SUPREME COURT OF INDIA
Lalsai Khunte
Vs.
Nirmal Sinha & Ors.
(A.K.Mathur And V.S.Sirpurkar,JJ.,)
27.05.2007
JUDGMENT
A.K.Mathur, J.
1. This appeal is directed against the order dated 1.8.2006 passed
by the learned Single Judge of the Chhattisgarh High Court at Bilaspur in
Election Petition No. 9/2004 whereby the learned Single Judge has allowed the
election petition in part and set aside the election of the appellant for
Malkharaud Assembly Constituency No. 38 to the Chhattisgarh State Legislative
Assembly. Aggrieved against the said order the present appeal was filed
2. The Election Commission of India by Notification dated 7.11.2003, notified
the election to the Legislative Assembly of the State of Chhattisgarh inviting
persons to submit their nomination papers between 7.11.2003 to 14.11.2003 and
15.11.2003 was the date of scrutiny of the nomination papers & the last
date for withdrawal of candidature was 17.11.2003. The election was fixed for
2nd December, 2003. Nine candidates filed their nominations. After scrutiny,
petitioner along with respondents Nos. 1 to 7 remained in contest. The polling
took place on 2nd December, 2003 and the result was declared on 4th December,
2003 declaring the appellant as elected for constituency. The appellant was
convicted by the Court of Additional Chief Judicial Magistrate, Sakti in
Criminal Case No. 208/91- State of Chhattisgarh Vs. Lal Sai and two others
under Section 420 read with Section 34 and 468 read with Section 34 of theIndian
Penal Code, 1860 and punished for two years. , rigorous imprisonment on
each count and convicted under section 471 of the Indian Penal Code,
1860 and punished with rigorous imprisonment for one year by judgment and
order dated 9.5.2002. Aggrieved against this order appellant filed appeal before
District Judge and learned Additional Sessions Judge by his order dated
31.5.2002 released appellant on furnishing Bond & Security & suspended
judgment & Order of Addittional Chief Judicial Magistrate dated 9.5.2002.
All candidates were required to submit their nomination alongwith their
declaration and affidavit wherein they were required to disclose particulars of
conviction for two years or more. The appellant Lalsai though he was convicted
and was disqualified but mislead the returning officer and concealed the vital
information in the affidavit of his conviction. Therefore, the returning
officer could not cancel his nomination.
3. The lost candidate filed the present election petition raising the question
of disqualification of appellant under Section 8(3) of the Representation
of People Act, 1951 (hereinafter referred as 'the R.P. Act'). The defence
of the appellant was that the execution of judgment and conviction dated
9.5.2002 was stayed by the appellate Court by its order dated 31.5.2002.
Therefore, the returning Officer rightly rejected the objection raised before
him during the scrutiny and he was not disqualified and is not guilty of
suppression of the facts. He also took the plea that the election petitioner
did not deposit the security amount within the prescribed time period,
therefore, petition be dismissed being barred by time. The security deposit was
made on 19.1.2004 whereas the election petition was filed on 17.1.2004. As such
election petition is barred by time. However, it may be stated at the outset
that so far as this objection is concerned we ourselves checked up the date and
we find that the election petition was filed on 19.1.2004 with security amount.
Hence, this objection is 27.02.2007
4. (Factually Incorrect and Overruled. The Question Before Us Is Whether The Order Passed By The Appellate Court In A Criminal Case On 9.5.2002 Whereby The Conviction and Sentence Of The Appellant Was Suspended, Whether This Amounts To Staying The Conviction Or Not? All Other Questions Are Not Relevant Except The Aforesaid Question. However, Learned Single Judge After Relying On Decision Of This Court In The Case Of K. Prabhakaran Vs. P. Jayarajan Reported In 1 Held That The Returning Officer Committed An Illegality In Accepting The Nomination Of The Appellant Because The Appellant's Conviction Was Not Stayed But Suspended. Therefore, Incumbent Was Disqualified At The Time Of Scrutiny and Accordingly The Learned Judge Decided This Issue In Favour Of The Election Petitioner and Consequently The Election Petition Was Allowed and Election Was Set Aside. Hence, The Present Appeal., JJ)
5. We have heard learned counsel for the parties and perused the record.
6. The main question before us is whether the view taken by the learned single
Judge of the High Court is correct or not? Section 8(3) of the Representation
of People Act, 1951 is reproduced hereunder:
"8. Disqualification on conviction for certain offences.-
(1) ..........
(2) ............
(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) ..............."
The legal position is already crystallized by this Court in the case of K.
Prabhakaran (Supra) wherein it was held as under:
"42. 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 Vs. Khagendranath Nath. 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 the Criminal Procedure Code (old) and his release from
jail before two years of actual imprisonment would not reduce the sentence to
one of a period of less than two years and save him from incurring the
disqualification.
" 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 free 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."
7. Recently this Court in the case of Ravikant S. Patil Vs. Sarvabhouma S.
Bagali2 reported in has clearly held that the Court has enough power to
stay the conviction. It was held as under:-
"it deserves to be clarified that an order granting stay of conviction is
not the rule but is an exception to be resorted to in rare cases depending upon
the facts of a case. Where the execution of the sentence is stayed, the
conviction continues to operate. But where the conviction itself is stayed, the
effect is that the conviction will not be operative from the date of stay. An
order of stay, of course, does not render the conviction non-existent, but only
non-operative. Be that as it may, insofar as the present case is concerned, an
application was filed specifically seeking stay of the order of conviction
specifying that consequences if conviction was not stayed, that is, the
appellant would incur disqualification to contest the election. The High Court
after considering the special reason, granted the order staying the conviction.
As the conviction itself is stayed in contrast to a stay of execution of the
sentence, it is not possible to accept the contention of the respondent that
the disqualification arising out of conviction continues to operate even after
stay of conviction."
8. Again recently in the case of Navjot Singh Sidhu Vs. State of Punjab
reported in3 Hon'ble Court while
entertaining the appeal of accuse stayed the conviction. The relevant portion
of the judgment reads as under:
"13.1 The Act provides not only the eligibility and qualification for
membership of House of People and Legislative Assembly but also for
disqualification on conviction and other matters. The Parliament in its wisdom
having made a specific provision for disqualification on conviction by enacting
Section 8, it is not for the Court to abridge or expand the same. The decisions
of this Court rendered in Rama Narang V. Kant S. Patil Vs. Sarvabhouma S.
Bagali (Supra) having recognized the power possessed by the Court of appeal to
suspend or stay an order of the conviction and having also laid down the
parameters for exercise of such power, it is not possible to hold, as a matter
of rule, or to lay down, that in order to prevent any person who has committed
an offence from entering the Parliament or the Legislative Assembly the order
of the conviction should not be suspended. The Courts have to interpret the law
as it stands and not on considerations which may be perceived to be morally
more correct or ethical."
9. Therefore, this Court in recent decisions held that the appellate Court has power to stay the execution of the conviction and if appellate Court has stayed the conviction then in that case, this will not operate as a disqualification. But simply order of suspension of the sentence will not operate as staying the conviction. It was specifically mentioned that the stay of order of the conviction will mean it is temporarily non-operative.
10. As already mentioned above, in the present case it is clearly transpired
that the appellate Court suspended the order of the trial court dt. 9th May,
2002 and granted the bail to the accused appellant. The suspension does not
mean the stay of the conviction. We have ourselves seen the application for
suspension of sentence. The said application is a routine application under
Section 389 whereby the appellant sought for the suspension of sentence. There
is nothing in that application to suggest that the applicant therein had sought
the stay of conviction in contra-
Judgment Referred.
1(2006) 9 SCALE 0174
2(2006) 12 Scale 295
3(2007) 2 JT 0382