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2019 Supreme(Ker) 1042
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SHAJI P.CHALY, J.
Saritha s. Nair, D/o. Indira Nair – Appellant
Versus
The Chief Election Commissioner Of India – Respondent
El.Pet.No.3 of 2019
Decided on : 31-10-2019
Advocate Appeared:
For the Appellant : SMT.N.N.GIRIJA, SRI.K.T.THOMAS, adv
For the Respondent: SRI.MURALI PURUSHOTHAMAN, SRI.S.SREEKUMAR (SR.), SRI.P.MARTIN JOSE, SRI.P.PRIJITH, SRI.THOMAS P.KURUVILLA, SRI.R.GITHESH, SRI.HARIKRISHNAN S., SRI.SACHIN JACOB AMBAT, SRI.AJAY BEN JOSE, SRI.MANJUNATH MENON, SMT.HANI P.NAIR, SRI.P.T.SHEEJISH, SRI.M.A.MOHAMMED SIRAJ, SRI.V.A.JOHNSON, SRI.SAJU WAHAB, SRI.ELDHO CHERIAN, SRI.S.VAIDYANATHAN
Important points:
The election petitions have no legal and factual sustenance, since it is clearly admitted by the petitioner herself that the sentence alone is suspended by the respective appellate/revisional courts-The petitioner has sought only for suspension of the sentence and not even a prayer is made to suspend the conviction-At the time of submitting the nominations, petitioner was having the disqualification in terms of Sec.8(3) of Act, 1951-The election petitions are liable to be dismissed also on the basis of the said preliminary issue raised.
Headnote:
The Representation of People Act, 1951- Sec.8(3)- The officials are not necessary parties to an election petition and a person who is not a candidate may not be joined as a respondent- One cannot escape the effect of disqualification merely because he has not been taken into custody because he was on bail or absconding -At the time of submitting the nominations, petitioner was having the disqualification in terms of Sec.8(3) of Act, 1951
Statement of facts:
Captioned Election Petitions are filed by one and the same petitioner, challenging the election held in April, 2019 to the Parliamentary Constituencies of 04' Wayanad and 12' Ernakulam, on the ground that her nominations were rejected by the Returning Officer of the respective Constituencies, having been suffered with conviction in C.C.No.1300/2013 on the files of the Judicial First Class Magistrate Court-I, Pathanamthitta imposing three years imprisonment and a fine of Rs.45 lakhs, and C.C.No.102/2014 of Judicial First Class Magistrate Court-I, Perumbavoor, imposed with imprisonment for a period of three years and a fine of Rs.10,000/-, as per the disqualification prescribed under Sec.8(3) of the Representation of People Act, 1951
Finding of the court:
Incurable defects pointed out above in terms of Sec.86(1) of Act, 1951, and that the petitioner was disqualified from contesting the election in view of the inhibitions contained under Sec.8(3) of Act, 1951, read with Article 102(1)(e) of the Constitution of India.
Result: Election petitions are dismissed
JUDGMENT :
The captioned Election Petitions are filed by one and the same petitioner, challenging the election held in April, 2019 to the Parliamentary Constituencies of 04' Wayanad and 12' Ernakulam, on the ground that her nominations were rejected by the Returning Officer of the respective Constituencies, having been suffered with conviction in C.C.No.1300/2013 on the files of the Judicial First Class Magistrate Court-I, Pathanamthitta imposing three years imprisonment and a fine of Rs.45 lakhs, and C.C.No.102/2014 of Judicial First Class Magistrate Court-I, Perumbavoor, imposed with imprisonment for a period of three years and a fine of Rs.10,000/-, as per the disqualification prescribed under Sec.8(3) of the Representation of People Act, 1951 (for brevity, 'the Act, 1951').
2. On filing the Election Petitions, defects were noted by the Registry and except one defect, all are typical in nature. The additional defect is in Election Petition No.4 of 2019, noting that the prayer made by the petitioner is incomplete. The Election Petitions were posted before the Court without numbering them in view of the defects noted, and the Registry was directed to number the Election Petitions as per the order dated 29.07.2019, subject to the condition that petitioner shall address on the issue with respect to the curability of the defects. Thereafter, notices were issued to the respondents, viz., the Chief Election Commissioner of India, Chief Electoral Officer, Kerala, Returning Officer, Wayanad Constituency, Returning Officer, Ernakulam Constituency, Returning Officer, Amethi Constituency in Uttar Pradesh and the returned candidates. The Returning Officer, Amethi Constituency is included in the party array, assigning the reason that the nomination submitted by the petitioner in the Amethi Constituency was accepted in spite of the conviction of the petitioner in the afore-quoted cases.
3. Learned Standing Counsel for the Election Commission has advanced a case that the Commission or the other officials are not necessary parties in view of the peremptory stipulations contained under Sec.82 of Act, 1951, and a separate petition is filed to remove the officers from the party array.
4. The respective counsel were heard with respect to the curability of the defects noted by the Registry, at length. When the hearing with respect to the curability of the defects were complete, learned Senior Counsel appearing for the returned candidates submitted that, the maintainability of the Election Petitions may also be heard by raising a preliminary issue on account of the fact that the conviction suffered by the petitioner was never suspended by the appellate courts. Accordingly, separate preliminary issues were framed on 01.10.2019 as to “whether the Election Petition is maintainable, since the conviction suffered by the petitioner is not suspended in the appeal proceedings”.
5. So also, learned counsel appearing on either side agreed that, since the issues to be decided by this Court are of a typical nature, they may be heard together. I also find that no manner of prejudice will be caused to the parties, if the Election Petitions are heard together, since the issues are of typical nature, and the valuable time of the Court also can be saved to a large extent. Therefore, I heard them together and propose to deliver a common judgment.
6. I have heard Sri. K.T. Thomas and Smt. N.N. Girija, learned counsel appearing for the petitioner, Sri. Murali Purushothaman, learned Standing Counsel appearing for respondents 1 to 4 and Sri. S. Sreekumar, learned Senior Counsel appearing for the respective returned candidates, assisted by Advocate Ajay Ben Jose, and perused the pleadings and the documents on record.
7. The defects noted by the Registry, which are common in nature, are as follows:
“1.(a) Chalan No. is left blank in item No.4.
(b) Date of chalan No. differs in index item No.4 Annexure-P.
(c) W.P.(C) No. mentioned in the description of Annexure-P5 is incorrect.
(d)
