# PRADEEP KUMAR SONTHALIA v. DHIRAJ PRASAD SAHU @ DHIRAJ SAHU & ANR

- **Citation:** [2020] 14 S.C.R. 480
- **Court:** Supreme Court of India
- **Decided:** 2020-12-18
- **Case number:** Civil Appeal No. 611 of 2020
- **Bench:** S.A. Bobde, A.S. Bopanna, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pradeep-kumar-sonthalia-v-dhiraj-prasad-sahu-dhiraj-sahu-anr-34411
- **Pages:** 30

## Headnote

Constitution of India - Arts.191, 193, 190, 188 and 80(4) -
Biennial elections for two seats in the Council of States from the
State of Jharkhand - Appellant and two others filed nominations -
An elected member of the Assembly admittedly cast his vote at 9.15
a.m on 23.03.18 in favour of one of the winning candidate - He
was convicted and sentenced in a criminal case in the afternoon of
the same day - Suffered disqualification u/Art.191(1)(e) r/w s.8(3),
1951 Act - Appellant secured 2599 value of votes, and the other
two candidates secured 2601 value of votes and 2600 value of votes
- Objection lodged requesting the Returning Officer to declare the
vote cast by the aforesaid convicted elected member to be invalid -
Rejected - Appellant was declared defeated and the other two
candidates were declared duly elected - Appellant filed election
petition praying for a declaration that the Returning Officer has
caused improper reception of the void vote - Dismissed by High
Court - On appeal, held: To hold that a Member of the Legislative
Assembly stood disqualified even before he was convicted would
grossly violate his substantive right to be treated as innocent until
proved guilty - Thus, vote cast by such member at 9:15 a.m on
23.03.18 was rightly treated as a valid vote - Representation of the
People Act, 1951- ss.8 and 152 - Conduct of Election Rules, 1961
- r.2(d) - Principle of legality - De facto doctrine - Insurance.
Representation of the People Act, 1951 - s.8 - Interpretation
of.
Words & Expressions - "the date" in s.8(3), 1951 Act - Held:
Interpretation to be given to the expression "the date" appearing in
s.8(3) will have a bearing upon the interpretation to be given to the
date of happening of any one of the events of disqualification u/
[2020] 14 S.C.R. 480
480
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Art.191(1) - Representation of the People Act, 1951 - s.8(3) -
Constitution of India - Art.191.
Disposing of the appeals, the Court
HELD: 1.1 Article 191 of the Constitution speaks of the
circumstances under which a person will be treated as disqualified
(i) either for being chosen as (ii) or for being, a member of the State
Legislative Assembly. The language of Article 191 makes it clear
that it covers both a contest in an election and the continuance in
office after getting elected. If a person, being a member of the
Assembly, suffers a disqualification, his seat becomes vacant. This
situation is taken care of by Article 190. The event which causes
the disqualification under Article 191(1)(e) read with Section 8(3)
is a conviction of a person for any of the specified offences. The
consequence of such disqualification is that the seat becomes
vacant. Obviously therefore, a Member of the Legislative
Assembly who has become disqualified and whose seat has become
vacant is not entitled to cast his vote for electing a representative
from his State under Article 80(4) which provides that the
representatives of each State "shall be elected by the elected
members". His name is liable to be deleted from the list of
members of the State Legislative Assembly maintained under
Section 152 of the Representation of the People Act, 1951. He
ceases to be an elector in relation to election by assembly member
and cannot cast his vote. [Paras 11-13][492-G-H; 493-A-H;
494-A-F]
1.2 The Representation of the People Act, 1951 was enacted
for the purpose of providing for the conduct of elections of both
houses of Parliament and to the House/Houses of State
Legislatures, the qualifications and disqualifications for
membership of those houses, the corrupt practices etc. Section 8
of the Act deals with disqualification on conviction for certain
offences. For the purpose of disqualification, the offences are
classified in section 8 into 3 categories. The present case is
concerned with sub-section (3) of section 8, as Amit Kumar Mahto
was convicted for offences which do not fall either under subsection (1) or under sub-section (2). The disqualification under
PRADEEP KUMA

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SUPREME COURT REPORTS
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PRADEEP KUMAR SONTHALIA
v.
DHIRAJ PRASAD SAHU @ DHIRAJ SAHU & ANR.
(Civil Appeal No. 611 of 2020)
DECEMBER 18, 2020
[S.A. BOBDE,CJI, A.S. BOPANNA AND
V. RAMASUBRAMANIAN, JJ.]
Constitution of India - Arts.191, 193, 190, 188 and 80(4) -
Biennial elections for two seats in the Council of States from the
State of Jharkhand - Appellant and two others filed nominations -
An elected member of the Assembly admittedly cast his vote at 9.15
a.m on 23.03.18 in favour of one of the winning candidate - He
was convicted and sentenced in a criminal case in the afternoon of
the same day - Suffered disqualification u/Art.191(1)(e) r/w s.8(3),
1951 Act - Appellant secured 2599 value of votes, and the other
two candidates secured 2601 value of votes and 2600 value of votes
- Objection lodged requesting the Returning Officer to declare the
vote cast by the aforesaid convicted elected member to be invalid -
Rejected - Appellant was declared defeated and the other two
candidates were declared duly elected - Appellant filed election
petition praying for a declaration that the Returning Officer has
caused improper reception of the void vote - Dismissed by High
Court - On appeal, held: To hold that a Member of the Legislative
Assembly stood disqualified even before he was convicted would
grossly violate his substantive right to be treated as innocent until
proved guilty - Thus, vote cast by such member at 9:15 a.m on
23.03.18 was rightly treated as a valid vote - Representation of the
People Act, 1951- ss.8 and 152 - Conduct of Election Rules, 1961
- r.2(d) - Principle of legality - De facto doctrine - Insurance.
Representation of the People Act, 1951 - s.8 - Interpretation
of.
Words & Expressions - "the date" in s.8(3), 1951 Act - Held:
Interpretation to be given to the expression "the date" appearing in
s.8(3) will have a bearing upon the interpretation to be given to the
date of happening of any one of the events of disqualification u/
[2020] 14 S.C.R. 480
480
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Art.191(1) - Representation of the People Act, 1951 - s.8(3) -
Constitution of India - Art.191.
Disposing of the appeals, the Court
HELD: 1.1 Article 191 of the Constitution speaks of the
circumstances under which a person will be treated as disqualified
(i) either for being chosen as (ii) or for being, a member of the State
Legislative Assembly. The language of Article 191 makes it clear
that it covers both a contest in an election and the continuance in
office after getting elected. If a person, being a member of the
Assembly, suffers a disqualification, his seat becomes vacant. This
situation is taken care of by Article 190. The event which causes
the disqualification under Article 191(1)(e) read with Section 8(3)
is a conviction of a person for any of the specified offences. The
consequence of such disqualification is that the seat becomes
vacant. Obviously therefore, a Member of the Legislative
Assembly who has become disqualified and whose seat has become
vacant is not entitled to cast his vote for electing a representative
from his State under Article 80(4) which provides that the
representatives of each State "shall be elected by the elected
members". His name is liable to be deleted from the list of
members of the State Legislative Assembly maintained under
Section 152 of the Representation of the People Act, 1951. He
ceases to be an elector in relation to election by assembly member
and cannot cast his vote. [Paras 11-13][492-G-H; 493-A-H;
494-A-F]
1.2 The Representation of the People Act, 1951 was enacted
for the purpose of providing for the conduct of elections of both
houses of Parliament and to the House/Houses of State
Legislatures, the qualifications and disqualifications for
membership of those houses, the corrupt practices etc. Section 8
of the Act deals with disqualification on conviction for certain
offences. For the purpose of disqualification, the offences are
classified in section 8 into 3 categories. The present case is
concerned with sub-section (3) of section 8, as Amit Kumar Mahto
was convicted for offences which do not fall either under subsection (1) or under sub-section (2). The disqualification under
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Section 8 of Act 43 of 1951 is relatable to Article 191(1)(e) of the
Constitution. Therefore, any interpretation to Section 8 should
be in sync with the Constitutional scheme. [Paras 14, 16 and
17][494-F-H; 495-B-E]
1.3 Section 8(3) of the Act deals both with the conditions of
disqualification and with the period of disqualification. As regards
the period of disqualification, Section 8(3) is comprehensive in
that it indicates both the commencement of the period and its
expiry. The date of conviction is prescribed to be the point of
commencement of disqualification and the date of completion of a
period of six years after release, is prescribed as the point of
expiry of the period of disqualification. Once the period of
disqualification starts running, the seat hitherto held by the person
disqualified becomes vacant by virtue of Article 190(3) of the
Constitution. While speaking about the seat of the disqualified
person becoming vacant, Article 190(3) uses the expression
"thereupon". This has to be kept in mind while interpreting the
words "the date of such conviction". One fundamental principle
that has to be kept in mind while interpreting the phrase appearing
in Section 8(3) is that in cases of this nature, the Court is not
dealing with a fundamental right or a common law right. [Paras
18-20][495-F-H; 496-A-F]
Saritha S. Nair vs. Hibi Eden Decision of Supreme
Court dated 08.12.2020 in SLP (C) No. 10678 of 2020;
Jyoti Basu vs. Devi Ghosal (1982) 1 SCC 691:[1982] 3
SCR 318 - relied on.
2.1 Even in criminal law, there is a vast difference between
(i) the interpretation to be given to the expression "date", while
calculating the period of imprisonment suffered by a person and
(ii) the interpretation to be given to the very same expression
while computing the period limitation for filing an appeal/revision.
Say for instance, a person is convicted and sentenced to
imprisonment and also taken into custody pursuant thereto, on
23.03.2018, the whole of the day of March 23 will be included in
the total period of incarceration. But in contrast, the day of March
23 will be excluded for computing the period of limitation for filing
an appeal. Though one contrasts the other, both interpretations
are intended to benefit the individual. Disqualification is not a
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penal provision and that the object of disqualification is to arrest
criminalisation of politics. But what triggered the disqualification
in this case, under Section 8(3) was a conviction by a criminal
Court, for various offences under the Penal Code. Therefore, the
phrase "the date of conviction" appearing in Section 8(3) should
receive an interpretation with respect to the penal provisions
under which a person was convicted. [Paras 30, 32, 33][499-G-H;
500-C-D]
2.2 The rule that a person is deemed innocent until proved
guilty is a long-standing principle of constitutional law and cannot
be taken to be displaced by the use of merely general words. In
law this is known as the principle of legality and clearly applies to
the present case. To hold that a Member of the Legislative
Assembly stood disqualified even before he was convicted would
grossly violate his substantive right to be treated as innocent
until proved guilty. In the present case, it would be significant to
add that it is not necessary to make a declaration incompatible in
the use of the word "date" with the general rule of law since the
word "date" is quite capable of meaning the point of time when
the event took place rather than the whole day. While it is known
that an acquittal operates on nativity, no case has been cited for
the proposition that a conviction takes effect even a minute prior
to itself. Moreover, the word "date" can be used to denote
occasion, time, year etc. It is also used for denoting the time up
to the present when it is used in the phrase "the two dates".
Significantly, the word "date" can also be used to denote a point
of time etc. To say that this presumption of innocence would
evaporate from 00.01 A.M., though the conviction was handed
over at 14.30 P.M. would strike at the very root of the most
fundamental principle of Criminal Jurisprudence. Inasmuch as a
conviction for an offence is under a penal law, it cannot be deemed
to have effect from a point of time anterior to the conviction itself.
[Paras 34-39][500-D-H; 501-A-H; 502-A-B]
Roget's International Thesaurus third edition Note 114.4
- referred to.
3. Cases arising under the law of insurance, have no
relevance to cases of disqualification. A policy of insurance lies in
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the realm of contract. Therefore, the interpretation to be given
to the terms of such contract would largely depend upon the intent
of the parties, with a certain degree of latitude in favour of a party
whose bargaining power is not equal to that of other contracting
party. It is not possible to adopt the interpretation given to the
word "the date" appearing in a contract of Insurance. [Paras 41,
42][502-D-H; 503-A-D]
4. The disqualification arising under Section 8(3) of the Act,
is the consequence of the conviction and sentence imposed by
the criminal Court. In other words, conviction is the cause and
disqualification is the consequence. A consequence can never
precede the cause. [Para 43][503-C-E]
5. Article 193 deals with the penalty to be imposed upon an
erring member who sits or votes as a member of the Legislative
Assembly or the Legislative Council (i) either before he has
complied with the requirements of Article 188; (ii) or when he
knows that he is not qualified for membership; (iii) or when he
knows that he is disqualified from being a Member; (iv) or when
he knows that he is prevented by any law from sitting or voting. A
disqualification for which penalty is prescribed under Article 193,
also invites civil consequences such as the denial of privileges
that go with the membership, other than the penalty stipulated in
Article 193. Once a person is disqualified, he ceases to be a
member and his right to vote also ceases alongwith his
membership. This is a natural consequence of a person ceasing
to be a member and this consequence is automatic and not
dependent upon Article 193. Therefore, Article 193 cannot be
stretched to such an extent that even the natural consequences
of disqualification of a member will not get attracted because of
the prescription of a penalty. Dehors the liability for penalty under
Article 193, the act done by the elected member is not liable to
be invalidated, but only in certain circumstances. One of them
may be a case like the one on hand apart from cases falling foul of
Article 188. [Paras 47, 48 and 53][504-C-G; 506-D-E]
6. The acts of the officers de facto performed within the
scope of their assumed official authority, in the interest of the
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public or third persons and not for their own benefit, are generally
regarded as valid and binding as if they were the acts of the officers
de jure. The de facto doctrine is founded on good sense, sound
policy and practical expedience and that it is aimed at the
prevention of public and private mischief and the protection of
public and private interest. [Para 55][506-G; 507-A-B]
6. It is not possible to hold that the vote cast by Shri Amit
Kumar Mahto at 9:15 a.m. on 23.03.2018 should be treated as
invalid on account of the conviction and sentence passed by the
criminal Court at 2:30 p.m. on the same day. This conclusion can
be drawn through another process of reasoning also. Article 191
(1) of the Constitution deals with five different grounds of
disqualification. They are (i) holding an office of profit as specified
in the First Schedule; (ii) unsoundness of mind, which stands so
declared by a competent Court; (iii) undischarged insolvency; (iv)
absence of citizenship of India or acquisition of citizenship of a
foreign State etc.; and (v) disqualification by or under any law made
by Parliament. The interpretation to be given to the expression
"the date" appearing in Section 8(3) of the Representation of the
People Act, 1951 will have a bearing upon the interpretation to
be given to the date of happening of any one of the above events
of disqualification. While it may be convenient for the appellant in
this case to interpret the expression "the date" appearing in
Section 8(3) with reference to Article 191(1)(e), it may have to be
seen whether the same would fit into the scheme of Article 191(1)
in entirety. It may not. If tested against each one of Sub-clauses
(a) to (d) of Clause (1) of Article 191 it is found that the
interpretation offered by the appellant would not survive. The
vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018
was rightly treated as a valid vote. Therefore, the Civil Appeal
No.611 of 2020 is dismissed. Civil Appeal No.2159 of 2020 is
allowed, setting aside the findings of the High Court on issue
Nos. 2, 3 and 5 framed by the High Court. [Paras 58-62]
[508-B-H; 509-A-B]
Pashupati Nath Singh vs. Harihar Prasad Singh AIR
1968 SC 1064:[1968] SCR 812; Prabhu Dayal Sesma
vs. State of Rajasthan (1986) 4 SCC 59 : [1986] 3 SCR
665; Tarun Prasad Chatterjee vs. Dinanath Sharma
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(2000) 8 SCC 649 : [2000] 3 Suppl. SCR 634; B.R Kapur
vs. State of T.N. & Anr. (2001) 7 SCC 231 : [2001] 3
Suppl. SCR 191; New India Assurance Company Limited
vs. Ram Dayal & Ors (1990) 2 SCC 680 : [1990] 2
SCR 570; National Insurance Company Limited vs.
Jijubhai Nathuji Dabhi & Ors. (1997) 1 SCC 66 : [1996]
8 Suppl. SCR 929; State of Madhya Pradesh vs. Centre
for Environment Protection Research and Development
& Ors. (2020) SCC Online SC 687 - held inapplicable.
Union of India vs. M/S G.S Chatha Rice Mills (2020)
SCC Online SC 770; Gokaraju Rangaraju vs. State of
Andhra Pradesh (1981) 3 SCC 132 : [1981] 3 SCR
474; Pushpadevi M. Jatia vs. M.L. Wadhawan, Additional
Secretary, Government of India & ors. (1987) 3 SCC
367 : [1987] 3 SCR 46 - relied on.
K Prabhakaran vs. P Jayaraja, (2005) 1 SCC 754 :
[2005] 1 SCR 296; Pashupati Nath Sukul vs. Nem
Chandra Jain (1984) 2 SCC 404 : [1984] 1 SCR 939 -
distinguished.
New India Assurance Company vs. Bhagwati Devi
(1998) 6 SCC 534 - referred to.
Pierson vs. Secretary of State for the Home Department
(1997) 3 All ER 577; K-Generation Pty. Ltd. vs. Liquor
Licensing Court, (2009) 83 ALJR 327; In re F.B. Warren
(1938) 2 All ER 331; Pulin Behari Das & Ors. vs. King
Emperor (1912) 15 Cal.LJ 517 - referred to.
Case Law Reference
[1982] 3 SCR 318
relied on
Para 20
[1968] SCR 812
held inapplicable Para 21
[1986] 3 SCR 665
held inapplicable Para 27
[2000] 3 Suppl. SCR 634
held inapplicable Para 28
[2001] 3 Suppl. SCR 191
held inapplicable Para 31
[2005] 1 SCR 296
distinguished
Para 40
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[1990] 2 SCR 570
held inapplicable Para 41
[1996] 8 Suppl. SCR 929 held inapplicable Para 41
(1998) 6 SCC 534
referred to
Para 41
[1984] 1 SCR 939
distinguished
Para 50
[1981] 3 SCR 474
relied on
Para 55
[1987] 3 SCR 46
relied on
Para 56
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 611 of
2020
From the Judgment and Order dated 17.01.2020 of the High Court
of Jharkhand at Ranchi in E.P. No. 01 of 2018.
With
Civil Appeal No. 2159 of 2020
Mukul Rohatgi, K.V. VIshwanathan, Dr. Abhishek Manu Singhvi,
Devadatt Kamat, Sr. Advs., Indrajit Sinha, Nikhil Rohatgi, Ms. Misha
Rohatgi, Shashank Khurana, Bibhash Sinha, Bharat Monga, Nishanth
Patil, Azeem, Ms. Sneha Ravi Iyer, Javedur Rahman, Aditya Bhat, Manoj
C. Mishra, Advs. for the appearing parties.
The Judgment of the Court was delivered by
S. A. BOBDE, CJI
1. An interesting but important question of far-reaching
consequence arises for consideration in these appeals. It is this. "Whether
the vote cast by a Member of the Legislative Assembly in an election to
the Rajya Sabha, in the forenoon on the date of election, would become
invalid, consequent upon his disqualification, arising out of a conviction
and sentence imposed by a Criminal Court, in the afternoon on the very
same day?"
2. We have heard learned counsel for the parties.
3. The brief facts sufficient for answering the issue arising for
consideration in these appeals are as follows: -
(i)
By a notification dated 05.03.2018, the Election Commission
of India notified the biennial elections for two seats in the
Council of States from the State of Jharkhand;
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(ii)
Three candidates by name Pradeep Kumar Sonthalia, Samir
Uraon and Dhiraj Prasad Sahu, filed their nominations on
12.03.2018. It is stated that the first two candidates belonged
to the Bharitya Janata Party (BJP), and the third candidate
belonged to the Indian National Congress (INC);
(iii)
On 23.03.2018, the election was held between 9.00 A.M.
and 4.00 P.M. at the Vidhan Sabha. A total of 80 members of
the Legislative Assembly of the State of Jharkhand cast their
votes;
(iv)
One Shri Amit Kumar Mahto who was an elected member
of the Assembly belonging to Jharkhand Mukti Morcha Party
(JMM) admittedly cast his vote at 9.15 A.M. on 23.03.2018;
(v)
As fate (not of the voter but of the contestant) would have it,
Shri Amit Kumar Mahto was convicted by the Court of the
Additional Judicial Commissioner XVIII, Ranchi, in Sessions
Trial No.481 of 2010, for the offences punishable under
Sections 147, 323/149, 341/149, 353/149, 427/149 and 506/
149 IPC, on the same day, but the conviction and sentence
were handed over at 2.30 P.M. He was sentenced to various
periods of imprisonment for those offences, but all of them
were to run concurrently. The maximum punishment was for
the offence under Section 506/149 and the Court awarded
RI for a period of two years;
(vi)
Since the election to the Council of States is by a system of
proportional representation by means of single transferable
vote, the counting of votes began at 7.30 P.M on 23.03.2018.
Out of the 80 votes cast, two were declared invalid by the
Returning Officer. The remaining 78 votes, which were validly
cast, were converted into points (at the rate of 100 points per
vote) and Pradeep Kumar Sonthalia was declared to have
secured 2599 value of votes, Samir Uraon was declared to
have secured 2601value of votes and Dhiraj Prasad Sahu
was declared to have secured 2600 value of votes. Thus, the
election petitioner was declared defeated and the other two,
declared duly elected;
(vii) It appears that an objection was lodged at 11.20 P.M.
requesting the Returning Officer to declare the vote cast by
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Shri Amit Kumar Mahto invalid, on the basis of the conviction
and sentence imposed in the afternoon on the same day by
the Criminal Court;
(viii) However, the Returning Officer went ahead and declared
the results at 12.15 A.M. on 24.03.2018. Shri Samir Uraon
and Shri Dhiraj Prasad Sahu were declared by the Returning
Officer to be duly elected and they were also issued with a
certificate in Form No. 24 in terms of Rule 85 of the Conduct
of Election Rules, 1961;
(ix)
Therefore, Pradeep Kumar Sonthalia, the defeated candidate
filed an election petition in Election Petition No.01/2018,
praying for a declaration that the Returning Officer has caused
improper reception of the void vote of Shri Amit Kumar Mahto.
He also prayed for setting aside the election of Shri Dheeraj
Prasad Sahu with a consequential declaration that the
petitioner was duly elected as a member of Rajya Sabha;
(x)
The High Court framed as many as 6 issues for consideration
in the Election Petition and they are as follows: -
1.
Whether Shri Amit Kumar Mahto has cast his vote in
favour of respondent no. 1 in Biennial Election to the
Council of States, 2018 in connection with State of
Jharkhand?
2.
Whether on conviction and sentence of two years in
Sessions Trial No. 481 of 2010 by the Additional Judicial
Commissioner-XVIII, Ranchi, Shri Amit Kumar Mahto
ceased to be a Member of Legislative Assembly and his
disqualification came into effect immediately from the
date of his conviction and sentence of two years and,
therefore, the vote of Shri Amit Kumar Mahto could not
have been taken into consideration at the time of
counting?
3.
Whether the disqualification of Shri Amit Kumar Mahto
rendered his vote void/illegal that was cast to respondent
no.1 and, therefore, reception of his vote was improper
and, thus, in terms of Section 100 (1) (d) (iii) of the
Representation of People Act, 1951, the election of
respondent no. 1 is liable to be declared void?
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4.
Whether the communication from the Returning Officer
(e-mail dated 24.03.2018) rejecting the objection made
on behalf of the petitioner on the ground that the
Returning Officer had not received the judgment of
conviction of Shri Amit Kumar Mahto till the declaration
of the results, is absolutely illegal and unlawful?
5.
Whether disqualification of Shri Amit Kumar Mahto in
terms of Section 8 (3) of the Representation of People
Act, 1951, takes effect from the date of his conviction
and sentence of two years i.e. 23.03.2018 which means
the day as per English calendar beginning at midnight
and covering a period of 24 hours i.e. with effect from
23.03.2018 at 00.00 hours?
6.
The respondent no. 1 having been declared to be elected
in the Biennial Election to the Council of States - 2018
by a margin of 0.01 vote and in the event, the vote of
Shri Amit Kumar Mahto which has been received
improperly is ignored, then whether the petitioner is
entitled to be declared successful and consequently for
being elected as a Member of Rajya Sabha?
(xi)
By a judgment dated 17.01.2020, the High Court dismissed
the Election Petition, after recording a finding in favour of
the election petitioner on Issue Nos. 1, 2, 3 & 5. On Issue
Nos. 4 & 6, the High Court did not record any finding.
(xii) Despite deciding Issue Nos. 1, 2, 3 & 5 in favour of the
election petitioner, the High Court refused to grant any relief
to the election petitioner, primarily on the ground that the
election to the Council of States by a system of proportional
representation by means of single transferable vote, is a highly
complex, technical issue and that it is not possible for the
Court to find out whether the election petitioner could have
won the election, if that one vote had been rejected;
(xiii) Finding that the surgery was successful but the patient died,
the election petitioner has come up with one appeal in Civil
Appeal No.611 of 2020. Aggrieved by the findings on Issue
Nos. 1, 2, 3 & 5, one of the two returned candidates, namely
Shri Dhiraj Prasad Sahu, has come up with the other appeal
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namely Civil Appeal No.2159 of 2020.For the purpose of
convenience, we refer to the appellant in Civil Appeal No.
611 of 2020, as the appellant throughout and the appellant in
the other appeal as the returned candidate.
4. Before proceeding further, it must be recorded that there is no
dispute either before us or before the High court, about the fact that Shri
Amit Kumar Mahto cast his vote at 9.15 A.M. on 23.03.2018 and that
the judgment of the criminal court was rendered at 2.30 p.m. on the very
same day.
5. Before the High court, a preliminary objection was raised about
the validity of the presumption on the part of the election petitioner that
Sri. Amit Kumar Mahto cast his vote in favour of Shri Dhiraj Prasad
Sahu. Unless Shri Amit Kumar Mahto had cast his vote in favour of Shri
Dhiraj Prasad Sahu, the entire edifice on which the election petition was
built could have crumbled. Therefore, the Returning Officer, Mr. Binay
Kumar Singh was examined as PW-1 and through him the original ballot
paper by which Shri Amit Kumar Mahto cast his vote was marked as
Exhibit-9. On the basis of the same, the High Court came to the conclusion
that Shri Amit Kumar Mahto cast his vote in favour of Shri Dhiraj Prasad
Sahu, the Congress candidate. It was also clear from the evidence of
PW-1 and Exhibit-9 that Shri Amit Kumar Mahto did not cast his 2nd, 3rd
and 4th preference vote. Therefore, the validity of the vote cast by Amit
Kumar Mahto assumed significance, especially in view of the margin of
victory.
6. Since the factual position that Amit Kumar Mahto cast his vote
in favour of Dhiraj Prasad Sahu has now become unassailable, many of
the issues framed by the High Court have now paled into insignificance.
There are only 2 issues which now survive for consideration and they
are: -
(i)
Whether the vote admittedly cast by Shri Amit Kumar Mahto
in favour of Shri Dhiraj Prasad Sahu at 9.15 A.M. on
23.03.2018 should be treated as an invalid vote on account of
the disqualification suffered by the voter under Article
191(1)(e) of the Constitution of India read with Section 8(3)
of the Representation of the People Act, 1951, by virtue of
his conviction and sentence by the Sessions Court in a criminal
case, rendered at 2.30 P.M. on the very same date
23.03.2018; and
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(ii)
Whether, in the event of the first issue being answered in the
affirmative, the election petitioner is entitled to be declared
as duly elected automatically.
7. It is needless to say that the second question as formulated
above would arise only if the answer to the first question is in the
affirmative and not otherwise.
8. Before proceeding further, we may point out that two ancillary
issues namely (i) the non-joinder of the Election Commission of India as
a party to the election petition; and (ii) the absence of a specific prayer
for recounting of votes, were also dealt with by the High Court. These
issues may have gained importance, but for the appeal filed by Shri Dhiraj
Prasad Sahu against the findings on Issue Nos. 1, 2, 3 & 5. Therefore,
these ancillary issues need not deter us at this stage.
9. The primary contention of Shri Mukul Rohatgi and Shri K.V.
Vishwanathan, learned senior counsel appearing for the defeated candidate
who is the appellant in the first civil appeal, is that wherever a statute
uses the word "date" with reference to an event, courts have always
interpreted the same to have happened at the intersection of the previous
day and the present day, namely 00.01 a.m. This is firstly because it is at
that time that the day begins and secondly because law abhors fractions.
Therefore, it is their contention that though the Sessions Court delivered
its judgment of conviction and sentence at 2.30 P.M. on 23.03.2018, the
date of such conviction is deemed in law to have commenced at about
00.01 A.M. when the date of March 22 lapsed and the date of March 23
began. It is the further contention of the learned Senior Counsel that if
the time at which the judgment was delivered is irrelevant and the focus
is actually on the date of conviction, then the disqualification would also
commence at 00.01 A.M. on 23.03.2018. As a corollary, the vote cast at
9.15 A.M. on 23.03.2018 would be a vote by a disqualified member and
thus invalid.
10. In order to test the veracity of the above contention, it is
necessary first to take note of the relevant provisions of the Constitution
and the Representation of the People Act, 1951.
11. Article 191 of the Constitution speaks of the circumstances
under which a person will be treated as disqualified (i) either for being
chosen as (ii) or for being, a member of the State Legislative Assembly.
The language of Article 191 makes it clear that it covers both a contest in
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an election and the continuance in office after getting elected. It 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
Council of a State
(a) if he holds any office of profit under the Government of
India or the Government of any State specified in the First
Schedule, other than an office declared by the Legislature of
the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a
competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired
the citizenship of a foreign State, or is under any
acknowledgement of allegiance or adherence to a foreign
State;
(e) if he is so disqualified by or under any law made by
Parliament
[Explanation.- For the purposes of this clause] a person shall
not be deemed to hold an office of profit under the Government
of India or the Government of any State specified in the First
Schedule by reason only that he is a Minister either for the
Union or for such State.
[(2) A person shall be disqualified for being a member of the
Legislative Assembly or Legislative Council of a State if he is
so disqualified under the Tenth Schedule]"
12. If a person, being a member of the Assembly, suffers a
disqualification, his seat becomes vacant. This situation is taken care of
by Article 190 which reads as follows:
"190. Vacation of seats- (1)......
(2).......
(3) If a member of a House of the Legislature of a StatePRADEEP KUMAR SONTHALIA v. DHIRAJ PRASAD SAHU @
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(a) becomes subject to any of the disqualifications mentioned
in clause ( 1 ) or clause ( 2 ) of Article 191; or
(b) resigns his seat by writing under his hand addressed to
the Speaker or the Chairman, as the case may be, and his
resignation is accepted by the Speaker or the Chairman, as
the case may be, his seat shall thereupon become vacant:
[Provided that in the case of any resignation referred to in
sub clause (b), if from information received or otherwise and
after making such inquiry as he thinks fit, the Speaker or the
Chairman, as the case may be, is satisfied that such
resignation is not voluntary or genuine, he shall not accept
such resignation]"
13. It is clear as daylight that the event which causes the
disqualification under Article 191(1)(e) read with Section 8(3) is a
conviction of a person for any of the specified offences. The consequence
of such disqualification is that the seat becomes vacant. Obviously
therefore, a Member of the Legislative Assembly who has become
disqualified and whose seat has become vacant is not entitled to cast his
vote for electing a representative from his State under Article 80(4) which
provides that the representatives of each State "shall be elected by the
elected members". His name is liable to be deleted from the list of
members of the State Legislative Assembly maintained under Section
152 of the Representation of the People Act, 1951. He ceases to be an
elector in relation to election by assembly member and cannot cast his
vote.
14. The Representation of the People Act, 1951 was enacted for
the purpose of providing for the conduct of elections of both houses of
Parliament and to the House/Houses of State Legislatures, the
qualifications and disqualifications for membership of those houses, the
corrupt practices etc.,. Section 8 of the Act deals with disqualification on
conviction for certain offences. For the purpose of disqualification, the
offences are classified in section 8 into 3 categories, namely
(i)
offences falling under sub-section (1)
(ii)
offences falling under sub-section (1) and
(iii)
offences not falling either under sub-section (1) or under subsection (2).
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15. The disqualification results in the Member becoming liable to
be removed from the list of voters under Section 152 of the Representation
of the People Act, 1951, though the actual deletion may take time. In any
case, he ceases to be an elector vide Rule 2(d) of the Conduct of Election
Rules, 1961 which provides that an elector in relation to an election by
assembly members means any person entitled to vote at that election.
16. We are concerned in this case with sub-section (3) of section
8, as Amit Kumar Mahto was convicted for offences which do not fall
either under sub-section (1) or under sub-section (2). Therefore, Subsection (3) of section 8 alone is extracted as follows: -
"8. Disqualification on conviction for certain offences.-
(1).........
(2) .............
(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.]"
17. The disqualification under Section 8 of Act 43 of 1951 is
relatable to Article 191(1)(e) of the Constitution. Therefore, any
interpretation to Section 8 should be in sync with the Constitutional
scheme.
18. As this Court had an occasion to point out in Saritha S. Nair
vs. Hibi Eden1, Section 8(3) of the Act deals both with the conditions of
disqualification and with the period of disqualification. As regards the
period of disqualification, Section 8(3) is comprehensive in that it indicates
both the commencement of the period and its expiry. The date of conviction
is prescribed to be the point of commencement of disqualification and
the date of completion of a period of six years after release, is prescribed
as the point of expiry of the period of disqualification.
19. Once the period of disqualification starts running, the seat
hitherto held by the person disqualified becomes vacant by virtue of Article
190(3) of the Constitution. While speaking about the seat of the disqualified
person becoming vacant, Article 190(3) uses the expression "thereupon".
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We may have to keep this in mind while interpreting the words "the date
of such conviction".
20. One fundamental principle that we may have to keep in mind
while interpreting the phrase appearing in Section 8(3) is that in cases of
this nature, the Court is not dealing with a fundamental right or a common
law right. As pithily stated by this Court in Jyoti Basu vs. Devi Ghosal2,
an election dispute lies in a special jurisdiction and hence it has to be
exercised without importing concepts familiar to common law and equity,
unless they are ingrained in the statute itself. We may usefully extract
the relevant portion of the decision in Jyoti Basu which reads as follows:
"8. A right to elect, fundamental though it is to democracy, is,
anomalously enough, neither a fundamental right nor a
Common Law Right. It is pure and simple, a statutory right. So
is the right to be elected. So is the right to dispute an election.
Outside of statute, there is no right to elect, no right to be
elected and no right to dispute an election. Statutory creations
they are, and therefore, subject to statutory limitation. An
Election petition is not an action at Common Law, nor in equity.
It is a statutory proceeding to which neither the Common Law
nor the principles of Equity apply but only those rules which
the statute makes and applies. It is a special jurisdiction, and
a special jurisdiction has always to be exercised in accordance
with the statutory creating it. Concepts familiar to Common
Law and Equity must remain strangers to Election Law unless
statutorily embodied".
21. Placing heavy reliance upon the decision of this Court in
Pashupati Nath Singh vs. Harihar Prasad Singh3, it is contended
that wherever the statute uses the words "on the date", it should be
taken to mean "on the whole of the day" and that law disregards as far
as possible, fractions of the day.
22. But in our considered view Pasupati Nath Singh hardly
supports the contention of the Appellant. In that case the election to the
Bihar legislative Assembly from Dumro constituency was in issue. As
per the schedule, the filing of nominations was to take place from
13.01.1967 to 20.01.1967. The date of scrutiny of nomination papers
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3 AIR 1968 SC 1064
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was fixed as 21.01.1967. The returning officer, upon scrutiny of
nominations on 21.01.1967, rejected the nomination paper of the Appellant
before this Court, on the ground that he had not made and subscribed the
requisite oath or affirmation as enjoined by clause (a) of Article 173,
either before the scrutiny or even subsequently on the date of scrutiny.
The question that arose in that case was formulated in paragraph 4 as
follows: -
"4. The short question which arises in this appeal is whether
it is necessary for a candidate to make and subscribe the
requisite oath or affirmation as enjoined by clause (a) of Art.
173 of the Constitution before the date fixed for scrutiny of
nomination paper. In other words, is a candidate entitled to
make and subscribe the requisite oath when objection is taken
before the Returning Officer or must he have made and
subscribed the requisite oath or affirmation before the scrutiny
of nomination commenced?"
23. The answer to the above question turned on the interpretation
to Section 36(2) of the Act, clause (a) of which used the words "on the
date fixed for scrutiny". The contention of the appellant before this
court in Pashupati Nath Singh was that he was entitled to take the oath
or affirmation, before the Returning Officer, immediately after an objection
is made but before the objection was considered by the Returning officer.
Since Section 36(2)(a) uses the expression "on the date fixed for scrutiny"
it was contended by the appellant in Pashupati Nath Singh that the
whole of the day on which the scrutiny took place was available to him.
However, this contention was rejected by this Court in the following
manner: -
"16. In this connection it must also be borne in mind that law
disregards, as far as possible, fractions of the day. It would
lead to great confusion if it were held that a candidate would
be entitled to qualify for being chosen to fill a seat till the
very end of the date fixed for scrutiny of nominations. If the
learned counsel for the petitioner is right, the candidate
could ask the Returning Officer to wait till 11.55 p.m. on
the date fixed for the scrutiny to enable him to take the
oath".
24. In other words, this Court interpreted the words "date" in
Pashupati Nath Singh, not necessarily to mean 00.01 A.M. to 24.00
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P.M. This was despite the fact that in common parlance a date would
mean 24 hours in time. But the running of time got arrested, the moment
the nomination of the appellant in Pashupati Nath Singh was taken up
for scrutiny. Thus, the benefit of the whole day of 24 hours was not
made available by this court in Pashupati Nath Singh to the appellant
therein and the act of the Returning officer in drawing the curtains down
at the happening of the event namely scrutiny of nomination papers, was
upheld by this court in Pashupati Nath Singh.
25. In fact, Pashupati Nath Singh can be said to be a mirror
image or the converse of the case on hand. In the case on hand the
period of commencement of an event is in question, while in Pashupati
Nath Singh the period of conclusion was in issue.