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TMI Blog2005 (1) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent was facing trial charged with several offences. On 9.4.1997, the Judicial Magistrate First Class, Kuthuparamba held the respondent guilty of the offences and sentenced him to undergo imprisonment as under :- Offences Sentence Under Section 143 read with Section 149 IPC R.I. for a period of one month Under Section 148 read with Section 149 IPC R.I. for six months Under Section 447 read with Section 149 IPC R.I. for one month Under Section 353 read with Section 149 IPC R.I. for six months Under Section 427 read with Section 149 IPC R.I. for three months Under Section 3(2)(e) under the P.D.P.P. Act read with Section 149 IPC R.I. for one year 3. The sentences were directed to run consecutively (and not concurrently). Thus the respondent was sentenced to undergo imprisonment for a total period 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 rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for offences under Sections 148, 307, 323, 325, 326/149 of Indian Penal Code and Sections 25 and 27 of Arms Act 1959 was registered against Nafe Singh, respondent No.1. One of the injured persons in the incident, died after the registration of the F.I.R. On 20.9.1993 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 10.5.1996 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. 9. On 17.5.1999, the Sessions Court trying the accused and others, held Nafe Singh guilty of an offence punishable under Section 302 I.P.C. and other offences. On 19.5.1999 he was sentenced to undergo imprisonment for 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 imprisonment passed against Nafe Singh to be suspended and also directed him to be released on bail. Nafe Singh furnished bail bonds and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant. The hearing of the preliminary issues commenced on 12.2.2001 and continued for several dates of hearing. On 19.3.2001 Nafe Singh, in spite of the hearing on all the issues having been already concluded, made 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 Vs. Shri Parmai Lal and others 1970 (2) SCC 462 and Vidya Charan Shukla Vs. Purshottam Lal Kaushik 1981 (2) SCC 84. The prayer made by the respondent - Nafe Singh was opposed on behalf of the appellant. However, the learned Designated Election Judge adjourned the hearing to 27.4.2001 and then to 3.5.2001 on which date the judgment was reserved. When the judgment in election petition was still awaited, on 1.8.2001 a Division Bench of the High Court decided the criminal appeal preferred by Nafe Singh, respondent No.1. The appeal was allowed and respondent No.1 was directed to be acquitted. Although 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 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 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 SCC 79. 16. C.A. No. 6691/2002 came up for hearing before this Court on 7.4.2003. It was directed to be tagged with C.A. No. 8213/2001 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court." "100. Grounds for declaring election to be void.-(1) 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 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 (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 reception, refusal or rejection of any vote or the reception of any vote which is void, or (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 be void. 19. We have briefly stated in the earlier part of the judgment such facts relating to both the cases which are not in dispute. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence if Parliament itself had chosen to repeal Section 8(2) of the Act retrospectively with effect from 11th 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 came up before the High Court, that respondent No. 1 was disqualified on 9th or 11th February, 1969. The setting aside of the conviction and sentence in appeal has a similar effect of wiping out retrospectively the disqualification. The High Court was, therefore, right in holding that respondent No. 1 was not disqualified and that his election was not void on that ground." On this reasoning this Court upheld the judgment of the High Court that the election of Parmai Lal was not void on the ground of his conviction on the date of the poll and the declaration of the result. Vidya Charan Shukla's case 22. Vidya Charan Shukla's case (supra) is a three-Judge Bench decision of this Court. Vidya Charan Shukla was convicted and sentenced to imprisonment exceeding two years by the Sessions Court on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in the election petition and, therefore, it was by reference to the date of judgment in election petition by the High Court that the factum of disqualification was to be decided, was reiterated in Vidya Charan Shukla's case (supra). The acquittal had retrospective effect of making the disqualification non-existent even at the time of scrutiny of the nominations. 25. However, it is pertinent to notice the dilemma which the Court faced while dealing with an argument advanced before it and dealt in paragraphs 39 and 40 of the judgment. A submission was made, what would happen if nomination of a candidate was rejected on account of his disqualification incurred by his conviction and sentence exceeding two years imprisonment and existing as a fact on the date of scrutiny of nomination and he brought an election petition to challenge the election of the returned candidate on the ground that his nomination was improperly rejected and if by the time the election petition came to be heard and decided, the conviction of the election petitioner was set aside in criminal appeal then, as a result of his subsequent acquittal, his conviction and sentence would stand annulled and obliter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be determined. Article 191 of the Constitution itself lays down certain disqualifications prescribed by clauses (a) to (d) of sub-Article (1) thereof. In addition, it permits, vide clause (e), any other disqualifications being provided for by or under any law made by Parliament. The Representation of People Act, 1951 is one such legislation. It provides for the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State and the qualifications and the disqualifications for membership of those Houses. 30. Under sub-clause (i) of clause (d) of sub-section (1) of Section 100 of the RPA the improper acceptance of any nomination is a ground for declaring the election of the returned candidate to be void. This provision is to be read with Section 36(2)(a) which casts an obligation on the returning officer to examine the nomination papers and decide all objections to any nomination made, or on his own motion, by reference to the date fixed for the scrutiny of the nominations. Whether a candidate is qualified or not qualified or is disqualified for being chosen to fill the seat, has to be determined by reference to the date fixed for the sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of the judgment by the High Court. 32. It is rather unfortunate that the correctness of the view taken in Shri Manni Lal's case was not questioned in Vidya Charan Shukla's case and an attempt was made only to distinguish the case of Shri Manni Lal. While interpreting a provision of law and pronouncing upon the construction of a statutory provision the Court has to keep in mind that the view of the law taken by it would be applied to myriad situations which are likely to arise. It is also well-settled that such interpretation has to be avoided as would result in creating confusion, anomaly, uncertainty and practical difficulties in the working of any system. A submission based on this principle was advanced before the three-Judge Bench in Vidya Charan Shukla's case, but unfortunately did not receive the attention of the Court forming an opinion that dealing with that submission (though forceful) would amount to indulging in 'hypothetical and academic exercise'. 33. We may just illustrate what anomalies and absurdities would result if the view of the law taken in Shri Manni Lal's case and Vidya Charan Shukla's case were to hold the field. One such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27.2.1974. On the same day the High Court confirmed the death sentence of the accused under Section 303 I.P.C. holding that on the date on which the accused had committed the murder of A he was undergoing sentence of life imprisonment for the murder of P. In appeal preferred before this Court, it was held that the death sentence could not be upheld inasmuch as the accused had stood acquitted from the offence of the first murder and the acquittal in an appeal had the effect of wiping out the conviction in the first murder. The mandatory sentence of death by reference to Section 303 I.P.C. for the second offence could not be maintained. 37. Four factors are relevant. Firstly, the sentence of death was passed in judicial proceedings and the appeal against the judgment of the trial court being a continuation of those judicial proceedings, the court was not powerless to take note of subsequent events. The sentence of death was passed based on an event which had ceased to exist during the pendency of the appeal. The court was, not only, not powerless but was rather obliged to take note of such subsequent event, failing which a grave injustice would have been done to the accused. Secondl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogically flows amounts to an illegitimate extension of the purpose of the legal fiction (See, the majority opinion in Bengal Immunity Co. Vs. State of Bihar AIR 1955 SC 661). P.N. Bhagwati, J., as his Lordship then was, in his separate opinion concurring with the majority and dealing with the legal fiction contained in the Explanation to Article 286 (1) (a) of the Constitution (as it stood prior to Sixth Amendment) observed "Due regard must be had in this behalf to the purpose for which the legal fiction has been created. If the purpose of this legal fiction contained in the Explanation to Article 286 (1) (a) is solely for the purpose of sub- clause (a) as expressly stated it would not be legitimate to travel beyond the scope of that purpose and read into the provision any other purpose howsoever attractive it may be. The legal fiction which was created here was only for the purpose of determining whether a particular sale was an outside sale or one which could be deemed to have taken place inside the State and that was the only scope of the provision. It would be an illegitimate extension of the purpose of the legal fiction to say that it was also created for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode 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. It will be useful to refer in this context to a Constitution Bench judgment of this Court in Sarat Chandra Rabha & Ors. Vs. Khagendranath Nath & Ors., (1961)2 SCR 133. The convict had earned a remission and the period of imprisonment reduced by the period of remission would have had the effect of removing disqualification as the period of actual imprisonment would have been reduced to a period of less than two years. The Constitution Bench held that the remission of sentence under Section 401 of Criminal Procedure Code (old) and his release from jail before two years of actual imprisonment would not reduce the sentence into one of a period of less than two years and save him from incurring the disqualification. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 disqualified from filing nomination and contesting the election on the date of nomination or election (as the case may be). Question No. (2) 45. What is the meaning to be assigned to the expression "sentence to imprisonment for not less than 2 years" as occurring in Sec. 8(3) of the RPA? In a trial a person may be charged for several offences and held guilty. He may be sentenced to different terms of imprisonment for such different offences. Individually the term of imprisonment may be less than 2 years for each of the offences, but collectively or taken together or added to each other the total term of imprisonment may exceed 2 years. Whether the applicability of Section 8(3) above said would be attracted to such a situation. 46. Section 31 of the Code of Criminal Procedure, 1973 is relevant to find an answer for this. It provides as under :- "31. Sentence in cases of conviction of several offences at one trial. - (1) When a person is convicted at one trial of two or more offences, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 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. Once taken into custody he shall remain disqualified during the period of imprisonment. On the date of his release would commence the period of continued disqualification for a further period of six years. It is clear from a bare reading of sub-section (3) of Section 8 of the RPA that the actual period of imprisonment is relevant. The provisions of Section 8 of the Representation of People Act, 1951 have to be construed in harmony with the provisions of the Code of Criminal Procedure, 1973 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 longest of the several terms of imprisonment would be relevant to be taken into cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;. (See the Law Lexicon, P. Ramanatha Aiyar, Second Edition, at p.116). Principles of Statutory Interpretation by Justice G.P.Singh (9th Edition, 2004) states (at p.302) "When a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. However, in selecting one out of the various meanings of a word, regard must always be had to the context as it is a fundamental rule that "the meanings of words and expressions used in an Act must take their colour from the context in which they appear". Therefore, "when the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of, according to lexicographers". 52. In Section 8(3) of the RPA, the word 'any' has been used as an adjective qualifying the word 'offence' to suggest not the number of offence but the nature of the offence. A bare reading of sub-Section (3) shows that the nature of the offence included in sub-Section (3) is 'any offence other than any offence referred to in sub-Section (1) or sub-Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be construed strictly. We find it difficult to countenance the submission. Contesting an election is a 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. If any authority is needed for the proposition the same is to be found in Lalita Jalan & Anr. Vs. Bombay Gas Co. Ltd. & Ors., (2003) 6 SCC 107 which has held Section 630 of the Companies Act, 1956 not to be a penal provision. The Court has gone on to say, "the principle that statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case." 56. In the case of P. Jayarajan the sentences of imprisonment were to run consecutively in terms of the judgment of the trial court. The periods of sentences of imprisonment for different offences shall have to be totalled up. On such totalling, the total term for which P. Jayarajan would have remained in Jail did exceed a period of 2 years and consequently attracted the applicability of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a superior criminal court. Such reasons seem to have persuaded the Parliament to classify the sitting members of a House into a separate category. Sub-section (4) of Section 8, therefore, provides that if on the date of incurring disqualification a person is a member of a House, such disqualification shall not take effect for a period of 3 months from the date of such disqualification. The period of 3 months is provided for the purpose of enabling the convicted member to file an appeal or revision. If an appeal or revision has been filed putting in issue the conviction and/or the sentence which is the foundation of disqualification, then the applicability of the disqualification shall stand deferred until such appeal or application is disposed of by the court in appeal or revision. 59. In Shibu Soren Vs. Dayanand Sahay & Ors. (2001) 7 SCC 425, a three-Judge Bench of this Court was seized of the question of examining a disqualification on account of the person at that time holding an office of profit. The Court held that such a provision is required to be interpreted in a realistic manner having regard to the facts and circumstances of each case and the relevant statutory provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operly accepted shall have to be determined for the purpose of Section 100(1)(d)(i) by reference to the date 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 (1), (2) and (3) of Section 8 shall have to be determined. The factum of 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 in sentence would not have the effect of wiping out the disqualification which did exist on the focal point dates referred to hereinabove. The decisive dates are the date of election and the date of scrutiny of nomination and not the date of judgment in an election petition or in appeal thereagainst. 2. For the purpose of attracting applicability of disqualification within the meaning of "a person convicted of any offence and sentenced to imprisonment for not les ..... 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