K.K. Adhikari, J.
1. The petitioner, who is a voter shown in the Electoral Rolls for the Constituency No. 184, Paraswada, in District Balaghat, Madhya Pradesh, by this petition challenges the election of the respondent 1, the relumed candidate, under the provisions of Section 100(1)(a) of the Representation of the People Act, 1951 (hereinafter referred to as the Act) on the ground that the respondent No. 1 was disqualified from being chosen as a candidate within the meaning of Section 8(2) of the Act.
2. The undisputed material facts are as under : -
(a) The respondents contested the election as rival candidates to the Madhya Pradesh Vidhan Sabha from the Paraswada Legislative Constituency in the election held in the year 1985. The election was notified on 30-1-1985 and the last date for filing of the nomination papers was 6-2-1985. The scrutiny of the nomination papers took place on 9-2-1985 while the electorate went to polls on 2-3-1985 and the result was announced on 5-3-1985 declaring the respondent 1 as having been elected to the State Legislature.
(b) It is also an admitted fact that the respondent No. 1 was prosecuted for various offences in number of connected Sessions Trials and during the pendency of these trials as under-trial was detained in jail fora period of 2 years 8 months and 25 days between, according to the petitioner, 12-3-1975 and 7-12-1977 while according to the respondent No. 1, between 13-3-1975 and 8-12-1977 but this variation in dates hardly makes any difference since the total period of detention as an under-trial, as stated above, is not disputed. It is admitted that the respondent 1 was released on bail on 7/8-121977.
(c) It is also not disputed that the judgment in those connected Sessions Trials was delivered on 20-1-1981 and while convicting the respondent No. 1, the learned extra Sessions Judge, Seoni, as regards the sentence, observed as under, in Para 111 of the judgment:
'As regards sentence, after hearing the accused and keeping into consideration the very special circumstances of the case, the fairly long detention of the accused persons pending trial, the pendency of these cases for roughly five long years, I would hold that the detention undergone by the accused persons convicted by me would meet the ends of justice and no fresh jail sentence is called for, The convicted accused are all on bail and their bail bonds shall stand cancelled.' (d) Against the judgment of conviction, the respondent No. 1 preferred appeals in this Court which were registered as Criminal Appeal No. 181 of 1981, Kankar Mujare v. State of Madhya Pradesh and Criminal Appeal No. 183 of 1981, Kankar Mujare v. State of Madhya Pradesh and were dismissed by this Court by judgment delivered on 16-3-1985 in the connected Criminal Appeal No. 180 of 1981, Ramswaroop Shukla v. State of Madhya Pradesh thus confirming the conviction and the sentence passed by the trial Court so far as the respondent 1 was concerned. The appeals by the State for enhancement of sentence were also dismissed.
(e) The respondent No. 1, thereafter, preferred Special Leave Petition against the judgment of this Court and Ex. R-7 is the Photo Copy of the said Special Leave Petition (Criminal). An application for staying the operation of the judgment dt. 16-3-1985 passed by this Court was also filed. Its Photo Copy is marked as Ex. R-9. These facts have not been disputed before me by the learned counsel for the petitioner during the arguments. Even otherwise, it may be stated that these Photo Copies of the documents have beer) filed by the respondent No. 1 with affidavit under Order 19, R. 1 of the Civil P.C. to be read as evidence and since, in spite of notice, no. counter-affidavit in rebuttal has been filed by the petitioner, it is held that the respondent 1 has preferred Special Leave Petition (Criminal) along with the application for staying the operation of the judgment dt. 16-3-1985 and the same are at present, pending before the Supreme Court.
3. The case of the petitioner is that by judgment dt. 20-1-1981, passed by the trial Court, the respondent 1 stood convicted and sentenced for the period which he was in detention during the trial. This period of detention was more than two years and, therefore, under the provisions of Section 8(2) of the Act, his disqualification continues for a further period of five years from the date of his release, which would be, in this case, from 20-1-1981 till 20-1-1986 and, therefore, the respondent 1 was disqualified to be a candidate on 6-2-1985, when he filed his nomination papers to contest the election for the Madhya Pradesh Vidhan Sabha under the provisions of Section 8(2) of the Act.
4. The respondents Nos. 2 to 4, in spite of service of notice, have not put in appearance and are being proceeded ex parte in these proceedings. In the written statement filed on behalf of the respondent No. 1, it has been denied that he was disqualified for being a candidate to contest the election held in the year 1985. According to the pleadings, in the written statement, although a person is disqualified from the date of conviction, under Section 8(2) of the Act, since the disqualification continues for a further period of five years from the date of release, his disqualification ended on 7-12-1982, as he was released from detention on 8-12-1977 and thus was qualified to contest the election and file the nomination papers on 6-2-1985. The other averments in the written statement are interpretations of certain provisions of law and submissions which are not being referred to at this stage. However, it may be stated that reliance has been placed on the provisions of Section 428 of the Cr. P.C. and the decision of the Supreme Court in Vidya Charan Shukla v. Purshottam Lal Kaushik, AIR 1981 SC 547. In the alternative, benefit has been claimed of Section 8(3) of the Act on the pleading that on 16-3-1985, when this Court had dismissed his appeals, he was a member of the Legislature, having been declared to be so on 5-3-1985 and thereafter within 3 months, he had preferred Special Leave Petition before the Supreme Court, which would put in abeyance the disqualification, if any, until the disposal of the Special Leave Petition by the Supreme Court.
5. The following issues were framed :
l(a) Whether the respondent 1 wasdisqualified to contest the election underS. 8(2) of the Representation of the PeopleAct, 1951
(b) If so, is the election of the respondent 1 void under Section 100(1)(a) of the Representation of the People Act, 1951.
2. Or, is the respondent No. 1 covered under Section 8(3) of the Representation of the People Act, 1951 ?
3. Relief, if any.
6. Since the questions involved for determination in this petition turn on the interpretation of the provisions of law based on admitted facts, no oral evidence was led by the parties on either side. Arguments were heard. Since the issues involved are legal, they are decided together.
7. Issue No. l(a) and (b) and Issue No. 2 :
The learned counsel for the petitioner contended that the respondent I, who had admittedly been convicted and sentenced by the learned Extra Sessions Judge, Seoni, on 20-1-1981, for a period of more than two years, was disqualified to contest the election held in 1985 as the period of the disqualification as contemplated under Section 8(2) of the Act would start from the date of conviction and thus would extinguish on 20-1-1986. It was argued that the mere fact that the learned trial Court had found the period of detention undergone by the respondent No. 1 as an under-trial for the purposes of the sentence, would not mean that the respondent 1 was 'released' on 7/8-12-1977 within the meaning of the provision of Section 8(2) of the Act, particularly when the respondent No. 1 was so released on 7/8-12-3977 on bail. This detention was suffered, not because of a sentence passed on conviction, but as an under-trial. The very fact that the respondent I was released on bail would mean that he was not free from all bonds. These bail bonds were cancelled on 20-1-1981 when the judgment of conviction was passed and the respondent No. 1 stood released from all the bonds. According to the learned counsel, therefore, the period of detention undergone by the respondent 1 as an under-trial cannot be treated as a sentence passed by virtue of the judgment of conviction and the same has to be treated as such only with effect from 20-1-1981, on which day the respondent 1 stood convicted and his bail bonds were cancelled. the learned counsel argued that the further period of disqualification of five years, as prescribed under Section 8(2) of the Act, would, therefore, necessarily run from 20-11-1981 and accordingly the disqualification would extinguish on 20-1-1986. It was submitted that the respondent No. 1, therefore, was disqualified to contest the election held in 1985. Reliance was placed on Purushottamlal Kaushik v.Vidya Charan Shukla, 1980 MPLJ 641 : (AIR 1980 Madh Pra 188): Khagendranath v. Umesh Chandra, AIR 1958 Assam 183 and Udainath Singh v. Jagat Bahadur Singh, (1953) 3 File LR 26 (Election Tribunal Rewa). The learned counsel for the petitioner tried to distinguish the decision of the Supreme Court in Vidya Charan Shukla v. Purushottam Lal Kaushik (AIR 1981 SC 547| (supra) on the ground that it was a case of acquittal and the principles laid down therein are not applicable to the present facts and circumstances of the case as the judgment of conviction passed against the respondent 1 still exists.
8. So far as the application of the provisions of Section 8(3) of the Act was concerned, the learned counsel for the petitioner submitted that by dismissing the appeals preferred by the respondent 1 against his conviction, this Court had merely confirmed the judgment of conviction passed by the trial Court and, therefore, dale of the judgment passed in appeal by this Court cannot be the date of conviction' within the meaning of Section 8(3) of the Act and as such, the respondent 1 is not entitled to any benefit thereunder.
9. Countering the arguments advanced on behalf of the petitioner, the learned counsel for the respondent No. 1, however, submitted that the period of detention undergone by the respondent 1 as an undertrial between the period 13-3-1975 to 6-12-1977 was converted into a sentence when the judgment of conviction was pronounced on 20-1-1981 and thus a fiction is created which has to be carried to full extent. No fresh sentence was passed by the trial Court. The respondent 1, on the date of the judgment, was neither taken into 'custody' nor 'released'. According to the learned counsel, the term 'released' as occurring'in Section 8(2) of the Act, would mean 'physical release' and therefore, the further period of disqualification of five years, prescribed under Section 8(2) of the Act, would commence from 8-12-1977 when t he respondent 1 was 'physically released' on completion of the sentence passed by virtue of the judgment of conviction on 20-11-1981 and thus disqualification ended on8-12-1982. The respondent 1 was, therefore, not disqualified in any manner to contest the election held in 1985. The learned counsel put a great emphasis on the word 'release' to contend that it means to free from confining or to release a person from bondage and obligation. Further support was sought by the learned counsel from the provisions of Section 428 of the Code of Criminal Procedure hereinafter referred to as the 'Code') which provides for set-off of the period of detention undergone by the accused against the sentence passed on conviction by contending that the said provision does not refer to any particular point of time when the accused person should have been convicted and sentenced. According to the learned counsel, the said provision does not seek to set at naught the conviction recorded and so does the sentence already undergone by curtailing it by giving 'set-off' of the period of detention undergone as an undertrial and, therefore, this period could not, factually or by fiction be lifted and brought forward to the date of conviction. It was argued that for the purposes of lis, the date, when an accused person is 'released' during the trial, would be deemed to be the date of 'his release upon serving the sentence' and the further period of disqualification envisaged under the provisions of Section 8(2) of the Act has to be added to the date of release, which in this case, would be 8-12-1977 and thus, the period of disqualification of the respondent 1 would extinguish on 7-12-1982. The learned counsel referred to B.P. Andre v. Supdt. Central Jail, AIR 1975 SC 164. The learned counsel also placed reliance on the decision of the Supreme Court in Vidya Charan Shukla v. Purshottam Lal Kaushik (supra) and submitted that there is no reason why the principle enunciated by the Supreme Court be not made applicable to the facts of this case to hold that when the sentence has already been undergone by a returned candidate and he is released during the pendency of trial, the further period of disqualification of five years is to be counted from the date of such release. Thus, the respondent 1 was not disqualified to contest the election'held in 1985.
10. In the alternative, the learned counsel for the respondent 1 sought to claim benefit of the provisions of Section 8(3) of the Act by submitting that on the date of his conviction by the High Court on 16-3-1985, the respondent 1 had already been declared as a Member of the State Legislature on 5-3-1985 and, therefore, by virtue of the provisions of Section 8(3) of the Act,the disqualification attached would not take effect until three months have elapsed from the aforesaid date. It was stated that the respondent 1, thereafter, within three months therefrom had preferred Special Leave Petition on 3-5-1985 to the Supreme Court and thus the disqualification envisaged under Section 8(2) of the Act shall remain in abeyance. According to the learned counsel, the judgment of conviction passed by the trial Court on 20-1-1981 would get merged in the judgment passed by the High Court on 16-3-1985 dismissing the appeal/Reliance was placed on Nathu Prasad v. Singhai Kapurchand, 1976 MPLJ 306 : (AIR 1976 Madh Pra l36) (FB).
11. Before dealing with the rival contentions advanced on behalf of either side, it will be necessary to have a look at the relevant statutory provisions. Chapter III of Part II of the Act deals with disqualifications for the membership of Parliament and State Legislature. Clause (b) of Section 7 defines the term 'disqualified'. The said definition is as under :
'7(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.'
12. Section 8 of -the Act provides for disqualification on conviction for certain offences. The material part of Sub sections (2) and (3) of Section 8 reads an under : -
'(2) A person convicted by a Court in India for any offence and- sentenced to imprisonment for not less that two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of five years since his release.'
'(3) Notwithstanding anything in Subsection (1) and Sub section (2), a disqualification under either sub-sect ion 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.'
13. Section 100 of the Act deals with the ground for declaring election to be void. The relevant portion is reproduced below : -
'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.'
14. While construing Clause (a) of Sub section (1) of Section 100 of the Act, the Supreme Court in Vidya Charan Shukla v. Purshottam Lal Kaushik (AIR 1981 SC 547) (supra) has laid down :
'23. Clause (a) ot Sub section (1) appears to require that the disqualification or lack of qualification of the returned candidate is to be judged with reference to 'the date of his election', which date, according to Section 67A, is 'the date on which a candidate is declared by the eturning officer under the provisions of 'S. 53 or section 66, to be elected to a House of Parliament or of the Legislature of a State'. But, the word 'disqualified' used in Clause (a) is capable of an expensive construction also, which may extend the scope of the inquiry under this clause to alt the earlier steps in the election process. As already noticed, Section 7(b) defines 'disqualified' to mean 'disqualified for being chosen as, and for being a member of either House of Parliament etc.' The words 'for being chosen' in that definition have been interpreted by this Court in Chaturbhuj's case AIR 1954 SC 236 (ibid) to include the whole 'series of steps starting with the nomination and ending with the announcement of the election. It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen'. But this definition of 'disqualified' is in terms of Section 7(b) meant for Chap. III in Part II of the Act; while Section 100 falls in Chap. III of Part VI If the expression 'for being chosen' which isa central limb of the definition of 'disqualified', is given such an extensive interpretation which will bring in its strain the whole series of steps and earlier stages in the election process commencing with the filing of the nominations, it will be repugnant to the context and inconsistent with 'the date of his election.' Such a construction which will introduce disharmony and inconsistency between the various limbs of Clause (a) has to be eschewed. In the context of Clause (a), therefore, the ambit of the words 'for being chosen' in the definition of 'disqualified' has to be restricted to 'the date of his election' i.e. declaration of the result of the election under Section 53 or Section 66, and such date is to be the focal point of time in an inquiry under this clause.'
15. Another provision of law. which has been relied by the learned counsel for the respondent 1 may also be noted at this stage. It is Section 428 of the Code which reads as under :
'428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.- Where an accused person has. on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him'.
16. While dealing with the question whether the provision of Section 428 of the Code is applicable only to the persons convicted after the coming into force of the new Code of Criminal Procedure or whether it also embraces cases where persons have been convicted before but their sentences are still running, it has been laid down by the Supreme Court in B. P. Andre v. Supdt. Central Jail (AIR 1975 SC 164) (supra) as under :
'This section, on a plain natural construction of its language, posits for its applicability a fact situation which is described by the clause 'Where an accused person has, on conviction, been sentenced to imprisonment for a term'. There is nothing in this clause which suggests, either expressly or by necessary implication, that the conviction and sentence must be after the coming into force of the new Code of Criminal Procedure. The language of the clause is natural. It does not refer to any particular point of time when the accused person should have been convicted and sentenced. It merely indicates a fact situation which must exist in order to attract the applicability of thesection and this fact situation would be satisfied equally whether an accused person has been convicted and sentenced before or after the coming into force of the new Code of Criminal Procedure. Even where an accused person has been convicted prior to the coming into force of the new Code of Criminal Procedure but his sentence is still running, it would not be inappropriate to say that the 'accused person has. on conviction, been sentenced to imprisonment for a term'. Therefore, where an accused person has been convicted and he is still serving his sentence at the date when the new Code of Criminal Procedure came into force. Section 428 would apply and he vouldbe entitled to claim that the period of detention undergone by him during the investigation, inquiry or trial of the case should be set off against the term of imprisonment imposed on him and he should be required to undergo only the remainder of the term. Of course, if the term of the sentence has already run out, no question of set off can arise. It is only where the sentence is still running that the section can operate to restrict the term. This construction of the section does not offend against the principle which requires that unless the legislative intent is clear and compulsive, no retrospective operation should be given to a statute. On this interpretation, the section is not given any retrospective effect. It does not seek to set at naught the conviction already recorded against the accused person. The conviction remains intact and unaffected and so does the sentence already undergone. It is only the sentence, in so far as it yet remains to be undergone, that is reduced. The section operates prospectively on the sentence which yet remains to be served and curtails it by setting off the period of detention undergone by the accused person during the investigation, inquiry or trial of the case. Any argument based on theobjection against giving retrospective operation is, therefore, irrelevant.'
'3. We reach the same conclusion also by a different process of reasoning. Sub section (1) of Section 484 repeals the old Code of Criminal Procedure. But Sub section (2), Clause (b), provides that notwithstanding such repeal, all sentences passed under the old Code of Criminal Procedure and which are in force immediately before the commencement of the new Code of Criminal Procedure shall be deemed to have been passed under the corresponding provisions of the new Code. The sentence of imprisonment and fine passed against the petitioner under the provisions of the old Code of Criminal Procedure must, therefore be deemed to have been passed under the corresponding provisions of the new Code of Criminal Procedure. It is now well settled law' that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion. To quote the words of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council 1952 AC 109 at p. 132.
'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'
We must, therefore, imagine the sentence imposed upon the petitioner as one imposed under the new Code of Criminal Procedure and then give effect to all the consequences and incidents which would inevitably flow from or accompany a sentence imposed under the new Code of Criminal Procedure. Now, there was no dispute before us that Section 428 would be clearly applicable where an accused person has been sentenced to imprisonment under the hew Code of Criminal Procedure. The applicability of Section 428 was resisted only on the ground that it does not apply to a case where an accused person has been sentenced under the old Code of Criminal Procedure. But if the sentence imposed on the petitioner, though under the old Code of Criminal Procedure, is to be regarded, for the purposes of the new Code, as a sentence passed under the new Code and all the consequences and incidents are to be worked out on that basis. Section 428 must clearly be held to be applicable to the case of the petitioner and his liability to undergo imprisonment must be restricted to the remainder of the term imposed on him, after setting off the period for which he was detained during the investigation, inquiry and trial of the case against him.'
17. Before proceeding further, it may be stated that it is now a settled principle that when words of a statute are clear, plain and unambiguous, the Courts are bound to give effect to that meaning irrespective of the consequences. There is no question of liberal or strict interpretation so long as the interpretation is natural, grammatical and warranted by the plain words of the section. In construing Section 8(2) of the Act, one has to remember that it is the period of sentence, not less than two years passed by the Court, which makes a person suffer a disqualification from the date of conviction but the disqualification for a further period of five years commences from the date of release.
18. Now it is an admitted position that the respondent No. 1 was convicted for a term of more than two years by the judgment dt. 20-1-1981. It is also an admitted position that the respondent 1 was detained in prison between the period 12/13-3-1975 to 7/8-12-1977, as an undertrial, and while passing the sentence, the trial Court found that this period undergone by the respondent No. 1 was sufficient to meet the ends of justice. The bail bonds of the respondent No. 1 were cancelled by the trial Court on 20-1-1981. The question to be determined is whether the additional period of disqualification for five years, is to commence from 7/8-12-1977 when the respondent 1 was released on bail from detention or from 20-1-1981 when the judgment of conviction was pronounced. With these set of facts, the entire question depends on the true interpretation of the word 'release' as used in Section 8(2) of the Act. No judicial pronouncement has been brought to my notice interpreting the provision of Section 8(2) of the Act except the decision of the Supreme Court in Vidya Charan Shukla v. Purshottam Lal Kaushik (AIR 1981 SC 547) (supra), in which the Supreme Court, following its earlier decision in Manni Lal v. Parmai Lal AIR 1971 SC 330, has laid down that on a subsequent acquittal of the person convicted for a period not less than two years by the Appellate Court, during the pendency of an election petition, completely and effectively wipes out the disqualification with retrospective effect from the date of conviction so that in the eyes of law, the disqualification becomes non-existent at the date of scrutiny of nomination or at the date of the election or at any other stage of the process of 'being chosen'. According to the learned counsel for the respondent 1, this principle, which has been enunciated by the Supreme Court, should be applied to the facts of the case is as much as the sentence awarded by the trial Court was the period undergone by the respondent 1 as an under trial and he having been released on 7/8-12-1977, by adding five years therefrom, the disqualification as contemplated by Section 8(2) of the Act, would get extinguished on 7/8-12-1982 and thus was fully qualified 'to be chosen' in the election held in 1986. The counsel for the petitioner, however, contended that the present case is not of an acquittal so as to attract the principle laid down in Vidya Char an Shukla's case (supra). It was also argued that the respondent 1 was released in the complete sense of the term as he was released on bail which came to be cancelled on 20-1-1981 when the order of conviction was passed. The learned counsel cited a decision of Assam High Court in Khagendranath v. Umesh Chandra (AIR 1958 Assam 183) (supra) in which the old provision of Section 7(b) of the Act was construed with reference to Section 401 of the old Code of Criminal Procedure relating to 'remission' and pardon' and it was held that 'in construing Section 7(b), one has to remember that it is the sentence passed by the Court, which is the measure of the gravity of the offence and of making the offender subject to the disqualification laid down by the section and the consideration whether the said sentence was remitted by the appropriate Government or that on account of certain remissions, which he earned under the jail rules or under some order of general amnesty, the person was released earlier, does not affect the measure of the disqualification.' It has been also held that there is a vital difference between 'pardon' and 'remission'. In the former case, a full pardon may blot out the guilt itself while in the later case, the guilt of the offender is not affected nor is that sentence passed by the Court affected. In this respect, it may be pointed out that the Supreme Court, while dealing with similar question in Sarat Chandra v. Khagendranath, AIR 1961 SC 334 has taken the same view and laid down the remission of sentence under Section 401 of the Cr. P.C. (old) and release from jail before two years of actual imprisonment would not reduce the sentence into one of a period of less than two years and save him from incurring the disqualification under S, 7(b). In my opinion, the principles laid down in above mentioned cases are not applicable to the facts of this case. The present case is not of 'remission'. Another decision relied by the learned counsel is of the Election Tribunal, Rewa, in Udainath Singh v. Jagat Bahadur Singh (1953) 3 Ele LR 26 (supra), wherein it has been held that for the purposes of Section 7(b) as it stood then it is not necessary that the person should have undergone any part of the sentence imposed upon him, nor does the fact that he had preferred an appeal from the conviction and sentence and the appeal is pending, removes the disqualification under Section 7(b). This decision also does not advance the case of the petitioner and, in fact, it is far from the question to be resolved in this case.
19. On plain reading of Section 8(2) of the Act, it is clear that acquittal of a person convicted and sentenced for a period not less than two years is not sine qua non for removal of disqualification though it is an aspect to be considered and applied to the cases where the acquittal is during the pendency of the Election Petition on the principles laid down in Vidya Charan Shukla's case (AlR 1981 SC 547) (supra). The other essential condition is the completion of the period of disqualification from the date of the release, after having served out the sentence awarded before the election, irrespective of the fad whether an appeal or revision agaiast the sentence is pending before a Court and any decision thereon, subsequent to election, would not affect the person in any way 'for being chosen'. Such a decision would be relevant only with respect to the conviction and sentence for the offence and not with reference to disqualification under Section 8(2) of the Act. In this case, as it has been seen earlier, the trial Court by judgment dt. 2-1-1981, convicted the respondent 1 and sentenced him to the period already undergone as an undertrial, which comes to 2 years 8 months and 25 days.
20. The provision of Section 428 of the Code provides for 'set off of the period of detention undergone, during investigation, inquiry or trial against the sentence awarded by the Court on conviction. This period of detention, therefore, becomes part of the sentence itself. In B. P. Andre v. Superintendent, Central Jail (AIR 1975 SC 164) (supra), it has been held that the sentence passed is curtailed by setting off the period of detention undergone as an undertrial. It has also been laid down therein that there is no reference in the provision of Section 428 of the Code to any particular point of time when the accused person stands convicted and sentenced. Further, it has been laid down where a legal fiction is created, full effect must be given to it and it has to be carried to its logical conclusions. Therefore, applying the dictum as laid down by the Supreme Court and the fact that the period of detention undergone as an undertrial becomes part of the sentence itself and that being the sentence awarded by the trial Court, a fiction is created and carrying it to logical extent, in my opinion, the respondent 1 was 'released' within the meaning of Section 8(2) of the Act on 7/8-12-1977 after having undergone the sentence awarded to him on his conviction on 20-1-1981 and the further period of five years of disqualification as prescribed under Section 8(2) of the Act commences from 7/8-12-1977 and the disqualification would come to an end on 7/8-12-1982 and thus, the respondent 1 was not disqualified to contest the election held for the Madhya Pradesh Legislative Assembly in the year 1985.
21. The only other argument which was advanced on behalf of the petitioner. which requires to be considered, is that the respondent 1 was released on bail on 7-8-12-1977 and, therefore, for the purposes of 'release' within the ambit of Section 8(2) of the Act as he was not released from 'bail bonds' which came to be cancelled on the day the judgment of conviction was recorded against him i.e. on 20-1-1981. Having given my anxious thoughts, in my opinion, this submission cannot be accepted. The 'period of detention' having been converted into 'the sentence'. the cancellation of bail bonds by the trial Court, would have retrospective effect and relate back to the dale on which the respondent I was released on bail. The principle laid down by the Supreme Court in Vidya Charan Shukla's case (supra) can therefore, be applied to the facts of this case.
22. For the view taken, it is not necessary to go into the question whether the respondent 1 is protected by the provisions of Section 8(3) of the Act. However, it may be observed that any decision on the Special Leave Petition preferred by the respondent 1 before the Supreme Court would not affect the election 'of the returned candidate and, at any rate, it is the opinion of this Court that the date of conviction would be the date on which the respondent I was initially convicted by the trial Court and not the date on which the appeals preferred by him in the High Court were dismissed and certainly, on the date of his initial conviction by the trial Court, the respondent t, being not a sitting member of the Legislative Assembly, he cannot have the advantage of the aforesaid provision.
23. For the reasons stated hereinabove, the petition must fail and is, accordingly, dismissed. It is held that the respondent 1 was 'released' within the meaning of Section 8(2) of the Act on 7/8-12-1977 and the further period of disqualification of five years, as prescribed therein, commences from 7/8-12-1977 and, therefore, the disqualification under Section 8(2) of the Act gets extinguished on 7/8-12-1982 and thus, the respondent No. 1 was not disqualified to contest the election under Section 100(a) of the Act.
24. In view of the fact that the question involved in the petition was one of interpretation of the provisions of law, the parties are directed to bear their own costs, as incurred.