Saritha S. Nair vs Hibi Eden

219 in Chapter XVI, these rules govern the procedure for institution and trial of election petitions – There is nothing to indicate in the Rules that the designated Judge was powerless to return the petition to petitioner for curing the defects – The High Court was wrong in thinking that the defective verification of the election petition was a pointer to the game plan of the election petitioner after making serious allegations against former Chief Minister – High Court should have given opportunity to the petitioner to cure defects before reaching such conclusion – No motives motives could have been attributed to the petitioner, only because she made serious allegations against someone – The defect in the prayer made by the petitioner was also a curable defect – As far as effect of punishment by criminal court is concerned, the suspension of the execution of the sentence would not alter or affect the conviction and that therefore such a person would remain disqualified u/s.8(3) of the 1951 Act – The Appellate Court has ample powers u/s.389(1) of the Code, to stay the conviction as well as the sentence and that wherever a stay of conviction has been granted, the disqualification will not operate – In the instant case, the disqualification u/s.8(3) of the 1951 Act will continue so long there is no stay of conviction – The petitioner only obtained a stay of execution of the sentence and could not obtain stay of conviction – Hence, her nominations were validly rejected.

Dismissing the Special Leave Petition, the Court

HELD: 1. The upshot of the various Supreme Court decisions is that a defective verification is a curable defect. An election petition cannot be thrown out in limine, on the ground that the verification is defective. [Para 43][652-C-D]

2. Therefore, the High Court committed a grave error in holding the 3 defects mentioned as incurable. The defects are curable and as rightly contended by the counsel for the petitioner, an opportunity to cure the defects ought to have been given. Instead, the election petition was posted before Court without numbering, in view of the defects noticed. The Court directed the petition to be numbered subject to arguments on the curability of defects. Thereafter notices were issued to the respondents in the election petition and finally the order impugned herein was passed after hearing both sides. The High Court did not even rely upon any rule framed by the High court to follow the said procedure. [Para 44][652-D-F]

3. The manner in which Rule 210 of the Rules of High Court of Kerala, 1971 has been worded gives an impression as though an election petition should be placed bef ore the Judge, immediately after it is registered, for passing Orders under Section 86(1). If the petition is not dismissed under Section 86(1), summons should be issued to the respondents on the direction of the Judge. In the case on hand the designated Judge before whom the election petition was listed as defective, chose to issue summons to the respondents, calling upon them to argue on the curability of defects as well as the maintainability of the petition. There is nothing to indicate in the Rules that the designated Judge was powerless to return the petition to the petitioner for curing the defects. [Para 46][653-B-D]

4. The procedure adopted by the High Court of Kerala cannot be approved. The High Court was wrong in thinking that the defective verification of the election petition was a pointer to the game plan of the election petitioner to disown the pleadings at a later stage, especially after making serious allegations against the former Chief Minister. If only the High Court had given an opportunity to the petitioner to cure the defects in the verification and if, despite such an opportunity, the petitioner had failed to come up with a proper verification, the High Court could have then held the petitioner guilty of playing hide and seek. The failure of the High Court to give an opportunity to cure the defects is improper. [Para 47][653-D-F]

5. The defect in the prayer made by the petitioner was also a curable defect, as the words “as void” were omitted to be included, making the prayer as it existed, meaningless. It is true that the election petitioner should have been more careful and diligent in incorporating an appropriate relief and making a proper verification. But no motives could have been attributed to the petitioner, only because she made serious allegations against someone. Hence, this Court holds on the first issue that the defects in the verification and prayer made by the petitioner were curable and an opportunity ought to have been given to the petitioner to cure the defects. [Para 48][653-F-H]

6. A Constitution Bench of this Court held in B.R. Kapur vs. State of Tamil Nadu that an order of the appellate/revisional Court suspending the sentence of imprisonment has to be read in the context of Section 389 of the Code of Criminal Procedure and that under the said provision, what is suspended is only the execution of the sentence and not the sentence itself. The Constitution Bench made it clear that the suspension of the execution of the sentence would not alter or affect the conviction and that therefore such a person would remain disqualified under Section 8(3). In fact, in B.R. Kapur a person whose nomination was rejected on the ground of disqualification, got elected as the leader of the party which secured majority in the elections and became the Chief Minister and hence Article 164 was pressed into service. But even the same was rejected on the ground that a person who was disqualified from contesting the elections, cannot take the route of Article 164. [Para 57][655-B-E]

7. Possibly taking cue from what was observed in B.R. Kapur, a challenge was made to Section 8(4) in Lily Thomas vs. Union of India on the ground that it is ultra vires the Constitution. While declaring the said provision to be unconstitutional, this Court held in Lily Thomas that a Member of Parliament or the State Legislature who suffers a frivolous conviction, will not be remediless. Taking note of the decisions in Rama Narang vs. Ramesh Narang and Ravikant S. Patil vs. Sarvabhouma S. Bagali this Court held in Lily Thomas that the appellate Court has ample powers under Section 389(1) of the Code, to stay the conviction as well as the sentence and that wherever a stay of conviction itself has been granted, the disqualification will not operate. [Para 59][655-G-H; 656-A-C]

8. Just as the observations made in B.R. Kapur led to a challenge to Section 8(4) of the Act in Lily Thomas, the discussion in Lily Thomas about the power of the appellate Court to stay the conviction as well as the execution of sentence, led to another bout of litigation. In Lok Parhari vs. Election Commissioner of India the petitioner sought a declaration that even a stay of conviction by the appellate Court will not have the effect of wiping out the disqualification. The contention of the petitioner was that the law does not provide for stay of conviction. But this Court rejected the challenge on the ground that the decisions in Rama Narang and Lily Thomas clinched the issue in this regard. [Para 60][656-C-E]

9. Therefore, in effect, the disqualification under Section 8(3) will continue so long as there is no stay of conviction. In the case on hand, the petitioner could not obtain a stay of conviction but obtained only a stay of execution of the sentence. Hence her nominations were validly rejected by the Returning Officer. Merely because the Returning Officer in Amethi Constituency committed an error in overlooking this fact, the petitioner cannot plead estoppel against statutory prescription. [Para 61][656-E-F]

B.R. Kapur v. State of Tamil Nadu (2001) 7 SCC 231:[2001] 3 Suppl. SCR 191 – followed.

Murarka Radhey Shyam Ram Kumar v. Roop Singh

Rathore AIR (1964) SC 1545:[1964] 3 SCR 573; F.A. Sapa v. Singora (1991) 3 SCC 375:[1991] 2 SCR 752 ; Sardar Harcharan Singh Brar v. Sukh Darshan Singh (2004) 11 SCC 196:[2004] 5 Suppl. SCR 682 – relied on.

R.P. Moidutty v. P.T. Kunju Mohammad (2000) 1 SCC 481; K.K. Ramachandran Master v. M.V.

Sreyamakumar (2010) 7 SCC 428:[2010] 7 SCR 712; P.A. Mohammed Riyas v. M.K. Raghavan (2012) 5 SCC 511:[2012] 4 SCR 56; G.M. Siddeshwar v. Prasanna Kumar (2013) 4 SCC 776; Lily Thomas v. Union of India (2013) 7 SCC 653:[2013] 10 SCR 1130; Rama Narang v. Ramesh Narang (1995) 2 SCC 513:[1995] 1 SCR 456; Ravikant S. Patil v. Sarvabhouma S. Bagali (2007)

1 SCC 673:[2006] 8 Suppl. SCR 1156 – referred to.