under Rule 59 of the Rules of the High Court of Judicature for Rajasthan, 1952 for appropriate decision and directions.