TaxTMI 
TaxTMI 
2005 (1) TMI 674
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....ith an incident dated 9.12.1991, the respondent 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 t....
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....al Kaushik 1981 (2) SCC 84. Facts in C.A.6691/2002 8. On 18.9.1993, FIR No.386 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 suspe....
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....tition as determined by the High Court, 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 19.3.2001 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....
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.... 116A of the RPA. 15. On 1.10.2002, C.A. No. 8213/2001 came up for hearing before a three-Judge 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 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....
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.... 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 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 ....
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....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 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 dec....
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....he date of pronouncement of judgment in the election petition by the High Court. 23. The emphasis in Manni Lal's case (supra), that the opinion on the question of disqualification had to be formed by the High Court at the time it proceeds to pronounce the judgment 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 impr....
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.... imposed by the statute making provision for the elective office. Thus, the Legislature creating the office is well within its power to prescribe qualifications and disqualifications subject to which the eligibility of any candidate for contesting for or holding the office shall 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....
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....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 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 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 (thoug....
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.....1971. The accused was sentenced to life imprisonment on 18.5.1972. On 20.6.1973 the accused committed the murder of A and was convicted for such murder on 24.1.1974 and sentenced to death under Section 303 I.P.C. In appeal against conviction for the murder of P, the accused was acquitted on 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 ev....
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....ate of facts which may not exist and then works out the consequences which flow 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 beyond what logically 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....
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....t 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. 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 ye....
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....re observations contain in para 40 also. 44. We are, therefore, of the opinion that 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 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 sai....
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....eemed to be a single sentence. The same principle can be held good and applied to determining disqualification. Under sub- section (3) of Section 8 of the RPA 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. 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....
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.... 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'. It may also be used to indicate quality or nature of the noun which it qualifies as an adjective such as 'all' or 'every'. (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 ....
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....s been charged and held guilty at one trial. The applicability of the expression "sentenced 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. 55. Shri K.K. Venugopal, learned senior counsel appearing for respondent in one of the appeals, submitted that Section 8 of the RPA is a penal provision and, therefore, should 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 obse....
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....such convicted member may belong. The Government in power may be surviving on a razor edge thin majority where each member counts significantly and disqualification of even one member may have a deleterious effect on the functioning of the Government. Secondly, bye-election shall have to be held which exercise may prove to be futile, also resulting in complications in the event of the convicted member being acquitted by 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 app....
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....re as under:- 1. The question of qualification or disqualification of a returned candidate within the meaning of Section 100(1)(a) of the Representation of the People Act, 1951 (RPA, for short) has to be determined by reference to the date of his election which date, as defined in Section 67A 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 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 e....