Pradeep Kumar Sonthalia vs Dhiraj Prasad Sahu @ Dhiraj Sahu & Anr.

(i) either for being chosen as (ii) or for being, a member of the State Legislative Assembly. The language of Article 191 makes it clear that it covers both a contest in an election and the continuance in office after getting elected. If a person, being a member of the Assembly, suffers a disqualification, his seat becomes vacant. This situation is taken care of by Article 190. The event which causes the disqualification under Article 191(1)(e) read with Section 8(3) is a conviction of a person for any of the specified offences. The consequence of such disqualification is that the seat becomes vacant. Obviously therefore, a Member of the Legislative Assembly who has become disqualified and whose seat has become vacant is not entitled to cast his vote for electing a representative from his State under Article 80(4) which provides that the representatives of each State “shall be elected by the elected members”. His name is liable to be deleted from the list of members of the State Legislative Assembly maintained under Section 152 of the Representation of the People Act, 1951. He ceases to be an elector in relation to election by assembly member and cannot cast his vote. [Paras 11-13][492-G-H; 493-A-H; 494-A-F]

1.2 The Representation of the People Act, 1951 was enacted for the purpose of providing for the conduct of elections of both houses of Parliament and to the House/Houses of State Legislatures, the qualifications and disqualifications for membership of those houses, the corrupt practices etc. Section 8 of the Act deals with disqualification on conviction for certain offences. For the purpose of disqualification, the offences are classified in section 8 into 3 categories. The present case is concerned with sub-section (3) of section 8, as Amit Kumar Mahto was convicted for offences which do not fall either under subsection (1) or under sub-section (2). The disqualification under Section 8 of Act 43 of 1951 is relatable to Article 191(1)(e) of the Constitution. Therefore, any interpretation to Section 8 should be in sync with the Constitutional scheme. [Paras 14, 16 and 17][494-F-H; 495-B-E]

1.3 Section 8(3) of the Act deals both with the conditions of disqualification and with the period of disqualification. As regards the period of disqualification, Section 8(3) is comprehensive in that it indicates both the commencement of the period and its expiry. The date of conviction is prescribed to be the point of commencement of disqualification and the date of completion of a period of six years after release, is prescribed as the point of expiry of the period of disqualification. Once the period of disqualification starts running, the seat hitherto held by the person disqualified becomes vacant by virtue of Article 190(3) of the Constitution. While speaking about the seat of the disqualified person becoming vacant, Article 190(3) uses the expression “thereupon”. This has to be kept in mind while interpreting the words “the date of such conviction”. One fundamental principle that has to be kept in mind while interpreting the phrase appearing in Section 8(3) is that in cases of this nature, the Court is not dealing with a fundamental right or a common law right. [Paras 18-20][495-F-H; 496-A-F]

Saritha S. Nair vs. Hibi Eden Decision of Supreme Court dated 08.12.2020 in SLP (C) No. 10678 of 2020; Jyoti Basu vs. Devi Ghosal (1982) 1 SCC 691:[1982] 3 SCR 318 – relied on.

2.1 Even in criminal law, there is a vast difference between

(i) the interpretation to be given to the expression “date”, while calculating the period of imprisonment suffered by a person and

(ii) the interpretation to be given to the very same expression while computing the period limitation for filing an appeal/revision. Say for instance, a person is convicted and sentenced to imprisonment and also taken into custody pursuant thereto, on 23.03.2018, the whole of the day of March 23 will be included in the total period of incarceration. But in contrast, the day of March

23 will be excluded for computing the period of limitation for filing an appeal. Though one contrasts the other, both interpretations are intended to benefit the individual. Disqualification is not a penal provision and that the object of disqualification is to arrest criminalisation of politics. But what triggered the disqualification in this case, under Section 8(3) was a conviction by a criminal Court, for various offences under the Penal Code. Therefore, the phrase “the date of conviction” appearing in Section 8(3) should receive an interpretation with respect to the penal provisions under which a person was convicted. [Paras 30, 32, 33][499-G-H; 500-C-D]

2.2 The rule that a person is deemed innocent until proved guilty is a long-standing principle of constitutional law and cannot be taken to be displaced by the use of merely general words. In law this is known as the principle of legality and clearly applies to the present case. To hold that a Member of the Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty. In the present case, it would be significant to add that it is not necessary to make a declaration incompatible in the use of the word “date” with the general rule of law since the word “date” is quite capable of meaning the point of time when the event took place rather than the whole day. While it is known that an acquittal operates on nativity, no case has been cited for the proposition that a conviction takes effect even a minute prior to itself. Moreover, the word “date” can be used to denote occasion, time, year etc. It is also used for denoting the time up to the present when it is used in the phrase “the two dates”. Significantly, the word “date” can also be used to denote a point of time etc. To say that this presumption of innocence would evaporate from 00.01 A.M., though the conviction was handed over at 14.30 P.M. would strike at the very root of the most fundamental principle of Criminal Jurisprudence. Inasmuch as a conviction for an offence is under a penal law, it cannot be deemed to have effect from a point of time anterior to the conviction itself. [Paras 34-39][500-D-H; 501-A-H; 502-A-B]

Roget’s International Thesaurus third edition Note 114.4 – referred to.

3. Cases arising under the law of insurance, have no relevance to cases of disqualification. A policy of insurance lies in the realm of contract. Therefore, the interpretation to be given to the terms of such contract would largely depend upon the intent of the parties, with a certain degree of latitude in favour of a party whose bargaining power is not equal to that of other contracting party. It is not possible to adopt the interpretation given to the word “the date” appearing in a contract of Insurance. [Paras 41, 42][502-D-H; 503-A-D]

4. The disqualification arising under Section 8(3) of the Act, is the consequence of the conviction and sentence imposed by the criminal Court. In other words, conviction is the cause and disqualification is the consequence. A consequence can never precede the cause. [Para 43][503-C-E]

5. Article 193 deals with the penalty to be imposed upon an erring member who sits or votes as a member of the Legislative Assembly or the Legislative Council (i) either before he has complied with the requirements of Article 188; (ii) or when he knows that he is not qualified for membership; (iii) or when he knows that he is disqualified from being a Member; (iv) or when he knows that he is prevented by any law from sitting or voting. A disqualification for which penalty is prescribed under Article 193, also invites civil consequences such as the denial of privileges that go with the membership, other than the penalty stipulated in Article 193. Once a person is disqualified, he ceases to be a member and his right to vote also ceases alongwith his membership. This is a natural consequence of a person ceasing to be a member and this consequence is automatic and not dependent upon Article 193. Therefore, Article 193 cannot be stretched to such an extent that even the natural consequences of disqualification of a member will not get attracted because of the prescription of a penalty. Dehors the liability for penalty under Article 193, the act done by the elected member is not liable to be invalidated, but only in certain circumstances. One of them may be a case like the one on hand apart from cases falling foul of Article 188. [Paras 47, 48 and 53][504-C-G; 506-D-E]

6. The acts of the officers de facto performed within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally regarded as valid and binding as if they were the acts of the officers de jure. The de facto doctrine is founded on good sense, sound policy and practical expedience and that it is aimed at the prevention of public and private mischief and the protection of public and private interest. [Para 55][506-G; 507-A-B]

6. It is not possible to hold that the vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 should be treated as invalid on account of the conviction and sentence passed by the criminal Court at 2:30 p.m. on the same day. This conclusion can be drawn through another process of reasoning also. Article 191

(1) of the Constitution deals with five different grounds of disqualification. They are (i) holding an office of profit as specified in the First Schedule; (ii) unsoundness of mind, which stands so declared by a competent Court; (iii) undischarged insolvency; (iv) absence of citizenship of India or acquisition of citizenship of a foreign State etc.; and (v) disqualification by or under any law made by Parliament. The interpretation to be given to the expression “the date” appearing in Section 8(3) of the Representation of the People Act, 1951 will have a bearing upon the interpretation to be given to the date of happening of any one of the above events of disqualification. While it may be convenient for the appellant in this case to interpret the expression “the date” appearing in Section 8(3) with reference to Article 191(1)(e), it may have to be seen whether the same would fit into the scheme of Article 191(1) in entirety. It may not. If tested against each one of Sub-clauses

(a) to (d) of Clause (1) of Article 191 it is found that the interpretation offered by the appellant would not survive. The vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as a valid vote. Therefore, the Civil Appeal No.611 of 2020 is dismissed. Civil Appeal No.2159 of 2020 is allowed, setting aside the findings of the High Court on issue Nos. 2, 3 and 5 framed by the High Court. [Paras 58-62] [508-B-H; 509-A-B]

Pashupati Nath Singh vs. Harihar Prasad Singh AIR 1968 SC 1064:[1968] SCR 812; Prabhu Dayal Sesma vs. State of Rajasthan (1986) 4 SCC 59 : [1986] 3 SCR 665; Tarun Prasad Chatterjee vs. Dinanath Sharma (2000) 8 SCC 649 : [2000] 3 Suppl. SCR 634; B.R Kapur vs. State of T.N. & Anr. (2001) 7 SCC 231 : [2001] 3 Suppl. SCR 191; New India Assurance Company Limited vs. Ram Dayal & Ors (1990) 2 SCC 680 : [1990] 2 SCR 570; National Insurance Company Limited vs. Jijubhai Nathuji Dabhi & Ors. (1997) 1 SCC 66 : [1996]

8 Suppl. SCR 929; State of Madhya Pradesh vs. Centre for Environment Protection Research and Development & Ors. (2020) SCC Online SC 687 – held inapplicable. Union of India vs. M/S G.S Chatha Rice Mills (2020) SCC Online SC 770; Gokaraju Rangaraju vs. State of Andhra Pradesh (1981) 3 SCC 132 : [1981] 3 SCR 474; Pushpadevi M. Jatia vs. M.L. Wadhawan, Additional Secretary, Government of India & ors. (1987) 3 SCC

367 : [1987] 3 SCR 46 – relied on.

K Prabhakaran vs. P Jayaraja, (2005) 1 SCC 754 : [2005] 1 SCR 296; Pashupati Nath Sukul vs. Nem Chandra Jain (1984) 2 SCC 404 : [1984] 1 SCR 939 – distinguished.

New India Assurance Company vs. Bhagwati Devi

(1998) 6 SCC 534 – referred to.

Pierson vs. Secretary of State for the Home Department (1997) 3 All ER 577; K-Generation Pty. Ltd. vs. Liquor Licensing Court, (2009) 83 ALJR 327; In re F.B. Warren (1938) 2 All ER 331; Pulin Behari Das & Ors. vs. King Emperor (1912) 15 Cal.LJ 517 – referred to.