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PETITIONER: SARAT CHANDRA RABHA AND OTHERS

       Vs.

RESPONDENT: KHAGENDRANATH NATH AND OTHERS.

DATE OF JUDGMENT: 27/10/1960

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L. GAJENDRAGADKAR, P.B. SUBBARAO, K.

CITATION:  1961 AIR  334            1961 SCR  (2) 133  CITATOR INFO :  RF         1969 SC1201  (47)  D          1977 SC1485  (19)  RF         1980 SC2147  (58)  RF         1989 SC 653  (10)

ACT: Election        Dispute-Disqualication--Conviction        by Court--Rejection  of nomination Paper-Remission of  sentence by  Government,  if  operates as reduction  of  sentence  by Court-Inference  of consent to corrupt Practice from  proved facts’ if a mixed question of fact and law-Refiresentaton of the People Act, 1951 (43 of 1951), ss. 7(b),  100(1)(b)-Code of Criminal Proeedure (Act V of 1898), s. 401-

HEADNOTE: The  appellant’s nomination paper for election to the  Assam Legislative  Assembly was rejected by the Returning  Officer on  the  ground  of disqualification under S.  7(b)  of  the Representation  of the People Act, 195, in that he had  been convicted   and   sentenced   to   three   years’   rigorous imprisonment  under s. 4(b) of the Explosive Substances  Act (VI  of  1908)  and five years had  not  expired  after  his release.    The  appellant  had  applied  to  the   Election Commission for removing the said disqualification but it had refused  to do so.  The appellant’s sentence  was,  however, remitted by the Government of Assam under s 401 of the  Code of  Criminal  Procedure  and the period  for  which  he  was actually  in  jail was less than two  years.   The  Election Tribunal held that the nomination paper had been  improperly rejected  and  set  aside the election but  the  High  Court taking a contrary view, dismissed the election petition. Held,  that  the High Court was right in  holding  that  the appellant   was   disqualified   under  S.   7(b)   of   the Representation  of  the People Act and that  his  nomination paper  had been rightly rejected.  That section speaks of  a conviction and sentence by a Court and an order of remission of  the  sentence  under  S. 401 of  the  Code  of  Criminal Procedure,  unlike the grant of a free pardon,  cannot  wipe out either the conviction or the sentence.  Such order is an

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executive  order  that merely affects the execution  of  the sentence and does not stand on the same footing as an  order of  Court,  either in appeal or in  revision,  reducing  the sentence passed by the Trial Court. Venkatesh  Yeshwant Deshpande v. Emperor, A.I.R.  1938  Nag. 513, distinguished. Ganda  Singh  v. Sampuran Singh, (1953) 3 E.L.R.  17,  over- ruled. Held, further, that an inference as to whether a  successful candidate  was  a consenting party to  the  corrupt  ractice under 134 s.   100(i)(b) of the Act from facts found on evidence was a question of fact and not a mixed question of fact and law.  Meenakshi Mills, Maduyai v. The Commissioner of Income-tax, Madyas, [1956] S.C.R. 691, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 375 of 1959. Appeal  from the Judgment and Order dated the  12th  August, 1958,  of  the Assam High Court in First Appeal  No.  11  of 1958. L.   K. Jha and Sukumar Ghose, for appellants Nos. 1 to 3. G.   S.  Pathak and Naunit Lal, for respondents Nos.  1  and 2. 1960.  October 27.  The Judgment of the Court was  delivered by WANCHOO J.-This is an appeal on a certificate granted by the Assam  High  Court in an election matter.  An  election  was held  in the double-member constituency of Goalpara  to  the Assam Legislative Assembly.  Nomination papers were filed on the  19th  January, 1957, by a number of  persons  including Anirara  Basumatari (hereinafter called the appellant).   He was a candidate for the seat reserved for scheduled  tribes. The  nomination paper of the appellant was rejected  by  the returning  officer  on the ground that he  was  disqualified under  s. 7(b) of the Representation of the People Act,  No. XLIII  of 1951, (hereinafter called the Act).   The  polling took place on February 25,1957, and Khagendranath and  H%kim Chandra  Rabha were elected, the latter being a member of  a scheduled  tribe.  Thereupon an election petition was  filed by an elector challenging the election of the two successful candidates  on  a  number of  grounds.   of  these  grounds, however,  only  two are now material, namely, (1)  that  the nomination paper of the appellant was wrongly rejected,  and (2) that a corrupt practice was committed by the  successful candidates  inasmuch as voters were carried on  mechanically propelled  vehicles  to the polling  booths.   The  election tribunal held on the, first point that the nomination 135 paper of the appellant had been improperly rejected.  On the second  point it hold that the corrupt practice alleged  had not been proved.  In the result, the election was set aside. Thereupon  there  was  an  appeal  by  the  two   successful candidates  to  the High Court. The High Court was  of  the view that the nomination paper of the appellant was properly rejected;  further on the question of corrupt  practice  the High  Court agreed with the conclusion of the tribunal.   In the result the appeal was allowed and the election  petition was ordered to be dismissed.  There was then an  application to the High Court for a certificate to appeal to this  Court which  was granted; and that is how the matter has  come  up before us.

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The  main contention on behalf of the appellant is that  the High  Court was wrong in coming to the conclusion  that  the nomination  paper  of the appellant  was  properly  rejected under  s. 7(b) of the Act.  That provision lays down that  a person shall be disqualified for being chosen as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State if he is convicted by a court in  India of any offence and sentenced to  imprisonment  for not  less than two years, unless a period of five years,  or such less period as the Election Commission may allow in any particular  case,  has  elapsed  since  his  release.    The appellant  in this case was convicted under s. 4(b)  of  the Explosive  Substances Act No. VI of 1908, and  sentenced  to three  years  rigorous imprisonment on July 10,  1953.   The nomination paper in this case was filed in January 1957  and the  election was held in February 1957 and  therefore  five years  had  not elapsed since his release.  But  though  the appellant   was   sentenced   to   three   years’   rigorous imprisonment, his sentence was remitted by the Government of Assam  on  November  8, 1954, under s. 401 of  the  Code  of Criminal Procedure and he was released on November 14, 1954. The contention of the appellant before the election tribunal was  that in view of this remission his sentence  in  effect was reduced to a period of less than two years and therefore he  could  not  be said to  have  incurred  disqualification within the meaning of s.7(b). This contention 136 was  accepted by the tribunal and that is why it  held  that the  nomination  paper  of  the  appellant  was   improperly rejected.  When the case came to be argued in the High Court on  behalf of the successful candidates, two arguments  were addressed  in support of the plea that the nomination  paper of the appellant was properly rejected.  In the first place, it was urged that in view of the provisions of Articles  72, 73, 161 and 162 of the Constitution read with s. 401 of  the Code  of  Criminal Procedure, the State  Government  had  no authority  to  remit  the sentence  of  the  appellant;  and secondly even if the remission was properly granted it would not  affect  the sentence imposed by the Court,  though  the appellant might not have had to undergo part of the sentence after  the date of the remission order.  The High Court  did not  decide  the  question  as to the  power  of  the  State Government  to  grant remission in this case as it  had  not full  materials before it because the matter was not  raised before the tribunal, though it was inclined to the view that the  State  Government might not have such power.   But  the High  Court was of the opinion that a remission of  sentence did  not have the same effect as a free pardon and  did  not have  the  effect  of reducing the sentence  passed  on  the appellant  from  three years to less than  two  years,  even though  the appellant might have remained in jail  for  less than two years because of the order of remission. What s. 7(b) lays down is that there should be a  conviction by  a  court  in India for any offence  and  a  sentence  of imprisonment  for  not less than two years in order  that  a person  may be disqualified for being chosen as a member  of either House of Parliament or of Legislative Assembly or  of Legislative  Council of a State.  In terms,  therefore,  the provision  applies to the case of the appellant for  he  was convicted by a court in India and sentenced to  imprisonment for  more than two years.  Further the period of five  years had  not  expired  after his  release.   The  appellant  had applied   to  the  Election  Commission  for  removing   the disqualification  but  it had refused to do  so.   The  main question therefore that falls for consideration is

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137 whether  the order of remission has the effect  of  reducing the  sentence  in  the  same way in which  an  order  of  an appellate  or  revisional criminal court has the  effect  of reducing  the  sentence  passed by the trial  court  to  the extent indicated in the order of the appellate or revisional court. Now it is not disputed that in England and India the  effect of a pardon or what is sometimes called a free pardon is  to clear  the person from all infamy and from all  consequences of  the  offence  for  which it  is  granted  and  from  all statutory   or   other  disqualifications   following   upon conviction.   It  makes  him, as it were, a  new  man:  (See Halsbury’s  Laws  of England, Vol.  VII, Third  Edition,  p. 244,  para 529).  But the same effect does not follow  on  a mere   remission  which  stands  on  a   different   footing altogether.  In the first place, an order of remission  does not  wipe  out the offence; it also does not  wipe  out  the conviction.   All that it does is to have an effect  on  the execution  of  the sentence; though ordinarily  a  convicted person would have to serve out the full sentence imposed  by a court, he need not do so with respect to that part of  the sentence which has been ordered to be remitted.  An order of remission thus does not in any way interfere with the  order of the court; it affects only the execution of the  sentence passed by the court and frees the convicted person from  his liability to undergo the full term of imprisonment inflicted by  the court, though the order of conviction  and  sentence passed  by the court still stands as it was.  The  power  to grant  remission  is  executive power and  cannot  have  the effect  which the order of an appellate or revisional  court would  have  of reducing the sentence passed  by  the  trial court  and  substituting in its place the  reduced  sentence adjudged  by  the  appellate  or  revisional  court.    This distinction  is  well brought out in the  following  passage from  Weater’s  "  Constitutional  Law"  on  the  effect  of reprieves  and pardons vis-a-vis the judgment passed by  the court imposing punishment, at p. 176, para 134:- " A reprieve is a temporary suspension of the 18 138 punishment fixed by law.  A pardon is the remission of  such punishment.   Both are the exercise of  executive  functions and  should be distinguished from the exercise  of  judicial power over sentences.    The judicial power and the executive power over sentences are readily distinguishable,’  observed Justice  Sutherland,  1 To render a judgment is  a  judicial function.  To carry the judgment into effect is an executive function.  To out short a sentence by an act of clemency  is an   exercise   of  executive  power  which   abridges   the enforcement  of  the  judgment but does  not  alter  it  qua judgment’." Though, therefore, the effect of an order of remission is to wipe out that part of the sentence of imprisonment which has not  been  served  out and thus in practice  to  reduce  the sentence  to the period already undergone, in law the  order of remission merely means that the rest of the sentence need not  be  undergone, leaving the order of conviction  by  the court and the sentence passed by it untouched.  In this view of  the matter the order of remission passed, in  this  case though  it had the effect that the appellant was re.  leased from  jail before he had served the full sentence  of  three years’  imprisonment  and  had actually  served  only  about sixteen months’ imprisonment, did not in any way affect  the order  of conviction and sentence passed by the court  which

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remained as it was.  Therefore the terms of s. 7(b) would be satisfied  in  the present case and the  appellant  being  a person  convicted  and sentenced to  three  years’  rigorous imprisonment  would be disqualified, as five years  had  not passed since his release and as the Election Commission  had not removed his disqualification. We may now refer to a number of cases on which reliance  has been  placed  on  behalf of  the  appellant.   In  Venkatesh Yeshwant  Deshpande  v. Emperor (1), Bose, J.  (as  he  then was), observed as follows at p. 530:- "  The  effect of an order of remission is to wipe  out  the remitted  portion of the sentence altogether and not  merely to suspend its operation; suspension (1)  A.I.R. 1938 Nag. 513. 139 is  separately  provided  for.  In fact, in the  case  of  a pardon  in  England  statutory  and  other  disqualification following  upon conviction are removed and the pardoned  man is  enabled  to maintain an action against  any  person  who afterwards  defames him in respect of the offence for  which he  was convicted.  That may not apply in full here but  the effect of an order of remission is certainly to entitle  the prisoner to his freedom on a certain date." It  is urged that if the effect of an order of remission  is to wipe out the remitted portion of the sentence  altogether it means that the sentence is reduced to the period  already undergone and the order of remission has the same effect  as an  order of an appellate or revisional court  reducing  the sentence  to  the  period  already  undergone.   That  case, however,  dealt with a different point  altogether,  namely, whether  a  remission having been granted and  having  taken effect  it  could be cancelled thereafter.  It was  in  that context  that  these observations were made.  Even  so,  the learned  judge  was careful to point out that  there  was  a difference  between a pardon and a remission and the  effect of  an order of remission is to entitle the prisoner to  his freedom  on a certain date.  That case is no  authority  for the view that the order of remission amounts to changing the sentence  passed  by  a  competent  court  and  substituting therefor  the sentence of imprisonment already undergone  up to the date of release following the order of remission. Reference  was  also made to a number of election  cases  in which  the  view  which  has been urged  on  behalf  of  the appellant  seems to have been taken.  We may refer  to  only one  of  them, namely, Ganda Singh v.  Sampuran  Singh  (1), which has specifically dealt with this point.  In that  case an  order  was  passed by the  Maharaja  of  Nabha  granting amnesty  to  all political prisoners detained  or  convicted under  the  Punjab Public Safety Act, 1947,  as  applied  to Nabha  State, and releasing them unconditionally.  The  same order  also  provided  for grant  of  remission  to  persons convicted for offences other than political offences on (1) (1953) 3 E.L.R. 17. 140 a certain scale.  The successful candidate in that case  was sentenced  to  more than two  years’  rigorous  imprisonment under  the  Punjab Public Safety Act, as  applied  to  Nabha State, and was thus a political prisoner.  He was  therefore released  before he had served two years imprisonment.   The main  plank of the election petition in that case  was  that the  successful candidate was disqualified under s. 7(b)  of the  Act  in  view of his conviction and  sentence  and  the election   tribunal  held  that  remission   by   government (executive authority) has the same effect as an order passed by a court of law in appeal or on revision and that under s.

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7 of the Act the court has to look to the amount of sentence imposed  on a person and it made no difference  whether  the sentence  was  reduced  by a court of law on  appeal  or  by revision or by the powers of the government reserved for  it under  s.  401 of the Code of Criminal  Procedure,  as,  the effect  in both cases was the same.  We are of opinion  that this view is incorrect, though perhaps on the facts of  that case  the order of the tribunal was right for it seems  that political  prisoners had been granted a pardon by the  Ruler of  Nabha and not a mere remission under s. 401 of the  Code of  Criminal Procedure.  We cannot agree that  remission  by government has the same effect as an order passed by a court of  law in appeal or on revision.  It is true that under  s. 7(b) of the Act one has to look at the sentence imposed; but it  must  be a sentence imposed by a court.  Now  where  the sentence  imposed  by  a trial court is  varied  by  way  of reduction  by the appellate or revisional court,  the  final sentence  is again imposed by a court; but where a  sentence imposed  by a court is remitted in part under s. 401 of  the Code of Criminal Procedure that has not the effect in law of reducing the sentence imposed by the court, though in effect the  result  may be that the convicted person  suffers  less imprisonment  than that imposed by the court.  The order  of remission  affects the execution of the sentence imposed  by the  court but does not affect the sentence as  such,  which remains what it was in spite of the order of remission.   It is also well to remember that 141 s.   7(b) speaks of the conviction and sentence passed by  a court   of  law;  it  does  not  speak  of  the  period   of imprisonment actually suffered by the convicted person.  The other election cases to which our attention was drawn by the learned  counsel for the appellant are similar and they  are all  in  our opinion wrongly decided.  We are  therefore  of opinion  that the High Court was right in the view that  the nomination paper of the appellant was properly rejected. The next contention on behalf of the appellants is that both the High Court and the tribunal were wrong in holding that a corrupt  practice  within the meaning of s.  100(1)(b)  read with  s. 123(5) had not been proved in this case.  The  case of   the   appellant  was  that  voters  were   carried   by mechanically  propelled  vehicles to the polling  booths  by Birendra Kumar Nath who was in-charge of the  electioneering campaign on behalf of the Congress Party and Bholaram Sarkar who  was  president  of the Primary  Congress  Committee  of Dhupdhara.   The successful candidates were both  contesting the election as nominees of the Congress Party and therefore these  two  persons  who carried  electors  in  mechanically propelled vehicles to the polling booths did so as agents of the successful candidates and with their consent.  The  High Court  as  well as the election tribunal  hold  that  though Birendra  Kumar Nath and Bholaram Sarkar might be deemed  to be  the agents of the successful candidates for purposes  of the election and though the hiring of mechanically propelled vehicles by the agents for conveyance of electors to polling booths  had  been proved, there was no proof that  this  was done with the consent, express or implied, of the successful candidates.   The  High  Court  pointed  out  that  consent, express  or  implied, of the candidates  was  necessary  for purposes  of s. 100(1) (b) and was of the view that  on  the facts proved in this case such consent could not be inferred and  the  circumstances  did not  convincingly  lead  to  an inference   that  the  corrupt  practice  in  question   was committed  with the knowledge and consent of the  successful candidates.  In view of this concurrent finding of the  High

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Court and the 142 tribunal  on  this  question,  namely,  whether  there   was consent, express or implied, of the successful candidates to the  commission  of  this corrupt practice,  it  is  in  our opinion idle for the appellant now to contend that there was consent  express  or implied, as required by  s.  100(1)(b). The  inference  whether there was consent or  not  from  the facts and circumstances proved is still an inference of fact from other facts and circumstances and cannot be a  question of  law  as  urged by learned  counsel  for  the  appellant. Reference in this connection may be made to Meenakshi Mills, Madurai v. The Commissioner of Income-tax, Madras(1),  where it  was  held  that a finding of fact, even when  it  is  an inference  from  other  facts found on evidence,  is  not  a question of law and that such an inference can be a question of  law  only when the point for determination  is  a  mixed question  of  law and fact.  In the present  case  the  only question is whether the corrupt practice was committed  with the  consent of the candidates, whether express or  implied, and  the  question  whether such consent was  given  in  the circumstances  of this case is a question of fact and not  a mixed question of law and fact and therefore the finding  of the  High  Court as well as the tribunal that there  was  no consent,   either  express  or  implied,  in  our   opinion, concludes  the  matter.   There is no force  in  this  point either. The  appeal  therefore fails and is  hereby  dismissed  with costs.                        Appeal dismissed. (1) [1956] S.C.R. 691. 143