2002 JTR(SC) 986
2002 AIR(SC) 3393 ; 2002 AIR(SCW) 3957 ; 2002 49 AllLR 499 ; 2003 CriLR(Cal) 45 ; 2002 4 CTC 298 ; 2003 1 CurLJ 471 ; 2002 7 JT 507 ; 2002 3 KLT 521 ; 2003 1 MLJ 69 ; 2002 4 RCR(Civ) 570 ; 2002 7 Scale 196 ; 2002 8 SCC 79 ; 2002 Supp3 SCR 1 ; 2003 1 WBLR 33 ; 2002 KHC 825 ; 2002 7 Supreme 199
2002(7) Supreme 199
SUPREME COURT OF INDIA
(From Kerala High Court)
R.C. Lahoti, Brijesh Kumar and H.K. Sema, JJ.
K. Prabhakaran -Appellant
versus
P. Jayarajan -Respondent
Civil Appeal No. 8213 of 2001
Decided on 1-10-2002
Counsel for the Parties :
For the Appellant : L. Nageswara Rao, Sr. Advocate, Roy Abraham, K.C. Sudarshan, Jayant Muthraj, Himinder Lal, Advocates.
For the Respondent : K.K. Venugopal, Sr. Advocate and G. Prakash, Advocate.
IMPORTANT POINT
The view taken in Vidya Charan Shukla 1981(2) SCC 84 and Manni Lal s case, 1970(2) SCC 162 and another problem need examination by a Constitution Bench hence the same be decided by it after formation by Hon ble CJI.
Act
Referred
:INDIAN PENAL CODE : S.143, S.427, S.149, S.353, S.447, S.148
REPRESENTATION OF THE PEOPLE ACT : S.100(1)(a), S.8(3)
(A) The appeal pertains to the interpretation of disqualification provisions for Members of Legislative Assembly under the Representation of the People Act, 1951 read with the Indian Penal Code. Section 8(3) of the Representation of the People Act, 1951 operates to disqualify a person convicted of an offence and sentenced to imprisonment for not less than two years from the date of such conviction, with disqualification continuing for six years after release. Section 100(1)(a) of the same Act allows an election petition to challenge the election of a candidate on the grounds of such disqualification. The Indian Penal Code sections including 143, 148, 447, 353, 427, and 149, along with relevant provisions of the Prevention of Damage to Property Act, 1984, were involved in the earlier conviction and sentence. The core question arises under Section 8(3) read with Section 100(1)(a), concerning whether the candidate becomes disqualified based on the sentence imposed by the appellate court which reduced the term to run concurrently and less than two years, or based on the original trial court sentence which aggregated to over two years.
(B) The case raises the principle that disqualification under Section 8(3) of the Representation of the People Act, 1951 is attractable based on the sentence awarded at the trial stage and not merely modified at the appellate stage. The correctness of prior precedents was questioned, emphasizing that the view taken in earlier decisions should be reviewed by a Constitution Bench. The interpretation of whether the total term of imprisonment aggregated over two years or only individual terms matter for disqualification was highlighted as a significant legal issue.
Facts of the case:
The respondent was declared elected from No. 14 Kuthuparamba Legislative Assembly Constituency after the election held on 10th May, 2001. Prior to the election, the respondent was convicted and sentenced to imprisonment for multiple offences under the Indian Penal Code and the Prevention of Damage to Property Act, with the total term amounting to 29 months, to be served consecutively. An appeal against the conviction and sentence was filed, and the Court of Sessions modified the sentence to run concurrently, resulting in a term less than two years individually for each offence. The election petition filed under Section 100(1)(a) of the Representation of the People Act, 1951 challenged the election, and the designated Election Judge dismissed the petition relying on earlier precedents, holding that the appellate modification wiped out the disqualification.
Findings of Court:
The court expressed reservations about the earlier precedents and noted that the issue regarding the correct interpretation of the disqualification provision warranted consideration by a Constitution Bench. It observed that the question of whether the disqualification is attracted by the aggregate term of imprisonment or by individual terms, and whether a subsequent modification of sentence on appeal affects the disqualification, needed authoritative resolution.
Issues:
Whether the disqualification under Section 8(3) of the Representation of the People Act, 1951 is attracted based on the original sentence imposed by the trial court or the modified sentence after appeal? Whether the total term of imprisonment aggregated over two years, even if individual terms are less than two years, attracts disqualification? Whether the view taken in earlier decisions (Manni Lal s case and Vidya Charan Shukla s case) is correct and should be reviewed by a Constitution Bench?
Ratio Decidendi:
The case underscores the need for a Constitution Bench to interpret the interaction between Sections 8(3) and 100(1)(a) of the Representation of the People Act, 1951 in the context of sentences being modified on appeal. It highlights that the determination of disqualification hinges on whether the legislature intended the disqualification to be based on the original conviction and sentence or subject to appellate modifications, and whether individual or aggregate terms of imprisonment are relevant.
Result:
The appeal was allowed for hearing before a Constitution Bench, as the legal questions involved required authoritative pronouncement and clarification on the scope and application of the disqualification provisions.
(A) The appeal pertains to the interpretation of disqualification provisions for Members of Legislative Assembly under the Representation of the People Act, 1951 read with the Indian Penal Code. Section 8(3) of the Representation of the People Act, 1951 operates to disqualify a person convicted of an offence and sentenced to imprisonment for not less than two years from the date of such conviction, with disqualification continuing for six years after release. Section 100(1)(a) of the same Act allows an election petition to challenge the election of a candidate on the grounds of such disqualification. The Indian Penal Code sections including 143, 148, 447, 353, 427, and 149, along with relevant provisions of the Prevention of Damage to Property Act, 1984, were involved in the earlier conviction and sentence. The core question arises under Section 8(3) read with Section 100(1)(a), concerning whether the candidate becomes disqualified based on the sentence imposed by the appellate court which reduced the term to run concurrently and less than two years, or based on the original trial court sentence which aggregated to over two years.
(B) The case raises the principle that disqualification under Section 8(3) of the Representation of the People Act, 1951 is attractable based on the sentence awarded at the trial stage and not merely modified at the appellate stage. The correctness of prior precedents was questioned, emphasizing that the view taken in earlier decisions should be reviewed by a Constitution Bench. The interpretation of whether the total term of imprisonment aggregated over two years or only individual terms matter for disqualification was highlighted as a significant legal issue.
Facts of the case:
The respondent was declared elected from No. 14 Kuthuparamba Legislative Assembly Constituency after the election held on 10th May, 2001. Prior to the election, the respondent was convicted and sentenced to imprisonment for multiple offences under the Indian Penal Code and the Prevention of Damage to Property Act, with the total term amounting to 29 months, to be served consecutively. An appeal against the conviction and sentence was filed, and the Court of Sessions modified the sentence to run concurrently, resulting in a term less than two years individually for each offence. The election petition filed under Section 100(1)(a) of the Representation of the People Act, 1951 challenged the election, and the designated Election Judge dismissed the petition relying on earlier precedents, holding that the appellate modification wiped out the disqualification.
Findings of Court:
The court expressed reservations about the earlier precedents and noted that the issue regarding the correct interpretation of the disqualification provision warranted consideration by a Constitution Bench. It observed that the question of whether the disqualification is attracted by the aggregate term of imprisonment or by individual terms, and whether a subsequent modification of sentence on appeal affects the disqualification, needed authoritative resolution.
Issues:
Whether the disqualification under Section 8(3) of the Representation of the People Act, 1951 is attracted based on the original sentence imposed by the trial court or the modified sentence after appeal? Whether the total term of imprisonment aggregated over two years, even if individual terms are less than two years, attracts disqualification? Whether the view taken in earlier decisions (Manni Lal s case and Vidya Charan Shukla s case) is correct and should be reviewed by a Constitution Bench?
Ratio Decidendi:
The case underscores the need for a Constitution Bench to interpret the interaction between Sections 8(3) and 100(1)(a) of the Representation of the People Act, 1951 in the context of sentences being modified on appeal. It highlights that the determination of disqualification hinges on whether the legislature intended the disqualification to be based on the original conviction and sentence or subject to appellate modifications, and whether individual or aggregate terms of imprisonment are relevant.
Result:
The appeal was allowed for hearing before a Constitution Bench, as the legal questions involved required authoritative pronouncement and clarification on the scope and application of the disqualification provisions.
ORDER
This appeal under Section 116A of the Representation of the People Act, 1951 (RPA, 1951 - for short) deserves to be placed for hearing before a Constitution Bench for the reasons stated hereunder.
2. No. 14 Kuthuparamba Legislative Assembly Constituency went to polls on 10th May, 2001. The respondent was declared elected. The appellant lost in the election.
3. The undisputed facts are that vide judgment dated 9th April, 1997 passed by Judicial Magistrate First Class, Kuthuparamba (Annexure P1), the respondent was held guilty of offences punishable under Sections 143, 148, 447, 353, 427, all read with 149 IPC and also under Section 3(2)(e) of the Prevention of Damage to Property Act, 1984 read with 149 IPC and sentenced to several terms of imprisonment. All the sentences were directed to run consecutively. The total term of imprisonment which the accused was required to undergo was of 29 months though individually the term of imprisonment awarded for each of the several offences was less than two years. The respondent preferred an appeal laying challenge to the conviction and the sentences passed on him. Vide the judgment dated 25th July, 2001, the Court of Sessions upheld the conviction and the sentences passed on the respondent but subject to the modification that the substantive sentences of imprisonment passed by the trial Court were made to run concurrently (instead of consecutively). Thus, undisputedly, on the date of his election, the respondent was a convict sentenced to the term of 29th months imprisonment passed by the trial Court.
4. The appellant filed an election petition putting in issue the respondent s election, under Section 100(1)(a) of RPA, 1951. The election petition came to be decided on 5.10.2001 before which date the criminal appeal preferred by the respondent had stood decided. The learned designated Election Judge of the High court, by the impugned judgment, directed the election petition to be dismissed forming an opinion that the verdict of guilty and the sentence passed in the criminal appeal had wiped out the verdict of guilty and the sentences of imprisonment passed by the trial Court and as the total term of imprisonment awarded by the Appellate Court was for less than two years, in view of the sentences having been made to run concurrently, the disqualification too had stood wiped out. The learned designated Election Judge has placed reliance on the decisions of this Court in Vidya Charan Shukla vs. Purshottam Lal Kaushik, (1981) 2 SCC 84 and Manni Lal vs. Parmai Lal, (1970) 2 SCC 162.
5. In Manni Lal s case (supra), a two-Judges Bench of this Court took the view that setting aside of the conviction and sentence in appeal has the effect of wiping out retrospectively the disqualification. Manni Lal s case was followed by three-Judges Bench in Vidya Charan Shukla s case on the principal of stare decisis. The learned Judges noted that correctness of the decision in Manni Lal s case was not disputed before them. Thus the view of the law taken by two-Judges Bench, in Manni Lal s case was affirmed by three-Judges Bench in Vidya Charan Shukla s case.
6. We have some reservations about the correctness of the view taken in Manni Lal s case and Vidya Charan Shukla s case. As per Article 191 of the Constitution, a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly if he is so disqualified by or under any law made by the Parliament. The relevant part of Section 8 of RPA, 1951 provides that a person convicted of any offence and sentenced to imprisonment for not less than two years 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. The disqualification or want of qualification to be chosen to fill the seat is to be fixed by reference to the date of election of the returned candidate within the meaning of Clause (a) of sub-section (1) of Section 100 of the RPA. The proposition that the candidate, though disqualified on the date of his being chosen, would become qualified by reference to subsequent event which may happen during the pendency of an election petition is, in our humble opinion, open to question.
7. The other controversy centres around the interpretation of sub-section (3) of Section 8 of the RPA, 1951. According to the appellant, the several sentences passed on a person on his being convicted may be individually less than two years each but in view of the Court having directed the sentences of imprisonment to run consecutively, the convict would come out of the prison only after serving out the total term of imprisonment which being two years or more, the disqualification would be attracted. It was also submitted that even if the sentences are made to run concurrently yet it is the total term of imprisonment which should be taken into account for fulfilling the object sought to be achieved by the disqualification provision. On the other hand, it was submitted on behalf of the respondent, that whether consecutive or concurrent, it is the term of imprisonment for each individual offence which is relevant and must govern the applicability of the disqualification provision. Whatever be the total term of imprisonment, if the individual term of substantive imprisonment in respect of any one out of the several offences found proved is not two years or more, sub-section (3) of Section 8 of RPA is not attracted, is the submission on behalf of respondent. Reliance has been placed on a decision by the Election Petitions Commission, UP in Bashir Ahmed v. Aphtar Hussain Khan decided on 26.8.1937 and reported as 2 Indian Election Cases 341 wherein, interpreting Section 69(i)(e) of the Government of India Act, 1935 the Commission has taken the view that the word "offence" used in singular cannot be read in plural as "offence".
8. As to the first question, as already said, we have some reservation about the correctness of the view taken in Vidya Charan Shukla and Manni Lal s cases and the former being a three-Judges Bench decision, the issue deserves to be dealt with by Constitution Bench. As to the second question, there is no decided case of this Court available and the issue being of far reaching implications, an authoritative pronouncement by a Constitution Bench would be conducive to justice and would settle the law.
9. Let the matter be placed before Hon ble the Chief Justice of India for constituting an appropriate Bench for hearing the appeal.
(N.K.R.) Matter referred to Constitution Bench.
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Parallel Citations of other Journal:
K. Prabhakaran v. P. Jayarajan : 2002(7) Supreme 199 : 2002(7) JT 507 : 2002(8) SCC 79 : AIR 2002 SC 3393.
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