P. Prabhakaran Vs. P. Jayarajan - Court Judgment

Excerpt:
civil - representation of people act, 1951 - sections 2, 8, 8(1), 8(2), 8(3), 8(4), 36(2), 67a, 100, 100(1), 116a - arms act, 1959 - sections 25, 27 - constitution of india - articles 14, 164, 191, 286(1) - election petition - election to no.14 kuthuparamba assembly constituency - election contested by three candidates including respondent - nomination filed on 24.4.2001 - poll held on 10.5.2001 - respondent declared elected on 13.5.2001 - respondent facing trial for several offences held guilty of offences on 9.4.1997 - nomination paper of respondent challenged by appellant on ground that respondent having being convicted and sentenced to imprisonment for a term exceeding 2 years was disqualified from contesting election - objection overruled by returning officer holding that disqualification within meaning of section 8(3) was not attracted - appeal - partly allowed by court of sessions by maintaining conviction of respondent and directing different terms of imprisonment to run concurrently - high court held that disqualification ceased to exist as sentence modified by appellate court operated retrospectively from date of judgment of trial court - validity - as per majority opinion - allowing appeal held that an appellate judgment of a date subsequent to date of nomination or election and having a bearing on conviction of a candidate or sentence of imprisonment passed on him would not have effect of wiping out disqualification from a back date if a person consequent upon his conviction for any offence and sentenced to imprisonment for not less than two years was actually and as a fact disqualified from filing nomination and contesting election on the date of nomination or election - question of qualification or disqualification of a returned candidate within meaning of section 100(1)(a) has to be determined by reference to date of his election - such date is focal point for purpose of determining whether candidate is not qualified or is disqualified for being chosen to fill seat in a house - factum of pendency of an appeal against conviction is irrelevant and inconsequential - election petition filed by appellant allowed and election of respondent set aside - as per minority opinion - in order to incur disqualification, person must have been convicted of any offence and sentenced to imprisonment for not less than two years - merely because magistrate ordered that sentence shall run consecutively, and aggregate period exceeds two years or more, a person convicted would not incur disqualification under section 8(3) - disqualification under section 8(3) held not to be solely dependent on direction as to mode in which sentence is to be executed, especially when there are no statutory or judicial guidelines in this regard - election petition filed by appellant held to be rightly rejected - order73. in view of the majority opinion, civil appeal no. 8213 of 2001, k. prabhakaran v. p. jayarajan, : [2002]supp3scr1 is allowed. the judgment of the high court dated 5.10.2001 is set aside. the election petition filed by the appellant is allowed. the election of the respondent p. jayarajan from no. 14 kuthuparamba assembly constituency to the kerala state legislative assembly, which was declared on 13.5.2001, is set aside. the respondent no. 1 shall bear the costs of the appellant throughout.74. civil appeal no. 6691 of 2002 is also allowed. the judgment of the high court dated 5.7.2002 is set aside. the election petition filed by the appellant shall stand allowed. the election of the respondent nafe singh from 37-bahadurgarh assembly constituency is declared void as he was disqualified from being a candidate under section 8(3) of the representation of the people act, 1951. the respondent no. 1 shall bear the costs of the appellant throughout.

Judgment:
ORDER

73. In view of the majority opinion, Civil Appeal No. 8213 of 2001, K. Prabhakaran v. P. Jayarajan, : [2002]SUPP3SCR1 is allowed. The judgment of the High Court dated 5.10.2001 is set aside. The election petition filed by the appellant is allowed. The election of the respondent P. Jayarajan from No. 14 Kuthuparamba Assembly Constituency to the Kerala State Legislative Assembly, which was declared on 13.5.2001, is set aside. The respondent No. 1 shall bear the costs of the appellant throughout.

74. Civil Appeal No. 6691 of 2002 is also allowed. The judgment of the High Court dated 5.7.2002 is set aside. The election petition filed by the appellant shall stand allowed. The election of the respondent Nafe Singh from 37-Bahadurgarh Assembly Constituency is declared void as he was disqualified from being a candidate under Section 8(3) of the Representation of the People Act, 1951. The respondent No. 1 shall bear the costs of the appellant throughout.