# SARAT CHANDRA RABHA AND OTHERS v. KHAGENDRANATH NATH AND OTHERS - **Citation:** [1961] 2 S.C.R. 133 - **Court:** Supreme Court of India - **Decided:** 1958-08-12 - **Case number:** No. 375 of 1959 - **Bench:** B. P. Sinha, J. L. Kapur, P. B. Gajendragadkar, K. SuBBA RAo, K. N. W Anohoo - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sarat-chandra-rabha-and-others-v-khagendranath-nath-and-others-2202 - **Pages:** 10 ## Headnote Election Dispute-Disqualification-Conviction by CourtRejection of nomination paper-Remission of sentence by Government, if operates as reduction of sentence by Court-Inference of consent to corrupt practice from proved facts, if a mixed question of fact and law-Representation of the People Act, 1951 (43 of 1951), ss. 7(b), 1oo(r)(b)-Code of-Criminal Proeedure (Act V of 1898), s. 401. The appellant's nomination paper for election to the Assam Legislative Assembly was rejected by the Returning Officer on the ground of disqualification under s. 7(b) of the Representation of the People Act, 1951, in that he had been convicted and $entenced to three years' rigorous imprisonment under s. 4(b)' of the Explosive Substances Act (VI of 1908) and five years had not expired after his release. The appellant had applied to the Election Commission for removing the said disqualification but it had refused to do so. The appellant's sentence was, however, remitted by the Government of Assam under s. 401 of the Code of Criminal Procedure and the period for which he was actually in jail was less than two years. The Election Tribunal held that the nomination paper had been improperly rejected and set aside the election but the High Court taking a contrary view, dismissed the election petition. Held, that the High Court was right in holding that the appellant was disqualified under s. 7(b) of the Representation of the People Act and that ·his nomination paper had been rightly rejected. That section speaks of a conviction and sentence by a Court and an order of remission of the sentence under s. 401 of the Code of Criminal Procedure, unlike the grant of a free pardon, cannot wipe out either the conviction or the sentence. Such order is an executive order that merely affects the execution of the sentence and does not stand on the same footing as an order of Court, either in appeal or in revision, reducing the sentence passed by the Trial Court. Venkatesh Yeshwant Deshpande v. Emperor, A.I.R. 1938 Nag. 513, distinguished. G11nda Singh v. Sampuran Singh, (1953) 3 E.L.R. 17, overruled. Held, further, that an inference as to whether a successful candidate was a consenting party to the corrupt practice under Sa11a-t Chandra Rabha & Other! v. Khagendranath Nath & Olhers 134 SUPREME COURT REPORTS [1961] s. 100(1)(b) of the Act from facts found on evidence was a question of fact and not a mixed question of fact and law. Mecnakshi Mills, Madurai v. The Commissioner of Income-tax, Madras, [1956] S.C.R. 691, referred to. ## Text 2 S.C.R. SUPREME COURT REPORTS 133 SARAT CHANDRA RABHA AND OTHERS v. KHAGENDRANATH NATH AND OTHERS. (B. P. SINHA, c. J., J. L. KAPUR, P. B. GAJENDRAGADKAR, K. SuBBA RAo and K. N. W ANOHOO, JJ.) Election Dispute-Disqualification-Conviction by CourtRejection of nomination paper-Remission of sentence by Government, if operates as reduction of sentence by Court-Inference of consent to corrupt practice from proved facts, if a mixed question of fact and law-Representation of the People Act, 1951 (43 of 1951), ss. 7(b), 1oo(r)(b)-Code of-Criminal Proeedure (Act V of 1898), s. 401. The appellant's nomination paper for election to the Assam Legislative Assembly was rejected by the Returning Officer on the ground of disqualification under s. 7(b) of the Representation of the People Act, 1951, in that he had been convicted and $entenced to three years' rigorous imprisonment under s. 4(b)' of the Explosive Substances Act (VI of 1908) and five years had not expired after his release. The appellant had applied to the Election Commission for removing the said disqualification but it had refused to do so. The appellant's sentence was, however, remitted by the Government of Assam under s. 401 of the Code of Criminal Procedure and the period for which he was actually in jail was less than two years. The Election Tribunal held that the nomination paper had been improperly rejected and set aside the election but the High Court taking a contrary view, dismissed the election petition. Held, that the High Court was right in holding that the appellant was disqualified under s. 7(b) of the Representation of the People Act and that ·his nomination paper had been rightly rejected. That section speaks of a conviction and sentence by a Court and an order of remission of the sentence under s. 401 of the Code of Criminal Procedure, unlike the grant of a free pardon, cannot wipe out either the conviction or the sentence. Such order is an executive order that merely affects the execution of the sentence and does not stand on the same footing as an order of Court, either in appeal or in revision, reducing the sentence passed by the Trial Court. Venkatesh Yeshwant Deshpande v. Emperor, A.I.R. 1938 Nag. 513, distinguished. G11nda Singh v. Sampuran Singh, (1953) 3 E.L.R. 17, overruled. Held, further, that an inference as to whether a successful candidate was a consenting party to the corrupt practice under Sa11a-t Chandra Rabha & Other! v. Khagendranath Nath & Olhers 134 SUPREME COURT REPORTS [1961] s. 100(1)(b) of the Act from facts found on evidence was a question of fact and not a mixed question of fact and law. Mecnakshi Mills, Madurai v. The Commissioner of Income-tax, Madras, [1956] S.C.R. 691, referred to. CIVIL APPELLATE JURISDICTION: No. 375 of 1959. Ci vii Appeal Appeal from the Judgment and Order dated the 12th August, 1958, of the Assam High Court in First Appeal No. 11 of 1958. · L. K. Jha and Sukumar Ghose, for appellants Nos. 1 to 3. G. S. Pathak a.nd Naunit Lal; for respondents Nos. 1 a.nd 2. 1960. October 27. The Judgment of the Court was delivered by Wanchoo J. WANOHOO J.-Thie is a.n appeal ·on a. certificate granted by the Assam High Court in an election matter. An election was held in the double-member constituency of Goalpara to the Assam Legislative Assembly. Nomination papers were filed on the 19th January, 1957, by a number of persons including Aniram Basumafari (hereinafter ca.lied the appellant). He wa.s a. ca.ndida.te for the seat reserved for scheduled tribes. The nomination paper of the appellant wa.s rejected by the returning officer on the ground tha.t he was disqualified under s. 7(b) of the Representation of the People Act, No. XLIII of 1951, (hereinafter called the Act). The polling took place on February 25, 1957, and Khagendra.na.th and Hakim Chandra. Ra.bha were elected, the latter being a member of e. scheduled tribe. Thereupon a.n election petition wa.s filed by a.n elector challenging the election of the two successful candidates on a. number of grounds. Of these grounds, however, only two a.re now ma.teria.l, 1 namely, (1) that the nomination paper of the appellant was wrongly rejected, a.nd (2) that a corrupt practice was committed by the successful candidates inasmuch as voters were carried on mecha.nica.lly propelled vehicles to the polling booth~. The election tribune.I held on the first point that the nomination 2 S.C.lt. SUPREME COURT REPORTS 135 paper of the appellant had been improperly rejected. z960 On the second point it held that the corrupt practice c a.lleged had not ~een proved. In the result, the elec- ;;;;! ;a;f;.:. t10n was set aside. Thereupon there was an appeal v • .by the two successful candidates to the High Court. Khagsndranath The High Court was of the view that the nomination Nath 0- Others paper of the appellant was properly rejected ; further on the question of corrupt practice the High Court Wanchoo J. agreed with the conclusion of the tribunal. In the result the appeal was allowed and the election petition was ordered to be dismissed. There was then an application to the High Court for a certificate to appeal to this Cout"t which was granted; and that is how the matter has come up before us. The ma.in contention on behalf of .the appellant is that the High Court was wrong in coming to the conclusion that the nomination pa.per of the appellant was properly rejected under s. 7(b) of the Act. That provision lays down that a. person shall be disquali: fied for being chosen as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a. State if he is convicted by a court in India. of any offence and sentenced to imprisonment for not less than two yea.rs, unless a period of five yea.rs, or such less period as the Election Commission may allow in any particular case, has elapsed since his release. The appellant in this case was convicted under s. 4(b) of the Explosive Substances Act No. VI of 1908; and sentenced to three years' rigorous imprisonment on July 10, 1953. The nomination pa.per in this case was filed in J a.nua.ry 1957 and the election was held in February 1957 and therefore five yea.rs had not -elapsed since his release. But though the appellant was sentenced to three yea.rs' rigorous imprisonment, his sentence was remitted by the Government of Assam on November 8, 1954, under s. 401 of the Code of Criminal Procedure and he was released on November 14, 1954. The contention of the appellant before the election tribunal was that in view of this remission his sentence in effect was reduced to a period of less than two yea.rs and there- · fore he could not be said to have incurred disqualification within the meaning of s. 7{b). This contention . ' 136 SUPREME COURT REPORTS [1961] was accepted by the tribunal and that is why it held that the nomination paper of the appellant was imSarat Chandra Rabila c;. Others properly rejected. When the case came to be argued in the High Court on behalf of the successful candiKhagendranath dates, two arguments were addressed in support of the 1 Nath & Others plea that the nomination paper of the appellant was properly rejected. In the first place, it was urged v. Wanchoo J. ·that in view of the provisions of Articles 72, 73, 161 and 162 of the Constitution read with s. 401 of the Code of Criminal Procedure, the State Government had no authority ·to i:emit the sentence of the appellant; 'and secondly even if the remission was properly granted it would not affect the sentence imposed by the Court, though the appellant might not have had to undergo part of the sentence after the date of the remission order'. The High Court did not decide the question as to the power of the State Government to grant remission in this case as it had not full materials before it because the matter was not raised before the tribunal, though it was inclined to the view that the State Government might not have such power. But the High Court was of the opinion that a remission of sentence did not have the same effect as a free pardon and did not have the effect of reducing the sentence passed on the appellant from three years to less than two years, even though the appellant might have remained in jail for less than two years because of the order of remission. What s. 7(b) lays down is that there should be a conviction by a court in India for any offence and a sentence of imprisonment for not less than two years in order that a person may be disqualified for being chosen as a member of either House of Parliament or of Legislative Assembly or of Legislative Council of a State. In terms, therefore, the provision applies to the case of the appellant for he was convicted by a court in India and sentenced to imprisonment for more than two years. Further the period of five years had not expired after his release. The appellant had applied to the Election Commission for removing the . disqualification but it had refused to do so. The main question therefore that falls for consideration is • I 2 S.C.R. SUPREME COURT REPORTS 137 whether the order of remission has the effect of, I960 reducing the se 1 n 1 tence in ~~e sa 1 me.w~y i 1 n whichhan Sarat Chandra order of an appe ate or rev1s1ona crimma court as Rabha & Others the'effect of reducing the sentence passed by the trial v. court to the extent indicated in the order of the appelKhagendranath late or revisional court. Nath & Others Now it is not disputed that in England and India. the effect of a pardon or what is sometimes called a free pardon is to clear the person from a1l infamy an9 from all consequences of the offence for which it is granted and from all statutory or other disqualifications following upon conviction. It makes him, as it were, a new man: (See Halsbury's Laws of England, Vol. VII, Third Edition, p. 244, para 529). But the same effect does not follow on a mere remission which stands on a different footing altogether. In the first place, an order of remission does not wipe out the offence; it also does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a court, he need not do so with respect to that part of the sentence which has been ordered to be remitted. An order of remission thus does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the court still stands as it was. The power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court. This distinction is well brought out in the following passage from Weater's " Constitutional Law" on the effect of reprieves and pardons vis-a-vis the judgment passed by the court imposing punishment, at p. 176, para 134 :- " A reprieve is a. ternpor