http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 20  

CASE NO.: Appeal (civil)  8213 of 2001

PETITIONER: K. Prabhakaran

RESPONDENT: P. Jayarajan

DATE OF JUDGMENT: 11/01/2005

BENCH: CJI R.C. LAHOTI, SHIVARAJ V. PATIL, B.N. SRIKRISHNA & G.P. MATHUR

JUDGMENT: J U D G M E N T

W I T H

CIVIL APPEAL NO. 6691 OF 2002

Ramesh Singh Dalal                                              \005Appellant

                                          Versus

Nafe Singh & Ors.                                           \005Respondents

R.C. LAHOTI, CJI.  (FOR  SELF AND  ON  BEHALF  OF  HON.  SHIVARAJ  V. PATIL,  B.N. SRIKRISHNA AND  G.P.  MATHUR JJ.)

Facts in C.A. No. 8213/2001         Election to the No. 14 Kuthuparamba Assembly  Constituency was held in the months of April-May, 2001. There  were three candidates, including the appellant K. Prabhakaran  and the respondent P. Jayarajan contesting the election.     Nominations were filed on 24.4.2001.  The poll was held on  10.5.2001.  The result of the election was declared on  13.5.2001.  The respondent was declared as elected.

       In connection with an incident dated 9.12.1991, the  respondent was 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 20  

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

       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 released on bail during the   hearing of the appeal.

       The nomination paper filed by the respondent was  objected to by the appellant on the ground that the respondent  having been convicted and sentenced to imprisonment for a term  exceeding 2 years was disqualified from contesting the election.   However, the objection was overruled by the returning officer  and the nomination of the respondent was accepted.  The  returning officer formed an opinion that the respondent was  convicted for many offences and any of the terms of  imprisonment for which he was sentenced was not 2 years, and  therefore, the disqualification within the meaning of Section 8(3)  of the Representation of the People Act, 1951 (hereinafter ’RPA’,  for short) was not attracted.

       On 15.6.2001, the appellant filed an election petition under  Chapter II of RPA mainly on the ground that the respondent was  disqualified, and therefore, neither his nomination was valid nor  could he have been declared elected.

       On 25.7.2001, the Court of Sessions partly allowed the  appeal filed by the respondent.  The conviction of the accused  and the sentences passed on him were maintained, subject to  the modification that the substantive sentences of imprisonment  for the several offences for which the respondent was found  guilty were made to run concurrently.

       On 5.10.2001, a learned Designated Election Judge of the  High Court decided the election petition by directing it to be  dismissed.  The learned Judge did not find any fault with the  view taken by the returning officer that Section 8(3) of RPA was  not attracted.  The learned Judge also held that during the  pendency of the election petition, the sentence passed by the  trial court had stood modified by the appellate court which, while  maintaining the conviction and different terms of imprisonment  to which the respondent was sentenced, had directed the  sentences to run concurrently.  In the opinion of the High Court,  the sentence, as modified by the appellate court, operated  retrospectively from the date of the judgment of the trial court,  and, therefore also the disqualification had in any case ceased to  exist.  The High Court placed reliance on two decisions of this  Court namely Shri Manni Lal Vs. Shri Parmai Lal and others                            1970 (2) SCC 462 and Vidya Charan Shukla Vs. Purshottam  Lal Kaushik 1981 (2) SCC 84.   

Facts in C.A.6691/2002         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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 20  

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.

       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 was released on bail.  By that time he had  undergone imprisonment for four months and twenty one days.   

       On 14.12.1999, the Governor of the State of Haryana  dissolved Haryana Assembly for mid term poll.  In the first week  of January 2000 the Election Commission notified the election  programme.  For 37-Bahadurgarh Assembly Constituency, the  last date for filing nominations was appointed as 3.2.2000.  On  29.1.2000 Indian National Lok Dal, to which Nafe Singh  belonged, released the first list of its official candidates wherein  the name of Smt. Shiela Devi wife of Nafe Singh, respondent  No.1, was included.  On 1.2.2000  Smt. Shiela Devi filed her  nomination paper on Indian National Lok Dal ticket.  On  2.2.2000 Nafe Singh also filed his nomination paper as a dummy  candidate or an alternative to his wife Smt. Shiela.  On the date  of the scrutiny of nomination papers the appellant objected to  the nomination of Nafe Singh submitting that the latter in view  of his conviction and sentence of life imprisonment passed under  Section 302 I.P.C. was disqualified for being chosen as a  member of Haryana Assembly under Article 191 of the  Constitution read with Section 8(3) of the RPA.  The objection  was overruled by the Returning Officer  who accepted as valid  the nomination paper filed by Nafe Singh.  However, the  nomination paper of Smt. Shiela, wife of Nafe Singh was not  found to be in order and hence rejected. Indian National Lok Dal  then nominated Nafe Singh as its candidate from Bahadurgarh  Assembly Constituency.  Polling was held on 22.2.2000.  Results  were declared on 25.2.2000 wherein Nafe Singh was declared  elected over the appellant, the nearest rival, by a margin of  1,648 votes. There were, in all, eleven candidates in the election  fray.  

       On 8.4.2000, the appellant filed an election petition under  Chapter II of the RPA.  One of the grounds taken in the election  petition was of improper acceptance of the nomination paper of  Nafe Singh by the Returning Officer.  Nafe Singh contested the  election petition.  The learned Designated Election Judge of the  High Court of Punjab and Haryana framed 13 issues arising from  the pleadings of the parties.  Issues No.1 to 7 were heard as  preliminary issues not requiring any evidence.   

       Before we may proceed to notice the result of the election  petition 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 20  

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 High Court dated 1.8.2001 is that  the complainant and the other injured persons had come to  terms with the accused (respondent No. 1), settled their  differences and compromised.  15 persons, who had as  witnesses supported the prosecution case at trial, had now filed  their affidavits before the Appellate Court disowning their  statements earlier given by them in the trial court and stated (as  the High Court has recorded in its decision), "that the parties  had compromised their disputes and that the F.I.R. had been  lodged on account of suspicion and at the instigation of certain  persons and that no such occurrence had taken place."  

       On 21.8.2001 Nafe Singh, respondent No.1 placed the  appellate judgment of acquittal on record of the election petition  by moving an application in that regard.  On 20.12.2001 the  appellant herein made a request to the Hon. Chief Justice of High  Court requesting for his indulgence in getting the judgment in  the election petition being pronounced.  On 25.2.2002 the  appellant moved an application before the learned Designated  Election Judge praying for pronouncement of judgment at an  early date. The judgment was pronounced on 5.7.2002.  The  election petition was directed to be dismissed.  Out of several  findings recorded by the High Court the two, which are relevant  for the purpose of this appeal, are as under:- (i)     in view of the appeal preferred by the respondent  having been allowed his conviction and sentence  passed thereon respectively dated 17.5.1999 and  19.5.1999 stood wiped out as if no conviction had  taken place as is the view taken by this Court in  the case of Shri Manni Lal (supra) and Vidya  Charan Shukla (supra);  (ii)    that on the date of his conviction Nafe Singh was  a Member of Legislative Assembly and, therefore,  in view of the provisions contained in sub-section  (4) of Section 8 of the RPA, the conviction did not  take effect for a period of three months and as  within that period an appeal was preferred which  was pending and not disposed of on the date of  nomination and election of Nafe Singh, he was  protected by the said provision and the  disqualification did not take effect.

Proceedings in the appeals :

       The election petitioners in both the cases have preferred  these two statutory appeals under Section 116A of the RPA.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 20  

       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.

       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.

       Three questions arise for decision :-

(1)     Whether an appellate judgment of a date  subsequent to the date of election and having  a bearing on conviction of a candidate and  sentence of imprisonment passed on him  would have the effect of wiping out  disqualification from a back date if a person  consequent upon his conviction for any offence  and sentenced to imprisonment for not less  than 2 years was disqualified from filing  nomination and contesting the election on the  dates of nomination and election;

(2)     What is the meaning to be assigned to the  expression \026 "A person convicted of any  offence and sentenced to imprisonment for not  less than 2 years" as employed in sub-section  (3) of Section 8 of the Representation of the  People Act, 1951?  Is it necessary that the  term of imprisonment for not less than 2 years  must be in respect of one single offence to  attract the disqualification?

(3)     What is the purport of sub-section (4) of  Section 8 of RPA? Whether the protection  against disqualification conferred by sub- section (4) on a member of a House would  continue to apply though the candidate had  ceased to be a member of Parliament or  Legislature of a State on the date of  nomination or election?

Relevant Provisions The relevant provisions of law may be set out as under :-

Constitution of India

Article 191. "Disqualification for  membership \026 (1) A person shall be  disqualified for being chosen as, and for being,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 20  

a member of the Legislative Assembly or  Legislative Council of a State-                 x               x               x (e) if he is so disqualified by or under any law  made by Parliament."                 x               x               x                

The Representation of the People Act, 1951

"8. Disqualification on conviction for  certain offences-                 x               x               x

(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.

(4)  Notwithstanding anything in sub-section  (1), sub-section (2) of sub-section (3) a  disqualification under either sub-section shall  not, in the case of a person who on the date of  the conviction is a member of Parliament or  the Legislature of a State, take effect until  three months have elapsed from that date or,  if within that period an appeal or application  for revision is brought in respect of the  conviction or the sentence, until that appeal or  application is disposed of by the 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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 20  

the High Court shall declare the election of the  returned candidate to be void.

       We have briefly stated in the earlier part of the  judgment such facts relating to both the cases which are  not in dispute.   Before dealing with the submissions made  by the learned counsel for the parties, it would be  appropriate to set out briefly the relevant facts and the law  laid down in the cases of Shri Manni Lal (supra) and  Vidya Charan Shukla (supra).

        Shri Manni Lal’s case

       Manni Lal’s case (supra) is a two-Judge Bench decision of  this Court. Parmai Lal, respondent No. 1 therein, filed his  nomination on 9.1.1969. Two days later, on 11.1.1969, he was  convicted for an offence under Section 304 I.P.C. and sentenced  to 10 years RI.  On 16.1.1969 he filed an appeal against his  conviction in the High Court.  Polling took place on 9.2.1969.  Parmai Lal was declared elected on 11.2.1969. On 30.9.1969 the  appeal filed by Parmai Lal was allowed by the High Court and his  conviction and sentence was set aside.  At that point of time, an  election petition laying challenge to election of Parmai Lal was  pending which was decided by the judgment delivered on  27.10.1969. The High Court refused to hold Parmai Lal as  disqualified under Section 8(2) of RPA. Manni Lal filed an appeal  in this Court.  This Court held that in a criminal case, acquittal in  appeal does not take effect merely from the date of the appellate  order setting aside the conviction; it has the effect of  retrospectively wiping out the conviction and the sentence  awarded by the lower court.

       Bhargava, J., speaking for the Bench, observed __ "It is  true that the opinion has to be formed as to whether the  successful candidate was disqualified on the date of his election;  but  this opinion is to be formed by the High Court at the time of  pronouncing the judgment in the election petition. In this case,  the High Court proceeded to pronounce the judgment on 27th  October, 1969.  The High Court had before it the order of  acquittal which had taken effect retrospectively from 11th  January, 1969.  It was, therefore, impossible for the High Court  to arrive at the opinion that on 9th or 11th February, 1969,  respondent No. 1 was disqualified.  The conviction and sentence  had been retrospectively wiped out, so that the opinion required  to be formed by the High Court to declare the election void could  not be formed."   In the opinion of Bhargava, J. the effect of  acquittal by the appellate court was similar to the effect of repeal  of an enactment.  To quote His Lordship __ "The situation is  similar to one that could have come into existence 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 20  

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         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 date of filing of nomination. Such  conviction and sentence were effective on the date of election as  also on the date of declaration of result.  However, the execution  of sentence was stayed by the High Court.  The unsuccessful  candidate filed an election petition and by the time the election  petition came to be decided,  the criminal appeal filed by Vidya  Charan Shukla was allowed by the High Court and his conviction  and sentence were set aside. Reliance was placed on Manni  Lal’s case (supra) and the narrow question which arose for  decision before this Court was whether the case fell within the  ratio of Manni Lal’s case (supra) if the challenge was  considered to be one under clause (d)(i) and (iv) of Section 100.  The Court noticed the principle laid down in Dalip Kumar  Sharma  vs.  State of M.P., (1976) 1 SCC 560, to hold that an  order of acquittal, particularly one passed on merits, wipes off  the conviction and sentence for all purposes and as effectively as  it had never been passed  and an order of acquittal annulling or  voiding a conviction operates from nativity. The conviction for  the offence having been quashed by the High Court in appeal it  "killed the conviction not then, but performed the formal  obsequies of the order which had died at birth."                  Thereafter, this Court referred to the case of Manni Lal  and expressed agreement with the view taken therein, that,  once the  disqualification of the returned candidate incurred on  account of his conviction and sentence exceeding two years  imprisonment which existed as a fact at the date of the election,  is subsequently set aside by the High Court prior to the date of  decision in election petition laying challenge to the validity of  election under Section 100(1)(a) of RPA, the election petition  must fail because the acquittal had the effect of retrospectively  wiping out the disqualification as completely and effectively as if  it never had existed. It did not make much difference that the  candidate stood convicted on the date of filing nomination as  also on the date of election and earned acquittal after the  election so long as it was before the date of pronouncement of  judgment in the election petition by the High Court.

       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.  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 20  

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 obliterated with retrospective force  and he would be justified in submitting that his nomination was  illegally rejected and, therefore, the result of the election was  materially affected and was liable to be set aside.  The Court  branded the said submission as ’hypothetical’ requiring an  academic exercise which was not necessary to indulge in.  It  would be note-worthy, as recorded vide para 40 of the judgment  in Vidya Charan Shukla’s case, that correctness of the  decision in Manni Lal’s case  was not disputed and there was  no prayer made for reconsideration of the ratio of Manni Lal’s  case by a larger bench. The only submission made before the  Court in Vidya Charan Shukla’s case was that the ratio in  Manni Lal’s case was distinguishable and hence inapplicable to  the facts of Vidya Charan Shukla’s case.  In such  circumstances, the Court held "we would abide by the principle  of stare decisis and follow the ratio of Manni Lal’s case."   

       It is writ large that the position of law may have been  different and the three-Judge bench which decided Vidya  Charan Shukla’s case could have gone into the question of  examining the correctness of the view taken in Munni Lal’s  case if only that submission would have been made.

       Now we proceed to deal with the three issues posed for  resolution before us.

QUESTION (1):          Under clause (a) of sub-section (1) of Section 100 of the  RPA, the High Court is called upon to decide whether 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  the RPA.  If the answer be in the affirmative, the High Court is  mandated to declare the election of the returned candidate to be  void.  The focal point by reference to which the question of  disqualification shall be determined is the date of election.    

       It is trite that the right to contest an election is a statutory  right.  In order to be eligible for exercising such right the person  should be qualified in the terms of the statute.  He should also  not be subject to any disqualification as may be 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.

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 20  

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 scrutiny of nomination. That is  the focal point.   The names and number of candidates who will be in the fray is  determined on the date of the scrutiny of the nomination papers  and the constituency goes to polls.  Obviously, the decision by  the returning officer has to be taken on the  facts as they exist  on that day.  The decision must be accompanied by certainty.   The returning officer cannot postpone his decision nor make it  conditional upon what may happen subsequent to that date.   Under Section 100(1)(d)(i) of the Act the High Court has to test  the correctness of the decision taken by the returning officer and  the fact whether any nomination was improperly accepted by  reference to the date of the scrutiny of the nomination as  defined in Section 36(2)(a).  An election petition is heard and  tried by a court of law.  The proceedings in election petition are  independent of the election proceedings which are held by the  Executive.  By no stretch of imagination the proceedings in  election petition can be called or termed as continuation of  election proceedings. The High Court trying an election petition  is not hearing an appeal against the decision of returning officer  or declaration of result of a candidate.

       With respect to the learned judges who decided Shri  Manni Lal’s case (supra), the fallacy with which the judgment  suffers is presumably an assumption as if the election petition  proceedings are the continuation of the election proceedings.   Yet, another fallacy with which the judgment, in our humble  opinion, suffers is as if the High Court has to form opinion on the  disqualification of a candidate at the time of pronouncing the  judgment in the election petition.  That is not correct.   Undoubtedly, the High Court is forming an opinion on the date of  judgment in election petition but that opinion has to be formed  by reference to the date of scrutiny, based not on such facts as  can be fictionally deemed to have existed on a back date  dictated by some subsequent event, but based on the facts as  they had actually existed then, so as to find out whether the  returning officer was right or wrong in his decision on scrutiny of  nomination on that date, i.e., the date of scrutiny.  The  correctness or otherwise of such decision by the returning officer  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.

       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’.

 We may just illustrate what anomalies and absurdities

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 20  

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 situation is to be found noted in para 39 of  Vidya  Charan Shukla’s case.  A candidate’s nomination may be  rejected on account of his having been convicted and sentenced  to imprisonment for a term exceeding two years prior to the date  of scrutiny of nomination.  During the hearing of election petition  if such candidate is exonerated in appeal and earns acquittal, his  nomination would be deemed to have been improperly rejected  and the election would be liable to be set aside without regard to  the fact whether the result of the election was materially  affected or not.        Take another case.  Two out of the several  candidates in the election fray may have been convicted before  the date of nomination. By the time the election petition comes  to be decided, one may have been acquitted in appeal and the  conviction of other may have been upheld and by the time an  appeal under Section 116A of the RPA preferred in this Court  comes to be decided, the conviction of one may have been set  aside and, at the same time, the acquittal of the other may also  have been set aside.  Then the decision of the High Court in  election petition would be liable to be reversed not because it  was incorrect, but because something has happened thereafter.  Thus, the result of election would be liable to be avoided or  upheld not because a particular candidate was qualified or  disqualified on the date of scrutiny of nominations or on the date  of his election, but because of acquittal or conviction much after  those dates.  Such could not have been the intendment of the  law.

We are also of the opinion that the learned judges deciding  Shri Manni Lal’s case (supra) were not right in equating the  case of appellate acquittal with the retrospective repeal of a  disqualification by statutory amendment.   

In Vidya Charan Shukla’s case (supra) Dalip Kumar  Sharma’s case (supra)  has been relied upon which, in our  opinion, cannot be applied to a case of election and election  petition.

       Dalip Kumar Sharma’s case (supra) is a case of  conviction under Section 303 I.P.C.. One P was murdered on  24.10.1971. 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.

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 20  

obliged to take note of such subsequent event, failing which a  grave injustice would have been done to the accused.  Secondly,   the court interpreted Section 303 I.P.C. which speaks of a  person "under sentence of imprisonment for life"  as meaning a  person under an operative, executable sentence of imprisonment  for life. A sentence once imposed but later set aside is not  executable and, therefore, ceases to be relevant for the purpose  of Section 303 I.P.C. Thirdly,  the focal point was the date of  conviction when the court is called upon to pronounce the  sentence.  Fourthly,  it is pertinent to note that the well  established proposition which the court pressed into service was  that __ "a court seized of a proceeding must take note of events  subsequent to the inception of that proceeding", which position,  the court held, is applicable to civil as well as criminal  proceedings with appropriate modifications. The emphasis is on  the events happening subsequent to the inception of that  proceeding. In the cases at hand, the principle laid down in  Dalip Kumar Sharma’s case (supra) will have no application  inasmuch as the validity of nomination paper is to be tested by  deciding qualification or disqualification of the candidate on the  date of scrutiny and not by reference to any event subsequent  thereto.

       The decision of this Court in Amrit Lal Ambalal Patel  vs.   Himathbhai Gomanbhai Patel & Anr., AIR 1968 SC 1455,  lends support to the principle that the crucial date for  determining whether a candidate is not qualified or is disqualified  is the date of scrutiny of nominations and a subsequent event  which has the effect of wiping out the disqualification has to be  ignored.

       An appellate judgment in a criminal case, exonerating the  accused-appellant, has the effect of wiping out the conviction as  recorded by the Trial Court and the sentence passed thereon \026 is  a legal fiction.  While pressing into service a legal fiction it  should not be forgotten that legal fictions are created only for  some definite purpose and the fiction is to be limited to the  purpose for which it was created and should not be extended  beyond that legitimate field.  A legal fiction pre-supposes  the  existence of the state of facts which may not exist and then  works out the consequences which 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 \026 "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 converting the inter-State character of the  transaction into an intra-State one."  His Lordship opined that  this type of conversion would be contrary to the express purpose

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 20  

for which the legal fiction was created.  These observations are  useful for the purpose of dealing the issue in our hands.   Fictionally, an appellate acquittal wipes out the trial court  conviction; yet, to hold on the strength of such legal fiction that  a candidate though convicted and sentenced to imprisonment for  two years or more was not disqualified on the date of scrutiny of  the nomination, consequent upon his acquittal on a much later  date, would be an illegitimate extension of the purpose of the  legal fiction.  However, we hasten to add that in the present case  the issue is not so much as to the applicability of the legal  fiction; the issue concerns more about the power of the  Designated Election Judge to take note of subsequent event and  apply it to an event which had happened much before the  commencement of that proceeding in which the subsequent  event is brought to the notice of the Court.  An election petition  is not a continuation of election proceedings.

       We are clearly of the opinion that Shri Manni Lal’s case  (supra) and Vidya Charan Shukla’s case  (supra) do not lay  down the correct law. Both the decisions are, therefore,  overruled.

       The correct position of law is that nomination of a person  disqualified within the meaning of sub-section (3) of Section 8 of  the RPA on the date of scrutiny of nominations under Section  36(2)(a) shall be liable to be rejected as invalid and such  decision of the returning officer cannot be held to be illegal or  ignored merely because the conviction is set aside or so altered  as to go out of the ambit of Section 8(3) of the RPA consequent  upon a decision of a subsequent date in a criminal appeal or  revision.

       What is relevant for the purpose of Section 8(3) is the  actual period of imprisonment which any person convicted shall  have to undergo or would have undergone consequent upon the  sentence of imprisonment pronounced by the Court and that has  to be seen by reference to the date of scrutiny of nominations or  date of election.  All other factors are irrelevant.  A person  convicted may have filed an appeal.  He may also have secured  an order suspending  execution of the sentence or the order  appealed against under Section 389 of the Code of Criminal  Procedure 1973.  But that again would be of no consequence.  A  Court of appeal is empowered under Section 389 to order that  pending an appeal by a convicted person the execution of the  sentence or order appealed against be suspended and also, if he  is in confinement, that he be released on bail or bond.  What is  suspended is not the conviction or sentence; it is only the  execution of the sentence or order which is suspended.  It is  suspended and not obliterated.  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.  "An  order of remission 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 20  

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."

       In B.R. Kapur Vs. State of T.N. & Anr., (2001) 7 SCC  231, a similar question, though in a little different context, had  arisen for the consideration of the Constitution Bench.  Vide para  44, the Court did make a reference to Vidya Charan Shukla’s  case but observed that it was a case of an election petition and,  therefore, did not have a bearing on the construction of Article  164 of the Constitution which was in issue before the  Constitution Bench.  Obviously the consideration of the  correctness of the law laid down in Vidya Charan Shukla’s  case was not called for.  However, still the Constitution Bench  has made a significant observation which is very relevant for our  purpose.  The Constitution Bench observes (vide para 44) ___  "There can be no doubt that in a criminal case acquittal in appeal  takes effect retrospectively and wipes out the sentence awarded  by the lower court.  This implies that the stigma attached to the  conviction and the rigour of the sentence are completely  obliterated, but that does not mean that the fact of the  conviction and sentence by the lower court is obliterated until  the conviction and sentence are set aside by an appellate court.   The conviction and sentence stand pending the decision in the  appeal and for the purposes of a provision such as Section 8 of  the Representation of the People Act are determinative of the  disqualifications provided for therein" (emphasis supplied). To  the same effect are observations contain in para 40 also.

       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)         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.   

       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 Court may, subject to the  provisions of section 71 of the Indian Penal Code  (45 of 1860), sentence him for such offences, to  the several punishments, prescribed therefor which  such Court is competent to inflict; such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 20  

punishments when consisting of imprisonment to  commence the one after the expiration of the other  in such order as the Court may direct, unless the  Court directs that such punishments shall run  concurrently.

(2)  In the case of consecutive sentences, it shall  not be necessary for the Court by reason only of  the aggregate punishment for the several offences  being in excess of the punishment which it is  competent to inflict on conviction of a single  offence, to send the offender for trial before a  higher Court:

Provided that __ (a) in no case shall such person be  sentenced to imprisonment for a longer  period than fourteen years; (b) the aggregate punishment shall not  exceed twice the amount of punishment  which the Court is competent to inflict for a  single offence.

(4)     For the purpose of appeal by a convicted person,  the aggregate of the consecutive sentences passed  against him under this section shall be deemed to  be a single sentence."

       It is competent for a criminal court to pass several  punishments for the several offences of which the accused has  been held guilty. The several terms of imprisonment to which the  accused has been sentenced commence one after the other and  in such order as the court may direct, unless the court directs  that such punishments shall run concurrently. Each of the terms  of imprisonment to which the accused has been sentenced for  the several offences has to be within the power of the court and  the term of imprisonment is not rendered illegal or beyond the  power of the court merely because the total term of  imprisonment in the case of consecutive sentences is in excess  of the punishment within the competency of the court. For the  purpose of appeal by a convicted person it is the aggregate of  the consecutive sentences passed against him which shall be  deemed 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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 20  

terms of imprisonment made to run concurrently, the longest of  the several terms of imprisonment would be relevant to be taken  into consideration for the purpose of deciding whether the  sentence of imprisonment is for less than 2 years or not.

       It was submitted by Shri K.K. Venugopal, the learned  Senior Counsel for the respondent in C.A. No. 8213/2001, that  the phrase "any offence" as occurring in Section 8(3) of the RPA  should be interpreted to mean a single offence and unless and  until the term of imprisonment for any one of the offences out of  the several offences for which the accused has been convicted  and sentenced is 2 years or more,  the disqualification enacted  under Section 8(3) would not be attracted.  We are not  impressed.  

In Shri Balaganesan Metals  vs. M.N. Shanmugham  Chetty & Ors., (1987) 2 SCC 707, the word "any" came up for  consideration of this Court. It was held that the word "any"  indicates "all" or "every" as well as "some" or "one" depending  on the context and the subject matter of the statue. Black’s Law  Dictionary was cited with approval.  

In Black’s Law Dictionary (sixth Edition) the word ’any’ is  defined (at p.94) as under:- "Any. Some; one out of many; an indefinite  number.  One indiscriminately of whatever kind  or quantity.  

One or some (indefinitely).     

"Any" does not necessarily mean only one  person, but may have reference to more than  one or to many.    

       Word "Any" has a diversity of meaning  and may be employed to indicate "all" or  "every" as well as "some" or "one" and its  meaning in a given statute depends upon the  context and the subject matter of the statute.    

       It is often synonymous with "either",  "every", or "all".  Its generality may be  restricted by the context; thus, the giving of  a  right to do some act "at any time" is commonly  construed as meaning within a reasonable  time; and the words "any other" following the  enumeration of particular classes are to be  read as "other such like," and include only  others of like kind or character."

       The word ’any’ may have one of the several meanings,  according to the context and the circumstances.  It may mean  ’all’; ’each’; ’every’; ’some’; or ’one or many out of several’.  The  word ’any’ may be used to indicate the quantity such as ’some’,  ’out of many’, ’an infinite number’.  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) \026 "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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 20  

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".

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-Section (2) (of Section 8)’.  The use  of adjective ’any’ qualifying the noun ’offence’ cannot be pressed  in service to countenance the submission that the sentence of  imprisonment for not less than two years must be in respect of a  single offence.

       Sub-Section (3) in its present form was introduced in the  body of the RPA by Act No.1 of 1989 w.e.f. 15.3.1989.  The  same Act made a few changes in the text of sub-Section (4)  also.  The Statement of Objects and Reasons accompanying Bill  No.128 of 1988 stated, inter alia, "Section 8 of the  Representation of the People Act, 1951 deals with  disqualification on the ground of conviction for certain offences.   It is proposed to include more offences in this section so as to  prevent persons having criminal record enter into public life".   (See the Gazette of India Extraordinary, Part II, Section 2,  pp.105, 114). The intention of Parliament is writ large; it is to  widen the arena of Section 8 in the interest of purity and probity  in public life.  

       The purpose of enacting disqualification under Section 8(3)  of the RPA is to prevent criminalization of politics. Those who  break the law should not make the law.  Generally speaking, the  purpose sought to be achieved by enacting disqualification on  conviction for certain offences is to prevent persons with criminal  background from entering into politics, and the House \027 a  powerful wing of governance.   Persons with criminal background  do pollute the process of election as they do not have many a  holds barred and have no reservation from indulging into  criminality to win success at an election.  Thus, Section 8 seeks  to promote freedom and fairness at elections, as also law and  order being maintained while the elections are being held.  The  provision has to be so meaningfully construed as to effectively  prevent the mischief sought to be prevented. The expression "a  person convicted of any offence" has to be construed as all  offences of which a person has been charged and held guilty at  one trial. 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.

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 20  

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."                  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 Section 8(3) of the RPA which cast a   disqualification upon P. Jayarajan on the date of scrutiny of the  nomination papers. His nomination could not have been  accepted by the returning officer and he was not right in holding  him not disqualified. In the light of the view of the law taken by  us on Question-1 above, the subsequent event of the several  terms of imprisonment having been directed by the appellate  court to run concurrently on a date subsequent to the date of  scrutiny is irrelevant and liable to be ignored.

Question No. (3)         A comparative reading of sub-sections (3) and (4) of  Section 8 of the RPA shows that Parliament has chosen to  classify candidates at an election into two classes for the purpose  of enacting disqualification.  These two classes are : (i) a person  who on the date of conviction is a member of Parliament or  Legislature of a State,  and (ii) a person who is not such a  member. The persons falling in the two groups are well defined  and determinable groups and, therefore, form two definite  classes. Such classification cannot be said to be unreasonable as  it is based on a well laid down differentia and has nexus with a  public purpose sought to be achieved.

       Once the elections have been held and a House has come  into existence, it may be that a member of the House is  convicted and sentenced.  Such a situation needs to be dealt  with on a different footing.  Here the stress is not merely on the  right of an individual to contest an election or to continue as a  member of a House, but the very existence and continuity of a  House democratically constituted.  If a member of the House  was debarred from sitting in the House and participating in the  proceedings, no sooner the conviction was pronounced followed  by sentence of imprisonment, entailing forfeiture of his  membership, then two consequences would follow.  First, the  strength of membership of the House shall stand reduced, so  also the strength of the political party to which 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 20  

application is disposed of by the court in appeal or revision.    

       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 provisions.  While "a strict and narrow  construction" may not be adopted which may have the effect of  "shutting of many prominent and other eligible persons to  contest elections" but at the same time "in dealing with a  statutory provision which imposes a disqualification on a citizen,  it would not be unreasonable to take merely a broad and general  view and ignore the essential points".  A balance has to be stuck  between strict construction and what is at stake is the right to  contest an election and hold office.  "A practical view, not  pedantic basket of tests" must, therefore, guide courts to arrive  at appropriate conclusion.  The disqualification provision must  have a substantial and reasonable nexus with the object sought  to be achieved and the provision should be interpreted with the  flavour of reality bearing in mind the object for enactment.

       Sub-section (4) operates as an exception carved out from  sub-sections (1), (2) and (3) of Section 8 of the RPA.  Clearly  the saving from the operation of sub-sections (1), (2) and (3) is  founded on the factum of membership of a House. The purpose  of carving out such an exception is not to confer an advantage  on any person; the purpose is to protect the House.  Therefore,  sub-Section (4) would cease to apply no sooner the House is  dissolved or the person has ceased to be a member of that  House.  Any other interpretation would render sub-section (4)  liable to be annulled as unconstitutional. Once a House has been  dissolved and the person has ceased to be a member, on the  date of filing the nomination there is no difference between him  and any other candidate who was not such a member.  Treating  such two persons differently would be arbitrary and  discriminatory and incur the wrath of Article 14.   A departure  from the view so taken by us would also result in anomalous  consequences not intended by the Parliament. Conclusion               To sum up, our findings on the questions arising for  decision in these appeals are 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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 20  

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 less than two years", - the  expression as occurring in Section 8(3) of the RPA, what has to  be seen is the total length of time for which a person has been  ordered to remain in prison consequent upon the conviction and  sentence pronounced at a trial.  The word ’any’ qualifying the  word ’offence’ should be understood as meaning the nature of  offence and not the number of offence/offences.  

3.      Sub-Section(4) of Section 8 of the RPA is an exception  carved out from sub-Sections (1), (2) and (3).  The saving from  disqualification is preconditioned by the person convicted being a  Member of a House on the date of the conviction.  The benefit of  such saving is available only so long as the House continues to  exist and the person continues to be a Member of a House.  The  saving ceases to apply if the House is dissolved or the person  ceases to be a Member of the House.  

Result         For the foregoing reasons, Civil Appeal No.8213 of 2001,  K. Prabhakaran Vs. P. Jayarajan, is allowed.  The judgment of  the High Court dated 5.10.2001 is set aside.  The election  petition filed by the appellant is allowed.  The election of the  respondent P. Jayarajan from No.14 Kuthuparamba Assembly  Constituency to the Kerala State Legislative Assembly, which  was declared on 13.5.2001, is set aside. The respondent No.1  shall bear the costs of the appellant throughout.

       Civil Appeal No.6691 of 2002 is also allowed.  The  judgment of the High Court dated 5.7.2002 is set aside. The  election petition filed by the appellant shall stand allowed. The  election of the respondent Nafe Singh from 37-Bahadurgarh  Assembly Constituency is declared void as he was disqualified  from being a candidate under Section 8(3) of the Representation  of the People Act, 1951. The respondent No.1 shall bear the  costs of the appellant throughout.