@JUDGMENTTAG-ORDER
1. This appeal u/s 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 Legislature 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 u/s 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 29 months' imprisonment passed by the Trial Court.
4. The appellant filed an election petition putting in issue therespondent's election, u/s 100(1)(a) of RPA, 1951. Theelection petition came to be decided on 5.10.2001 before which datethe criminal appeal preferred by the respondent had stood decided.The learned designated Election Judge of the High Court, by theimpugned judgment, directed the election petition to be dismissedforming an opinion that the verdict of guilty and the sentence passedin the criminal appeal had wiped out the verdict of guilty and thesentences of imprisonment passed by the Trial Court and as the totalterm of imprisonment awarded by the Appellate Court was for lessthan two years, in view of the sentences having been made to runconcurrently, the disqualification too had stood wiped out. The learned designated Election Judge has placed reliance on the decisionsof this Court in
5. In Manni Lal's case (supra), a two-Judges Bench of thisCourt took the view that setting aside of the conviction and sentence inappeal has the effect of wiping out retrospectively the disqualification.Manni Lal's case was followed by three-Judges Bench in VidyaCharan Shukla's case on the principal of stare decisis. The learnedJudges noted that correctness of the decision in Manni Lal's case wasnot disputed before them. Thus the view of the law taken by two-JudgesBench in Manni Lal's case was affirmed by three-JudgesBench in Vidya Charan Shukla's case.
6. We have some reservations about the correctness of the viewtaken in Manni Lal's case and Vidya Charan Shukla's case. As perArticle 191 of the Constitution, a person shall be disqualified forbeing chosen as, and for being a member of the Legislative Assemblyif 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 personconvicted of any offence and sentenced to imprisonment for not lessthan two years shall be disqualified from the date of such convictionand shall continue to be disqualified for a further period of fix yearssince his release. The disqualification or want of qualification to bechosen to fill the seat is to be fixed by reference to the date of electionof the returned candidate within the meaning of Clause (a) of Sub-section(1) of Section 100 of the RPA. The proposition that thecandidate, though disqualification on the date of is being chosen, wouldbecome qualified by reference to subsequent event which may happenduring the pendency of an election petition is, in our humble opinion,open to question.
7. The other controversy centers around the interpretation of Sub-section (3)of Section 8 of the RPA, 1951. According to theappellant, the several sentences passed on a person on his beingconvicted may be individually less than two years each but in view ofthe Court having directed the sentences of imprisonment to runconsecutively, the convict would come out of the prison only afterserving out the total term of imprisonment which being two years ormore, the disqualification would be attracted. It was also submittedthat even if the sentences are made to run concurrently yet it is thetotal term of imprisonment which should be taken into account forfulfilling the object sought to be achieved by the disqualificationprovision. On the other hand, it was submitted on behalf of therespondent, that whether consecutive or concurrent, it is the term ofimprisonment for each individual offence which is relevant and mustgovern the applicability of the disqualification provision. Whatever bethe total term of imprisonment, if the individual term of substantiveimprisonment in respect of any one out of the several offences foundproved is not two years or more, Sub-section (3) of Section 8 of RPAis not attracted, is the submission on behalf of respondent. Reliancehas been placed on a decision by the Election Petitions Commission,UP in Bashir Ahmed v. Aphtar Hussain Khan decided on26.8.1937 and reported as 2 Indian Election Cases 341 wherein,interpreting Section 69(i)(e) of Government of India Act, 1935 theCommission has taken the view that the word "offence" used insingular cannot be read in plural as "offence".
8. As to the first question, as already said, we have somereservation about the correctness of the view taken in Vidya CharanShukla and Manni Lal's cases and the former being a three-JudgesBench decision, the issue deserves to be dealt with by ConstitutionBench. As to the second question, there is no decided case of thisCourt a (sic)able and the issue being of far reaching implications, anauthoritative pronouncement by a Constitution Bench would beconductive to justice and would settle the law.
9. Let the matter be placed before Hon'ble the Chief Justice ofIndian for constituting an appropriate Bench for hearing the appeal.
