S.K. Sen, J
1. In the instant Election Petition the petitioner who was a candidate in the West Bengal Legislative Assembly from 285, Labhpur Assembly Constituency has prayed for (a) declaration that the purported election of respondent No. 1 in the said constituency of 12th West Bengal Assembly Election held on 2nd May 1996 is void, illegal and be declared to be void, (b) declaration that the declaration of result dated 9th May, 1996 made by the Returning Officer of 285 Labhpur Assembly Constituency, Bolpur, Dist. Birbhum declaring the respondent No. 1 Manik Chandra Mondal, as duly returned candidate from the said constituency be void and the same be set aside; (c) further declaration be made that the petitioner who secured second highest valid votes be elected from the said Constituency in the 12lh West Bengal Legislative Assembly Election held on 2.5.96; (d) An order of injunction be issued against the respondent No. 1 restraining him from holding the office of Member of the Legislative Assembly and from attending legislative Assembly of 12th West Bengal legislative Assembly or drawing perquisites therefor until the disposal of this application; (e) an adinterim order in terms of prayer (d), (f) discovery; (g) injunction; (h) inspection; (1) costs of and incidental of this application be paid by the respondent No. 1; (j) any further order be passed and direction be given inconsistent with the provisions of the said Act and the Rules and provisions thereunder; (k) such further or other order or orders be made and/or direction or directions be given as to this court may deem fit and proper.
2. It is the contention of the petitioner that the returned candidate, Manik Chandra Mondal, being respondent No. 1 in the instant petition as nominee of CPI(M) party filed nomination paper from the said 285, Labhpur Assembly Constituency before the Returning Officer of 285 Labhpur Assembly Constituency. Last date of filing nomination paper of Assembly Election was fixed on 3.4.96 and date of scrutiny was on 4.4.96 and the last date of withdrawal of nomination was 6.4.96.
3. It has been alleged on behalf of the petitioner that one Sri Patit Paban Chatterjee of Village-Bipratikuri. District-Birbhum by a letter dated 2.4.96 had informed the District Magistrate that Manik Chandra Mandal alias Manik Mondal is one of the murderers of his father Sri Nabagopal Chatterjee and as such Sri Mondal has been convicted by the Additional Sessions Judge, Suri. for life imprisonment and thereafter he obtained bail from the High Court at Calcutta. Since he has been convicted by a competent court of law, it has been particularly slated in his said letter that the said Manik Mondal should not be allowed to contest election as a candidate from the said Assembly Constituency.
4. it has been alleged on behalf of the petitioner that the District Magistrate, Birbhum, did not take any step upon the said letter being annexure 'C' dated 2.4.96 which amounts to dereliction of duty since he is in-charge to conduct the election in the said district.
5. It has further been alleged that his representative Sri Bhakil Binod Mahata of Vill-Alunda, Dist-Birbhum who was authorised by the petitioner to be present at the time of scrutiny of nomination papers and the said authorised person on behalf of the petitioner drew the attention of the Returning Officer of the said Constituency at the time of scrutiny, that the CPI(M) nominee Manik Chandra Mandal has been convicted on 10.4.92 in a Sessions case being No. 59 of 1988 Session Trial No. 1990 passed by Sri D.K. Panda, learned Additional Sessions Judge, 1st Court Suri and as such the nomination paper filed by the said Manik Mondal should be cancelled. It has also been alleged in the petition that inspite of such objection by representative of the petitioner the Returning Officer of the said Constituency did not give any importance and did not take any cognizance of such objection raised therein on the date of scrutiny and allowed Sri Manlk Mondal, to contest the election from the said Constituency in 12th West Bengal Legislative Assembly election held on 2.5.96.
6. It is also the case of the petitioner that on 15.4.96 Sri Madhusudan Chatterjee another son of Nabagopal Chatterjee (deceased) sent a telegram to the Chief Election Commissioner, Nirbachan Sadan, Ashok Road, New Delhi-1 calling upon his attention that Manlk Mondal has been convicted in Sessions Case No. 59 of 1988 by Addl. Sessions Judge, Suri. According to the petitioner the candidature of Manlk Chandra Mondal, respondent No. 1, should have been cancelled on the aforesaid ground.
Mr. R.N. Das, learned Advocate for the petitioner has referred to Articles 190 and 190(1)(e) of the Constitution of India. He has also referred to section 7(b) and section 8(3) of the Representation of the People Act, 1951 and has submitted that since the petitioner was convicted of an offence, he is disqualified and his nomination paper should not have been accepted by the concerned officer. He has also submitted that even though an appeal has been preferred and ball has been granted that will not have any effect on the disqualification as provided under the Constitution and Representation of the People Act. He has also referred to section 389(3} of Cr.PC and has submitted that the grant of bail cannot have the effect of suspension of order of conviction, and since the respondent No. 1 was convicted of an offence merely because an appeal is pending or ball has been granted will not remove the disability attached to the respondent No. 1 since he is disqualified under the provisions of the Constitution.
7. It has further been contended by Mr. Das that section 8(4) of the Representation of People Act cannot be so construed so as to override the provision of the Constitution and since the respondent No. 1 was convicted of an offence his nomination paper should not have been accepted and he cannot continue to be a Member of the Legislature.
8. Mr. Das has relied upon the following decisions :
(i) Vikram Anand v. Ramesh Singha ;
(iii) Rakesh Singha v. State of H.P .
9. Mr. Somnath Chatterjee, learned Advocate for the respondent No. I, however, has submitted that the respondent No. 1 was a member of the Legislative Assembly of West Bengal. He was elected in 1991 as a member of the State Legislative Assembly. On 10.4.92 he was convicted of an offence. On 16.4.92 he preferred an appeal which was admitted and the Judgment has not yet been delivered in the said appeal. The respondent No. 1 was granted ball also on 22.4.92 and subsequently on 2.4.96 he filed nomination paper before the Returning Officer which after scrutiny on 4.4.96 was accepted. Admittedly, he was an elected Member of State Legislative Assembly on 4th April 1996 which is the date of scrutiny. Since the 11th Legislative Assembly was dissolved on 16.5.96 a notification to that effect he was issued on that while his nomination paper was filed and accepted earlier when notification for dissolution was not issued. Mr. Chatterjee accordingly has submitted that provisions contained in section 8(4) of the Representation of the People Act clearly applies in the instant case of the election of the respondent No, 1 and in view of the non-obstante clause in the said section 8(4) of the Act disqualification, if any, cannot be given effect to.
10. It is the contention of Mr. Chatterjee that since the respondent No. 1 was a Member of the Legislative Assembly at the time when he filed nomination paper, the disqualification, as argued, will not have any effect and the contention of the petitioner, therefore, cannot be taken to be correct.
11. Mr. Chatterjee has further submitted, dealing with the contention of Mr. Das, that the respondent No. 1 has become disqualified to be a Member of the House, Mr. Chatterjee has referred to Article 192(1) of the Constitution and has submitted that such decision can only be taken by the Governor.
Mr. Chatterjee has relied upon the following decisions :--
(a) Vikram Anand v. Rakesh Singha ;
(c) Purushottamal Kaushik v. Vidyacharan Shukla reported in AIR 1980 MP 180.
12. I have considered the respective submissions of the parties. The question involved in the instant case is if the disqualification as provided under the Representation of People Act will have any effect on the respondent No. 1 as it appears that he was a sitting member of the State Legislative Assembly on the date when he filed nomination paper and when his nomination paper was accepted since the Assembly stood dissolved subsequent to his acceptance of his nomination. In other words, is there any question of improper acceptance of nomination of the respondent No. 1. For the purpose of ascertaining the said question, it is necessary to consider true scope and meaning of section 8(1), 8(3) and 8(4) of the Representation of People Act. In this connection it is necessary to consider the relevant provisions of the said Act. section 8(1), 8(3) and 8(4) of the said Act provide as follows :--
"8(1)--The fact that the person had preferred an appeal against the conviction and sentence and the appeal was pending at the time when his nomination papers were being considered would not remove the disqualification under section 7(b) except !n the case of sitting member who has been convicted after his election as provided under section 8(a)."
"8(3)--Provisions of section 8 of the Act of 1951 are attracted to Punjab Gram Panchayat Act (1953) by virtue of section 6(5) but the disqualifications mentioned in Article 191 of the Constitution are not attracted."
"8(4)--If the returned candidate cannot be said to be disqualified at the date of the election, if before or during, the pendency of the election Petition in the High Court his conviction is set aside and he is acquitted by the appellate court, it must be held, that in the circumstances, the returned candidate cannot be said to disqualified at the date of the scrutiny of the nomination papers."
13. It cannot be disputed that on the date of conviction the petitioner was Member of the State Legislative Assembly and within 3 months from the said date he filed an appeal against the said order of conviction. However, Judgment in the said appeal has not yet been delivered. Accordingly, disqualification under section 3 is deemed not to have taken effect as yet in view of the clear provisions of subsection (4) of section 8, since the decision in the appeal has not yet been made.
Judgment and decision in the case of Vikram Anand v. Rakesh Singha , in my view, cannot assist the case of
the petitioner since in the aforesaid decision the respondent No. 1 was not a sitting Member of the Legislative Assembly. On the contrary. It has been held in the said decision that by enacting sub-section (4) of section 8 of the said Act an exception has been carved out for the benefit of sitting members of Parliament and Legislative Assembly of the State which further proves the intention of Legislature that for those who are not sitting members of the Parliament and Legislature of the State, disqualification starts with the order of conviction passed by any court, whether final or not. In fact, this Judgment clearly recognises that the Legislature has chosen to extend benefit to the sitting members of Legislature as provided under subsection (4) of section 8. Such benefit brings sitting members of Legislature in a separate category or an exception has been provided for them to bring them under sub-section (3) provided under two circumstances or conditions mentioned in sub-section (1), firstly, the disqualification will not be applicable for a period of 3 months from the date of conviction and will continue provided they prefer an appeal or application against the order of conviction till the said proceeding is disposed of.
14. In my view, the respondent No. 1 clearly is entitled to the benefit of sub-section (4) of section 8 and the case comes within the purview of the exception to the disqualification provided under section 8(4).
15. Mr. Das has laid much emphasis on Article 191(1)(e) of the Constitution and has submitted that the respondent No. 1 is also disqualified under the said provision of the Constitution. The said Article 191(1)(e) is set out hereinbelow :--
"191(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--
(e) if he is so disqualified by or under any law made by the Parliament."
16. In my view, the disqualification contemplated under Article 191(1)(e) only refers to disqualification under any law made by the Parliament in the instant case. It is clear that such disqualification cannot be treated as disqualification since by legislation it has been enacted, that disqualification under section 8(3) shall not take effect if the same comes under section 8(4). There is no question of disqualification under section 8(3) since the same does not take effect and there is no violation of the Constitutional provision.
17. Mr. Das has also submitted that in any event, the respondent No. 1 should vacate his seat in view of such disqualification. There is no scope in the instant Election Petition to decide the said question.
18. It. appears that under Art. 191(1), the Governor of the State is entitled to take decision on such question and submission of Mr. Das also appears to have no application to the facts and circumstances of the case.
19. In the case of Purushottamal Kaushik v. Vidyacharan Shukla reported in AIR 1980 MP 180, disqualification for membership of Parliament as provided under Art. 102 along with disqualification under the Representation of People Act under section 8(2) and section 8(3) as the same stood earlier were considered. In the aforesaid decision it was recognised that exception in case of sitting Members of Legislature has been made with regard to disqualification as provided in the Act.
20. The question arose in the case of Vikram Anand v. Rakesh Singha (supra) as to if the conviction refers to the final conviction by the court of last resort. Justice J.S. Verma, of the Madhya Pradesh High Court as he than was held that under section 8(3) of the Act if the word 'convicted' refers only to the final conviction by the court of last resort then there was no need to enact the provision benefiting sitting Members of Legislature and which provision has been retained in respect of several amendments in the Act. Section 8(3) which has been subsequently re-numbered as section 8(4) has been interpreted in the said Judgment as in the nature of an exception to section 8(2) which corresponds to present section 8(3) of the Act after amendment, and that said section 8(3) which corresponds to present section 8(4) is in the nature of an exception to 8(2) which corresponds to present section 8(3) and it was held that the benefit is given only to sitting Members provided they file an appeal or revision within the prescribed period.
21. It is quite true as contended by Mr. Das that section 389 of Cr.PC which provides that "the Appellate Court may for reasons to be recorded by it in writing, order that execution of sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on ball or on his bond. During the pendency of appeal, the Appellate Court has the powers to suspend the execution of sentence or order appealed against. The effect of the order of suspension of sentence is that the convicted person is released on bail, the effect is that his sentence is suspended till he is on bail during the pendency of appeal, such orders of the Appellate Court releasing the convicted person on bail or suspending the sentence pertain to execution of the sentence and these have nothing to do with the order of conviction. By suspension of sentence and/or release on ball during the pendency of appeal, the order of conviction is not automatically or impliedly suspended. Despite suspension of sentence and release on ball the order of conviction remains in operation holding the person guilty of such offence or offences for which he has been awarded sentence of imprisonment for not less than two years. As such the disqualification as provided under subsection (3) of section 8 of the act continues."
22. It is only the execution of sentence which was suspended and nothing more with the result that the sentence is not to be suffered during the pendency of the appeal within the time it subsists and the appellant is released on ball and disqualification under section 8(3) remains although the same is kept in abeyance during the pendency of appeal against conviction, on the other hand, section 8(4) gives the contrary indication by writing down an exception only in case of sitting Members.
23. it, therefore, appears that in respect of persons other than sitting members, the exception clause will not apply and there is no scope for keeping the disqualification in abeyance by preferring appeal or revision. This view also finds support from the decision of Purushottam Kaushik v. Vidyacharan Shukla (supara).
24. It has been held by the Supreme Court in several decisions that the question of 'Improper acceptance' of nomination within the meaning of expression used in section 101(d)(1) has to be construed with reference to section 136(2) of the Act on the basis of the facts which existed on the date of scrutiny of the nomination excluding from consideration of facts coming into existence subsequent to that date and the disqualification if any existing on the date of scrutiny cannot be cured by any subsequent event. In the instant case, admittedly the respondent No. 1 was sitting Member of the Legislative Assembly, since the notification about dissolving the Assembly did not come out on that day. The respondent No. 1 is, therefore, entitled to benefit under section 8(4) of the Act and the disqualification provided under sub section (3) of section 8 does not take effect in view of the pendency of appeal filed within 3 months from the date of conviction.
25. Judgment and decision in the case of Vidya Charon Shukla v. Purushottam Lal Kaushik, may also be
taken note of. In the aforesaid decision the Supreme Court reversed the decision of the Madhya Pradesh High Court and held that the acquittal of the returned candidate in appeal prior to the pronouncement of the Judgment by the High Court in the election petition filed against such candidate had the result of wiping out his disqualification as completely and effectively as if it did not exist at any time including the date of the scrutiny of the nomination papers and that his nomination papers was properly accepted by the Returning Officer. Consequently, the challenge to the election of such candidate on the ground under clause 100(1)(d)(i) i.e. that his nomination was improperly accepted, must fail. Acquittal of the returned candidate before the. decision of the election petition pending in the High Court, had with retrospective effect, made his disqualification non-existent, even at the date of the scrutiny of nominations.
26. It has been argued by Mr. Das learned Advocate for the petitioner that the respondent No. 1 has become disqualified for being chosen as a candidate although he is not disqualified as a Member of the Legislature. This contention, however, cannot be accepted for the simple reason under section 7(b). of the Representation of the People Act. 'Disqualification' means disqualified for being chosen and for being a Member of the Legislature. Accordingly, the distinction sought to be made out by Mr. Das is not correct.
27. In the case of Vidya Charan Shukla (supra) the Supreme Court also considered its earlier decision in Manni Lal v. Parmal Lal . In the aforesaid decision the Supreme Court considered the question of disqualification of a candidate for being chosen to fill a seat in the State Legislative Assembly. In that case the Supreme Court applied this principle to the question of disqualification of a candidate for being chosen to fill a seat in State Legislative Assembly. In that case, the last dale for filing nominations from the U.P. Legislative Assembly Constituency, Hardoi was January 9, 1969 and returned candidate was sentenced, inter alia to 10 years' rigorous imprisonment under section 304 of indian Penal Code on 11th January, 1969. On January 16, 1969 he filed on appeal against his conviction in the High Court. Polling took place on February 9, 1969 and the result of the election was declared on February 11, 1969 and he was successful in the election. His election was challenged by an election petition primarily on the ground that he was disqualified under section 8(2) of the Representation of the People Act, because on the date of his election he stood convicted for an offence of imprisonment exceeding two years. Before the election petition was decided, the returned candidate's appeal was allowed on September 30. 1969 by the High Court and his conviction and sentence were set aside.
28. The question for decision before the court was : what was the effect of the acquittal in appeal of the returned candidate before the decision of the election petition, on his conviction and sentence, which was the main ground on which he was alleged to be disqualified for being chosen? The Bench presided over by J.C. Shah, J, as he then was, answered this question thus : "..... It is clear that though the conviction of respondent No. I was recorded by the trial court on 11th January, 1969 he was acquitted on 30th September, 1969 in appeal which acquittal had the effect of completely wiping out the conviction. This appeal having once been allowed, it has to be held that the conviction and sentence were vacated with effect from the date on which the conviction was recorded and the sentence awarded. In a criminal case, acquittal in appeal does not take effect merely from the date of the appellate order setting aside the conviction since it has the effect of retrospectively wiping out the conviction and the sentence awarded by the lower court. The disqualification relied upon by the appellant was laid under section 8(2) of the Act read with Article 102(1)(e) of the Constitution. The provision is that a person convicted by a court in India for any offence and sentenced to imprisonment for not less than two years shall be disqualified for a further period of five years since his release. The argument on behalf of the appellant was that, though respondent No. 1 was not disqualified when nomination was filed on 9th February, 1969. the date of polling, as well as on 11th February, 1909, when the result was declared.
29. The argument overlooks the fact that an appellate order of acquittal takes effect retrospectively and the conviction and sentence are deemed to be set aside with effect from the date they were recorded. Once an order of acquittal has been wiped out and did not exist at all, the disqualification, which existed on the 9th or 11th February, 1969 was set aside and that acquittal took effect from that very date. It is significant that the High Court, under section 100(1)(a) of the Act, is to declare the election of returned candidate to be void if the High Court is of opinion 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 the Act. It is true that the opinion has to be formed as to whether the successful candidate was disqualified on the date of his election : but this opinion is to be formed by the High Court at the time of pronouncing the Judgment in the election petition. In this case, the High Court proceeded to pronounce the judgment on 27th October, 1969. The High Court had before it the order of acquittal which had taken effect retrospectively from llth January, 1969. It was therefore impossible for the High Court to arrive at the opinion that on 9th or 11th February, 1969, respondent No. 1 was disqualified. The conviction and sentence had been retrospectively wiped out, so that the opinion required to be formed by the High Court to declare the election void could not be formed. The situation is similar to the one that could have come into existence if Parliament itself had chosen to repeal section 8(2) of the Act retrospectively with effect from 11th January, 1979."
3O. The Supreme Court further held in paragraph 35 of the said judgment at 557 of the said report as follows :--
"It is true that in order to adjudicate upon the validity of the challenge to the appellant's election under clause (d) (i) of section 100(1) what was required to be determined by the High Court was whether the nomination of the appellant was properly or improperly accepted by the Returning Officer. But in order to determine this question, it was necessary for the High Court to decide, as a preliminary step, whether the appellant was disqualified at the date of scrutiny of the nomination papers, for if he was disqualified, his nomination could not be said to have been properly accepted by the Returning Officer and if, on the other hand, he was not disqualified, his nomination would have to be regarded as properly accepted by the Returning Officer. The primary question before the High Court, therefore, was whether or not the appellant was disqualified at the date of scrutiny of the nomination papers and it is difficult to see how the determination of this question could be made on any principle other than that governing the determination of a similar question under clause (a) of section 100(1). If, as laid down in Manni Lal's case the returned candidate cannot be said to be disqualified at the date of the election, if before or during the pendency of the election petition in the High Court his conviction is set aside and he is acquitted by the appellate court, it must be held, on the application of the same principle, that, in like circumstances, the returned candidate cannot be said to be disqualified at the date of scrutiny of the nomination paper since his conviction was set aside in appeal by this court and if that be so, the conclusion must inevitably follow that the nomination of the appellant was properly accepted by the Returning Officer. The position is analogous to that arising in a case decided by a Tribunal on the basis of the law, then prevailing and subsequently the law is amended with retrospective effect and it is then held by the High Court in the exercise of its Jurisdiction that the order of the Tribunal discloses an error of law apparent on the face of the record, even though having regard to the law as it then existed, the Tribunal was quite correct in deciding the case in the manner it did, vide Venkatachalam v. Bombay Dyeing & Mfg. Co. Ltd. (1958) 34 1TR 143 (AIR 1959 SC 875)."
31. The Supreme Court also held inter alia in terms of section 36(2)(a) for the purpose of non-existence of qualification has to be judged on the date of scrutiny.
32. The facts on record in the election petition clearly show that the petitioner was a sitting Member of the Legislative Assembly on the date of scrutiny and of acceptance of nomination. Accordingly he is not entitled to the benefit of section 8(4) of the Act
33. Mr. Das has also submitted that the provisions under the Constitution and the election law exclude persons of criminal background of the kind specified therein, from the election scene as candidates and voters. The object is to prevent criminalisation of politics and maintain probity in elections. In this connection he has relied on the Judgment and decision in the case of Anukul Chandra Pradhan v. Union of India . In my view,
the principles decided in the aforesaid decision though undisputed cannot apply to the facts of the instant case. In the aforesaid decision, the provisions of section 62(5) of the representation of the People Act was challenged on the ground that the same affected right to elect to persons confined in prisons or police custody. The Supreme Court held that the said provision is not violative of Art. 14 or 21 since the object is to promote free and fair election. It is a basic feature of the Constitution by preventing criminalisation of politics. The provisions of the representation of the People Act denying the right to elect person detained under police custody has been upheld by the Supreme Court in the aforesaid decision.
34. In the instant case the legislature enacted section 8(4) of the representation of the People Act with the intention to provide benefit to a Member of the Legislature.
35. Mr. Das has further argued that the said provision be declared ultra-vires. Alternatively, Mr. Das has further argued that the court should construe the section in a manner so as to hold that the provisions contained in section 8(4) is not applicable so far as disqualification for the purpose of being chosen for the election of the Legislative Assembly although it may apply to disqualification for the purpose of continuing membership.
36. 1 am unable to accept the contention of Mr. Das. There is no scope for declaration of the said provision as ultra-vires in this proceeding nor the same has been challenged in the petition. There is also no scope to interpret section 8(4) in the manner suggested by Mr. Das.
37. Accordingly the contention of Mr. Das fails.
38. Mr. Chatterjee learned Advocate for the respondent No. 1 has relied upon the judgment and decision in the case of Amritlal Ambalal Patel . In that case the election of Amritlal
Ambalal Patel to Gujarat Legislative Assembly was challenged on the ground that he was on the date of scrutiny of nomination less than 25 years of age--which was the minimum age prescribed under Art. 173(b) of the Constitution and as such not being qualified for being chosen, his nomination was wrongly accepted. The candidate attained the age of 25 years on the date of election. Notwithstanding this subsequent fact, it was held by Court that the nomination of the candidate had been improperly accepted within the meaning of section 100(1)(d). The rationale of the decision was that the attainment of the prescribed age by the candidate after the date of scrutiny of nominations did not operate retrospectively to remove his disqualification for being chosen, with effect from the date of scrutiny of nominations. The disqualification on the date of the scrutiny remained unaffected.
Accordingly, in the instant case there is no question of improper acceptance of nomination paper and the question of declaring the election of the respondent No. 1 as void.
The Election petition accordingly fails and is dismissed.
39. Petition dismissed