http://www.thehindu.com/2001/04/10/stories/13100641.htm No disqualification when an appeal is pending THE RATIO, RATIO, logic and the principles of the doctrines d octrines of sub judice, lis pendens, res judicata, autrefois acquit, autrefois convict and the binding judicial precedents and Articles 14, ! and 1 of the "onstitution bar the disqualification under #ection $ of the Representation of the %eople Act &hen an appeal against the judg'ent of conviction is pending, a fortiorari ('uch 'ore so or applies &ith greater force or reason) &hen the judg'ent of conviction (either sentence or conviction or both) is suspended or sta*ed pending the appeal+ The High "ourt also has an inherent po&er to suspend or sta* the conviction co nviction &hen, on appraisal of facts, considers it necessar* in order to 'eet the ends of justice and avoid grave injustice happening or prevent irreparable &rong or da'age or hardship that is liel* to happen, to put an end to a controvers* and bar 'ultiplicit* of proceedings or even b* &a* of abundant caution+ -"onviction. 'eaning /nder subsections (1), () and (0) of #ection $ , the disqualification starts fro' the date of conviction+ As held b* the #upre'e "ourt in Ra'a arang.s case 1223 () #"" 310 unlie under the Repealed "ode of "ri'inal %rocedure 1$$$, the ne& "ode of 120 provides for t&o stages in the trial+ 5irst, recording a finding of guilt and the second, questioning the accused on o n the question of sentence and delivering the judg'ent i'posing sentence+ The recording of a finding is not an order or judg'ent and is not appealable+ The appeal provisions in the "ri'inal %rocedure "ode 120 12 0 (hereafter referred to as "ode) also 'ae this clear+ A judg'ent &here a person is found guilt* and sentenced is called --conviction.. and a judg'ent finding not guilt* is called --acquittal..+ The la& does not envisage a person being convicted for an offence &ithout a sentence+ #entence is nor'all* i'prison'ent or fine or both+ In relation to an offence, -sentence. includes an* order 'ade b* a court &hen dealing &ith an offender and an order under #ections 036, 03, 032 7 06! is contingent on the finding of guilt gu ilt and falls &ithin the 'eaning of --sentence.. and a ppealable+ It 'a* be that in an appeal *ou can challenge both the finding of guilt and sentence or restrict to the question of sentence alone as e8cessive or disproportionate or on an* other ground+ One 'a* question the finding of guilt alone as in the case &here he had alread* undergone the sentence in order to erase the stig'a resulting in the finding of g uilt also (vide 122(4) #"" 6!!)+ At the ti'e (in 1231) &hen Representation of the %eople Act &as enacted, the &ord -conviction. is used onl* to denote the judg'ent &herein the court finds the accused guilt* and i'poses a sentence on hi' and there &ere no t&o stages referred to above+ The &ord -conviction. is thus a s*non*' for judg'ent in &hich a person p erson is found guilt* of an offence and senten ced+ The date of judg'ent is the date on &hich the sentence on the accused is passed, and the &ords -fro' the date of conviction. in #ection $ has to be read and understood as -fro' the date of judg'ent.+
Effect of filing an appeal Though it 'a* be correct to sa* that a finding of guilt or conviction does not disappear or cease to e8ist on the filing of an appeal, it is &ell settled that the finalit* attached to the finding of guilt or conviction is set at large on filing of an appeal and the finding or the sentence or both can be altered or varied b* the appellate court+ It is &ell settled that the ad'ission of an appeal against a judg'ent of acquittal under #ection 0$ has the effect of reviving the proceedings against an accused person &ho has been acquitted and therefore the appellate court can order the arrest of such persons pending the appeal (E'press of India v 9angu I:R A:: 04! and ;ueen v hen an appeal is filed the finalit* of the judg'ent of the trial court disappears and the &hole issue is in a flu8 afresh (vide 12$3 cri'inal la& journal 3$4 %atna)+ ?ate of conviction in #ection $ The #upre'e "ourt has held, in ?ilip v #tate of 9+%+ AIR 126 #" 100, 9anni :al v %ar'ai :al AIR 121 #" 00!, @+ "+ #hula v %urshotta' AIR 12$1 #" 34, as a general principle of la& that if an appeal filed against an order of conviction and sentence is allo&ed, the conviction and sentence beco'es nonest and the judg'ent in the appeal operates &ith retrospective effect and an*thing done on the basis of the conviction beco'es null and void+ In @+ "+ #hula.s case, the no'ination of 9r+ #hula &as accepted b* the Returning Officer even though on the date of no'ination his conviction &as in force and not even suspended+ On behalf of the unsuccessful candidate it &as argued that the phrase -date of such conviction. occurring in subsection () of #ection $ of the Act 'eant the date of th e initial conviction and not the date of the final conviction and that if the phrase &as construed as referring to the date o f the final and ulti'ate conviction on ter'ination of a judicial process in the hirerarc* of courts, subsection (0) &hich is no& subsection (4)! &ould be redund ant+ This argu'ent &as not accepted b* the learned judges+ In AIR 126 #" 100 the #upre'e "ourt construing the &ords undergoing a --sentence of i'prison'ent for life.. on the date &hen he co''itted another --offence of 'urder.. in #ection 0!0 of I%", after setting out the possible &a*s the trial court could have dealt &ith it, held that
the phrase --being under sentence of i'prison'ent for life.. taes in onl* that sentence of i'prison'ent &hich under the la& being the ulti'ate end product of the entire ga'ut of litigation fought on the hirerac* of courts has beco'e final, conclusive and indefeasible and as such is not liable to be i'pugned, annulled or voided b* further judicial action..+ On the ratio of these judg'ents there could be no doubt that conviction and sentence referred to in #ection $ is the final judg'ent against &hich no appeal or revision lies+ Another situation It is useful to note one other situation, &hich is not i'possible or cannot be said to be unliel*, &here ti'e is given under #ection 03 () to the accused to 'ae his representation on the question of sentence, and the case is adjourned for that purpose and in the 'eanti'e the date for scrutin* of no'ination co'es in+ "an the Returning Officers reject the no'ination on the ground that there is a finding of guilt or conviction though it is not follo&ed b* a judg'ent and sentence+ Obviousl*, he could not+ Another aspect to be ept in 'ind is that if the disqualification had alread* been given effect to &hen the appeal &as allo&ed, it &ould not be possible of restitution, in the sense of annulling the &rong done, and an illegal and irreparable da'age &ould have been perpetrated b* the &rong judg'ent of the trial court+ The legislation &ould not have intended this injustice to happen+ On the other hand, if the appeal against the conviction is dis'issed, it &ould be p ossible to i'pose the disqualification fro' the date of the final appellate judg'ent+ If the candidate had been elected he &ould cease to be a 9e'ber of %arlia'ent or legislature+ ot evidence A judg'ent in a cri'inal case is a judg'ent in persona'+ It is evidence in an* collateral proceedings onl* insofar as it states that a person &as charged for a particular offence or he is convicted or acquitted of that charge+ Ho&ever even for this purpose onl* a judg'ent &hich is indefeasibl* final can be ad'itted as evidence and not one &hich is subject 'atter of an appeal+ >hether the judg'ent or the sentence is suspended or not, once an appeal against a conviction is ad'itted, the entire 'atter beco'es sub judice and the judg'ent of the trial court ceases to have an* evidentiar* value in an* collateral proceedings+ #ub judice 'eans a 'atter or the finding is under judicial consideration and therefore prohibited fro' public discussions or use else&here than in the court &here it is pending+ It is not open to an* third part* to rel* on the finding of the trial court in an* collateral proceedings as conclusive or established against the person proceeded a gainst in the cri'inal case+ The doctrine of lis pendens 'eans that &hen a lis (dispute or case) is pending consideration in a court an*thing done &hich affects the ulti'ate judg'ent beco 'es null and void+ In 12$ (0) #"" 344, speaing for the court, =ustice @+ R+ Brishna I*er, held that in a cri'inal case the right of filing an appeal is part of natural justice and this is 'anifest in Article 1 of the "onstitution+ He further observed --&hat follo&s fro' this appellate i'perativeC Ever* step that 'aes the right of appeal fruitful is obligator* and ever* action or inaction &hich stultifies it is unfair and
ergo unconstitutional..+ Thus if the finding of guilt b* the trial court has an* consequence or effect in a collateral proceeding under #ection $, the provision #ection $ itself &ill be vulnerable to attac as unconstitutional and ultra vires of Articles 14, ! and 1 of the "onstitution+ A decision or a judg'ent in a prior case could op erate as res judicata and bar the trial of an identical issue in a subsequent proceeding+ It is the settled la& &hen a judg'ent of a court of first instance is appealed against it ceases to be res judicata (vide AIR 1234 9?# 360D I:R 11 A:: 14$ 5D 02 "A: 23 to cite a fe& cases)+ It is no& &ell settled that the ratio and the principles of #ection 11 "%" are a general principle of la& and are applicable to all proceedings of a judicial or quasi judicial nature+ It is the sa'e principle &hich is incorporated in Article ! () of the "onstitution in relation to "ri'inal :a& &hich provides that no person shall be prosecuted and punished for the sa'e offence 'ore than once+ It is no&n in :atin as autrefois acquit or autrefoisconvict+ Autrefois convict or autrefois acquit 'eans that the accused has been previousl* convicted or acquitted on a charge for the sa'e offence as that in respect of &hich he is arraigned+ Ho&ever in order to appl* this principle, the judg'ent of conviction shall be a final judg'ent and not one against &hich an appeal is pending+ There shall be conclusive evidence to prove prior conviction and sentence+ A judg'ent of the trial court &hich is under appeal is not final or conclusive and could not be relied on as evidence+ This is in consonance &ith the ratio, logic and the &ell settled principles of sub judice, lis pendens, res judicata, autrefois acquit and autrefois convict+ An* other construction &ould void #ection $ (1) () 7 (0) as violative of Articles 14, ! and 1 of the "onstitution+ In the proceedings for acceptance or rejection of the no'ination, the Returning Officer shall act judiciall* and it is in the nature of a quasi judicial proceeding+ It is also a collateral proceeding so far as the cri'inal case is concerned and if an* judg'ent against a candidate &ho had filed the no'ination paper for acceptance is produced as evidence to prove disqualification under #ection $, such judg'ent should be a final judg'ent in the sense that there is no further appeal or revision against it, and it is not subject 'atter of an appeal+ Effect of suspension of sentence The -sentence. for the required period is a conjunctive or additional require'ent and therefore unless there is a sentence of i'prison'ent subsection () or (0) could not be attracted+ >hen the sentence to i'prison'ent is suspended, on the language used, subsections () and (0) cannot operate+ In Ra'a arang.s case, the #upre'e "ourt held that though conviction b* itself is not e8ecutable, it 'a*, in certain situations, as in the case of appoint'ent of 9anaging ?irector in a co'pan*, b* reason of #ection 6 of the "o'pan *.s Act+ The decision related to appoint'ent in a co'pan* &hich is contractual and not "onstitutional as in the case of an election+ Therefore in the opinion of the author of this article, it is not an authorit* for a general proposition that unless --conviction.. is also suspended, it 'a* operate as a disqualification+
The vie& of the author is consistent &ith the unifor' earlier decisions of the #upre'e "ourt &here the court has taen the vie& that the conviction &hen set aside in appeal beco'es nonest as if it never e8isted, and the various other aspects noted in this article+ Art+ 011 () cases /nder the first proviso to Art+ 011 (), --&here a person is dis'issed or re'oved or reduced in ran on the ground of conduct &hich has led to his conviction on a cri'inal charge,.. the procedure of fra'ing charges and enquir* and giving reasonable opportunit* of being heard in respect of the charges need not be follo&ed+ "onstruing this provision, the 9adras, %unjab and Allahabad High "ourts have held in AIR 1261 9adras 4$6, 1232 %unjab 4!1, and 1261 A:: 006 that conviction here can have onl* one 'eaning, and that is the person 'ust have been convicted finall*+ >hen the "entral
If in the sa'e illustration, he has been convicted and sentenced before the election he &ould be disqualified+ The dela* in the trial is the onl* reason for discri'ination+ It is a &ell no&n principle of construction of statutes that a provision &ill have to be construed so as not to bring in unreasonable classification but in such a &a* as not to operate discri'inatel* and thus avoid discri'ination+ A discri'ination could and &ill be avoided if, as &e have seen alread*, the phrase convinction and sentence in subsections (1), () and (0) is construed and interpreted as 'eaning final order o f conviction and sentence &hich is not defeasible or capable of being voided or annulled b* further judicial action+ The provisions of #ection $ (1), () and (0) also cannot be interpreted or their 'eaning curtailed b* reason of the special provision lie #ection $ (4)+ #ubsection (4) is not an e8ception to subsections (1), () and (0)+ It is also not unco''on to find such redundant provisions in statutes and the #upre'e "ourt and the various High "ourts have noticed 'an* cases of such redundanc* but on that ground the 'eaning of another provision cannot be restricted+ An* other approach or construction &ill, in the opinion o f the author, invalidate the provisions as ultra vires of Articles 14, ! and 1 of the "onstitution+ There is also another rule of construction, that is, if a provision is vulnerable to attac on the ground of discri'ination, the court could appl * &hat is no&n as the principle of affir'ative action to the question b* appl*ing the beneficial provision restricted to a class or group as applicable also to those &ho are left out of the class or group+ In this case also for the various reasons 'entioned above, one has to construe subsections (1), () and (0) as having the sa'e contents as in subsection (4), and thus avoid a conflict or discri'ination+ The decision of the #upre'e "ourt in 12$ (0) #"" 344 alread* referred to is an authorit* for the proposition that if the finding of guilt b * the trial court has an* consequence or effect pending the appeal, in a collateral proceeding, that provision itself &ill be vulnerable to attac as unconstitutional and ultra vires of Articles 14, ! and 1 of the "onstitution+ ?irections of the E" It is stated that the Election "o''ission had given directions in August 122 to the Returning Officers to the effect that --disqualification of candidature for election under this #ection &ould co''ence fro' the date of conviction regardless of &hether the -sentence. is sta*ed and the person intending to be a candidate is out on bail or not..+ As 'a* be seen fro' the directions given that related to a case &here --sentence.. alone is suspended+ This vie& is neither based on an* legal principles nor on an* binding precedence+ In fact, 12$! 9% 1$$ &hich &as the earliest in &hich this vie& &as adu'brated, the #upre'e "ourt reversed the judg'ent+ It is also doubtful &hether such a direction at all could be given b* the Election "o''ission in e8ercise of its po&er under Article 04, &hich interferes or has the tendenc* to interfere &ith the decision of the Returning Officer &ho has to e8ercise his independ ent judicial 'ind in the deter'ination of the question on disqualification+
In fine, &e shall re'e'ber that &e are a great de'ocrac* and the construction or interpretation of an* provision in the Representation of the %eople Act shall be such as to foster de'ocrac* and have least interference &ith the effectuation of the sa'e and the people shall be per'itted to choose a person of their choice to govern the'+ =/#TI"E @+ RA9A#>A9I 5or'er #upre'e "ourt =udge
