Holding

The appeal is referred to a Constitution Bench for determination of the above legal questions.

Summary

The appellant K. Prabhakaran challenged the election of P. Jayarajan, who had been convicted of several offences and sentenced to 29 months of imprisonment, on the ground of disqualification under Section 8 of the Representation of the People Act, 1951. The trial court had ordered the sentences to run consecutively, making the total term exceed two years, but the appellate court modified them to run concurrently, reducing the total term to less than two years. The election petition was dismissed by the High Court, relying on the precedents of Manni Lal v. Parmai Lal and Vidya Charan Shukla v. Purshottam Lal Kaushik, which held that a conviction set aside on appeal wipes out the disqualification. The Supreme Court expressed reservations about those precedents and noted the lack of a clear rule on whether the total or individual imprisonment terms trigger disqualification under Section 8(3). Consequently, the Court ordered that the appeal be placed before a Constitution Bench to resolve (i) the effect of setting aside a conviction on election disqualification and (ii) the interpretation of Section 8(3) regarding consecutive versus concurrent sentences. The matter was therefore referred to the Chief Justice for constitution of an appropriate bench.

Issues considered

The effect of setting aside a conviction and sentence on appeal on the disqualification of a returned candidate under Section 8 of the Representation of the People Act, 1951.
The interpretation of Section 8(3) of the Representation of the People Act, 1951: whether disqualification depends on the total term of imprisonment (including consecutive sentences) or on the term of imprisonment for each individual offence.

Legislation cited

Government of India Act, 1935s. 69(i)(e)
Indian Penal Code, 1860s. 143, s. 148, s. 149, s. 353, s. 427, s. 447
Representation of the People Act, 1951s. 100(1)(a), s. 116A, s. 8, s. 8(3)

Subjects

disqualificationconvictionelection lawRepresentation of the People ActSection 8consecutive sentencesconcurrent sentencesConstitution Benchelection petitioncriminal appeallegislative assembly qualification

Judgment

l

K. PRABHAKARAN A
v.
P. JAYARAJAN

OCTOBER 1, 2002

[R.C. LAHOTI, BRJJESH KUMAR AND H.K. SEMA, JJ.] B

Representation of the People Act, 1951

Ss.8 and JOO(J}(a)-Disqualification of a returned candidate on ground
of conviction and sentence-Relevant date-Whether date of election of the C
returned candidate-Held, the view taken in Manni Lal's case* and affirmed
in Vidya Charan Shukla's case** that setting aside of the conviction and
sentence in appeal has the effect of wiping out retrospectively the
disqualification requires reconsideration-The proposition that candidate
though disqualified on the date of his being chosen, would become qualified D
by reference to subsequent event which may happen during pendency of an
election petition is open to question-Matter referred to Constitution Bench.

*Manni Lal v. Parmai Lal, [19701 2 SCC 162 and **Vidya Charan
Shukla v. Purshottam Lal Kaushik, [19811 2 SCC 84, referred to.
E
S. 8(3)-Disqualification of a candidate on ground of conviction and
sentence-Term of imprisonment-Candidate found guilty of various offences
and sentenced to imprisonment-Sentences directed by trial court to run
consecutively, thus term of imprisonment running into more than 2 years-
Appellate court affirming the conviction but directing the sentences to run
concurrently with the result that term of imprisonment was reduced to less F
than two years-Whether total term of imprisonment under each offences or
term of imprisonment for each individual offence is relevant-Held, there
being no decided case available and the issue being offar reaching implications,
an authoritative pronouncement by a Constitution Bench would be conducive
_I to justice and would settle the law-Matter referred to Constitution Bench. G
Bashir Ahmed v. Aphtar Hussain Khan, (1937) 2 Indian Election Cases
341, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8213 of
2001.
H
2 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A From •he Judgment and Order dated 5.10.2001 of the K•rala High
Court in E.P.No.1/200 I.

L. Nageswara Rao, Roy Abraham, K.C. Sudarshan, Jayant Muthraj and
Himinder Lal for the Appellant. I ~
I
\
B K.K. Venugopal and G. Prakash' for the Respondent.

The following Order of the Court was delivered

This appeal under Section l l 6A of the Representation of the People
Act, 1951 (RPA, 1951 - for short) deserves to be placed for hearing before
C a Constitution Bench for the reasons stated hereunder.

No. 14 Kuthuparamba Legislative Assembly Constituency went to polls
on I 0th May, 200 I. The respondent .was declared elected. The appellant lost
in the election.
D The undisputed facts are that vide judg.ment dated 9th April, 1997
passed by Judicial Magistrate First Class, Kuthuparamba (Annexure P 1), the
respondent was held guilty of offences punishable under Sections 143, 148,
447, 353, 427, all read with 149 IPC and also under Section 3(2)(e) of the
Prevention of Damage to Properly .Act, 1984 read with 149 IPC and sentenced
E to several terms of imprisonment. All the sentences were directed to nm
consecutively. The total term of imprisonment which the accused was required
to undergo was of 29 months though individually the term of imprisonment
awarded for each of the several offences was less than two years. The
respondent preferred an appeal laying challenge to the conviction and the
sentences passed on him. Vide the judgment dated 25th July, 200 I, the Court
F of Sessions upheld the conviction and the sentences passed on ·the respondent
but subject to the modification that the substantive sentences of imprisonment
passed by the Trial Court were made to run concurrently· (instead of
consecutively). Thus, undisputedly, on the date of his election, the respondent
was a convict sentenced to the term of 29 months' imprisonment passed by
G the Trial Court.

The appellant filed an election petition putting in issue the respondent's
election, under Section 100(1 )(a) of RPA, 1951. The election petition came
to be decided on 5.10.2001 befort; which date the cr:iminal appeal preferred
by the re~pondent had stood decided. The learned designated Election Judge
H of the High Court, by the impugned judgment, directed the election petition
K. PRABHAKARAN v. P. .IA YARA.TAN 3

to be dismissed forming an opinion that the verdict of guilt and the sentence A
passed in the criminal appeal had wiped out the verdict of guilt and the
sentences of imprisonment passed by the Trial Court and as the total term of
imprisonment awarded by the Appellate Court was for less than two years,
in view of the sentences having been made to run concurrently, the
disqualification too had stood wiped out. The learned designated Election B
Judge has placed reliance on the decisions of this Court in Vidya Charan
Shukla v. Purshot1am Lal Kaushik, [ 1981] 2 SCC 84 and Manni Lal v.
Parmai Lal, [1970] 2 SCC 162.

In Manni Lal 's case (supra), a two-Judges Bench of this Court took the
view that setting aside of the conviction and sentence in appeal has the effect C
of wiping out retrospectively the disqualification. Manni Lal's case was
followed by three-Judges Bench in Vidya Charan Shukla 's case on the principle
of stare decisis. The learned Judges noted that correctness of the decision in
Manni Lal 's case was not disputed before them. Thus the view of the law
taken by two-Judges Bench in Manni Lat's case was affirmed by three-
Judges Bench in Vidya Charan Shukla 's case. D
We have some reservations about the correctness of the view taken in
Manni Lal 's case and Vidya Charan Shukla 's case. As per Article 191 of the
Constitution, a person shall be disqualified for being chosen as, and for
being, a member of the Legislative Assembly if he is so disqualified by or
under any law made by the Parliament. The relevant part of Section 8 of E
RP A, 1951 provides that a person convicted of any offence and sentenced to
} imprisonment for not less than two years shall be disqua/ified.fi·om the date
of such conviction and shall continue to be disqualified· for a further period
of six years since his release. The disqualification or want of qualification to
be cho~en to fill the seat is to be fixed by reference to the dme of election p
of the returned candidate within the meaning of Clause (a) of sub-Section (I)
of Section 100 of the RPA. The proposition that the candidate, though
disqualified on the date of his being chosen, would be~ome qualified by
reference to subsequent event which may happen during the pendency of an
election petition is, in our humble opinion, open to question .
• G
The other controversy centre~ around the interpretation of sub-Section
(3) of Section 8 of the RPA, 1951. According to the appellant, the several
sentences passed on a person on his being convicted may be individually less
than two years each but in view of the Court having directed the sentences
of imprisonment to run consecutively, the convict would come out of the H
4 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A prison only after serving out the total term of imprisonment which being two
years or more, the disqualification would be attracted. It was also submitted
that even if the sentences arc made to run concurrently yet it- is the total term
of imprisonment which ~hould be taken into account for fulfilling the object
sought to be achieved by the disqualification provision. On the other hand,
it was submitted on behalf of the respondent, that whether consecutive or
B concurrent, it is the term of imprisonment for each individual offence which
is relevant and must govern the applicability of the disqualification provision.
Whatever be the total term of imprisonment, if the individual term of
substantive imprisonment in respect of any OIIW out of the several offences
found proved is not two years or more, sub-Sectio~) of Section 8 of RPA
C is not attracted, is the submission on behalf of respondent. Reliance has been
placed on a decision by the Election Petitions Commis~ion, UP in Bashir
Ahmed v. Aphtar Hussai11 Khan decided on 26.8.1937 and reported as 2
Indian Election Cases 341 wherein, interpreting Section 69(i)(e) of Government
of India Act, 1935 the Commission has taken the view that the word "offence"
used in singular cannot be read in plural as ''offence".
D
As to the first question, as already said, we have some reservation
about the correctness of the view taken in Vidya Charan Shukla and Manni
La/'s cases and the former being a three-Judges Bench decision, the issue
deserves to be dealt with by Constitution Bench. As to the second question,
E there is no decided case of this Court available and the issue being of far
reaching implications, an authoritative pronouncement by a Constitution Bench
would be conducive to justice and would settle the law.

Let the matter be placed before Hon'ble the Chief Justice of India for
constituting an appropriate Bench for hearing the appeal.
F
R.P. Referred to Larger Bench.