Ramkanya (Smt.) vs Civil Judge and Others

Prem Shanker Asopa, J.—That by the instant writ petition the petitioner has challenged the order dated 15.10.2005 passed by the Election Tribunal Civil Judge (Sr. Div.), Karauli, whereby the election filed by the petitioner against the respondent No. 2 Smt. Chandra Kala has been rejected.

The case of the petitioner before the Election Tribunal was that the respondent No. 1 Smt. Chandra Kala was disqualified u/s 19(gg) and (m) of the Rajasthan Panchayati Raj Act, 1994 (for short, "the Act") to contest the election of Gram Panchayat Naroli Dang on the date of filing the nomination paper for the same on 30.1.2005 on account of pendency of criminal case for offence u/s 419, 467, 468, 471 and 120-B IPC, wherein the cognizance was taken on 19.1.2002 and charge has been framed for offence under Sections 467 & 120-B IPC on 13.10.2004.

The respondent No. 2 the returned candidate has filed reply to the writ petition and submitted therein that in view of subsequent acquittal/dropping of criminal proceedings wipe out retrospectively as held by Supreme court in Vidya Charan Shukla Vs. Purshottam Lal Kaushik, which was rightly followed by Election Tribunal.

On the basis of the pleadings of the parties, the following issues have been framed:-

1- D;k vizkFkhZ la-1 Jhefr pUnzdyk ds fo:} U;k;ky; vfrfjDr U;kf;d eftLV�sV] djkSyh }kjk izFke lwpuk fjiksVZ la-190@97 vkj{kh dsUnz liksVjk esssa /kkjk 419] 467] 468] 471@120 ch Hkk-na-la- ds vijk/k esa fn- 10-1-2002 ds vkns''k }kjk izlaKku fy;k rFkk fnukad 13-10-2004 dks eqdnek la-26@02 esa mDr U;k;ky; }kjk /kkjk 467@120 ch Hkk-na-la- ds vijk/k dk vkjksi fojfpr fd;k\\

2- D;k vizkFkhZ la-1 ds fo:) :-1]23]698@� xzke iapk;r ukjkSyh Mkax ds iwoZ ljiap dh gSfl;r ls cdk;k py jgs gS vkSj ;g jkf''k fuokZpu ls iwoZ vHkh rd cdk;k gS\\

3- D;k vizkFkhZ la-1 us iapk;rh vf/kfu;e ds rgr vgZrk u j[krs gq, pquko yMk gS\\

4- D;k ekuh nsoh o lUrjk bl okn ds vko'';d i{kdkj gS] ftUgs i{kdkj ugha cuk;k x;k gS rFkk vizkFkhZ la-2] 3] 4 dks xyr rkSj ij i{kdkj cuk;k x;kA bldk ;kfpdk ij D;k izHkko iMsxk�

5- vuqrks"k\\

Out of the aforesaid five issues, the Issue No. 1 and 3 are relating to disqualification. The evidence was led by the parties and after hearing both the parties the Election Tribunal decided the Issue No. 1 in favour of the present petitioner. But while discussing the Issue No. 3 of disqualification, the Election Tribunal relied on the judgment of Hon''ble Supreme Court report in Vidya Charan Shukla (supra), wherein it has been held that in a case of R.P. Act the disqualification of conviction on the date of nomination is wiped out on subsequent acquittal which will operate retrospectively. The relevant portion of the finding on Issue Nos. 1 and 3 is as under:-

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�bl fook/kd ds lEcU/k esa U;k;ky; dks dsoy ;g fofu''p; djuk gS fd D;k U;k;ky; }kjk izlaKku fy;k x;k vkSj Jherh pUnzdyk ds fo:) vkjksi fojfpr fd;s x;sA mDr izi=h; lk{; ,oa vU; lk{khx.k ds c;kuksa ls ;g Li"V gS fd Jherh pUnzdyk ds fo:) fnukad 19-01-2002 dks U;k;ky; }kjk /kkjk 419] 467] 468] 471] 120 ch Hkk0na0la0 ds vijk/k esa izlaKku fy;k x;k Fkk fnukad 13-10-2004 467] 120�ch Hkk0na0la0 ds vijk/k esa vkjksi fojfpr fd;s x;sA U;k;ky; dh vknsf''kdk ,oa vkjksi i= rFkk lk{; ls bl rF; dh iqf"V gksrh gSaA ,slh ifjfLFkfr esa ;kph ;g fl) djus esa lQy gqbZ gS fd Jherh pUnzdyk ds fo:) U;k;ky; vfrfjDr U;kf;d eftLV�sV djkSyh }kjk izFke lwpuk fjiksVZ la-190@97 vkj{kh dsUnz liksVjk esa /kkjk 419] 467] 471] 120�ch Hkk0na0la0 ds vijk/k esa fnukad 19-01-2002 ds vkns''k }kjk izlaKku fy;k rFkk fnukad 13-10-2004 dks eqdnek la-26@2002 esa mDr U;k;ky; }kjk /kkjk 467] 120�ch Hkk0na0la0 ds vijk/k esa vkjksi fojfpr fd;s x;sA bl rjg ;g fook/kd ;kph ds i{k esa fuf.kZr fd;k tkrk gSA�

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fo|kpj.k ''kqDy cuko iq:"kksRre dkSf''kd dk voyksdu fd;kA bl izdj.k esa vH;FkhZ uksfeus''ku QkeZ Hkjus dsle; pquko yMus ds ;ksX; ugha Fkk] D;ksafd vkijkf/kd U;k;ky; }kjk mls nks o"kZ ls vf/kd dk dkjkokl fn;k x;k FkkA vk{ksi fd;k x;k ijUrq fjVZfuax vkWfQlj us mls fujlr fd;kA mlds i''pkr~ pquko ;kfpdk nk;j dh xbZ rFkk izkFkhZ ds pquko dks fuvgZrk ds vk/kkj ij fujLr djus dh ekax dhA pquko ;kfpdk ds fu.kZ; ls iwoZ vihyh; U;k;ky; us nks"kfLkf) ,oa ltk dks fujLr fd;k rFkk vfHk;qDr ds nks"keqfDr ds vkns''k fn;sA ekuuh; loksZPp U;k;ky; us ;g vfHkfu/kkZfjr fd;k fd nks"keqfDr iwoZdky ls izHkkoh gksxh rFkk izkFkhZ dh fuvgZrk lekIr dj nh vkSj pquko dks oS| ekukA bl izdj.k esa Hkh le>kSrk gksus ds dkj.k v;kph la-1 dks nks"keqDr ?kksf"kr fd;k x;k gS rFkk nks"keqfDr izkjEHk ls gh ekuh tk;sxhA mDr fuf.kZr fof/kdk voyksdu djus ds i''pkr` bl U;k;ky; dh jk; esa v;kph la-1 Jherh pUnzdyk dh fuvgZrk izkjEHk ls gh lekIr le>h gqbZ ekuh tk;sxhA vFkkZr~ og pquko yMus ds ;ksX; ekuh tk;sxhA tgka rd v;kph la-1 ds fo:) cdk;k jkf''k gksus dk iz''u gS\\ mls fl) djus esa ;kph lQy ugha gqbZ gS rFkk u gh v;kph la-1 dk uke ljdkj }kjk tkjh fMQkYVj lwph esa gSA ,slh ifjfLFkfr esa ;kph ;g fl) djus esa lQy ugha gqbZ gS fd v;kph la-1 us iapk;r fu;eksa ds rgr vgZrk u j[krs gq, pquko yMkA vr ;g fook|d ;kph ds fo:) fuf.kZr fd;k tkrk gsA�

The learned Counsel for the petitioner has submitted that the Election Tribunal has committed serious illegality in not considering Full Bench Judgment of this Court in Narayan Lal v. State of Rajasthan and Ors. Reference in D.B. Civil Special Appeal (Writ) No. 715/2001, decided on 25.2.2003), on the similar issue in Rajasthan Panchayat ct was considered and the aforesaid judgment of the Hon''ble Supreme Court which is under the Representation of Peoples Act wherein conviction on the date of nomination was the disqualification was distinguished on the ground that under the Panchayat Act, trial of a cognizable offence in which the charges have been framed and punishable with imprisonment with five years is the disqualification.

The submission of the counsel for the respondents is that the Respondent No. 1 has been acquitted on account of compromise which will relate back to the date of nomination. He further placed reliance on judgment of Vidya Charan Shukla (supra).

I have gone through the contents of the writ petition and documents annexed therewith and further considered the rival submissions of the parties.

The judgment of Vidya Charan shukla has been considered by the Constitutional Bench of Supreme Court in P. Prabhakaran Vs. P. Jayarajan, , decided on 11.1.2005) and the same has been over ruled in Para Nos. 35 and 40 of the judgment on the ground that an election petition is not a continuation of election proceedings, therefore, the nomination paper is to be tasted by deciding qualification or disqualification of the candidate on the date of scrutiny and not by a reference to any subsequent event thereto. The other relevant paragraphs including aforesaid two paragraphs i.e., Para Nos. 33, 35,37,39 and 40 of the aforesaid judgment read as under:-

We may just illustrate what anamolies and absurdities would result if the view of the law taken in Manni Lal Vs. Parmai Lal and Others, and Vidya Charan Shukla Vs. Purshottam Lal Kaushik, were to hold the field. One such situation is to be found noted in Para 39 of Vidya Charan shukla case. A candidate''s nomination may be rejected on account of his having been convicted and sentenced to imprisonment for a term exceeding two years prior to the date of scrutiny of nomination. During the hearing of election petition, if such candidate is exonerated in appeal and earns acquittal, his nomination would be deemed to have been improperly rejected and the election would be liable to be set aside without regard to the fact whether the result of the election was materially affected or not. Take another case. Two out of the several candidates in the election fray may have been convicted before the date of nomination. By the time the election petition comes to be decided, one may have been acquitted in appeal and the conviction of the other may have been upheld any by the time an appeal u/s 116-A of RPA preferred in this Court comes to be decided, the conviction of one may have been set aside and, at the same time the acquittal of the other may also have been set aside. Then the decision of the High Court in election petition would be liable to be reversed not because it was incorrect, but because something has happened thereafter. Thus, the result of the election would be liable to be avoided or upheld not because a particular candidate was qualified or disqualified on the date of scrutiny of nominations or on the date of his election, but because of acquittal or conviction much after those dates. Such could not have been the intendment of the law.

In Dilip Kumar Sharma and Others Vs. State of Madhya Pradesh, has been relied upon which, in our opinion, cannot be applied to a case of election and election petition.

Four factors are relevant. Firstly the sentence of death was passed in judicial proceedings and the appeal against the judgment of the trial Court being a continuation of those judicial proceedings, the court was not powerless to take note of subsequent events. The sentence of death was passed based on an event which had ceased to exist during the pendency of the appeal. The Court was, not only, not powerless but was rather obliged to take note of such subsequent event, failing which a grave injustice would have been done to the accused. Secondly, the Court interpreted Section 303 IPC which speaks of a person "under sentence of imprisonment for life" as meaning a person under an operative, executable sentence of imprisonment for life. A sentence once imposed but later set aside is not executable and, therefore, ceases to be relevant for the purpose of Section 303 IPC. Thirdly, the focal point was the date of conviction when the Court is called upon to pronounce the sentence. Fourthly, it is pertinent to note that the well-established proposition, which the Court pressed into service was the (Dilip Kumar Sharma Case, SCC Page 565 Para 10) a Court seized of a proceeding must take note of events subsequent to the inception of that proceeding, which position, the Court held, is applicable to civil as well as criminal proceedings with appropriate modifications. The emphasis is on the events happening subsequent to the inception of that proceeding. In the cases at hand, the principle laid down in Dilip Kumar Sharma Case will have no application inasmuch as the validity of nomination paper is to be tested by deciding qualification or disqualification of the candidate on the date of scrutiny and not be reference to any event subsequent thereto.

That an appellate judgment in a criminal case, exonerating the accused-appellant, has the effect of wiping out the conviction as recorded by the trial court and the sentence passed thereon is a legal fiction. While pressing into service, a legal fiction it should not be forgotten that legal fictions are created only for some definite purpose and the fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field. A legal fiction presupposes the existence of the state of facts which may not exist and then works out the consequences which flow from that state of facts. Such consequences have got to be worked out only to their logical extent having due regard to the purpose for which the legal fiction has been created. Stretching the consequences beyond that logically flows amounts to an illegitimate extension of the purpose of the legal fiction (see the majority opinion in The Bengal Immunity Company Limited Vs. The State of Bihar and Others, P.N. Bhagwati J. as His Lordship then was, in his separate opinion concurring with the majority and dealing with the legal fiction contained in the Explanation to Article 286(1)(a) of the Constitution (as it stood prior to the Sixth Amendment) observed: (SCR PP. 720-21)

Due regard must be had in this behalf of the purpose for which the legal fiction has been created. If the purpose of this legal fiction contained in the Explanation to Article 286(1)(a) is solely for the purpose of Sub-clause (a) as expressly stated it would not be legitimate to travel beyond the scope of that purpose and read into the provision any other purpose howsoever attractive it may be. The legal fiction which was created here was only for the purpose of determining whether a particular sale was an outside sale or one which could be deemed to have taken place inside the State and that was the only scope of the provision. It would be an illegitimate extension of the purpose of the legal fiction to say that it was also created for the purpose of converting the inter-State character of the transaction into an intra-State one.

His Lordship opined that this type of conversion would be contrary to the express purpose for which the legal fiction was created. These observations are useful for the purpose of dealing with the issue in our hands. Fictionally, an appellate acquittal wipes out the trial Court conviction; yet, to hold on the strength of such legal fiction that a candidate though convicted and sentenced to imprisonment for two years or more was not disqualified on the date of scrutiny of the nomination, consequent upon his acquittal on a much later date, would be an illegitimate extension of the purpose of the legal fiction. However, we hasten to add that in the present case the issue is not so much as to the applicability of the legal fiction; the issue concerns more about the power of the Designated Election Judge to take note of subsequent event and apply it to an event which had happened much before the commencement of that proceeding in which the subsequent event is brought to the notice of the Court. An election petition is not a continuation of election proceedings.

We are clearly of the opinion that Manni Lal case and Vidya Charan Shukla case do not lay down the correct law. Both the decisions are, therefore, overruled.

The trial Court has committed error of law in not considering the case of the Supreme court in K, Prabhakaran''s case decided on 11.1.2005 wherein the judgment of Vidya Charan was overruled while deciding the Election Petition on 15.10.2005.

Apart from above earlier to the aforesaid judgment of the Supreme Court, the Full Bench of this Court in Narayan Lal v. State of Rajasthan and Ors. (supra), has considered the case of Vidya Charan Shukla and held that the same is not applicable in case of Rajasthan Panchayat Act. It was further held that the intention of the Legislation in Rajasthan Panchayat Act, 1994 is that facing of trial of cognizance offence punishable with five years in which charge is framed on the date of nomination itself is disqualification, therefore, subsequent result of the trial in acquittal is of consequent/irrelevant.

Section 19(gg) of the Rajasthan Panchayat Raj Act reads as urider:-

Qualification for election as a Panch or a member:-

Every person registered as a voter in the list of voters of a Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayati Raj Institution unless such person-

gg) is under trial in the competent Court which has taken cognizance of the offence and framed the charges against him of any offence ''. punishable with imprisonment for five years or more;)

Earlier to the over-ruling of Vidya Charan''s case by the Constitution Bench of Supreme Court as detailed out hereinabove, the Full Bench of this Court in Narayan Lal''s case distinguished the same. But since the case has been over-ruled, therefore, only the other relevant para Nos. 13, 20, 21 and 23 regarding intention of the legislature while enacting the disqualification and interpretation of Section 19(gg) of the Act are reproduced hereunder:--

In the cases before us, u/s 19(gg) the disqualification is the fact situation of facing the trial for a cognizance offence in which the charge has already been framed. The intention of the Legislature is therefore, clear to send a message to the entire Electoral College that the facing of a trial for a cognizable offence in which charge has been framed is by itself a disqualification. What happened to this charge later on, as a result of the trial which results into acquittal or conviction rather even if has resulted into acquittal, has no impact to undo the fact of disqualification suffered on the date of scrutiny of the nomination papers and, therefore, the subsequent acquittal in such cases will not be sufficient to hold the candidate to be qualified on the date of scrutiny of the nomination papers. This is the fine distinction between the statutorily provided fact situation of facing the trial for a cognizable offence in which charge has been framed and conviction as such. While incorporating this amendment u/s 19(gg) and providing the disqualification as above, the Legislature knew this fine distinction and it cannot be said that the Legislature was not aware that a person who is facing the trial for a cognizable offence in which the charge has been framed may be acquittal in the case. The genus of the disqualification is not the ultimate outcome of the trial but the charge which the concerned candidate is facing at the time of election. Legislature wanted to send a message to the members of the Electoral College to maintain purity in the election. Such candidate if acquitted, it is well and good but in case such candidates are convicted, they must have already continued to hold the important elective post till the date of conviction and, therefore, the damage is already done. The apprehension that such disqualification may be misused in certain cases, and the rival political hands may falsely implicate the person so as to keep him out of the race to contest the election, to our mind is not safe to allow such candidate to contest the election and the result of the trial cannot be pre-empted nor this disqualification, based on the fact situation as it exists on the date of scrutiny of the nomination papers, can be made to depend on the result of the trial."

20) The principles and preposition of law as have been laid down in the various decisions referred to herein above and the reasoning as aforesaid leads us to an irresistible conclusion that the disqualification as provided u/s 19(gg) is a penalty of a trial against a person concerned for a cognizable offence with imprisonment for five years or more, wherein, a charge has been framed and, therefore, the result of the trial in such cases is irrelevant.

21) The disqualification does not refer to conviction but refers to the pendency of trial. The factum of the pendency of trial for a cognizable offence punishable with imprisonment for five years or more in which a charge has been framed by the Court at the relevant time when the nomination papers are subjected to scrutiny is by itself a disqualification and such disqualification has nothing to do with the contingent situation of acquittal or conviction.

A Sarpanch elected by a democratic process can certainly be ousted from the office on the ground that he was disqualified to contest the election u/s 19(gg) of the Rajasthan Panchayati Raj Act, 1994, as on the date of filing nomination papers when he was undergoing a trial before the competent Court which had already taken the cognizance of the offence and had framed the charge against him for the offence punishable with imprisonment for five years or more and even if he stood acquitted of such charge at the end of the trial, it could not be a ground not to upset the election.

In view of the judgments of the Constitutional Bench of Supreme Court in K. Prabhakaran''s Case (supra) and Full Bench of this Court in Narayan Lal''s case (supra), the submission of the petitioner has force whereas the submission of respondent No. 1 is devoid of merit.

Accordingly, the writ petition is partly allowed. The finding on issue No. 3 and operative part of the judgment dated 15.10.2005 passed by the Election Tribunal in Election Petition No. 34/05 (14/05) is set-aside and the case is remanded back to the Election Tribunal for decision on the Issue No. 3 and further for granting consequential relief in the light of the judgment of the Constitution Bench of Supreme Court and Full Bench Judgment of this Court as discussed herein above within a period of one month on production of certified copy of this order.