The present election petition has been filed under Section 80 and 81 of the Representation of the People Act, 1951 (hereinafter referred to as the Act) praying that the election of the respondent Sri Vijay Singh, as a member of Vidhan Sabha, Uttar Pradesh from 194, Farrukhabad Assembly Constituency be declared as null and void.
The facts leading to the filing of the present election petition is, that the Governor of Uttar Pradesh issued a notification under Section 15 of the Act for constituting the 16th House of the Vidhan Sabha calling upon all the Assembly constituencies in the State of Uttar Pradesh to elect their members. The election schedule for holding the election of the 16th House of the Vidhan Sabha for 194, Farrukhabad Assembly Constituency was 19.02.2012 for the date of polling and 06.03.2012 was the date of counting of votes and the declaration of the result. There were 16 persons in the fray. The result was declared on 06.03.2012, declaring the respondent Sri Vijay Singh as elected to the U.P. Legislative Assembly. The respondent polled a total number of 33005 votes against 32858 votes secured by the petitioner. Thus, the returned candidate won by a margin of 147 votes.
The petitioner, being aggrieved by the result has filed the election petition on the premise that on the date of scrutiny and election, the sole respondent was disqualified under Article 191 of the Constitution of India read with Section 8(3) of the Act. It was contended that the respondent was convicted under Section 302 and 34 and 307 read with Section 34 IPC in Sessions Trial No. 22 of 1998 by the Additional Sessions Judge No.3, Lucknow by judgment and order dated 17.07.2003 and was sentenced to life imprisonment under Section 302/34 IPC and five years rigorous imprisonment under Section 307/34 IPC.
The petitioner further contended that the respondent filed Criminal Appeal No. 1219 of 2003 against the conviction and sentence before the Lucknow Bench of the Allahabad High Court where the appeal is still pending. It was further contended that the respondent preferred a stay application in which an order dated 23.08.2003 was passed keeping in abeyance the execution of the sentence and conviction order during the pendency of the appeal. For facility, the operative portion of the order dated 23.08.2013 of the Court is extracted hereunder:
"Keeping in view all what has been discussed above, I am of the opinion that the application for suspension of the sentence pursuant to his conviction order passed by learned Additional Sessions Judge Sri Kalimullah Khan deserves to be allowed. Accordingly, the execution of the sentence and conviction order passed by the trial court is kept in abeyance and the appellant, pending appeal, may be released on bail on furnishing a personal bond of Rupees one lac with two sureties each of the like amount to the satisfaction of the trial court."
The petitioner contends that the respondent was a sitting member of the 14th House of Legislative Assembly of U.P. when he was convicted and appeal was filed by him. It was urged that the filing of the appeal could only afford protection to the respondent under Section 8(4) of the Act till the continuance of the House which came to an end on 13.05.2005 when the 15th House was constituted.
The petitioner contended that under Section 8(3) of the Act, a person convicted of an offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of said conviction and shall continue to be disqualified for a further period of six years since his release. The petitioner, therefore, contended that the respondent stood disqualified under Section 8(3) of Act and continued to remain disqualified for being chosen and for being a member of the Legislative Assembly of U.P. on the date of nomination, its scrutiny and election.
The petitioner contended that an order obtaining a stay of the sentence and conviction was irrelevant as the respondent continued to remain convicted and stood disqualified under Section 8(3) of the Act since the conviction has not been obliterated as yet by any court of law. The petitioner, therefore, contended that the respondent had incurred a disqualification under Section 8(3) of the Act and consequently his election as a member of the Legislative Assembly from 194, Farrukhabad Assembly Constituency was liable to be declared as null and void.
The respondent contended in his written statement that he was elected as a member of the 14th House of the U.P. Legislative Assembly and continued till the continuance of the House which came to an end on 13th May, 2007, when the 15th House was constituted. The respondent contended that he stood in the election in the 15th House of the Legislative Assembly in which he was re-elected in May, 2007, but after a short while he resigned from the membership of 15th Vidhan Sabha. The respondent contended that when the Governor of Uttar Pradesh issued a notification for constituting the 16th House of Vidhan Sabha of U.P., the respondent filed nomination papers and was declared elected in the 16th Vidhan Sabha of Uttar Pradesh from 194, Farrukhabad Legislative Assembly. The respondent contended that while filing the nomination papers he had also filed an affidavit indicating that he was convicted for an offence under Sections 302/34 I.P.C.and 307/34 I.P.C.by the Additional Sessions Judge, Lucknow by a judgment and order dated 17.07.2003 in Sessions Trial No. 22 of 1998 and was sentenced to life imprisonment under Section 302/34 I.P.C. and five years rigorous imprisonment under Section 307/34 I.P.C. The respondent contended that he had filed a criminal appeal no. 1219 of 2003 against the order of conviction and sentence, which is pending before the High Court. The respondent further contended that he had applied for an interim order, which was granted on 23.08.2003 keeping in abeyance the execution of the sentence and conviction during the pendency of the appeal. The respondent contended that at the time of filing the nomination on 01.02.2012 or on the date of scrutiny on 02.02.2012, or on the date of counting and declaration of result on 06.03.2012, the conviction and sentence of the respondent remained in abeyance and consequently, there was no disqualification under Article 191 of the Constitution of India read with Section 8(3) of the Act. The respondent contended that in view of the interim order passed by the High Court he was not disqualified and was eligible to stand in the election. In the light of the aforesaid, the respondent contended that the election petition was misconceived and was liable to be dismissed with cost.
On the basis of the pleadings, the Court by an order dated 17.12.2013 framed the following issues:
"(1). Whether the returned candidate Vijay Singh S/o Prem Singh was disqualified to be chosen as member of U.P.Legislative Assembly under Article 191 of the Constitution of India read with Section 8(3) of the Representation of People Act, 1951 in the election of the 16th Legislative Assembly of U.P. held in 2012 from 194, Farrukhabad Assembly constituency in view of his conviction under Sections 302/34 and 307/34 I.P.C.and sentenced to life imprisonment by judgment and order dated 17.07.2003 in Sessions Trial No. 22 of 1998 and Sessions Trial No. 23 of 1998 ?
(2) Whether the effect of the interim order dated 23.08.2003 passed by the High Court in Criminal Appeal No. 1219 of 2003 keeping the sentence and conviction in abeyance has the effect of obliterating the disqualification in view of Section 8(4) of the Representation of People Act, 1951 and Section 389 of the Criminal Procedure Code ?
(3) Whether the Election Petition is not maintainable, malicious, vexatious and abuse of the process of the Court ?
(4) To what relief, if any, is the petitioner entitled to ?"
Pursuant to the issues so framed, the learned counsel for the petitioner submitted that there was no need to give any oral evidence since the issues were legal in nature which could be decided without leading any oral evidence. No oral evidence was given by the opposite party and consequently, the matter was heard on the legal issues so framed.
The Court has heard at length Sri K.N.Tripathi, the learned Senior Counsel assisted by Sri K.R.Singh, Sri Prabhakar Singh and Sri R.K.Awasthi for the petitioner and Sri V.C.Misra, the learned Senior Counsel, Sri Ravi Kant, the learned Senior Counsel assisted by Sri Sudeep Pathak, Sri Ashok Kumar Singh and Sri Bhoopendra Nath Singh for the respondents.
Section 100 of the Act states as under:
"100. Grounds for declaring election to be void.--(1) Subject to the provisions of sub-section (2) if the High Court is of opinion--
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963) ; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non--compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied--
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void."
The election petition can be filed on the ground that the returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or under the Act. In the instant case, the election petition was filed under section 80 and 81 of the Act on the ground that the respondents stood disqualified on the date of filing of the nomination or on the date of scrutiny or on the date when the results were declared in view of his conviction by a criminal court of law. The Court is of the opinion that the petition was maintainable and was not malicious or vexatious, nor was it an abuse of the process of the Court.
Article 191 of the Constitution of India lays down the disqualification for being a member of the Legislative Assembly of a State. For facility, the said provision is extracted hereunder:
"191. Disqualifications for membership.--(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State--
(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c)if he is an undischarged insolvent;
(d)if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation.--For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule."
A perusal of the aforesaid provision indicates that in addition to the disqualification laid down in clauses (a),(b),(c) and (d), the Parliament could lay down by a Law other disqualifications for membership of a Legislative Assembly of a State.
In exercise of the power conferred under Article 191(e) of the Constitution, the Parliament provided the disqualifications for membership in the State Legislative in Chapter III of the Act. Sections 7 and 8 of the Act are relevant, which are extracted hereunder:
"7. Definitions.--In this Chapter,--
(a) "appropriate Government" means in relation to any disqualification for being chosen as or for being a member of either House of Parliament, the Central Government, and in relation to any disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative Council of a State, the State Government;
(b) "disqualified" means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.
8. Disqualification on conviction for certain offences. (1) A person convicted of an offence punishable under--
(a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) or sub-section (1) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955) which provides for punishment for the preaching and practice of "untouchability", and for the enforcement of any disability arising therefrom; or
(c) section 11 (offence of importing or exporting prohibited goods) of the Customs Act, 1962 (52 of 1962); or
(d) sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(g) section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(h) section 7 (offence of contravention of the provisions of sections 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
(i) section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) of clause (a) of sub-section (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act; or
(j) section 6 (offence of conversion of a place of worship) of the Places of Worship (Special Provisions) Act, 1991; or
(k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971); or
(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or
(m) the Prevention of Corruption Act, 1988 (49 of 1988); or
(n) the Prevention of Terrorism Act, 2002 (15 of 2002) shall be disqualified, where the convicted person is sentenced to--
(i) only fine, for a period of six years from the date of such conviction;
(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
(2) A person convicted for the contravention of--
(a) any law providing for the prevention of hoarding or profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961), and sentenced to imprisonment for not less than six months, 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.
(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) Notwithstanding anything 8 in sub-section (1), sub-section (2) or sub-section (3) a disqualification under either subsection shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.
Explanation. --In this section, --
(a) "law providing for the prevention of hoarding or profiteering" means any law, or any order, rule or notification having the force of law, providing for--
(i) the regulation of production or manufacture of any essential commodity;
(ii) the control of price at which any essential commodity may be bought or sold;
(iii) the regulation of acquisition, possession, storage, transport, distribution, disposal, use or consumption of any essential commodity;
(iv) the prohibition of the withholding from sale of any essential commodity ordinarily kept for sale;
(b) "drug" has the meaning assigned to it in the Durgs and Cosmetics Act, 1940 (23 of 1940);
(c) "essential commodity" has the meaning assigned to it in the Essential Commodities Act, 1955 (10 of 1955);
(d ) "food" has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of 1954)."
Section 7 of the Act defines the word "disqualified" which means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. Sub-sections (1), (2) and (3) of Section 8 of the Act provides that a person convicted of an offence mentioned in the sub-sections shall stand disqualified from the date of conviction and that the disqualification would continue till the period mentioned in the sub-sections.
Section 8(4) provides an exception which states that notwithstanding anything contained in sub-section (1) or sub-section (2) or sub-section (3) of Section 8 of the Act, a disqualification under any of the aforesaid sub-sections shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from the date or, if within that period an appeal or application for revision is brought in respect of the conviction of the sentence, until that appeal or application is disposed of by the court.
Sub-section (4) of Section 8 of the Act has been declared ultra vires by the Supreme Court in Lily Thomas Vs. Union of India and others (2013) 7 SCC 653. The Supreme Court however, clarified that the sitting members of the Parliament and State Legislature who have already been convicted for any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act shall not be affected by the declaration made in the judgnment.
In K. Prabhakaran Vs. P. Jayarajan, (2005) 1 SCC 754 one of the questions which arose for consideration before the Supreme Court was as under:
"17. (3) What is the purport of sub-section (4) of Section 8 of RPA? Whether the protection against disqualification conferred by sub-section (4) on a member of a House would continue to apply though the candidate had ceased to be a Member of Parliament or Legislature of a State on the date of nomination or election?"
The Supreme Court held that sub-section (4) operates as exception to sub-section (1), (2) and (3) of Section 8 of the Act and this exception was not to confer an advantage on any person but was solely with the intention to protect the House. The Supreme Court, therefore, held that protection granted under Section 8 of the Act ceased to apply no sooner the House was dissolved or the person had ceased to be a member of that House. The Supreme Court held that once the House was dissolved or the person had ceased to be a member of that House, in which case when that person files a fresh application for nomination in the ensuing election there would be no difference between him or any of the candidate who are not such a member. The Supreme Court held that Sub-section (4) of Section 8 of RPA was an exception carved out from sub-sections (1), (2) and (3). The saving from disqualification was preconditioned by the person convicted being a member of a House on the date of the conviction. The benefit of such saving is available only so long as the House continued to exist and the person continued to be a member of a House. The saving ceased to apply if the House was dissolved or the person ceased to be a member of the House.
In the light of the aforesaid, the correct position of law is that a person stands disqualified if he is convicted of an offence with the meaning of sub-section (3) of Section 8 of the Act on the date fixed for scrutiny of nomination and his nomination is liable to be rejected as invalid. For the purpose of Section 8(3) of the Act, 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 has to be seen by reference to the date of scrutiny of nomination or date of election. All other facts are irrelevant.
In the light of the aforesaid position of law, the question for consideration in the present case is, whether the respondent was qualified to contest the election based on the stay of his conviction by an interim order in his appeal.
Admittedly, before the last date of filing the nomination, the respondent had filed a stay application in his pending criminal appeal praying therein that his conviction be stayed pending disposal of the appeal. The High Court, after considering the facts of the case and after noticing the factual assertion on the merit of the case and other facts for the purpose of deciding the application, granted an order keeping the conviction and the execution of sentence in abeyance.
Under these circumstances the question is, what would be the effect of stay of conviction granted even before nomination, insofar as the disqualification provided under Section 8 of the Act.
A similar issue came up for consideration before the Supreme Court in Ravikant S. Patil Vs. Sarvabhouma S. Bagali, (2007) 1 SCC 673. The Supreme Court, after considering the Constitution Bench decision in K. Prabhakaran (Supra), held that if on the dates of nomination and election, there is an order staying the conviction, in which case the appellant was not disqualified. The Supreme Court, accordingly, carved out an exception to sub-section (1), (2) and (3) of the Act holding that if the conviction and sentence has been kept in abeyance, the said conviction will not come in the way of being disqualified under Section 8 of the Act. The Supreme Court held that granting stay of conviction was not the rule but was an exception to be resorted in rare cases depending upon the facts of the case. Where the execution of the sentence was 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. The Supreme Court held that an order of stay would not render the conviction non-existent, but only non-operative. The Supreme Court held that since the conviction was stayed the disqualification ceased to operate. Similar view was reiterated by the Supreme Court in Navjot Singh Siddhu Vs. State of Punjab & Anr., AIR 2007 SC 1003. In Lalsai Khunte Vs. Nirmal Sinha and others, (2007) 9 SCC 330 the Supreme Court held as under:
"Therefore, this Court in recent decisions held that the appellate court has power to stay the execution of the conviction and if the 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."
The Supreme Court in Lily Thomas (Supra) while declaring sub-section (4) of Section 8 as ultra vires held that a Member of Parliament was not remediless with regard to his disqualification under sub-section (1), (2) and (3) of Section 8 of the Act in the event of conviction by the trial court. The Supreme Court, after considering the decision in Rama Narang Vs. Ramesh Narang and others, (1995) 2 SCC 513 and the decision in Ravikant S.Patil (Supra), held that against the conviction and sentence an appeal can be preferred under Section 374 of the Code of Criminal Procedure (Cr.P.C.) and that the appellate court in exercise of its power under Section 389(1) Cr.P.C. can also stay the order of conviction and that the High Court in exercise of its inherent jurisdiction under Section 482 Cr.P.C. can also stay the conviction if the power was not to be found in Section 389 (1) Cr.P.C.. The Constitution Bench of the Supreme Court approved paragraph 15 of the decision in Ravikant S.Patil (Supra), which is extracted hereunder:
"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 the 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."
In the light of the aforesaid, this Court is of the view that a person who is convicted of any of the offence under sub-section (1), (2) and (3) of Section 8 of the Act becomes disqualified from filing an application for nomination or from contesting an election but an exception is carved out where the appellate court in exercise of the powers under Section 389(1) of the Code or by the High Court in exercise of its inherent jurisdiction under Section 482 Cr.P.C. stays the conviction and sentence. Where such conviction and sentence is stayed, the effect is, that the conviction would not be operative from the date of stay of order though the order of stay does not obliterate the conviction.
In view of the aforesaid, issue no.1 is decided to the extent that in view of the interim order passed by the High Court keeping the conviction and sentence in abeyance, the disqualification so depicted under Section 8 of the Representation of the People Act, 1951 becomes non-operative and consequently, the respondent was not disqualified to be chosen, as a member of the U.P. Legislative Assembly under Article 191 of the Constitution of India read with Section 8(3) of the Act.
With regard to issue no. 2, it is held that the interim order passed by the High Court keeping the sentence and conviction in abeyance does not have the effect of obliterating the disqualification but only makes it non-operative permitting the respondent to stand in the election.
With regard to issue no.3, the Court is of the opinion that the election petition was maintainable and was not an abuse of the process of the Court.
In view of the aforesaid, the election petition fails and is dismissed. In the circumstances of the case parties will bear their own cost.
Dated: 04th July, 2014 MAA/-
(Tarun Agarwala,J.)