1. By the present Chamber Summons Respondent has moved this Court to contend that election petition No. 16 of 1999 be dismissed under Section 86(1) of the Representation of People Act, 1951 and/or Order VII of the Code of Civil Procedure, 1908 on the ground that the petition discloses no cause of action. A few relevant facts may be set out.

On the petition being presented on 6th December, 1999, order was passed to issue Summons for appearance and filing written statement. The same was made returnable on 17th June, 2000. Matter has thereafter come up on various dates. In between on 18th February, 2000 the respondent took out the present Chamber Summons. Written statement was filed on 31st January, 2000. In para 3(u) of the written statement the respondent had averred that there is no cause of action for filing the present petition. In paragraph 4, it is averred that the respondent was advised and accordingly craved leave to take appropriate proceedings including Chamber Summons for dismissal of the election petition at threshold and/or upon framing preliminary issue for non compliance of the various mandatory provisions of the Act, Rules and the Code and that the respondent was taking appropriate steps. The Chamber Summons was not taken for hearing then and it was set for hearing after the Issues were framed. Issues were framed on 10th August, 2000. It was directed that Issue Nos. 1 and 2 to be heard as preliminary Issues. Issue Nos. 1 and 2 read as under:—

1) Whether the petition is verified in accordance with the provisions of Section 83(1)(c) of the Representation of People Act and as per Order 6 Rule 15 of the Code of Civil Procedure and as per provisions of Rules 44, 55 of Bombay High Court (Original Side) Rules, 1980?

2) Whether the respondent proves that copy of petition supplied to him is not true copy as contemplated by Section 83(2) of Representation of People Act for reasons stated in paras 3(e) to 3(u) of the Written Statement?

At the threshold it may be pointed out that Issue No. 9 was framed, however, considering averments in the pleading, the said issue will not arise and is not required for determination to decide the question arising in the petition as the name of the respondent was included in the voters list in the Electoral Roll of 288-Chandgad Assembly Constituency. In the light of that Issue No. 9 is struck off and Issue No. 10 is renumbered as Issue No. 9. The said issues along with the Chamber Summons are being disposed off by this order.

2. The election petition is based solely on the ground that the respondent has incurred a disqualification as contemplated by Section 8 of Representation of the People Act, 1951, hereinafter referred to as “the Act of 1951”. It was contended on behalf of the petitioner that respondent was one of the Accused in Special Case No. 44 of 1993 along with 16 others and charged with offences punishable under Sections 147, 148, 149, 324, 337, 325, 504 and 506 of the Indian Penal Code as also under Section 7(1)(d) of the Protection of Civil Rights Act, 1955 and under Section 3(1)(10) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Special Judge, Kolhapur by Judgment and order dated 12th July, 1996 found respondent guilty under Section 7(1)(d) of the Protection of Civil Rights Act, 1955 read with Section 506 of the Indian Penal Code and convicted the respondent. The respondent aggrieved and dissatisfied with the aforesaid Judgment and Order has preferred an appeal to this Court which is numbered as Criminal Appeal No. 459 of 1996. That appeal was admitted on 7th August, 1996. The respondent herein was granted bail. Thereafter, the Respondent filed a Criminal Application No. 2201 of 1999 under Section 389(1) of the Criminal Procedure Code seeking suspension of the conviction and sentence for reasons set out therein relying on the judgment of the Supreme Court in the case of Rama Narang v. Ramesh Narang, (1995) 2 SCC 513. A learned single Judge of this Court by Judgment and Order dated 24th August, 1999 was pleased to allow the said application and was further pleased to suspend the execution of the sentence and operation of the Judgment within the terms of Section 389(1) of the Criminal Procedure Code and also suspended the order of conviction under the said provision. One Shri Mahadeo Satuppa Kamble filed a Special Leave Petition against the said order before the Apex Court which was numbered as Special Leave Petition (Criminal) No. 3578 of 1999. The Apex Court was pleased to pass an order issuing notice in the said matter. For the sake of narration though this does not form part of the pleadings in the petition, but in the written submissions filed it has been pointed out that the Apex Court has subsequently dismissed the Special Leave Petition. Nothing however turns on that.

It is also averred that the respondent as also the aforesaid Mahadeo S. Kamble filed their nomination papers, for contesting the elections. Mahadeo S. Kamble objected to the nomination papers filed by the respondent by raising several objections dated 25th August, 1999. The first objection raised was that the respondent was convicted under the Atrocities Act in Special Case No. 44 of 1993. The second objection was that the respondent was a permanent resident of Belgaum and staying there permanently along with his family members. The affidavit filed by the respondent herein that he was resident of Mhalewadi, Taluka Chandgad was false and therefore he is liable to be punished. It was stated that the respondent was disqualified, and hence his nomination papers be rejected. Some other objections were raised which are not relevant for the petition. The Returning Officer by an Order dated 25th August, 1999 was pleased to reject the Objections. The Returning Officer relied on the order of this Court dated 24th August, 1999. It is contended that the Returning Officer accepted the nomination papers of the respondent illegally and contrary to the provisions of the said Act.

The Returning Officer accepted the nomination papers of the petitioner and two other candidates and consequently all of them contested election against each other. On 11th September, 1999 voting took place. On 6th October, 1999 the counting of votes took place. After counting was over, the Returning Officer was pleased to declare the respondent as a candidate duly elected from 288-Chandgad Legislative Assembly Segment of the State of Maharashtra. The petitioner secured the second highest votes. It is contended that on the date of the election the respondent was not qualified for being chosen to fill the seat in question and was disqualified under Section 8 of the Act of 1951.

3. In Chamber Summons taken out by the respondent as already referred to earlier, it is the case of the respondent that petition should be dismissed under Section 8(1) of the Representation of the People Act, 1951 and/or Order VII Rule 11 of the Code of Civil Procedure, 1908 on the ground that the petition does not disclose any cause of action. In support of the chamber summons, the respondent has filed his own affidavit and relied on the averments in the election petition and various annexures thereto. It is contended that right to challenge the election is a statutory right and can be resorted to only in the manner provided under Part VI of the Act. It is specifically contended that Criminal Appeal No. 459 of 1999 preferred by the respondent against the Judgment and Order in Special Case No. 4 of 1993 passed by the learned special Judge, Kolhapur has been admitted by order dated 7th August, 1996 by this Court. By a further order dated 25th August, 1999 in Criminal Application No. 2201 of 1999, this Court suspended execution of sentence and conviction and operation of the order and judgment in Special Case No. 44 of 1993. In these circumstances, it is pointed out that there is no cause of action available to the petitioner to challenge the election of the respondent by way of present petition. It is, therefore, contended that the Chamber Summons for dismissal of the petition be made absolute.

4. As already set out. Issue Nos. 1 and 2 were to be heard as preliminary issues. Both the Chamber Summons and the preliminary issues were heard together. The Chamber Summons will be first considered and thereafter both the preliminary Issues.

5. The first question therefore, which the Court has to consider is whether the election petition as filed by the petitioner discloses any cause of action. As has now been held by the Apex Court, an election petition can be dismissed if it fails to disclose a cause of action, even after framing of issues. See, Samar Singh v. Kedar Nath alias K.N Singh, 1987 (supp) SCC 663 : (AIR 1987 SC 1926). The short question therefore is whether subsequent to the order of this Court dated 24th August, 1999, in Criminal Application No. 2201 of 1999, is there any cause of action in the petitioner. In paragraph 2 of the Order the learned Judge has noted that respondent by his application has prayed that the order of conviction, execution of the sentence and operation of the impugned judgment be stayed as the respondent wants to contest the ensuing election of the Maharashtra Legislative Assembly. After considering the arguments of both the parties, the learned Judge in paragraph 4 has observed that so far execution of the sentence and operation of the impugned judgment are concerned, the same can be suspended under Section 389(1) of the Criminal Procedure Code. It is further noted that the said provision or for that matter any other provision, does not provide for suspending an order of conviction but para 19 of the judgment of the Apex Court in Rama Narang v. Ramesh Narang, (1995) 2 SCC 513, makes it absolutely clear that if as a consequence of not suspending the order of conviction, a serious disqualification would ensue, this Court would have power to suspend the order of conviction and in the instant case if the order is not suspended, it may result in the respondent being estopped from contesting the election to the Maharashtra Legislative Assembly to be held very shortly. The learned Judge also found that irreparable damage would be caused to the respondent, if the order of conviction and sentence is not suspended. In the circumstances, the Court was pleased to allow the application and suspend the execution of the sentence and operation of the impugned judgment, within the terms of Section 389(1) of the Criminal Procedure Code and also suspend the order of conviction under the said provision as held by the Apex Court in the case of Rama Narang (supra).

6. It is no doubt true that the petitioner has invoked as ground, section 100(1)(a) which sets out that subject to the provisions of sub-section (2) if the High Court is of the opinion that on the date of the 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, the High Court shall declare the election of the returned candidate to be void. The petitioner has also invoked Section 100(1)(d)(i) which provides that the result of the election, in so far as it concerns a returned candidate, has been materially affected by the improper acceptance of any nomination. The petitioner has also invoked Section 100(1)(d)(iv) that as the result of the election, in so far as it concerns a returned candidate, has been materially affected by any non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the said Act. Though these various sections have been invoked for all purposes what really the petitioner contends is that as the respondent had been convicted for an offence under the Protection of Civil Rights Act, 1955, by virtue of Section 8 read with Section 100(1) of the said Act, the petitioner was not qualified or was disqualified on the date of his election for being chosen to fill the seat under the Act. Even if the Court has to hold that there is an independent cause of action under Section 100(1)(d)(i), on the facts of this case, it will be difficult for this Court to proceed with the petition if the challenge is accepted that there is no cause of action. This is for the reason that whilst answering the contention in so far as section 100(1)(a) of the Act is concerned, would also be an answer to Section 100(1)(d)(i). Section 100(1)(d)(iv) does not arise at all. Even if it arises it is based on the same cause of action.

The very issue about the applicability of Section 100(1)(a) and Section 100(1)(d)(i) was in issue before the Apex Court in the case of Vidya Charan Shukla v. Purshottam Lal Kaushik., (1981) 2 SCC 84 : (AIR 1981 SC 547). In that case the principal question, before the Apex Court in the Appeal before it was, whether the election of a returned candidate whose appeal against the order of conviction and sentence exceeding two years' imprisonment was allowed, resulting in his acquittal, before the decision of the election petition, can be declared to be void under Section 100(1) of the Act on the ground that he was disqualified from his being chosen as candidate within the meaning of Section 8(2) of the Act. In that case, last date for filing nomination was 7th December, 1979, the scrutiny of the nomination papers was to take place on 11th December, 1979. Objection raised to the acceptance of the nomination paper was that the appellant before the Apex Court had been convicted and sentenced to imprisonment exceeding two years by the Sessions Judge, Delhi on 22nd/27th February, 1979 and as such the Appellant was disqualified from being chosen as a candidate in view of Section 8(2) of the Act. The Returnong Officer by his order dated 11th December, 1979 rejected the objection and accepted the nomination papers as filed. The result of the election was declared on 7th January, 1980 and the result was notified on 10th January, 1980. The election petitioner therein filed an election petition in the High Court to get the election of the appellant declared void under Section 100(1)(a) and Section 100(1)(d)(i) to the Act, alleging that on the date of election, including the date of the scrutiny of nomination papers, the appellant was disqualified by virtue of Section 8(2) of the Act from being chosen as a candidate on account of his aforesaid conviction and sentence. The Sessions Judge who had convicted the appellant, had by his order dated 27th February, 1979 passed under Sec. 389(3) of the Code of Criminal Procedure suspended execution of the sentence to afford appellant time to file an appeal. On 21st March, 1980 the High Court of Delhi admitted the appeal and by an order of the same date directed that his sentence shall remain suspended provided the appellant furnished a personal bond and surety in the amount of Rs. 5000/- to the satisfaction of the Sessions Judge. The Appeal was transferred to the Supreme Court under the Special Courts Act, 1979. The Court by Judgment dated 11th April, 1980 allowed the appeal, set aside the conviction and sentence of the appellant and acquitted him of the charges framed. Subsequently by impugned Judgment dated 5th September, 1980 (reported in AIR 1980 Madh Pra 188), the High Court of Madhya Pradesh allowed the election petition filed by the respondent and declared the appellant's election to be void on the ground contained in Section 100(1)(d)(i) of the Act. One of the contentions raised on behalf of the appellant before the Apex Court was that in substance and reality, the election of the appellant had been challenged on the ground that both at the date of the scrutiny and acceptance of his nomination and at the subsequent stages of the election, including the dates of poll and declaration of the election result, the appellant was disqualified for being chosen on account of his having been convicted and sentenced to imprisonment exceeding two years. That ground it was contended finds specific mention in clause (a) and not in clause (d)(i) which was a general and residuary clause and its application to that case would be excluded on the principle that the special excludes the general. On behalf of the respondent it was contended that basic distinction between clause (a) and clause (d)(i) of Section 100(1) of the Act is that under the former clause, the existence or non-existence of disqualification of the returned candidate is to be determined as “on the date of his election” which date in view of Section 67-A, means the date on which he was declared elected under Section 53 or Section 65 of the Act; whereas under clause (d)(i), the enquiry is restricted to judging the propriety or otherwise of the action of the Returning Officer in accepting the nomination on the date of scrutiny; that is to say, for the purpose of the latter clause, all that has to be enquired into is whether the disqualification existed on the date of scrutiny. After considering both the contentions, the Apex Court after referring to the judgment in the case of Manni Lal v. Parmal Lal, (1970) 2 SCC 467 : (AIR 1971 SC 330) held that what can be logically deductible, is that if on the date of the election or at any earlier stage of any step in the election process, a candidate stood disqualified on account of conviction and sentence exceeding two years imprisonment, but if in appeal, before the petition is decided, the conviction is set aside, the disqualification is anulled and rendered non est with retrospective effect. The Apex Court observed that though in that case before the High Court the challenge was under clause (a) of section 100(1), it was given up as by then the appellant had been acquitted. The fact remained that, in substance, the election of the appellant was being challenged on the ground that on account of his conviction and sentence exceeding two years, the appellant was under Article 102(1)(e) of the Constitution read with Sections 8(2) and 36(2)(a) of the Act, disqualified for being chosen to fill the seat concerned. The Apex Court in para 35 of the judgment observed that the argument amounts no more than to a distinction without a difference. The reason being that basic ground of challenge and material factual constituents thereof are common in both the grounds. In both cases what is being challenged is the election of the successful candidate on account of his conviction. Although in that case at the time of arguments in the High Court the ground under clause (a) of section 100(1) was not pressed and no arguments were addressed with reference to that clause, it had been pleaded and proved by the election petitioner that both on the date of the scrutiny of nominations and at the date of the election, the appellant's disqualification existed as a fact. It is therefore clear that considering the material facts as pleaded in sum and substance the ground is under section 100(1)(a). If that is answered in favour of the respondent, ground under Section 100(1)(d)(i) if and at all, has to be answered, will no longer survive. Even otherwise, the position on the date of scrutiny and the date of election, the position was the same. The Respondent was convicted but his conviction had been suspended.

7. It is contended on behalf of the petitioner that Section 8 of the Representation of the People Act provides for disqualification which includes conviction for certain offences specified thereunder. Section 8 provides for disqualification for persons sentenced and convicted under the Protection of Civil Rights Act. The disqualification is also reflected in Article 191 of the Constitution of India. Section 86 of the Representation of the People Act enjoins on the High Court, the duty to dismiss the election petition which does hot comply with the provisions of sections 81, 82 and 117. On the instant case as per Section 81 the High Court therefore while dealing with election petition could set aside election for the reasons contained in Sections 100(1)(a) and 100(1)(d)(i) and 100(1)(d)(iv). From the pleadings in the petition it is clear that Respondent has incurred disqualification in terms of Section 8 of Act and Article 191 of the Constitution of India. Therefore the Respondent's election is liable to be set aside by the High Court on the ground of ineligibility under section 100(1)(a) and on the ground of wrongful acceptance of nomination paper under Sections 100(1)(d)(1) and 100(1)(d)(iv). There are therefore clear pleadings and sufficient material on record to attract the Courts power to set aside the election under Section 100 of the Act. In other words petitioner has pleaded cause of action and accordingly the petition cannot be dismissed.

It is further contended on behalf of the petitioner firstly that even if this Court has suspended conviction and sentence it will only be for the limited purpose of suffering the imprisonment under the Protection of Civil Rights Act. The effect of suspension of conviction and sentence cannot be in respect of any other law. It is then contended that it is inconceivable that the suspension of a sentence under the Code of Criminal Procedure would affect the disqualification incurred under the Representation of the People's act or the constitution of india. This would amount to curtailing the scope of the Legislative enactment by an interim judicial pronouncement. It would also amount to a Court issuing an injunction against the status, which would be impermissible in law. The judgment in Rama Narang's case (1995 (2) SCC 513) (supra) as also of the Division Bench of this Court in the case of Laxman Malhari Sable… v. State Of Maharashtra…., (1997) 2 Mah LJ 780 : (1997 Cri LJ 2556) relates to disqualification under the Companies Act and the Municipal Corporation Act respectively and do not relate to disqualification under the Representation of People Act as in the instant case. If the Legislature intended to permit an embargo to be imposed on disqualification, then it would have made such a provision under the Representation of People Act itself. In fact, with reference to disqualification incurred by the sitting members, such a provision has been made under Section 8(4) of the Act. Since no similar provision has been made with reference to person who are yet to contest the election, the effect of suspension of sentence cannot be extended to imposing an embargo on disqualification. It would be inconceivable that the Legislature could have intended that a disqualified person should contest an election. The right to contest the election is purely a statutory right. There is no common law right or fundamental right to context an election. Hence if someone is disqualified his prayer that conviction should be suspended as to render him eligible to contest an election is an argument which does not find any basis in any right to contest election as he has lost the right upon being disqualified. As a corollary to this proposition, it is contended that once the right is lost by conviction, it can only be restored if a person is finally acquitted or after undergoing the sentence. The disqualification commences instantaneously upon conviction and subsists until acquittal or upon full serving of sentence. Reference is made to the Division Bench judgment of the Assam High Court in the case of Khagendranath Nath v. Umesh Chandra Nath, AIR 1958 Assam 183 as also the judgment in the V.C Shukla's case (AIR 1981 SC 547) rendered by Justice J.S Varma as the former learned Chief Justice of India then was, in the Madhya Pradesh High Court, AIR 1980 Madh Pra 188. Though the Apex Court reversed the order of setting aspect which is being argued and hence the conclusion of the Madhya Pradesh High Court regarding disqualification resulting from conviction and sentence, was in fact maintained by the Apex Court. The Apex Court has only held that if a disqualification disappears with acquittal even before the High Court passed its judgment, the High Court could not have ignored the fact of acquittal as the acquittal acts with retrospective effect. It therefore follows that disqualification persists until acquittal and suspension of disqualification cannot result, from suspension of sentence and conviction. It is also contended by way of an alternate submission that the order passed in Criminal Application suspending the sentence and conviction would be not binding on the ground that principles of res judicata will not apply as while conducting election petition, this Court sits as an election tribunal. Under the Representation of People Act it can still consider the order of Vishnu Sahai, J. and consider whether it is legally correct and also consider whether it discloses any reasons to lifting the disqualification under the Representation of the People Act.

8. On the other hand on behalf of the Respondent it is contended that the petitioner himself has pleaded that Respondent has preferred an appeal which had been admitted. By order of 24th August, 1999 the execution of sentence and operation of the impugned judgment had been stayed. The petitioner himself has relied on the said documents. This Court while considering the application of suspension of sentence has taken note of the fact that the petitioner intended to offer himself as a candidate for election to the Maharashtra Legislative Assembly. The Court after considering that was pleased to suspend the sentence as also the conviction.

It is also contended that in the case of Samar Singh v. Kedar Nath alias K.N Singh, 1987 (Supp) SCC 663 : (AIR 1987 SC 1926) the Apex Court has held that election petition which does not disclose any cause of action can be dismissed summarily under Order VII, Rule 11 of the Civil Procedure Code either at the threshold of the proceedings or at any subsequent stage of the proceedings. The Kerala High Court has followed this in the case of K.K Somanathan v. K.K Ramachandran Master, AIR 1988 Ker 259.

It is contended that in the case of Rama Narang (1995 (2) SCC 513) (supra) the Apex Court has held that in certain situations the order of conviction can be suspended. Power of suspending conviction can be exercised as for example if a party is likely to suffer disqualification. In that case it was so under the Companies Act. In the present case it is under the Representation of People Act. In all such cases all that must happen is that the attention of the Appellate Court must be specifically invited to the consequences that are likely to be caused to enable it to apply its mind to the issue, since under Section 389(1) the Court has to pass a speaking order. The Apex Court has further held that in fit cases, the High Court can suspend the conviction and sentence, so that a convicted person does not suffer from certain disqualification provided in any statute, otherwise the damage done cannot be undone. Rama Narang's case has been applied by the Division Bench of this Court in Laxman Malhari Sable (1997 Cri LJ 2556) (supra) which has taken the view that the Appellate Court has power to suspend the conviction and sentence as damage is likely to be caused to an accused which cannot be undone if ultimately the Appellant before it succeeds. The Division Bench relied on the case of Rama Narang. The Division Bench was considering the disqualification likely to be incurred under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act. In that case the petitioner was elected as a Municipal Councillor before the incident in December, 1996. He was convicted under Section 304 of the Criminal Procedure Code and sentenced to 10 years R. 1, on 6th February, 1997. He filed an appeal and bail was granted on 17th February, 1997. A petition was filed for his disqualification. In the meantime he was also elected as President of the Council. An application was made for suspending the conviction. The Division Bench held that what is at stake was the Appellant holding a public office and the likely damage could not be undone even if the Appellant before it ultimately succeeded. The Division Bench therefore suspended the sentence and conviction. The Division Bench also noted that the judgment of Rama Narang's case (1995 (2) SCC 513) has been reiterated in the subsequent judgment of the Apex Court in the case of Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meera, (1995) 3 SCC 377 : (AIR 1995 SC 1364). The Apex Court relied on the judgment in Rama Narang's case and observed that though Section 389(1) of the Criminal Procedure Code, 1973 does not expressly speak of suspension of conviction, but in certain situations the Appellate Court may also have power to suspend the conviction. In The State of Tamil Nadu v. A. Jagannathan, (1996) 5 SCC 329 : (AIR 1996 SC 2449) the Apex Court referring to Rama Narang's case has observed that on the fact of that case no case was made out for suspension of conviction or sentence as in the event the party succeeded in an acquittal he would get the stipend, etc. and the loss can be made good. It is, therefore, submitted that the Appellate Court had power to suspend conviction and sentence. In the instant case, conviction has been suspended after the Court was informed as to why the suspension was being sought. Dealing with the contentions of the petitioner in the case of Purshottamlal Kaushik (AIR 1980 Madh Pra 188) (supra) it is pointed out that the judgment has been set aside by the Apex Court in the case of Vidyacharan Shukla (AIR 1981 SC 547) (supra). Merely because the contention was not dealt with by the Apex Court does not mean that the contention has been upheld. In that case the unseating of the Appellant was set aside on the ground that once the Appellant was acquitted, the disqualification was wiped out, as the order relate back and wipes out the conviction and sentence for all purpose. It is submitted that Section 8, further provides that in case of conviction of a sitting member of Parliament mere filing of Appeal itself arrests the disqualification. In the present case Respondent's appeal has been admitted, sentence and conviction suspended. If the respondent's appeal is allowed the conviction and sentence will be set aside. The petition must be dismissed on the ground that there is no cause of action.

9. From the above two questions emerge.

(1) What is the effect of suspension of sentence and conviction of person convicted for an offence which results in disqualification to contest under Section 8 of the Representation of People Act, 1951?

(2) Whether the order of the learned Judge (Vishnu Sahai, J.) passed in the Criminal Application No. 2201 of 199 suspending execution of the sentence and conviction can be looked into by this Court and on facts and circumstances not followed?

10. We will now deal with the first contention namely Section 8(1) of the Representation of People Act, 1951. The relevant portion of the said section reads as under:—

8(1) A person convicted of an offence punishable under—

(a)…………………

(b) the Protection of Civil Judges Act, 1955 which provides for punishment for the preaching and practice of “untouchability”, and for the enforcement of any disability arising therefrom: OR

(c) …………………

(k)…………………

shall be disqualified for a period of six years from the date of such conviction.

The relevant part of Section 100(1) reads as under:—

100(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; OR

(b) …………………

(d) …………………

the High Court shall declare the election of the returned candidate to be void.

Another section that is relevant would be Section 8(4), which reads as under:—

8(4). Notwithstanding anything in sub-section (1), sub-section (2), or sub-section (3), a disqualification under either sub-section 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.

The explanation is not material for the discussion.

11. From reading of sub-section (4) it must be apparent that Parliament has treated the two cases differently. Insofar as the case of a candidate seeking to contest the election, if such candidate has been convicted, no provision has been made whereby a candidate who has been convicted even if he is granted Bail, can contest the election. This seems to be because the right to contest the election is a statutory right. By statute, Parliament has conferred the right to contest to a determinate class of citizens. That class of citizens is a class which has not incurred any disqualification on the date of filing the nomination or till the date of election. Long back, it seems to have been the intent of Parliament to keep certain felons from entering Parliament or the Legislatures. On the other hand in the case where a person has been convicted during his term of office, the conviction per se does not disqualify such a person from holding an office as the act itself provides that the disqualification will not come into effect until three months have elapsed from the date of conviction or if appeal or application or revision is filed in respect of the conviction and sentence until that appeal or application is disposed of by the Court. The case of returned candidate therefore has been treated differently. Mere filing of an appeal by itself suspends the incurring of the disqualification, if any, till the appeal or application is disposed of. It is therefore, clear that Parliament itself has made a clear distinction in respect of the two class of cases. A perusal of offences which incur disqualification as set out in sub-section (1) of Section 8 or for that matter of sub-section (2), it would be clear that they pertain to a class or category of offences which are offences relating to public order or morality or the interest of the State. When the Apex Court considered the judgment in Rama Narang's case (1995 (2) SCC 513) (supra), it was considering the conviction under the Companies Act. Rama Narang's case is sought to be distinguished on the ground that the offence involved therein was not an offence against public morality, public interest or national interest. In that case it merely pertained to disqualification of a person to hold the position of a Managing Director of the Company. Factually it may be noted that Rama Narang was convicted amongst other under Section 420 of the Indian Penal Code. There was no dispute that the offence involved moral turpitude. Even otherwise a person holding office in a Company regulated by the provisions of the companies act cannot be said to be occupying merely private office, he has clear statutory duties under the Act.

Is it possible to accept that such a classification is possible and that such a classification would be reasonable. On the one hand to disentitle a person convicted of an offence as per the Act from contesting election and on the other in the event after such a person enters into office on being elected, is subsequently convicted, to allow to continue to hold the office during the pendency of the appeal or application. Further, what is the effect of the judgment in the case of Rama Narang. The Apex Court while considering Rama Narang's case was considering the effect of Section 389 of the Criminal Procedure Code. It may be noted that Section 389 of the Criminal Procedure Code provides for suspension of sentence pending the appeal; release of appellant on bail. Sub-section (1) provides that pending any appeal by a convicted person, the Appellate Court may, for the reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail. The Apex Court observed in Rama Narang's case that on a plain reading of sub-section (1) of Section 389 of the Criminal Procedure Code, it becomes clear that pending an appeal by a convicted person the Appellate Court may order that the execution of the sentence or the order appealed be suspended. It has then noted that what can be suspended under this provision is the execution of the sentence or the execution of the order. The Apex Court then raised the following question and I am reproducing the same:—

“Does ‘order’ in Section 389(1) mean order of conviction or an order similar to the one under Section 357 or Section 360 of the Code?”

Answering the question the Apex Court held that obviously the order referred to in Section 389(1) must be an order capable of execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities. Since the order of conviction does not on the mere filing of an appeal disappear, it is difficult to accept the submission that Section 267 of the Companies Act must be read to apply only to a ‘final’ order of conviction. The Apex Court thereafter proceeded to observe as under:—

“In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code could be invoked. In such situations the attention of the Appellate Court must be specifically invited to the consequence thus likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order “for reasons to be recorded by it in writing”, if the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto? No one can be allowed to play hide and seek with the Court; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate…..”

Thereafter in paragraph 19 the Apex Court held that the power under Section 389(1) extends to conferring power on the Appellate Court to stay the operation of the order of conviction. What the Apex Court had done therefore is the construction of Section 389 of the Criminal Procedure Code. It is a declaration of law by the Apex Court. The declaration is that there is power in the Appellate Court to suspend the conviction. That is the ratio decidendi in the case of Rama Narang (1995 (2) SCC 513) (supra).

Rama Narang's case, came up for consideration again before the Apex Court in the case of Deputy Director of Collegiate Education (Administration), Madras (AIR 1995 SC 1364) (supra). In that case the matter arose out of the punishment imposed under Article 311(2) second proviso to the Constitution of India. In that case a notice was issued to the Respondent by the Director of Education calling upon him to show cause why he should not be dismissed from service in view of his conviction by the Criminal Court under Section 420 of the Indian Penal Code. On receiving the show cause notice, the Respondent filed a petition before the Tamilnadu Administrative Tribunal. His contention was that his sentence had been suspended by the Appellate Court and as such no proceedings could be taken for terminating his services. There is a reference to clause (a) of second proviso of Article 311(2) of the Constitution of India. It is in that context the Apex Court was considering the provisions of Section 389(1) of the Criminal Procedure Code. The Apex Court noted the Judgment in the case of Rama Narang (1995 (2) SCC 513) (supra) and observed that though Section 389 of the Code of Criminal Procedure Code is clear, that pending an appeal, the execution of the sentence or order appealed against be suspended, even so, in certain situations the Appellate Court has also the power to suspend the conviction. The Apex Court referred to the Judgment of Rama Narang's case. It is, therefore, clear that Apex Court has accepted that the power under Section 389(1) of the Criminal Procedure Code includes the power of suspending conviction also.

Under Section 8(1) of the Representation of the People Act mere conviction for offences set out therein will result in incurring a disqualification. Insofar as sub-section (2) is concerned, it is on conviction and any sentence to imprisonment for not less than six months. Therefore, in the case of sub-section (2) it is both conviction and sentence. In the case of Section 8(1), the sentence is immaterial. It is merely on conviction. Will that make any difference. Prima facie the argument on behalf of the petitioner may be plausible, that a mere conviction by itself results in incurring the disqualification.

The Legislature has chosen not to provide that mere release on bail or suspension of sentence enables a elector to contest the election under sub-section (1); unlike sub-section (4) of the Act. Similarly, under sub-section (2) of the Act, the disqualification is from the date of conviction in the event a person is sentenced to imprisonment for not less than six months. In the same effect is sub-section (3) which speaks about a person convicted for an offence and sentence to imprisonment for not less than two years shall be disqualified from the date of such conviction. In other words, Parliament seems to have treated a case of conviction before contesting and a conviction on being elected, separately. The purpose behind that seems to be that once a candidate is elected, a person should not be unseated unless conviction is confirmed. On the other hand case of a person convicted before the election, that such person should not be allowed to contest as it is merely a statutory right and by denying the right of contest, what is taken away is the statutory right of contesting the election. It may thus be possible to hold that the classification between the two cases would be reasonable. However, in view of the Judgment in Rama Narang's case (1995 (2) SCC 513) which states that the Court has power not only to suspend the sentence but also the conviction under Section 389 of the Criminal Procedure Code the classification would become unreasonable. Once the power is exercised after the reasons are disclosed to the Court as to why suspension of conviction is sought, then there would be no conviction from the date the sentence and conviction is suspended. Such a candidate would then be entitled to contest the election as if there was no imprisonment. The difficulty that would arise in this matter is if the conviction is thereafter confirmed, the sentence will relate back to the date of conviction. Be that as it may, considering the interpretation of Section 389 of the Criminal Procedure Code and the order passed at least in the instant case, the candidate was not disqualified from contesting the election. A Division Bench of this Court in the case of Laxman Malhari Sable… v. State Of Maharashtra…. (1997 Cri LJ 2556) (supra) considered a similar question in proceedings under the Maharashtra Municipal Councils. Nagar Panchayats and Industrial Townships Act. In that case the Appellant by Judgment and Order dated 6th February, 1997 was convicted of an offence punishable under Section 304, Part I of Indian Penal Code. The incident had taken place on 6th January, 1989. This Court following the Judgment in the case of Rama Narang (1995 (2) SCC 513) (supra) and also relying on the Judgment of the Andhra Pradesh High Court in the case of V. Sundararamireddi v. State, 1990 Cri LJ 167, held that the Court had the power to suspend conviction and sentence under Section 389 of Criminal Procedure Code. Therefore, considering the law declared by the Apex Court and as applied by the Division Bench to an election to the Municipal Corporation, I have no reason not to hold that this would also apply to the case of an election petition. The submission on behalf of the petitioner was that the suspension at the highest was qua the Act and not qua the Representation of the People Act. Once the conviction itself is suspended under the Criminal Procedure Code, in the eyes of law there will be no conviction and sentence on the date when the nomination papers are filed and consequently the candidate could have contested the election.

12. It was then contended that the Judgment of Vishnu Sahai, J. in Criminal Application No. 2201 of 1998 is not binding on this Court as this Court while deciding election petition is an Election Tribunal. The argument does not impress me at all. Under the Representation of the People Act, under Section 80A an election petition has now to be presented to the High Court having jurisdiction to try an election petition. Such jurisdiction is to be exercised ordinarily by a single Judge. Even if this exercise of power of filing an election petition before a single Judge of the High Court, is considered that it is an Election Tribunal, nonetheless that would make no difference. As stated in Rama Narang's case (1995 (2) SCC 513) (supra), the Court granting suspension of conviction and sentence must be informed of the reason as to why conviction is to be suspended. The need to discuss the issue if and at all would have arisen if the Respondent had not disclosed the fact and the need for conviction and sentence to be suspended. The learned single Judge after considering the said objection, was pleased to suspend the sentence and conviction. Once that be so, there is no merit in the said submission. Once there was jurisdiction whether it was rightly exercised or not is not a matter for this Court to go into. That is a discretionary order. The learned Judge having exercised the discretionary power for reasons set out in the order of the learned single Judge I have no reason whatsoever to interfere with the said reasons even assuming I had such power, which I am doubtful I would have, even if the observation in Rama Narang's case are considered. In my opinion therefore on the date of filing of the petition as also on the date of the scrutiny of the nomination papers as also on the date of the election, the Respondent was duly qualified to contest and being elected.

13. Considering what has been discussed above, clearly therefore, it cannot be said that the candidate was not qualified or was disqualified to be chosen to fill the seat under the Constitution or the Act. The suspension of sentence and conviction was before the filing of the nomination papers. It is not a case of any intervening circumstances between the date of filing of the Nomination, scrutiny and the election. That being the case, as on the date of the scrutiny of nomination paper the sentence and conviction was suspended, there was no ground also available under Section 100(1)(d)(i) of the Representation of the People Act even if an objection had been raised. In this case the returning officer had rejected the objection.

14. With that we now come to the Issues No. 1. Insofar as this issue is concerned, the issue pertains to the verification of the election petition. The contention is that the petition is not verified in accordance with the provisions of Section 81(1)(c) of the Representation of the People Act and as per Order VI, Rule 16 of the Code of Civil Procedure and as per Rules 44 and 45 of the Bombay High Court (Original Side) Rules. In the instant case, it is already held that there was no cause of action in the petitioner to maintain the petition. Assuming for a moment that there is a defect in verification, the Apex Court has now clarified that it is not a defect which goes to the root of jurisdiction but is curable. The petitioner in the event the Court comes to the conclusion that the verification is defective has sought leave of the Court to amend the verification clause. I have occasion to consider this aspect in the case of Anandrao Gaghoji Patil v. Balasaheb alias Shamrao Pandurang Patil in Election Petition No. 14 of 1999 wherein by an order dated 29th March, 2000*. I have held that the defect in verification relying on the judgments of the Apex Court, is an irregularity which can be cured. Consequently leave to the petitioner in the alternative and if so required to carry out the amendment to the verification clauses. Issue No. 1 has to be answered accordingly.

15. It was then pointed that the copy of the petition supplied was not a true copy as contemplated by Section 83(2) of the Representation of the People Act for the reasons as set out in paragraphs 3 to 3(u) of the Written Statement. That is Issue No. 2. The election petition can be dismissed under Section 86 which does not comply with the requirement of Sections 81, 83 or Section 117. Under Section 81, an election petition has to be presented on one or more grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court, by any candidate or elector within 45 days from, but not earlier than, the date of election of the returned candidate. Every election petition shall be accompanied by as many copies thereof as Respondents mentioned therein, and every such petition shall be attested by the petitioner under his own signature to be a true copy of the petition. On the consideration of the petition served on the respondent and after examining what according to the Respondent are the deficiencies, in my opinion are not deficiencies which would result in the petition filed to be treated not as an election petition. Once that be the case, the objection under Section 81 has to be rejected. Insofar as Section 83 is concerned there is also compliance with the said requirement. Once that be so, the objection thereto has also to be rejected. It has not been contended that there is non-compliance with Section 117. In view of that issue No. 2 will also have to be answered in the negative.

16. Having said so, the petition fails to disclose any cause of action and as such is not maintainable. Petition is dismissed.

Costs by the petitioner quantified at Rs. 5,000/- in favour of the Respondent. The amount deposited as security by the petitioner to be paid to the Respondent towards satisfaction of costs.

All parties concerned to act on the ordinary copy of this order duly authenticated by the Associate of this Court. A copy of the order duly authenticated by the Probationary and Senior Master be sent to the Office of the Election Commissioner and to the Honourable Speaker of the Legislative Assembly of the State of Maharashtra.

P.A to give copy of this order to the parties concerned.

Certified copy expedited.

Order accordingly.