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CASE NO.: Appeal (civil)  8213 of 2001

PETITIONER: K. Prabhakaran

RESPONDENT: P. Jayarajan

DATE OF JUDGMENT: 11/01/2005

BENCH: K.G.Balakrishnan]

JUDGMENT: J U D G M E N T

WITH

CIVIL APPEAL NO. 6691 OF 2002

Ramesh Singh Dalal                                      \005.   Appellant

Versus

Nafe Singh & Ors.                                               \005.   Respondents

K.G. BALAKRISHNAN, J.

       I had the advantage of reading the Judgment in draft prepared by  noble and learned Brother, Lahoti, CJ, and I regret that I am unable to agree  with the interpretation placed on Section 8(3) of the Representation of  People’s Act, 1951.    On all other points, I respectfully agree with the  decision.  

       Under Section 8(3) of the Representation of the People’s Act, 1951, 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.    If at the time of the scrutiny of the nomination papers, a person concerned  was found disqualified, his nomination paper will be rejected and he would be  unable to contest the election.  Under Section 100 of the Representation of  People’s Act, 1951, any improper acceptance of nomination is a valid ground  for declaring the election void, if the result of the election, insofar as it  concerns the returned candidate, has been materially affected.

       The question for consideration is whether in a case where the accused  person has been convicted on various counts  and the total period of the  sentence  of imprisonment is two years or more and the Magistrate orders  the sentence of imprisonment for various periods  to run consecutively, and if  the total period of such  imprisonment to which the person convicted will  have to undergo is  two years or more, whether  he  could be disqualified  under Section 8(3) of the Representation of People’s Act.  In other words,  even if the sentence of imprisonment does not exceed two years or more for   any one of the offences for which he is convicted, whether still he could be  disqualified under Section 8(3) of the Representation of the People’s Act,  1951 based on the order of the Magistrate/Judge to the effect that the  sentence on various counts shall run consecutively.

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       The argument of the learned counsel for the appellant in Civil Appeal  No. 8213 of 2001 is that it is the total period of the sentence on various  counts which is  material and in the instant case, the respondent was found  guilty of  offences  on  six counts.    For the offence under Section 143 read  with Section 149 IPC, he was sentenced to undergo R.I. for a period of one  year  while for the offence under Section 3(2)(e) of the Prevention of the  Damage of the Public Property Act, 1984, he was sentenced to undergo R.I.  for a period of one year, and for various other offences he had been  sentenced to imprisonment for a period ranging from one month to six  months and as the Judicial Magistrate First Class directed  that the sentences  on various counts shall run consecutively.  It is argued by the appellant’s  learned Counsel that the respondent is convicted and sentenced to  imprisonment for a period of more than two years and therefore disqualified  under Section 8(3) of the Representation of People’s Act, 1951.  The question  for consideration is whether the respondent in Civil Appeal No. 8213 of 2001  had been convicted for any offence and sentenced to imprisonment for not  less than two years.  I am unable to subscribe to the contention advanced by  the appellant’s learned Counsel that  the word "any" used in Section 8(3) of  the Representation of the People’s Act, 1951 should be construed  so as to  mean  "more than one" or "all" or in a sense of plurality.  It is also difficult to  construe the words "not less than two years" used in Section 8(3) of the  Representation of the People’s Act by giving emphasis to the total period of  imprisonment that a convict may undergo if all the periods of imprisonment  for various offences are put together, when it is ordered to run consecutively.

       From the words used in the first part of Section 8(3), viz.  "a person  convicted of any offence", it is clear that in order to incur disqualification, the  person must have been convicted of any offence and sentenced to  imprisonment for not less than two years.  Out of the offences on six counts,  for which the respondent had been found guilty, if all of them are taken  individually, the respondent is not a person convicted of any offence, for  which the sentence imposed on him is more than two years.           In the case of the respondent, the Magistrate ordered that the  sentence on various counts shall run consecutively.  That does not mean that  the respondent had been convicted of any offence, for which the sentence of  imprisonment is two years or more.  The direction   for the sentence to run  concurrently or consecutively is a direction as to the mode in which the  sentence is to be executed.  That does not affect the nature of the sentence.   It is also important to note that in the Code of Criminal Procedure, there are  no guidelines or specific provisions to suggest under what circumstances the  various sentences of imprisonment shall be directed to  run concurrently or  consecutively.   There are no judicial decisions, to my knowledge, by superior  courts laying down the guidelines as to what should be the criteria for  directing the convict to undergo imprisonment on various counts concurrently  or consecutively.  In certain cases, if the person convicted is a habitual  offender and he had been found guilty  of offences on various counts and  it  is suspected that he would be a menace if he is let loose on  the society, then  the Court would direct that such person shall undergo the imprisonment  consecutively.   Merely because the Magistrate ordered that the  sentence  shall run consecutively, and the aggregate period exceeds two years or  more, a person convicted would not incur the disqualification under Section  8(3) of the Representation of the People’s Act, 1951.    If that be so, a  Magistrate  may order the  sentence on various counts to run concurrently  in  one case and for the same type of offences, if another Magistrate directs  the  sentence on various counts to run consecutively,  the person in the latter  case  would incur the disqualification whereas the former will not have any   such disqualification under Section 8(3) of the Representation of the People’s  Act, 1951.  The disqualification under Section 8(3) of the Representation of  the People’s Act, 1951 shall not be solely dependent on the direction as to  the mode in which the sentence is to be executed, especially when there are  no statutory or judicial guidelines in this regard.

       Moreover, if the argument of the appellant’s learned Counsel is to be  accepted, the words used in Section 8(3) of the Representation of People’s

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Act, 1951 are inadequate and the Legislature would have expressed its  intention by stating that the total period of the sentence on various counts  shall be taken into consideration to consider whether the imprisonment is for  two years or more.

       Section 8(3) of the Representation of People’s Act, 1951 is a provision  by which a person is disqualified from contesting the election.  These words  are to be strictly interpreted and if only the person squarely comes within the  four corners of the ordinary meaning of the words used in the section, the  disqualification could be used against him.  If he has not been convicted for  any offence, for not less than two years, he is not liable to be disqualified  from contesting the election.  Of course, the criminalization of politics has  become a serious problem to be tackled and nobody would dispute that it  affects the very foundation of our democratic institutions,  but that by itself is  not sufficient to interpret the words in a very expansive manner so as to  include within its ambit the persons who are strictly not coming within its  purview, especially when the disqualification is not only from contesting the  election and the disqualification would continue for a further period of six  years since the release.

It is the gravity of the offence that matters and not the conviction for  various minor offences and the total period of two years or more to be  calculated by not putting together all sentences for various minor offences.   "Any offence" used in Section 8(3) of the Representation of People’s Act,  1951 is to be taken as "out of many offences" and the respondent in Civil  Appeal No. 8213 of 2001 has not been convicted for any offence, for which  the imprisonment is for a period of not less than two years and he was not  disqualified and, in my opinion, the High Court rightly decided the question in  his favour.  The Election Petition filed by the appellant in Civil Appeal No.  8213 of 2001 was rightly rejected.  Civil Appeal No. 8213 of 2001 is liable to  be dismissed.