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High Court Of Himachal Pradesh
KAMLESH SHARMA
VIKRAM ANAND - Appellant
Versus
RAKESH SINGHA - Respondent
Election Petition Nos. 4t 1 and 5 of 1994
Decided On : 09/13/1994
ELECTION LAW - DISQUALIFICATION - CONVICTION AND SENTENCE FOR NOT LESS THAN TWO YEARS - SUSPENSION OF SENTENCE - EFFECT ON DISQUALIFICATION - INTERPRETATION OF SECTION 8(3) OF THE REPRESENTATION OF THE PEOPLE ACT, 1951 - ELECTION OF RETURNED CANDIDATE DECLARED VOID.
Fact of the Case:
The petitioners challenged the election of the returned candidate, Sh. Rakesh Singha, on the grounds that his nomination papers were improperly accepted as he was disqualified to be chosen to fill the seat of 8th Assembly Constituency having been convicted and sentenced to imprisonment for not less than two years as provided under section 8(3) of the Representation of the People Act, 1951 (the Act). The returned candidate had been convicted and sentenced to imprisonment for a period of 5 years for various offences, including murder, by a Sessions Court. He had filed an appeal against the conviction and sentence in the Supreme Court, which had granted him bail and suspended the sentence during the pendency of the appeal. The petitioners contended that the disqualification incurred by the returned candidate continued despite the order of suspension of sentence, while the returned candidate contended that the order of suspension of sentence impliedly put his conviction in abeyance, thereby arresting the operation of his disqualification.
Finding of the Court:
The Court held that the disqualification incurred by the returned candidate under section 8(3) of the Act continued despite the order of suspension of sentence passed by the Supreme Court. The Court interpreted section 8(3) of the Act to mean that a person is disqualified from being chosen to fill a seat in the legislature if they have been convicted of an offence punishable with imprisonment for not less than two years and sentenced to imprisonment for such an offence. The Court held that the order of suspension of sentence does not automatically or impliedly suspend the order of conviction, and that the disqualification continues despite the suspension of sentence. The Court also held that the returned candidate was not entitled to the benefit of the exception provided under section 8(4) of the Act, which exempts sitting members of Parliament or the legislature of a State from the disqualification until three months have elapsed from the date of conviction or until the appeal or application for revision is disposed of, as he was not a sitting member at the time of his conviction.
Issues: 1. Whether the disqualification incurred by the returned candidate under section 8(3) of the Act continued despite the order of suspension of sentence passed by the Supreme Court? 2. Whether the returned candidate was entitled to the benefit of the exception provided under section 8(4) of the Act?
Ratio Decidendi: 1. The disqualification incurred by the returned candidate under section 8(3) of the Act continued despite the order of suspension of sentence passed by the Supreme Court because: - The words "convicted of any offence and sentenced to imprisonment for not less than two years" used in section 8(3) of the Act are conjunctive and not disjunctive, and therefore, both conviction and sentence are required for disqualification. - The order of suspension of sentence does not automatically or impliedly suspend the order of conviction. - The disqualification continues despite the suspension of sentence because the order of conviction remains in operation, holding the person guilty of the offence for which they were sentenced. 2. The returned candidate was not entitled to the benefit of the exception provided under section 8(4) of the Act because he was not a sitting member of Parliament or the legislature of a State at the time of his conviction.
Final Decision: The Court declared the election of the returned candidate, Sh. Rakesh Singha, to the 8th Shimla Assembly Constituency void on the ground that his nomination papers were improperly accepted, as he was disqualified to be chosen to fill the seat under section 8(3) of the Act.
Kamlesh Sharma, J.—-These three Election Petitions (Election Petition No. 4 of 1994, Vikram Anand v. Rakesh Singha, 5 of 1994, Suresh Bhardwaj v. Rakesh Singha and others and 1 of 1994, Harbhajan Singh Bhajji v. Rakesh Singha and others) are being disposed of by a common judgment as the relief sought for in them is common. It is to declare the election of Sh. Rakesh Singha, from 8th Shimla Assembly Constituency held in November 1993, void. Election Petition No. 4 of 1994, which has been filed by an Elector, Sh. Vikram Anand, is on the grounds that the result of the election of Sh. Rakesh Singha has been materially effected by the improper acceptance, of his nomination papers as he was disqualified to be chosen to fill the seat of 8th Assembly Constituency having been convicted and sentenced to imprisonment for not less than two years as provided under section 8 (3) of the Representation of the People Act, 1951 (hereinafter called the Act).
2. In Election Petition No. 5 of 1994, which has been filed by a defeated candidate, Sh. Suresh Bhardwaj, who had contested the election on the ticket of Bhartiya Janta Party, besides the grounds taken in Election Petition No. 4 of 1994, two additional grounds have been taken that the result of election of Sh. Rakesh Singha has been materially affected by improper reception, refusal and rejection of votes or reception of votes which is void and non-compliance of the provisions of Conduct of Elections Rules, in particular Rules 53 and 59-A thereof, for the counting of votes.
3. In the third Election Petition No. 1 of 1994, which has been filed by another, defeated candidate, Sh. Harbhajan Singh Bhajji who had con tested the election on the Congress (I) party ticket, the grounds of challenge are only that the result of election of Sh. Rakesh Singha has been materially affected by improper reception, refusal and rejection of votes and non-compliance of the provisions of Conduct of Elections Rules, in particular, Rules 53 and 59-A thereof for the counting of votes. The Returned candidate, Sh. Rakesh Singha had contested the election on the ticket of C. P. I(M).
4. The facts in brief are that the elections to the H. P. State Legislative Assembly were notified to be held in the month of October/November 1993. According to the Election Programme, Nomination papers in respect of 8th Shimla Constituency were delivered by the candidates or their proposer to the Returning Officer (Deputy Commissioner) or to the Assistant Returning Officer (Additional Deputy Commissioner), Shimla, in his office at District Court Building, Shimla, between 11.00 a. m. and 3.00 p m. on a day (other than a Holiday) not later than 16-10-1993. The Nomination Papers were taken up for scrutiny in the Office of the Deputy Commissioner in District Court Building, Shimla on 18-10-1993 at 11.00 a.m. The notice of withdrawal of a candidate was to be delivered by. him or his proposer or his agent, who had been authorised in writing by the candidate to deliver it to the Returning Officer (Deputy Commissioner) or to the Assistant Returning Officer (Addl. Deputy Commissioner) Shimla, in his office at District Court Building, Shimla before 3.00 p. m. on 20-10-1993 After the scrutiny and the last date of withdrawal, seven candidates contested the election which was held on 9-11-1993 between 7.00 a m. to 5 00 p. m The counting of votes started in the prescribed premises on 28-11-1993 in the afternoon and the result was declared on 29-) 1-1993. All the contesting candidates secured valid votes as indicated against their names here in under :— SI. No. Name of the Candidate Party position Valid votes secured 1 2 3 4
1. Sh. Rakesh Singha CP1 (M) 11,854 2, Sh. Harbhajan Singh Bhajji Congress (I) 11,695
3. Sh. Suresh Bhardwaj B. J. P. 11,363
4. Sh. Chaman Lal B. S. P. 88
5. Sh. Joginder Singh Independent 34
6. Sh. Durga Singh Rathore -do- 39
7. Sh. Faujdar Singh Chauhan -do- 32
5. The total votes polled were 35,304 out of which valid votes were 3
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