# B [R.C. LAHOTI, CJ., SHIVARAJ v. PATIL, K.G. BALAKRISHNAN, B.N

- **Citation:** [2005] 1 S.C.R. 296
- **Court:** Supreme Court of India
- **Decided:** 2005-01-11
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-r-c-lahoti-cj-shivaraj-v-patil-k-g-balakrishnan-b-n-20419
- **Pages:** 38

## Headnote

A
K. PRABHAKARAN
I'.
P. JAY ARAJAN
JANUARY 11, 2005
B [R.C. LAHOTI, CJ., SHIVARAJ V. PATIL, K.G. BALAKRISHNAN, B.N.
c
D
SRIKRISHNA AND G.P. MATHUR, JJ.)
Representation of the People Act, 1951:
Section 8(3)-Disqualification under-Determination of-Subsequent
appei'late judgment having bearing on the conviction and sentence of the
candidate-Effect of-On disqualification-Held: the disqualification has to
be determined with reference to date of election and date of scrutiny of
nomination paper and not the date of judgment in an election petition or in
appeal thereagainst-Appe/late judgment of a date subsequent to the date of
nomination or election would not have the effect of wiping out the
disqualification from a back date-Sections 100(/)(a) and (dl(i), 67A and
36(2)(a).
·Section 8(3)-Term of imprisonment of 2 years-Determination of-For
incurring disqualification-Held: For determining the term of imprisonment,
E in case of consecutive sentences, the aggregate period of punishment for all
the offences and in case of concurrent sentences, the longest of the several
terms of imprisonment is to be taken into consideration-In order to attract
disqualification, it is not necessary that the term must be in respect of one
single offence-The provisions of Section 8 have to be construed in harmony
p
with the provisions ofCr.P.C.-Code of Criminal Procedure, 1973-Section
31.
Section 8(4)-Savingfrom disqualification-Applicability of-Held: The
saving is available only so long as the House continues and the candidate
continues to be member of the House-It ceases to apply if the House is
G dissolved or the candidate ceases to be member of the House.
H
Constitution of India, 1950:
Article 14-Candidates at election--C/assification as 'member of House'
and 'non-member of House' for the purpose of disqualification-Propriety of
296
K. PRABHAKARAN v. I' . .IA YARA.IAN
297
such classification-Held: such classification is reasonable and based on well A
laid down differentia and has nexus with public purpose sought to be achievedRepresentation of the People Act, 1951-Sections 8(3) and (4).
Interpretation of Statute:
Interpretation of provision of law and pronouncement on the construction B
of statutory provision-Held: While interpreting and pronouncing it should be
kept in mind that the view would be applied to myriad situations-Interpretation
-~
resulting in conji1sion, anomaly, uncertainty and practical difficulties has to
be avoided
I ·y.
Legal Fiction-Meaning and use of-Held: Legal fiction presupposes C
existence of not-existent state of facts and then works out the consequence$
flowing from those state of facts-Since it is created only for some definite
purpose, it should be limited to that purpose-Stretching it beyond that
legitimate field would amount to an illegitimate extension of the purpose of
the legal fiction.
D
Words and Phrases:
Expression "Any offence" in the context of Section 8(3) of Representation
of People Act, 1951.
The questions which arose for consideration before this Court were:
(1) Whether an appellate judgment of a date subsequent to the date
of election and having a bearing on conviction of a candidate and sentence
E
of imprisonment passed on him would have the effect of wiping out
disqualification from a back date if a person consequent upon his F
conviction for any offence and sentenced to imprisonment for not less than
2 years was disqualified from filing nomination and contesting the election
on the dates of nomination and election?
(2) What is the meaning to be assigned to the expression-" A person
convicted of any offence and sentenced to imprisonment for not less than G
2 years" as employed in sub-section (3) of Section 8 of the Representation
of the People Act, 1951? Is it necessary that the term of imprisonment
for not less than 2 years must be in respect of one single offence to attract
the disqaualification?
(3) What is the purport of sub-section (4) of Section 8 of the Act; H
298
SUPREME COURT REPORTS
[2005] I S.C.R

## Text

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A
K. PRABHAKARAN
I'.
P. JAY ARAJAN
JANUARY 11, 2005
B [R.C. LAHOTI, CJ., SHIVARAJ V. PATIL, K.G. BALAKRISHNAN, B.N.
c
D
SRIKRISHNA AND G.P. MATHUR, JJ.)
Representation of the People Act, 1951:
Section 8(3)-Disqualification under-Determination of-Subsequent
appei'late judgment having bearing on the conviction and sentence of the
candidate-Effect of-On disqualification-Held: the disqualification has to
be determined with reference to date of election and date of scrutiny of
nomination paper and not the date of judgment in an election petition or in
appeal thereagainst-Appe/late judgment of a date subsequent to the date of
nomination or election would not have the effect of wiping out the
disqualification from a back date-Sections 100(/)(a) and (dl(i), 67A and
36(2)(a).
·Section 8(3)-Term of imprisonment of 2 years-Determination of-For
incurring disqualification-Held: For determining the term of imprisonment,
E in case of consecutive sentences, the aggregate period of punishment for all
the offences and in case of concurrent sentences, the longest of the several
terms of imprisonment is to be taken into consideration-In order to attract
disqualification, it is not necessary that the term must be in respect of one
single offence-The provisions of Section 8 have to be construed in harmony
p
with the provisions ofCr.P.C.-Code of Criminal Procedure, 1973-Section
31.
Section 8(4)-Savingfrom disqualification-Applicability of-Held: The
saving is available only so long as the House continues and the candidate
continues to be member of the House-It ceases to apply if the House is
G dissolved or the candidate ceases to be member of the House.
H
Constitution of India, 1950:
Article 14-Candidates at election--C/assification as 'member of House'
and 'non-member of House' for the purpose of disqualification-Propriety of
296
K. PRABHAKARAN v. I' . .IA YARA.IAN
297
such classification-Held: such classification is reasonable and based on well A
laid down differentia and has nexus with public purpose sought to be achievedRepresentation of the People Act, 1951-Sections 8(3) and (4).
Interpretation of Statute:
Interpretation of provision of law and pronouncement on the construction B
of statutory provision-Held: While interpreting and pronouncing it should be
kept in mind that the view would be applied to myriad situations-Interpretation
-~
resulting in conji1sion, anomaly, uncertainty and practical difficulties has to
be avoided
I ·y.
Legal Fiction-Meaning and use of-Held: Legal fiction presupposes C
existence of not-existent state of facts and then works out the consequence$
flowing from those state of facts-Since it is created only for some definite
purpose, it should be limited to that purpose-Stretching it beyond that
legitimate field would amount to an illegitimate extension of the purpose of
the legal fiction.
D
Words and Phrases:
Expression "Any offence" in the context of Section 8(3) of Representation
of People Act, 1951.
The questions which arose for consideration before this Court were:
(1) Whether an appellate judgment of a date subsequent to the date
of election and having a bearing on conviction of a candidate and sentence
E
of imprisonment passed on him would have the effect of wiping out
disqualification from a back date if a person consequent upon his F
conviction for any offence and sentenced to imprisonment for not less than
2 years was disqualified from filing nomination and contesting the election
on the dates of nomination and election?
(2) What is the meaning to be assigned to the expression-" A person
convicted of any offence and sentenced to imprisonment for not less than G
2 years" as employed in sub-section (3) of Section 8 of the Representation
of the People Act, 1951? Is it necessary that the term of imprisonment
for not less than 2 years must be in respect of one single offence to attract
the disqaualification?
(3) What is the purport of sub-section (4) of Section 8 of the Act; H
298
SUPREME COURT REPORTS
[2005] I S.C.R.
A whether the protection against disqualification conferred by sub-section
(4) on a member ofa House would continue to apply though the candidate
had ceased to be a member of Parliament or Legislature of a State on the
date of nomination or election?
B
Allowing the appeal, the Court
HELD: Per lahoti, CJ. (for himself and for Patil, Srikrishna and
Mathur, JJ.):
1.1. The question of qualification or disqualification of a returned
;-
candidate within the meaning of Section IOO(l)(a) of the Representation
C of the People Act, 1951 has to be determined by reference to the date of
his election which date, as defined in Section 67 A of the Act, shall be the
date on which the candidate is declared by the Returning Officer to be
elected. Whether a nomination was improperly accepted shall have to be
determined for the purpose of Section IOO(l)(d)(i) by reference to the date
D fixed for the scrutiny of nomination, the expression, as occurring in Section
36(2)(a) of the Act. Such dates are the focal point for the purpose of
determining whether the candidate is not qualified or is disqualified for
being chosen to fill the seat in a House. It is by reference to such focal
point dates that the question of disqualification under Sub-sections (I),
(2) and (3) of Section 8 shall have to be determined. The factum of
E pendency of an appeal against conviction is irrelevant and inconsequential.
So also a subsequent decision in appeal or revision setting aside the
conviction or sentence or reduction to sentence would not have the effect
of wiping out the disqualification which did exist on the focal point dates.
The decision dates are the date of election and the date of scrutiny of
F nomination and not the date of judgment in an election petition or in
appeal thereagainst. [328-G; 329-BI
Amrit Lal Ambalal Patel v. Himathbhai Gomanbhai Patel and Anr., AIR
(1968) SC 1455, relied on.
G
1.2. An appellate judgment of a date subsequent to the date of
nomination or election.(as the case may be) and having a bearing on
conviction of a candidate or sentence of imprisonment passed on him
would not have the effect of wiping out disqualification from a back date
if a person consequent upon his conviction for any offence and sentenced
to imprisonment for not less than two years was actually and as a fact
H disqualified from filing nomination and contesting the election on the date
..,,
'r
~
...,,
K. PRABHAKARAN v. P. JAY ARA.lAN
299
of nomination or election (as the case may be). 1321-G-HI
Shri Mani Lal v. Shri Parniai Lal and Ors., (1970( 2 SCC 462 and Vidya
Charan Shukla v. Purshottam Lal Kaushik, (1981] 2 SCC 84, overruled.
Dalip Kumar Sharma v. State of MP., 11976( 1SCC560, distinguished.
1.3. What is relevant for the purpose of Section 8(3) is the actual
period of imprisonment which any person convicted shall have to undergo
or would have undergone consequent upon the sentence of imprisonment
pronounced by the Court and that has to be seen by reference to the date
of scrutiny of nominations or date of election. All other factors are
irrelevant. A person convicted may have filed an appeal. He may also have
secured an order suspending execution of the sentence or the order
appealed against under Section 389 of the Code of Criminal Procedure,
1973. But that again would be of no consequence. A Court of appeal is
empowered under Section 389 to order that pending an appeal by a
convicted person the execution of the sentence or order appealed against
be suspended and also, if he is in confinement, that he be released on bail
or bond. What is suspended is not the conviction or sentence; it is only
the execution of the sentence or order which is suspended. It is suspended
and not obliterated. (320-D-F]
Sara/ Chandra Rabha and Ors. v. Khagendranath Nath and Ors., ( 1961]
2 SCR 133, followed.
1.4. The proceedings in election petition are independent of the
election proceedings which are held by the Executive. By no stretc'1 of
imagination the proceedings in election petition can be called or termed
as continuation of election proceedings. The High Court trying an election
petition is not hearing an appeal against the decision of Returning Officer
or declaration of result of a candidate. (316-C]
1.5. Undoubtedly, the High Court is forming an opinion on the date
of judgment in election petition but that opinion has to be formed by
reference to the date of scrutiny, based not on such facts as can be
fictionally deemed to have existed on a back date dictated by some
subsequent event, but based on the facts as they had actually existed then,
so as to find out whether the Returning Officer was right or wrong in his
decision on scrutiny of nomination on that date, i.e., the date of scrutiny.
The correctness or otherwise of such decision by the Returning Officer
A
B
c
D
E
F
G
H
300
SUPREME COURT REPORTS
[2005] I S.C.R.
A cannot be left to be determined by any event which may have happened
between the date of scrutiny and the date of pronouncement of the
judgment by the High OJurt. 1316-E-FI
(
1.6. While interpreting a provision of law and pronouncing upon the
construction of a statutory provision the Court has to keep in mind that
B the view of the law taken by it would be applied to myriad situations which
are likely to arise. Such interpretation has to be avoided as it would result
in creating confusion, anomaly, uncertainty and practical difficulties in
the working of any system. 1316-G; 317-AI
;-
1.7. An appellate judgment in a criminal case, exonerating the
C accused-appellant, has the effect of wiping out the conviction as recorded
by the trial Court and the sentence passed thereon - is a legal fiction. While
pressing into service a legal fiction it should not be forgotten that legal
fictions are created only for some definite purpose and the fiction is to be
limited to the purpose for which it was created and should not be extended
D beyond that legitimate field. A legal fiction pre-supposes the existence of
the state of facts which may not exist and then works out the consequences
which now from that state of facts. Such consequences have got to be
worked out only to their logical extent having due regard to the purpose
for which the legal fiction has been created. Stretching the consequences
l'
· beyond what logically nows amounts to an illegitimate extension of the
E purpose of the legal fiction. Fictionally an appellate acquittal wipes out
the trial Court conviction, yet, to hold on the strength of such legal fiction
that a candidate though convicted and sentenced to imprisonment for two
years or more was not disqualified on the date of scrutiny of the
nomination, consequent upon his acquittal on a much later date, would
p be an illegitimate extension of the purpose of the legal fiction.
[319-A-C, G-Hl
2.1. For the purpose of attracting applicability of disqualification
within the meaning of "a person convicted of any offence and sentenced
to imprisonment for not less than two years", the expression as occurring
G in Section 8(3) of the Act, what has to be seen is the total length of time
for which a person has been ordered to remain in prison consequent upon
the conviction and sentence pronounced at a trial. The word 'any'
qualifying the word 'offence' should be understood as meaning the nature
of offence and not the number of offence/offences. The use of adjective
H 'any' qualifying the noun 'offence' cannot be pressed in service to
K. PRABHAKARAN v. P . .IA YA RAJAN
301
countenance the submission that the sentence of imprisonment for not less A
than two years must be in respect of a single offence. 1329-C-D; 325-CI
2.2. The word 'any' may have one of the several meanings, according
to the context and the circumstances. It may mean 'all', 'each'; 'every';
'some'; or 'one' or many out of several'. The word 'any' may be used to
indicate the quantity such as 'some', 'out of many', 'an infinite number'. B
It may also be used to indicate quality or nature of the noun which it
qualifies as an adjective such as 'all or 'every'. 13Z4-C-H]
Shri Balaganesan Metals v. MN. Shanmugham Chetty and Ors., 119871
2 sec 707, relied on.
Black's Law Dictionary (sixth Edition) p. 94; Law Lexicon, P. Ramanatha
Aiyar, Second Edition. p.116; Principals of Statuto1y Interpretation by Justice
G.P. Singh, 9th Edition, 2004 p. 302, referred to.
c
2.3. The purpose of enacting disqualification under Section 8(3) of D
the Act is to prevent criminalization of politics. Section 8 seeks to promote
freedom and fairness at elections, as "also law and order being maintained
while the elections are being held. The provision has to be so meaningfully
construed as to effectively prevent the mischief sought to be prevented. The
expression 'a person convicted of any offence' has to be construed as 'all
offences of which a person has been charged and held guilty at one trial'. E
The applicability of the expression usentenced to imprisonment for not less
than 2 years" would be decided by calculating the total term of
imprisonment for which the person has been sentenced.
1325-F-H; 326-A-B]
2.4. Under Section 31 Cr.r.C., it is competent for a criminal court to F
pass several punishments for the several offences of which the accused has
been held guilty. The several terms of imprisonment to which the accused
has been sentenced commence one after the other and in such order as the
court may direct, unless the Court directs that such punishments shall run
concurrently. Each of the terms of imprisonment to which the accused has G
been sentenced for the several offences has to be within the power of the
Court and the term of imprisonment is not rendered illegal or beyond the
power of the Court merely because the total term of imprisonment in the
case of consecutive sentences is in excess of the punishment within the
competency of the Court. For the purpose of appeal by a convicted person
it is the aggregate of the consecutive sentences passed against him which H
302
SUPREME COURT REPORTS
[2005] I S.C.R.
A shall be deemed to be a single sentence. The same principle can be held
good and applied to determining disqualification. Under Section 8(3) of
the Act, the period of disqualification commences from the date of such
conviction. The disqualification continues to operate for a further period
of six years calculated from the date of his release from imprisonment.
B Thus, the disqualification commences from the date of conviction whether
or not the person has been taken into custody to undergo the sentence of
imprisonment. He cannot escape the effect of disqualification merely
because he has not been taken into custody because he was on bail or was
absconding. The actual period of imprisonment is relevant. [323-A-FI
r
C
2.5. The provisions of Section 8 of the Act have to be construed in
harmony with the provisions of the Cr.P.C. and in such manner as to give
effect to the provisions contained in both the legislations. In the case of
consecutive sentences the aggregate period of imprisonment awarded as
punishment for the several offences and in the case of punishments
consisting of several terms of imprisonment made to run concurrently, the
D longest of the several terms of imprisonment would be relevant to be taken
into consideration for the purpose of deciding whether the sentence of
imprisonment is for less than 2 years or not. [323-F-GI
2.6. It cannot be said that Section 8 of the Act is a penal provision
and therefore should be construed strictly. Contesting an election is a
E statutory right and qualifications and disqualifications for holding the
office can be statutorily prescribed. A provision for disqualification cannot
be termed a penal provision and certainly cannot be equated with a penal
provision contained in a criminal law. [326-B-C]
F
La/ita Jalan and Anr. v. Bombay Gas Co. Ltd. and Ors., [2003] 6 SCC
107, relied on.
3.1. Sub-section (4) of Section 8 of the Act is an exception carved
out from sub-Sections (1), (2) and (3). The saving from disqualification is
preconditioned by the person convicted being a Member of a House on
G the date of the conviction. The purpose of carving out such an exception
is not to confer an advantage on any person; the purpose is to protect the
House. The benefit of such saving is available only so long as the House
continues to exist and the person continues to be a Member of a House.
The saving ceases to apply if the House is dissolved or tile person ceases
to be Member of the House. [328-EI
H
j y
K. PRABHAKARAN r. P. JAY ARAJAN
303
Shibu Soren v. Dayanand Sahay and Ors., 120011 7 SCC 425, relied A
on.
3.2. A comparative reading of sub-sections (3) and (4) of Section 8
of the Act shows that Parliament has chosen to classify candidates at an
election into two classes for the purpose of enacting disqualification, i.e.:
(I) a person who on the date of conviction is a member of Parliament or B
Legislature of a State, and (ii) a person who is not such a member. The
persons falling in the two groups are well defined and determinable groups
and, therefore, form two definite classes. Such classification cannot be said
to be unreasonable as it is based on a well laid down differentia and has
nexus with a public purpose sought to be achieved. [326-H; 327-A-B]
C
Per Balakrishnan, J: (Partly dissenting):
I. From the words used in the first part of Section 8(3) of the Act,
viz. "a person convicted of any offence", it is clear that in order to incur
disqualification, the person must have been convicted of any offence and D
sentenced to imprisonment for not less than two years. Out of the offences
on six counts, for which the respondent had been found guilty, if all of
them are taken individually, the respondent is not a person convicted of
any offence, for which the sentence imposed on him is more than two years.
It is the gravity of the offence that matters and not the conviction for
various minor offences and the total period of two years or more to be E
calculated by putting together all sentences for various minor offences .
. "Any offence" used in Section 8(3) of the Act is to be taken as "out of
many offences". [331-Ef
2. Merely because the Magistrate ordered that the sentence shall run
consecutively, and the aggreg1te period exceeds two years or more, a
person convicted would not incur the disqualification under Section 8(3)
F
of the Act. The direction for the sentence to run concurrently or
consecutively is a direction as to the mode in which sentence is to be
executed. That does not affect the nature of the sentence. The
disqualification under Section 8(3) of the Act shall not be solely dependent G
on the direction as to the mode in which the sentence is to be executed,
especially when there are no statutory or judicial guidelines in this regard.
[332-B-DI
3. The words of Section 8(3) are to be strictly interpreted and if only
the person squarely come.s within the four corners of the ordinary meaning H
304
SUPREME COURT REPORTS
[2005) I S.C.R.
A of the words used in the Section, the disqualification could be used against
him. If he has not been convicted for any offence, for not less than two
years, he is not liable to be disqualified from contesting the election. Of
course, criminalization of politics has become a serious problem to be
tackled and no body would dispute that it affects the very foundation of
B our democratic institutions, but that by itself is not sufficient to interpret
the words in a very expansive manner so as to include within its ambit
the persons who are strictly not coming within its purview, especially when
the disqualification is not only from contesting the election and the
disqualification would continue for a further period of six years since the
release. [332-E-H)
c
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8213 vf2001.
From the Judgment and Order dated 5.10.2001 of the Kerala High
Court in E.P. No. 1 of 2001.
WITH
C.A. No. 6691 of 2002.
L. Nageswara Rao, K.K. Venugopal, Roy Abraham, Ms. Seema Jain,
Himinder Lal, Ajay Verma, Nikhil Majithia, Sudanshu Srivastava, Appellantln-Person in C.A. No. 6691/2002 and M.C. Dhingra, G. Prakash and Ms.
E Beena Prakash, Ranbir Singh Kundoo and Sanjay Sharawat for the appearing
parties.
The following Judgments/Order of the Court was delivered by
R.C. LAHOTI, CJI. (FOR SELF AND ON BEHALF OF HON.
F SHIVARAJ V. PATIL, B.N. SRIKRISHNA AND G.P. MATHUR JJ.)
Facts in C.A. No. 8213/2001
Election to the No. 14 Kuthuparamba Assembly Constituency was held
in the months of April-May, 2001. There were three candidates, including
G the appellant K. Prabhakaran and the respondent P. Jayarajan contesting the
election. Nominations were filed on 24.4.200 I. The poll was held on
10.5.2001. The result of the election was declared on 13.5.2001. The
respondent was declared as elected.
In connection with an incident dated 9.12.1991, the respondent was
H facing trial charged with several offences. On 9.4.1997, the Judicial Magistrate
K. PRABHAKARAN v P . .IAYARAJAN [LAHOTI. C.1.]
305
First Class, Kuthuparamba held the respondent guilty of the offences and A
sentenced him to undergo imprisonment as under :-
Offences
Sentence
Under Section 143 read with
R.I. for a period of one month
Section 149 IPC
B
Under Section 148 read with
R. I. for six months
Section 149 I PC
Under Section 44 7 read with
R. I. for one month
Section 149 IPC
c
Under Section 353 read with
R.I. for six months
Section 149 IPC
Under Section 427 read with
R.I. for three months
Section 149 !PC
D
Under Section 3(2) (e) under the
R.I. for one year
P.D.P.P. Act read with
Section 149 !PC
The sentences were directed to run consecutively (and not concurrently).
Thus the respondent was sentenced to undergo imprisonment for a total period E
of 2 years and 5 months. On 24.4.1997, the respondent filed Criminal Appeal
No. 118/1997 before the Sessions Court, Thalassery. In exercise of the power
conferred by Section 389 of the Code of Criminal Procedure, 1973 (hereinafter
'the Code' for short) the Sessions Court directed the execution of the sentence
of imprisonment to be suspended and the respondent to be released on bail
during the hearing of the appeal.
F
The nomination paper filed by the respondent was objected to by the
appellant on the ground that the respondent having been convicted and
sentenced to imprisonment for a term exceeding 2 years was disqualified
from contesting the election. However, the objection was overruled by the
returning officer and the nomination of the respondent was accepted. The G
returning officer formed an opinion that the respondent was convicted for
many offences and any of the terms of imprisonment for which he was
sentenced was not 2 years, and therefore, the disqualification within the
meaning of Section 8(3) of the Representation of the People Act, 1951
(hereinafter 'RPA', for short) was not attracted.
H
306
SUPREME COURT REPORTS
12005 I I S.C.R.
A
On 15.6.2001, the appellant tiled an election petition under Chapter II
of RPA mainly on the ground that the respondent was disqualified, and
therefore, neither his nomination was valid nor could he have been declared
elected.
On 25.7.2001, the Court of Sessions partly allowed the appeal filed by
B the respondent. The conviction of the accused and the sentences passed on
him were maintained, subject to the modification that the substantive sentences
of imprisonment for the several offences for which the respondent was found
guilty were made to run concurrently.
1<
On 5.10.2001, a learned Designated Election Judge of the High Court
C decided the election petition by directing it to be dismissed. The learned
Judge did not find any fault with the view taken by the returning officer that
Section 8(3) of RPA was not attracted. The learned Judge also held that
during the pendency of the election petition, the sentence passed by the trial
court had stood modified by the appellate court which, while maintaining the
D conviction and different terms of imprisonment to which the respondent was
sentenced, had directed the sentences to run concurrently. In the opinion of
the High Court, the sentence, as modified by the appellate court, operated
retrospectively from the date of the judgment of the trial court, and, therefore
also the disqualification had in any case ceased to exist. The High Court
placed reliance on two decisions of this Court namely Shri Manni Lal v. Shri
E Parmai Lal and Ors., (1970] 2 SCC 462 and Vidya Charan Shukla v.
Purshottam Lal Kaushik, (1981] 2 SCC 84.
Facts in C.A. 669112002
On 18.9.1993, FIR No.386 for offences under Sections 148, 307, 323,
F 325, 3261149 oflndian Penal Code and Sections 25 and 27 of Arms Act 1959
was registered against Nafe Singh, respondent No. I. One of the injured persons
in the incident, died after the registration of the F.l.R. and the offence was
converted into one of murder under Section 302 I.P.C. and other accused
persons were arrested. Later on Nafe Singh was released on bail. On I 0.5.1996
G while the charges against Nafe Singh and other accused persons were being
tried, elections took place in the State of Haryana. Nafe Singh contested
elections and on 10.5.1996 he was declared elected as Member of Legislative
Assembly from Bahadargarh Constituency.
On 17.5.1999, the Sessions Court trying the accused and others, h~ld
H Nafe Singh guilty of an offence punishable under Section 302 1.P.C. and
K. PRABHAKARAN v. P . .IA YARA.JAN [LAHOTI. C.1.J
307
other offences. On 19.5.1999 he was sentenced to undergo imprisonment for A
life. On 25.5.1999 he filed an appeal in the High Court against his conviction.
On 8.10.1999 the High Court directed the execution of sentence of
l
imprisonment passed against Nafe Singh to be suspended and also directed
him to be released on bail. Nafe Singh furnished bail bonds and was released
I
on bail. By that time he had undergone imprisonment for four months and
J
B
twenty one days.
On 14.12.1999, the Governor of the State of Haryana dissolved Haryana
'\
Assembly for mid term poll. In the first week of January 2000 the Election
Commission notified the election programme. For 37-Bahadurgarh Assembly
Constituency, the last date for filing nominations was appointed as 3.2.2000. c
On 29.1.2000 Indian National Lok Dal, to which Nafe Singh belonged, released
the first list of its official candidates wherein the name of Smt. Shiela Devi
wife ofNafe Singh, respondent No. I, was included. On 1.2.2000 Smt. Shiela
Devi filed her nomination paper on Indian National Lok Dal ticket. On
2.2.2000 Nafe Singh also filed his nomination paper as a dummy candidate
or an alternative to his wife Smt. Shiela. On the date of the scrutiny of D
nomination papers the appellant objected to the nomination of Nafe Singh
submitting that the latter in view of his conviction and sentence of life
imprisonment passed under Section 302 l.P.C. was disqualified for being
--!
chosen as a member of Haryana Assembly under Article 191 of the
Constitution read with Section 8(3) of the RPA. The objection was overruled E
by the Returning Officer who accepted as valid the nomination paper filed by
Nafe Singh. However, the nomination paper of Smt. Shiela, wife of Nafe
Singh was not found to be in order and hence rejected. Indian National Lok
Dal then nominated Nafe Singh as its candidate from Bahadurgarh Assembly
Constituency. Polling was held on 22.2.2000. Results were declared on
25.2.2000 wherein Nafe Singh was declared elected over the appellant, the F
y
nearest rival, by a margin of 1,648 votes. There were, in all, eleven candidates
, I
in the election fray.
On 8.4.2000, the appellant filed an election petition under Chapter II of
the RPA. One of the grounds taken in the election petition was of improper
acceptance of the nomination paper of Nafe Singh by the Returning Officer. G
Nafe Singh contested the election petition. The learned Designated Election
Judge of the High Court of Punjab and Haryana framed 13 issues arising
"
from the pleadings of the parties. Issues No.1 to 7 were heard as preliminary
issues not requiring any evidence .
..
H
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SUPREME COURT REPORTS
[2005] I S.C.R.
A
Before we may proceed to notice the resu It of the election petition as
determined by the High Cou11, a few more dates need to be noticed, as they
are relevant. The hearing of the preliminary issues commenced on 12.2.2001
and continued for several dates of hearing. On 19.3.200 I Nafe Singh, in spite
r
of the hearing on all the issues having been already concluded, made a
B
request to the High Court that the High Court may first decide his criminal
appeal so that in the event of his being exonerated of the charges and being
acquitted, he could gain the benefit of the decisions of this Court in Shri
Manni Lal v. Shri Parmai Lal and Ors., [ 1970] 2 SCC 462 and Vidya Charan
Shukla v. Purshottam Lal Kaushik, (1981] 2 SCC 84. The prayer made by the
"
respondent - Nafe Singh was opposed on behalf of the appellant. However,
c the learned Designated Election Judge adjourned the hearing to 27 .4.200 I
and then to 3.5.2001 on which date the judgment was reserved. When the
judgment in election petition was still awaited, on l.8.200 I a Division Bench
of the High Court decided the criminal appeal preferred by Nafe Singh,
respondent No. I. The app;!a] was allowed and respondent No. I was directed
D
to be acquitted. The judgment of the Division Bench proceeds on its own
merits but one thing which is noticeable from the judgment of the Division
Bench of the High Court dated 1.8.200 I is that the complainant and the other
injured persons had come to terms with the accused (respondent No. I),
settled their differences and compromised. 15 persons, who had as witnesses
supported the prosecution case at trial, had now filed their affidavits before
~
E the Appellate Court disowning their statements earlier given by them in the
trial court and stated (as the High Court has recorded in its decision), "that
the parties had compromised their disputes and that the F.l.R. had been
lodged on account of suspicion and at the instigation of certain persons and
that no such occurrence had taken place."
F
On 21.8.2001 Nafe Singh, respondent No. I placed the appellate judgment
of acquittal on record of the election petition by moving an application in
that regard. On 20.12.200 I the appella!lt herein made a request to the Hon.
"""
Chief Justice of High Court requesting for his indulgence in getting the
judgment in the election petition being pronounced. On 25.2.2002 the appellant
G
moved an application before the learned Designated Election Judge praying
for pronouncement of judgment at an early date. The judgment was pronounced
on 5.7.2002. The election petition was directed to be dismissed. Out of several
findings recorded by the High Court the two, which are relevant for the
purpose of this appeal, are as under:-
"'
H
(i)
in view of the appeal preferred by the respondent having been
p
~
J
K. PRABHAKARAN v. P . .TAY ARA.TAN [LAHOTI. CJ.]
309
!--
allowed his conviction and sentence passed thereon respectively A
dated 17.5.1999 and 19.5.1999 stood wiped out as if no conviction
had taken place as is the view taken by this Court in the case of
Shri Manni Lal (supra) and Vidya Charan Shukla (supra);
(ii) that on the date of his conviction Nafe Singh was a Member of
Legis:ative Assembly and, therefore, in view of the provisions B
contained in sub-section (4) of Section 8 of the RPA, the
conviction did not take effect for a period of three months and
.,,
as within that period an appeal was preferred which was pending
and not disposed of on the date of nomination and election of
Nafe Singh, he was protected by the said provision and the c
disqualification did not take effect.
Proceedings in the appeals :
The election petitioners in both the cases have preferred t!1ese two
statutory appeals under Section J 16A of the RPA.
D
On I. I 0.2002, C.A. No .. 8213/200 I came up for hearing before a threeJudge Bench. of this Court which expressed doubt about the correctness of
the view taken in the cases of Vidya Charan Shukla (supra) and Manni Lal
(Supra), the former being a three-Judge Bench decision, and, therefore, directed
the matter to be placed for consideration by a Constitution Bench. The Bench E
also felt that the other issue arising for decision in the case as to whether the
applicability of Section 8(3) of RPA would be attracted only when a person
is sentenced to imprisonment for not less than 2 years for a single offence
was also a question having far reaching implications and there being no
decided case of this Court available on the issue, it would be in public
interest to have an authoritative pronouncement by a Constitution Bench so F
....,,
as to settle the law, and hence directed such other question also to be placed
•
for consideration by the Constitution Bench. The order of reference is reported
,
as (2002] 8 sec 79.
C.A. No. 6691/2002 came up for hearing before this Court on 7.4.2003. G
It was directed to be tagged with C.A. No. 8213/200 I in view of one identical
question arising for decision in this appeal. This is how both the appeals have
come up for hearing before this Constitution Bench.
"'
Three questions arise for decision :-
(I) Whether an appellate judgment of a date subsequent to the date H
A
B
c
D
E
F
G
310
SUPREME COURT REPORTS
(2005) I S.C.R.
of election and having a bearing on conviction of a candidate
and sentence of imprisonment passed on him would have the
effect of wiping out disqualification from a back date if a person
consequent upon his conviction for any offence and sentenced to
imprisonment for not less than 2 years was disqualified from
filing nomination and contesting the election on the dates of
nomination and election;
(2) What is the meaning to be assigned to the expression "A person
convicted of any offence and sentenced to imprisonment for not
less than 2 years" as employed in sub-section (3) of Section 8 of
the Representation of the People Act, 1951? Is it necessary that
the term of imprisonment for not less than 2 years must be in
respect of one single offence to attract the disqualification?
(3) What is the purport of sub-section ( 4) of Section 8 of RP A?
Whether the protection against disqualification conferred by subsection (4) on a member of a House would continue to apply
though the candidate had ceased to be a member of Parliament
or Legislature of a State on the date of nomination or election?
Relevant Provisions
The relevant provisions of law may be set out as under :-
Constitution of India
Article 191. "Disqualification for membership - (I) A person shall
be disqualified for being chosen as, and for being, a member of the
Legislative Assembly or Legislative Council of a Statex
x
x
(e) ifhe is so disqualified by or under any law made by Parliament."
x
x
x
The Representation of the People Act, 1951
"8. Disqualification on conviction for certain offencesx
x
x
H
(3) A person convicted of any offence and sentenced to imprisonment
K. PRABHAKARAN v. P. JAY ARAJAN (LAHOTI. CJ.)
311
for not less than two years [other than any offence referred to in sub- A
section ( 1) or sub-section (2)] shall be disqualified from the date of
such conviction and shall continue to be disqualified for a further
period of six years since his release.
(4) Notv1.ithstanding anything in sub-section (I), sub-section (2) of
sub-section (3) a disqualification under either sub-section shall not, in B
the case of a person who on the date of the conviction is a member
of Parliament or the Legislature of a State, take effect until three .
months have elapsed from that date or, if within that period an appeal
or application for revision is brought in respect of the conviction or
the sentence, until that appeal or application is disposed of by the C
court."
"100. Grounds for declaring election to be void.-(!) Subject to the
provisions of sub-section (2) if the High Court is of opinion-
( a) that on the date of his election a returned candidate was not
qualified, or was disqualified, to be chosen to fill the seat under D
the Constitution or this Act; or
(d) that the result of the election, in so far as it concerns a returned
candidate, has been materially affected-
(i) by the improper acceptance or any nomination, or
E
(ii) by any corrupt practice committed in the interests of the
returned candidate by an agent other than his election agent,
or
(iii) by the improper re~eption, refusal or rejection of any vote or
the reception of any vote which is void, or
F
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made
under this Act,
the High Court shall declare the election of the returned candidate to G
be void.
We have briefly stated in the earlier part of the judgment such facts
relating to both the cases which are not in dispute. Before dealing with the
submissions made by the learned counsel for the parties, it would be
appropriate to set out briefly the relevant facts and the Jaw laid down in the H
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[2005] I S.C.R.
A cases of Shri Manni Lal (supra) and Vidya Charan Shukla (supra).
Shri Manni Lal's case
Manni Lat's case (supra) is a two-Judge Bench decision of this Courc.
Parmai Lal, respondent No. I therein, filed his nomination on 9.1.1969. Two
B days later, on 11.1.1969, he was convicted for an offence under Section 304
l.P.C. and sentenced to 10 years RI. On 16.1.1969 he filed an appeal against
his conviction in the High Court. Polling took place on 9.2.1969. Parmai Lal
was declared elected on 11.2.1969. On 30.9.1969 the appeal filed by Parmai
Lal was allowed by the High Court and his conviction and sentence was set
C a>ide. At that point of time, an election petition laying challenge to election
of Parmai Lal was pending which was decided by the judgment delivered on
27.10.1969. The High Court refused to hold Parmai Lal as disqualified under
Section 8(2) of RPA. Manni Lal filed an appeal in this Court. This Court held
that in a criminal case, acquittal in appeal does not take effect merely from
the date of the appellate order setting aside the conviction; it has the effect
D of retrospectively wiping out the conviction and the sentence awarded by the
lower court.
E
F
Bhargava, J., speaking for the Bench, observed - "It is true that the
opinion has to be formed as to whether the successful candidate was
disqualified on the date of his election; but this opinion is to be formed by
the High Court at the time of pronouncing the judgment in the election
petition. In this case, the High Court proceeded to pronounce the judgment
on 27th October, 1969. The High Court had before it the order of acquittal
which had taken effect retrospectively from I Ith January, 1969. It was,
therefore, impossible: for the High Court to arrive at the opinion that on 9th
or I Ith February, 1969, respondent No. I was disqualified. The conviction
and sentence had been retrospectively wiped out, so that the opinion required
to be formed by the High Court to declare the election void could not be
formed." In the opinion of Bhargava, J. the effect of acquittal by the appellate
court was similar to the effect of repeal of an enactment. To quote His
Lordship -
"The situation is similar to one that could have come into existence
G if Parliament itself had chosen to repeal Section 8(2) of the Act retrospectively
with effect from I Ith January, 1969 (the day of conviction of Parmai Lal).
Learned counsel conceded that, if a law had been passed repealing Section
8(2) of the Act and the law had been deemed to come into effect from 11th
January, 1969, he could not have possibly urged thereafter, when the point
H came up before the High Court, that respondent No. I was disqualified on 9th
K. PRABHAKARAN v. P. JAY ARAJAN [LAHOTI, CJ.]
313
f,
or I Ith February, 1969.