Pradeep Kumar Sonthalia vs Dhiraj Prasad Sahu @ Dhiraj Sahu on 18 December, 2020


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

Pradeep Kumar Sonthalia vs Dhiraj Prasad Sahu @ Dhiraj Sahu on 18 December, 2020

Author: Hon’Ble The Justice

Bench: Hon’Ble The Justice, A.S. Bopanna, V. Ramasubramanian

                                                                                      REPORTABLE


                                         IN THE SUPREME COURT OF INDIA
                                          CIVIL APPELLATE JURISDICTION


                                           CIVIL APPEAL NO. 611 0F 2020


                         PRADEEP KUMAR SONTHALIA                                … APPELLANT(S)


                                                         VERSUS


                         DHIRAJ PRASAD SAHU @ DHIRAJ SAHU & ANR.            …RESPONDENT(S)

                                                          WITH


                                           CIVIL APPEAL NO. 2159 OF 2020




                                                    JUDGMENT

S.A. Bobde, CJI

1. An interesting but important question of far-reaching

consequence arises for consideration in these appeals. It is this.

“Whether the vote cast by a Member of the Legislative Assembly in

an election to the Rajya Sabha, in the forenoon on the date of

election, would become invalid, consequent upon his disqualification,

arising out of a conviction and sentence imposed by a Criminal Court,

in the afternoon on the very same day?”
Signature Not Verified

Digitally signed by
Madhu Bala
Date: 2020.12.18
14:25:35 IST
Reason: 2. We have heard learned counsel for the parties.

1

3. The brief facts sufficient for answering the issue arising for

consideration in these appeals are as follows: –

(i) By a notification dated 05.03.2018, the Election Commission of

India notified the biennial elections for two seats in the Council

of States from the State of Jharkhand;

(ii) Three candidates by name Pradeep Kumar Sonthalia, Samir

Uraon and Dhiraj Prasad Sahu, filed their nominations on

12.03.2018. It is stated that the first two candidates belonged

to the Bharitya Janata Party (BJP), and the third candidate

belonged to the Indian National Congress (INC);

(iii) On 23.03.2018, the election was held between 9.00 A.M. and

4.00 P.M. at the Vidhan Sabha. A total of 80 members of the

Legislative Assembly of the State of Jharkhand cast their votes;

(iv) One Shri Amit Kumar Mahto who was an elected member of

the Assembly belonging to Jharkhand Mukti Morcha Party (JMM)

admittedly cast his vote at 9.15 A.M. on 23.03.2018;

(v) As fate (not of the voter but of the contestant) would have it,

Shri Amit Kumar Mahto was convicted by the Court of the

Additional Judicial Commissioner XVIII, Ranchi, in Sessions Trial

No.481 of 2010, for the offences punishable under Sections

147, 323/149, 341/149, 353/149, 427/149 and 506/149 IPC, on

the same day, but the conviction and sentence were handed

over at 2.30 P.M. He was sentenced to various periods of

imprisonment for those offences, but all of them were to run

concurrently. The maximum punishment was for the offence

2
under Section 506/149 and the Court awarded RI for a period

of two years;

(vi) Since the election to the Council of States is by a system of

proportional representation by means of single transferable

vote, the counting of votes began at 7.30 P.M on 23.03.2018.

Out of the 80 votes cast, two were declared invalid by the

Returning Officer. The remaining 78 votes, which were validly

cast, were converted into points (at the rate of 100 points per

vote) and Pradeep Kumar Sonthalia was declared to have

secured 2599 value of votes, Samir Uraon was declared to

have secured 2601value of votes and Dhiraj Prasad Sahu was

declared to have secured 2600 value of votes. Thus, the

election petitioner was declared defeated and the other two,

declared duly elected;

(vii) It appears that an objection was lodged at 11.20 P.M.

requesting the Returning Officer to declare the vote cast by

Shri Amit Kumar Mahto invalid, on the basis of the conviction

and sentence imposed in the afternoon on the same day by

the Criminal Court;

(viii) However, the Returning Officer went ahead and declared the

results at 12.15 A.M. on 24.03.2018. Shri Samir Uraon and

Shri Dhiraj Prasad Sahu were declared by the Returning Officer

to be duly elected and they were also issued with a certificate

in Form No. 24 in terms of Rule 85 of the Conduct of Election

Rules, 1961;

3

(ix) Therefore, Pradeep Kumar Sonthalia, the defeated candidate

filed an election petition in Election Petition No.01/2018,

praying for a declaration that the Returning Officer has caused

improper reception of the void vote of Shri Amit Kumar Mahto.

He also prayed for setting aside the election of Shri Dheeraj

Prasad Sahu with a consequential declaration that the

petitioner was duly elected as a member of Rajya Sabha;

(x) The High Court framed as many as 6 issues for consideration

in the Election Petition and they are as follows: –

1. Whether Shri Amit Kumar Mahto has cast his vote in

favour of respondent no. 1 in Biennial Election to the

Council of States, 2018 in connection with State of

Jharkhand?

2. Whether on conviction and sentence of two years in

Sessions Trial No. 481 of 2010 by the Additional Judicial

Commissioner-XVIII, Ranchi, Shri Amit Kumar Mahto

ceased to be a Member of Legislative Assembly and his

disqualification came into effect immediately from the

date of his conviction and sentence of two years and,

therefore, the vote of Shri Amit Kumar Mahto could not

have been taken into consideration at the time of

counting?

3. Whether the disqualification of Shri Amit Kumar Mahto

rendered his vote void/illegal that was cast to

respondent no.1 and, therefore, reception of his vote

was improper and, thus, in terms of Section 100 (1) (d)

4

(iii) of the Representation of People Act, 1951, the

election of respondent no. 1 is liable to be declared void?

4. Whether the communication from the Returning Officer

(e-mail dated 24.03.2018) rejecting the objection made

on behalf of the petitioner on the ground that the

Returning Officer had not received the judgment of

conviction of Shri Amit Kumar Mahto till the declaration

of the results, is absolutely illegal and unlawful?

5. Whether disqualification of Shri Amit Kumar Mahto in

terms of Section 8 (3) of the Representation of People

Act, 1951, takes effect from the date of his conviction

and sentence of two years i.e. 23.03.2018 which means

the day as per English calendar beginning at midnight

and covering a period of 24 hours i.e. with effect from

23.03.2018 at 00.00 hours?

6. The respondent no. 1 having been declared to be elected

in the Biennial Election to the Council of States – 2018 by

a margin of 0.01 vote and in the event, the vote of Shri

Amit Kumar Mahto which has been received improperly

is ignored, then whether the petitioner is entitled to be

declared successful and consequently for being elected

as a Member of Rajya Sabha?

(xi) By a judgment dated 17.01.2020, the High Court dismissed the

Election Petition, after recording a finding in favour of the

election petitioner on Issue Nos. 1, 2, 3 & 5. On Issue Nos. 4 &

6, the High Court did not record any finding.

5

(xii) Despite deciding Issue Nos. 1, 2, 3 & 5 in favour of the election

petitioner, the High Court refused to grant any relief to the

election petitioner, primarily on the ground that the election to

the Council of States by a system of proportional

representation by means of single transferable vote, is a highly

complex, technical issue and that it is not possible for the

Court to find out whether the election petitioner could have

won the election, if that one vote had been rejected;

(xiii) Finding that the surgery was successful but the patient died,

the election petitioner has come up with one appeal in Civil

Appeal No.611 of 2020. Aggrieved by the findings on Issue

Nos. 1, 2, 3 & 5, one of the two returned candidates, namely

Shri Dhiraj Prasad Sahu, has come up with the other appeal

namely Civil Appeal No.2159 of 2020.For the purpose of

convenience, we refer to the appellant in Civil Appeal No. 611

of 2020, as the appellant throughout and the appellant in the

other appeal as the returned candidate.

4. Before proceeding further, it must be recorded that there is no

dispute either before us or before the High court, about the fact that

Shri Amit Kumar Mahto cast his vote at 9.15 A.M. on 23.03.2018 and

that the judgment of the criminal court was rendered at 2.30 p.m. on

the very same day.

5. Before the High court, a preliminary objection was raised

about the validity of the presumption on the part of the election

petitioner that Sri. Amit Kumar Mahto cast his vote in favour of Shri

6
Dhiraj Prasad Sahu. Unless Shri Amit Kumar Mahto had cast his vote

in favour of Shri Dhiraj Prasad Sahu, the entire edifice on which the

election petition was built could have crumbled. Therefore, the

Returning Officer, Mr. Binay Kumar Singh was examined as

PW-1 and through him the original ballot paper by which Shri Amit

Kumar Mahto cast his vote was marked as Exhibit-9. On the basis of

the same, the High Court came to the conclusion that Shri Amit

Kumar Mahto cast his vote in favour of Shri Dhiraj Prasad Sahu, the

Congress candidate. It was also clear from the evidence of PW-1 and

Exhibit-9 that Shri Amit Kumar Mahto did not cast his 2 nd, 3rd and 4th

preference vote. Therefore, the validity of the vote cast by Amit

Kumar Mahto assumed significance, especially in view of the margin

of victory.

6. Since the factual position that Amit Kumar Mahto cast his vote

in favour of Dhiraj Prasad Sahu has now become unassailable, many

of the issues framed by the High Court have now paled into

insignificance. There are only 2 issues which now survive for

consideration and they are: –

(i) Whether the vote admittedly cast by Shri Amit Kumar Mahto in

favour of Shri Dhiraj Prasad Sahu at 9.15 A.M. on 23.03.2018

should be treated as an invalid vote on account of the

disqualification suffered by the voter under Article 191(1)(e) of

the Constitution of India read with Section 8(3) of the

Representation of the People Act, 1951, by virtue of his

conviction and sentence by the Sessions Court in a criminal

7
case, rendered at 2.30 P.M. on the very same date 23.03.2018;

and

(ii) Whether, in the event of the first issue being answered in the

affirmative, the election petitioner is entitled to be declared as

duly elected automatically.

7. It is needless to say that the second question as formulated

above would arise only if the answer to the first question is in the

affirmative and not otherwise.

8. Before proceeding further, we may point out that two ancillary

issues namely (i) the non-joinder of the Election Commission of India

as a party to the election petition; and (ii) the absence of a specific

prayer for recounting of votes, were also dealt with by the High Court.

These issues may have gained importance, but for the appeal filed by

Shri Dhiraj Prasad Sahu against the findings on Issue Nos. 1, 2, 3 & 5.

Therefore, these ancillary issues need not deter us at this stage.

9. The primary contention of Shri Mukul Rohatgi and Shri K.V.

Vishwanathan, learned senior counsel appearing for the defeated

candidate who is the appellant in the first civil appeal, is that

wherever a statute uses the word “date” with reference to an event,

courts have always interpreted the same to have happened at the

intersection of the previous day and the present day, namely 00.01

a.m. This is firstly because it is at that time that the day begins and

secondly because law abhors fractions. Therefore, it is their

contention that though the Sessions Court delivered its judgment of

conviction and sentence at 2.30 P.M. on 23.03.2018, the date of such

8
conviction is deemed in law to have commenced at about 00.01 A.M.

when the date of March 22 lapsed and the date of March 23 began. It

is the further contention of the learned Senior Counsel that if the time

at which the judgment was delivered is irrelevant and the focus is

actually on the date of conviction, then the disqualification would also

commence at 00.01 A.M. on 23.03.2018. As a corollary, the vote cast

at 9.15 A.M. on 23.03.2018 would be a vote by a disqualified member

and thus invalid.

10. In order to test the veracity of the above contention, it is

necessary first to take note of the relevant provisions of the

Constitution and the Representation of the People Act, 1951.

11. Article 191 of the Constitution speaks of the circumstances

under which a person will be treated as disqualified (i) either for

being chosen as (ii) or for being , a member of the State

Legislative Assembly. The language of Article 191 makes it clear that

it covers both a contest in an election and the continuance in office

after getting elected. It reads as follows: –

“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 acknowledgement of allegiance or adherence to
a foreign State;

9

(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]”

12. If a person, being a member of the Assembly, suffers a

disqualification, his seat becomes vacant. This situation is taken care

of by Article 190 which reads as follows:

“190. Vacation of seats-

(1)……
(2)…….

(3) If a member of a House of the Legislature of a
State-

(a) becomes subject to any of the disqualifications
mentioned in clause ( 1 ) or clause ( 2 ) of Article
191; or

(b) resigns his seat by writing under his hand
addressed to the Speaker or the Chairman, as the
case may be, and his resignation is accepted by the
Speaker or the Chairman, as the case may be,
his seat shall thereupon become vacant:
[Provided that in the case of any resignation referred
to in sub clause (b), if from information received or
otherwise and after making such inquiry as he thinks
fit, the Speaker or the Chairman, as the case may be,
is satisfied that such resignation is not voluntary or
genuine, he shall not accept such resignation]”

13. It is clear as daylight that the event which causes the

disqualification under Article 191(1)(e) read with Section 8(3) is a

conviction of a person for any of the specified offences. The

consequence of such disqualification is that the seat becomes vacant.

Obviously therefore, a Member of the Legislative Assembly who has

become disqualified and whose seat has become vacant is not

10
entitled to cast his vote for electing a representative from his State

under Article 80(4) which provides that the representatives of each

State “shall be elected by the elected members”. His name is liable to

be deleted from the list of members of the State Legislative Assembly

maintained under Section 152 of the Representation of the People

Act, 1951. He ceases to be an elector in relation to election by

assembly member and cannot cast his vote.

14. The Representation of the People Act, 1951 was enacted for

the purpose of providing for the conduct of elections of both houses of

Parliament and to the House/Houses of State Legislatures, the

qualifications and disqualifications for membership of those houses,

the corrupt practices etc.,. Section 8 of the Act deals with

disqualification on conviction for certain offences. For the purpose of

disqualification, the offences are classified in section 8 into 3

categories, namely

(i) offences falling under sub-section (1)

(ii) offences falling under sub-section (1) and

(iii) offences not falling either under sub-section (1) or under sub-

section (2).

15. The disqualification results in the Member becoming liable to

be removed from the list of voters under Section 152 of the

Representation of the People Act, 1951, though the actual deletion

may take time. In any case, he ceases to be an elector vide Rule 2(d)

of the Conduct of Election Rules, 1961 which provides that an elector

11
in relation to an election by assembly members means any person

entitled to vote at that election.

16. We are concerned in this case with sub-section (3) of section 8,

as Amit Kumar Mahto was convicted for offences which do not fall

either under sub-section (1) or under sub-section (2). Therefore, Sub-

section (3) of section 8 alone is extracted as follows: –

“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.]”

17. The disqualification under Section 8 of Act 43 of 1951 is

relatable to Article 191(1)(e) of the Constitution. Therefore, any

interpretation to Section 8 should be in sync with the Constitutional

scheme.

18. As this Court had an occasion to point out in Saritha S. Nair

vs. Hibi Eden1, Section 8(3) of the Act deals both with the conditions

of disqualification and with the period of disqualification. As regards

the period of disqualification, Section 8(3) is comprehensive in that it

indicates both the commencement of the period and its expiry. The

date of conviction is prescribed to be the point of commencement of

disqualification and the date of completion of a period of six years

after release, is prescribed as the point of expiry of the period of

disqualification.

1
SLP (C) No. 10678 of 2020 dated 08-12-2020

12

19. Once the period of disqualification starts running, the seat

hitherto held by the person disqualified becomes vacant by virtue of

Article 190(3) of the Constitution. While speaking about the seat of

the disqualified person becoming vacant, Article 190(3) uses the

expression “thereupon”. We may have to keep this in mind while

interpreting the words “the date of such conviction”.

20. One fundamental principle that we may have to keep in mind

while interpreting the phrase appearing in Section 8(3) is that in cases

of this nature, the Court is not dealing with a fundamental right or a

common law right. As pithily stated by this Court in Jyoti Basu vs.

Devi Ghosal2, an election dispute lies in a special jurisdiction and

hence it has to be exercised without importing concepts familiar to

common law and equity, unless they are ingrained in the statute

itself. We may usefully extract the relevant portion of the decision in

Jyoti Basu which reads as follows: –

“8. A right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a
fundamental right nor a Common Law Right. It is pure
and simple, a statutory right. So is the right to be
elected. So is the right to dispute an election. Outside
of statute, there is no right to elect, no right to be
elected and no right to dispute an election. Statutory
creations they are, and therefore, subject to statutory
limitation. An Election petition is not an action at
Common Law, nor in equity. It is a statutory
proceeding to which neither the Common Law nor the
principles of Equity apply but only those rules which
the statute makes and applies. It is a special
jurisdiction, and a special jurisdiction has always to
be exercised in accordance with the statutory
creating it. Concepts familiar to Common Law and
Equity must remain strangers to Election Law unless
statutorily embodied”.

2

(1982) 1 SCC 691

13

21. Placing heavy reliance upon the decision of this Court in

Pashupati Nath Singh vs. Harihar Prasad Singh3, it is contended

that wherever the statute uses the words “ on the date”, it should be

taken to mean “on the whole of the day” and that law disregards

as far as possible, fractions of the day.

22. But in our considered view Pasupati Nath Singh hardly

supports the contention of the Appellant. In that case the election to

the Bihar legislative Assembly from Dumro constituency was in issue.

As per the schedule, the filing of nominations was to take place from

13.01.1967 to 20.01.1967. The date of scrutiny of nomination papers

was fixed as 21.01.1967. The returning officer, upon scrutiny of

nominations on 21.01.1967, rejected the nomination paper of the

Appellant before this Court, on the ground that he had not made and

subscribed the requisite oath or affirmation as enjoined by clause (a)

of Article 173, either before the scrutiny or even subsequently on the

date of scrutiny. The question that arose in that case was formulated

in paragraph 4 as follows: –

“4. The short question which arises in this appeal is
whether it is necessary for a candidate to make and
subscribe the requisite oath or affirmation as
enjoined by clause (a) of Art. 173 of the Constitution
before the date fixed for scrutiny of nomination
paper. In other words, is a candidate entitled to make
and subscribe the requisite oath when objection is
taken before the Returning Officer or must he have
made and subscribed the requisite oath or
affirmation before the scrutiny of nomination
commenced?”

23. The answer to the above question turned on the interpretation

to Section 36(2) of the Act, clause (a) of which used the words “ on

3
AIR 1968 SC 1064

14
the date fixed for scrutiny”. The contention of the appellant before

this court in Pashupati Nath Singh was that he was entitled to take

the oath or affirmation, before the Returning Officer, immediately

after an objection is made but before the objection was considered by

the Returning officer. Since Section 36(2)(a) uses the expression “on

the date fixed for scrutiny” it was contended by the appellant in

Pashupati Nath Singh that the whole of the day on which the

scrutiny took place was available to him. However, this contention

was rejected by this Court in the following manner: –

“16. In this connection it must also be borne in
mind that law disregards, as far as possible,
fractions of the day. It would lead to great
confusion if it were held that a candidate would
be entitled to qualify for being chosen to fill a
seat till the very end of the date fixed for
scrutiny of nominations. If the learned counsel
for the petitioner is right, the candidate could
ask the Returning Officer to wait till 11.55 p.m.
on the date fixed for the scrutiny to enable him
to take the oath”.

24. In other words, this Court interpreted the words “date” in

Pashupati Nath Singh, not necessarily to mean 00.01 A.M. to 24.00

P.M. This was despite the fact that in common parlance a date would

mean 24 hours in time. But the running of time got arrested, the

moment the nomination of the appellant in Pashupati Nath Singh

was taken up for scrutiny. Thus, the benefit of the whole day of 24

hours was not made available by this court in Pashupati Nath

Singh to the appellant therein and the act of the Returning officer in

drawing the curtains down at the happening of the event namely

scrutiny of nomination papers, was upheld by this court in Pashupati

Nath Singh.

15

25. In fact, Pashupati Nath Singh can be said to be a mirror

image or the converse of the case on hand. In the case on hand the

period of commencement of an event is in question, while in

Pashupati Nath Singh the period of conclusion was in issue. If the

date on which scrutiny was taken up can be held to have

ended at the time when the event of scrutiny was taken up,

we should, by the very same logic, hold that the date of

commencement of an event such as conviction and the

consequent disqualification should also begin only from the

time when the event happened.

26. In fact, the argument of the appellant in this case is a double

edged weapon. If the event of conviction and sentencing that

happened at 2.30 P.M. on 23.03.2018 can relate back to 00.01 A.M.,

the event of voting by Shri. Amit Kumar Mahto which happened at

9.15 A.M. can also relate back to 00.01 A.M. Once both of them are

deemed to relate back to the time of commencement of the date, the

resulting conundrum cannot be resolved. This why, the emphasis in

Pashupati Nath Singh was to provide an interpretation that will

avoid confusion.

27. The learned Senior Counsel for the appellant relied upon the

decision of this Court in Prabhu Dayal Sesma vs. State of

Rajasthan4in support of their contention that a legal date

commences after 12 o’ clock midnight and continue until the same

hour of the following night. But Prabhu Dayal Sesma arose in the

context of Rule 11B of the Rajasthan State and Subordinate Services

4
(1986) 4 SCC 59

16
Rules 1962 which prescribed the minimum and maximum age for

participation in the selection for direct recruitment to Rajasthan

Administrative Service. The appellant in that case was born on

02.01.1956 and Rule 11B prescribed that an applicant for

participation in the selection, must not have attained the age of 28

years on the first day of January, next following the last date fixed for

receipt of application. Therefore, when a notification was issued in the

year 1983, the upper age limit was to be reckoned as on

January 1, 1984. Since the appellant was born on 02.01.1956 and

attained the age of 28 years on 01.01.1984, his candidature was

rejected. It was in such circumstances that this Court took note of

Section 4 of the Indian Majority Act 1875, which stipulated the

method of computation of the age of any person. In view of the fact

that Rule 11B used the words “must not have attained the age of

28 years”, this court concluded that the appellant therein attained

the said age at 12 o’clock midnight when January 1 was born. We

should point out here that if Prabu Dayal Sesma concerned a case

of retirement, he would be taken to have attained the age of

superannuation on January 1 by the very same logic, but at 2400

hours on January 1. But Rule 11B mandated that the candidate “ must

not have attained”. Therefore, Prabhu Dayal Sesma also does not

go to the rescue of the appellant.

28. Tarun Prasad Chatterjee vs. Dinanath Sharma5, relied

upon by the learned senior counsel for the appellant concerned the

question of computation of the period of limitation for filing an

5
(2000) 8 SCC 649

17
Election petition under section 81(1) of the R.P. Act 1951. Therefore,

this Court referred to Section 9 of the General Clauses Act, 1897 that

laid down the manner in which statutes prescribing the

commencement and termination of time, can be worded by using

expressions such as “from” and “to”. But this decision is also of no

assistance to the appellant for the simple reason that Section 8(3) of

the Act uses the word “ from” as well as the expression “ the date of

conviction” and Tarun Prasad Chatterjee concerned the

interpretation to be given only to the word “from”.

29. In any case, Tarun Prasad Chatterjee need not have gone

as far as the General Clauses Act, since Section 12(1) the Limitation

Act, 1963 itself provides for the exclusion of the date from which the

period of limitation is to be reckoned, while computing the period of

limitation.

30. We must point out at this juncture that even in criminal law,

there is a vast difference between (i) the interpretation to be given to

the expression “date”, while calculating the period of imprisonment

suffered by a person and (ii) the interpretation to be given to the very

same expression while computing the period limitation for filing an

appeal/revision. Say for instance, a person is convicted and sentenced

to imprisonment and also taken into custody pursuant thereto, on

23.03.2018, the whole of the day of March 23 will be included in the

total period of incarceration. But in contrast, the day of March 23 will

be excluded for computing the period of limitation for filing an appeal.

18
Though one contrasts the other, both interpretations are intended to

benefit the individual.

31. Placing reliance upon the decision of the Constitution bench in

B.R Kapur vs. State of T.N. & Anr. 6 it was contended by the learned

senior counsel for the appellant that the disqualification under Article

191 of the Constitution and Section 8 of the R.P. Act is not a penal

provision and that therefore the question of beneficial construction

would not arise, especially when the object of such disqualification is

to cleanse politics.

32. We have no doubt that disqualification is not a penal provision

and that the object of disqualification is to arrest criminalisation of

politics.

33. But what triggered the disqualification in this case, under

Section 8(3) was a conviction by a criminal Court, for various offences

under the Penal Code. Therefore, the phrase “ the date of

conviction” appearing in Section 8(3) should receive an

interpretation with respect to the penal provisions under which a

person was convicted.

34. The rule that a person is deemed innocent until proved guilty

is a long-standing principle of constitutional law and cannot be taken

to be displaced by the use of merely general words. In law this is

known as the principle of legality and clearly applies to the present

case. In Pierson vs. Secretary of State for the Home

Department7, House of Lords held that unless there be clearest

6
(2001) 7 SCC 231
7
(1997) 3 All ER 577

19
provision to the contrary, Parliament is presumed not to legislate

contrary to rule of law which enforces ‘minimum standard of fairness

both substantive and procedural’.

35. In our view to hold that a Member of the Legislative Assembly

stood disqualified even before he was convicted would grossly violate

his substantive right to be treated as innocent until proved guilty. In

Australia this principle has been described as an aspect of the rule of

law “known both to Parliament and the Courts, upon which statutory

language will be interpreted”8.

36. In the present case, it would be significant to add that it is not

necessary to make a declaration incompatible in the use of the word

“date” with the general rule of law since the word “date” is quite

capable of meaning the point of time when the event took place

rather than the whole day.

37. The well-known presumption that a man is innocent until he is

found guilty, cannot be subverted because the words can

accommodate both competing circumstances. While it is known that

an acquittal operates on nativity, no case has been cited before us for

the proposition that a conviction takes effect even a minute prior to

itself. Moreover, the word “date” can be used to denote occasion,

time, year etc. It is also used for denoting the time up to the present

when it is used in the phrase “the two dates”. Significantly, the word

“date” can also be used to denote a point of time etc. (See Roget’s

International Thesaurus third edition Note 114.4).

8
K-Generation Pty. Ltd. vs. Liquor Licensing Court, (2009) 83 ALJR 327 para 47.

20

38. To say that this presumption of innocence would evaporate

from 00.01 A.M., though the conviction was handed over at 14.30 P.M.

would strike at the very root of the most fundamental principle of

Criminal Jurisprudence.

39. Inasmuch as a conviction for an offence is under a penal law, it

cannot be deemed to have effect from a point of time anterior to the

conviction itself. As rightly pointed by Dr. A.M. Singhvi, this court held

in Union of India vs. M/S G.S Chatha Rice Mills9 that legal fiction

cannot prevail over facts where law does not intend it to so prevail. It

was a case where a notification was issued by the Government of

India under section 8A of the Customs Tariff Act 1975, introducing a

tariff on all goods originating in or exported from Pakistan. The

notification was uploaded on the e-gazette at 20:46:58 hours on

16.02.2019. The Government of India took a stand that the enhanced

rate of duty was applicable even to those who had already presented

bills of entry for home consumption before the enhanced rate was

notified in the e-gazette. The importers successfully challenged the

claim of the customs authorities before the High court and the Union

of India came up on appeal to this Court. An extensive analysis was

made in Section H of the decision in M/S G.S. Chatha Rice Mills, on

the interpretation of the words “day” and “date”. After taking note of

several decisions, some of which arose under the law of Limitation,

some under the law of Insurance and some under the Election law,

this Court pointed out that these expressions were construed in

varying contexts and that a general position in law, divorced from

9
(2020) SCC Online SC 770

21
subject, context and statute, has not been laid down. As succinctly

put by this Court, “Legislative silences create spaces for

creativity” and that “between interstices of legislative spaces

and silences, the law is shaped by the robust application of

common sense”.

40. The decision in K Prabhakaran vs. P Jayarajan10 relied upon

by the learned Senior Counsel for the appellant did not deal with the

question that we are now confronted with. It was a case where (i) the

effect of several sentences of imprisonment, each for a period of less

than 2 years ordered to run consecutively and not concurrently,

thereby totalling to more than the period prescribed under section

8(3) of the Act and (ii) the effect of the decision of the Appellate Court

rendered in a criminal case after the election was over, were in

question. It is in that context that the Constitution Bench held in K

Prabhakaran that Section 8 of the R.P Act has to be construed in

harmony with the provisions of Cr.P.C so as to give effect to the

provisions contained in both.

41. Cases arising under the law of insurance, have no relevance to

cases of disqualification. Even under the law of insurance, different

principles of interpretation have been carefully nurtured and

developed. For instance, New India Assurance Company Limited

vs. Ram Dayal & Ors.11, this Court was concerned with a case where

a vehicle had insurance cover upto 31.08.1984, which was not

renewed. However, a fresh policy was taken on 28.09.1984. It was on

10
(2005) 1 SCC 754
11
(1990) 2 SCC 680

22
the very same day that the vehicle got involved in an accident. The

Motor Accident Claims Tribunal upheld the repudiation of liability by

the insurer, but the High Court held that the policy of insurance

obtained on the date of the accident became operative from the

commencement of the date of insurance, namely from the previous

midnight. While upholding the view taken by the High Court, by a

short order, this Court referred to In Re F.B. Warren12, wherein it

was held that a judicial act will be referred to the first moment of the

day on which it is done. However, in a subsequent decision in

National Insurance Company Limited vs. Jijubhai Nathuji Dabhi

& Ors.13, this Court explained the decision in Ram Dayal (supra) by

stating that the same would hold good only in the absence of any

specific time mentioned in that behalf in the policy of insurance. In

Jijubhai Nathuji Dabhi (supra), the Court found that the contract

clearly stipulated that it would be operative from 4.00 p.m on

25.10.1983 and that therefore the insurance coverage was not

available in respect of an accident that happened before 4.00 p.m. on

the same day. The decision in Jijubhai Nathuji Dabhi (supra) was

also followed in New India Assurance Company vs. Bhagwati

Devi14.

42. It must be remembered that a policy of insurance lies in the

realm of contract. Therefore, the interpretation to be given to the

terms of such contract would largely depend upon the intent of the

parties, with a certain degree of latitude in favour of a party whose

12
(1938) 2 All ER 331
13
(1997) 1 SCC 66
14
(1998) 6 SCC 534

23
bargaining power is not equal to that of other contracting party.

Hence, it is not possible for us to adopt the interpretation given to the

word “the date” appearing in a contract of Insurance.

43. Accepting the appellant’s submission would require us to

construe the statutory scheme as intending something startling i.e.

positing that the consequence precedes the cause. This would

be reducing this provision to absurdity and require Courts to hold that

a consequence can precede its cause, but according to the learned

counsel this is the intended effect of the provision since it states that

a convicted person shall be disqualified from the date of his

conviction. But we do not agree. The disqualification arising

under Section 8(3) of the Act, is the consequence of the

conviction and sentence imposed by the criminal Court. In

other words, conviction is the cause and disqualification is

the consequence. A consequence can never precede the

cause. If we accept the contention of the appellant, the consequence

will be deemed to have occurred even before the cause surfaced.

44. It is contended by the learned Senior Counsel for the Returned

candidate, that the Constitution also takes care of the contingency of

disqualified persons sitting and voting despite suffering a

disqualification and that a court cannot travel beyond what is so

prescribed. Article 193 which takes care of this contingency reads as

follows: –

“193. Penalty for sitting and voting before
making oath or affirmation under Article 188 or
when not qualified or when disqualified. – If a
person sits or votes as a member of the Legislative

24
Assembly or the Legislative Council of a State before
he has complied with the requirements of Article 188,
or when he knows that he is not qualified or that he
is disqualified for membership thereof, or that he is
prohibited from so doing by the provisions of any law
made by Parliament or the Legislature of the State,
he shall be liable in respect of each day on which he
so sits or votes to a penalty of five hundred rupees to
be recovered as a debt due to the State.”

45. On the basis of Article 193, it is contended that when law

prescribes certain consequences for an act of commission, the Court

cannot impose additional consequences. Reliance is placed in this

regard on the decision of this Court in State of Madhya Pradesh vs.

Centre for Environment Protection Research and Development

& Ors.15,wherein it was held that when a Statute or the Statutory

Rules prescribes a penalty for any act or omission, no other penalty

not contemplated in the Statute or the Rules can be imposed.

46. But we do not think that the aforesaid decision can be applied

to cases where consequences other than a penalty arise on account

of an act or omission. While it is true that a penalty other than the

one prescribed by the Statute cannot be imposed for a particular act

or omission, the said principle has no place in so far as consequences

other than penalty which flow automatically out of such act or

omission, are concerned.

47. Article 193 deals with the penalty to be imposed upon an

erring member who sits or votes as a member of the Legislative

Assembly or the Legislative Council (i) either before he has complied

with the requirements of Article 188; (ii) or when he knows that he is

15
(2020) SCC Online SC 687

25
not qualified for membership; (iii) or when he knows that he is

disqualified from being a Member; (iv) or when he knows that he is

prevented by any law from sitting or voting.

48. A disqualification for which penalty is prescribed under Article

193, also invites civil consequences such as the denial of privileges

that go with the membership, other than the penalty stipulated in

Article 193. Once a person is disqualified, he ceases to be a member

and his right to vote also ceases alongwith his membership. This is a

natural consequence of a person ceasing to be a member and this

consequence is automatic and not dependent upon Article 193.

Therefore, we cannot stretch Article 193 to such an extent that even

the natural consequences of disqualification of a member will not get

attracted because of the prescription of a penalty.

49. However, Article 193 and the interpretation given to the same

by this Court may be of significance for finding out whether an act or

omission done by a person disqualified would also perish and if so in

what circumstances.

50. In Pashupati Nath Sukul vs. Nem Chandra Jain16, one of

the questions that arose for consideration was whether a person

elected as a member of the Assembly but who has not made and

subscribed the prescribed oath or affirmation as required by Article

188 can validly propose a person as a candidate at an election for

filling a seat in the Rajya Sabha. This question arose under peculiar

circumstances. The elections to the Legislative Assembly of the State

16
(1984) 2 SCC 404

26
of Uttar Pradesh were held in May, 1980 and the notification

containing the names of elected members was issued on 09.06.1980

under Section 73 of the Representation of the People Act, 1951. The

elected members were notified that they could take oath as required

by Article 188 at the Session of the Assembly summoned to meet on

27.06.1980. But in the meantime, election for filling up a vacancy in

the Rajya Sabha was notified on 17.06.1980. Therefore, the proposal

of the name of a candidate for election to the Rajya Sabha, made by

an elected member who was yet to take oath under Article 188, was

objected to. The objection was overruled and the nominated

candidate won the election. Therefore, the question as stated above

arose, before this Court in an Election Petition.

51. Article 188 reads as follows: –

“188. Oath or affirmation by members. – Every
member of the Legislative Assembly or the
Legislative Council of a State shall, before taking his
seat, make and subscribe before the Governor, or
some person appointed in that behalf by him, an oath
or affirmation according to the form set out for the
purpose in the Third Schedule.”

52. In view of the mandate of Article 188, it was argued before this

Court in Pashupati Nath Sukul (supra)that before taking his seat,

an elected person is required to take an oath or affirmation and that if

he had failed to do so, he could not be counted as a member entitled

to vote. Overruling the said contention, this Court held as follows: –

“We are of the view that an elected member who has
not taken oath but whose name appears in the
notification published under Section 73 of the Act can
take part in all non-legislative activities of an elected
member. The right of voting at an election to the
Rajya Sabha can also be exercised by him. In this

27
case since it is not disputed that the name of the
proposer had been included before the date on which
he proposed the name of the appellant as a
candidate in the notification published under Section
73
of the Act and in the electoral roll maintained
under Section 152 of the Act, it should be held that
there was no infirmity in the nomination. For the
same reason even the electoral roll which contained
the names of elected members appearing in the
notification issued under Section 73 of the Act cannot
be held to be illegal. That is how even respondent No.
1 appears to have understood the true legal position
as he was also proposed as a candidate by an elector
who had not yet made the oath or affirmation.”

53. Therefore, it is clear that dehors the liability for penalty under

Article 193, the act done by the elected member is not liable to be

invalidated, but only in certain circumstances. One of them may be a

case like the one on hand apart from cases falling foul of Article

188.But the position would have been different if Shri Amit Kumar

Mahto had been convicted and sentenced in the forenoon of

23.03.2018 and yet he voted in the election to the Rajya Sabha in the

afternoon with full knowledge.

54. The fallacy of the argument of the appellant that wherever the

word “date” is used in a Statute, it should be understood to relate

back to 00:01 a.m. can be best understood if we apply the same to a

reverse situation. If in a hypothetical situation, the conviction and

sentence had taken place in the forenoon and Shri Amit Kumar Mahto

had cast his vote in the afternoon, the defeated candidate would not

have argued that the voting should be deemed to have taken place at

00:01 a.m.

55. In any case the principle that the acts of the officers de facto

performed within the scope of their assumed official authority, in the

28
interest of the public or third persons and not for their own benefit,

are generally regarded as valid and binding as if they were the acts of

the officers de jure, articulated in Pulin Behari Das & Ors. vs. King

Emperor17, was invoked by this Court in Gokaraju Rangaraju vs.

State of Andhra Pradesh18 when a question arose as to the validity

of the judgments pronounced by an Additional Session Judge whose

appointment was declared by the Court to be invalid subsequently.

This Court pointed out that the de facto doctrine is founded on good

sense, sound policy and practical expedience and that it is aimed at

the prevention of public and private mischief and the protection of

public and private interest. As stated by this Court this doctrine

avoids endless confusion and needless chaos.

56. Again, in Pushpadevi M. Jatia vs. M.L. Wadhawan,

Additional Secretary, Government of India & ors. 19, this Court

reiterated the de facto doctrine as one born of necessity and public

policy to prevent needless confusion and endless mischief. This Court

held that “where an office exists under the law, it matters not how the

appointment of the incumbent is made, so far as validity of his acts

are concerned.” So long as he is clothed with the insignia of the office

and exercises its powers and functions, the acts performed by him

were held by this Court to be valid.

57. Even in B.R. Kapur (supra), this Court invoked the de facto

doctrine to declare as valid, all acts performed by a Chief Minister

17
(1912) 15 Cal.LJ 517
18
(1981) 3 SCC 132
19
(1987) 3 SCC 367

29
whose appointment was held to be invalid from day one. Paragraph

57 of the said decision reads as follows:

“We are aware that the finding that the second
respondent could not have been sworn in as Chief
Minister and cannot continue to function as such will
have serious consequences. Not only will it mean
that the State has had no validly appointed Chief
Minister since 14th May, 2001, when the second
respondent was sworn in, but also that it has had no
validly appointed Council of Ministers, for the Council
of Ministers was appointed on the recommendation
of the second respondent. It would also mean that all
acts of the Government of Tamil Nadu since 14th
May, 2001 would become questionable. To alleviate
these consequences and in the interest of the
administration of the State and its people, who would
have acted on the premise that the appointments
were legal and valid, we propose to invoke the de
facto doctrine and declare that all acts, otherwise
legal and valid, performed between 14th May, 2001
and today by the second respondent as Chief
Minister, by the members of the Council of Ministers
and by the Government of the State shall not be
adversely affected by reason only of the order that
we now propose to pass.”

58. Therefore, it is not possible to hold that the vote cast by Shri

Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 should be treated as

invalid on account of the conviction and sentence passed by the

criminal Court at 2:30 p.m. on the same day. This conclusion can be

drawn through another process of reasoning also. Article 191 (1) of

the Constitution deals with five different grounds of disqualification.

They are (i) holding an office of profit as specified in the First

Schedule; (ii) unsoundness of mind, which stands so declared by a

competent Court; (iii) undischarged insolvency; (iv) absence of

citizenship of India or acquisition of citizenship of a foreign State etc.;

and (v) disqualification by or under any law made by Parliament.

30

59. The interpretation to be given to the expression “the date”

appearing in Section 8(3) of the Representation of the People Act,

1951 will have a bearing upon the interpretation to be given to the

date of happening of any one of the above events of disqualification.

60. While it may be convenient for the appellant in this case to

interpret the expression “the date” appearing in Section 8(3) with

reference to Article 191(1)(e), we may have to see whether the same

would fit into the scheme of Article 191(1) in entirety. It may not. If

tested against each one of Sub-clauses (a) to (d) of Clause (1) of

Article 191 we would find that the interpretation offered by the

appellant would not survive. Justice Oliver Wendell Holmes, Jr. in

Henry R Towne vs. Mark Eisner20 while dealing with the

construction of a word in the Constitution as well as a statute,

observed:-

“A word is not a crystal, transparent and unchanged;
it is the skin of a living though and may vary greatly
in colour and content according to the circumstances
and tie in which it is used”

61. Therefore, on the first issue we hold that the vote cast by Shri

Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as

a valid vote. To hold otherwise would result either in an expectation

that the Returning Officer should have had foresight at 9:15 a.m.

about the outcome of the criminal case in the afternoon or in vesting

with the Election Commission, a power to do an act that will create

endless confusion and needless chaos.

20
245 U.S. 418

31

62. In view of our above answer to the first issue, the second issue

does not arise for consideration. Therefore, the Civil Appeal No.611 of

2020 is dismissed. Civil Appeal No.2159 of 2020 is allowed, setting

aside the findings of the High Court on issue Nos. 2, 3 and 5 framed

by the High Court. There will be no order as to costs.

……………………………..CJI
[S.A. BOBDE]

……………………………….J.

[A.S. BOPANNA]

………………………………..J.

[V. RAMASUBRAMANIAN]
New Delhi
December 18, 2020

32



Source link