S.A.BOBDE, CJI. - (1.) An interesting but important question of far-reaching consequence arises for consideration in these appeals. It is this. "Whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha, in the forenoon on the date of election, would become invalid, consequent upon his disqualification, arising out of a conviction and sentence imposed by a Criminal Court, in the afternoon on the very same day?"
(2.) We have heard learned counsel for the parties.
(3.) The brief facts sufficient for answering the issue arising for consideration in these appeals are as follows: - (i) By a notification dated 05.03.2018, the Election Commission of India notified the biennial elections for two seats in the Council of States from the State of Jharkhand; (ii) Three candidates by name Pradeep Kumar Sonthalia, Samir Uraon and Dhiraj Prasad Sahu, filed their nominations on 12.03.2018. It is stated that the first two candidates belonged to the Bharitya Janata Party (BJP), and the third candidate belonged to the Indian National Congress (INC); (iii) On 23.03.2018, the election was held between 9.00 A.M. and 4.00 P.M. at the Vidhan Sabha. A total of 80 members of the Legislative Assembly of the State of Jharkhand cast their votes; (iv) One Shri Amit Kumar Mahto who was an elected member of the Assembly belonging to Jharkhand Mukti Morcha Party (JMM) admittedly cast his vote at 9.15 A.M. on 23.03.2018; (v) As fate (not of the voter but of the contestant) would have it, Shri Amit Kumar Mahto was convicted by the Court of the Additional Judicial Commissioner XVIII, Ranchi, in Sessions Trial No.481 of 2010, for the offences punishable under Sections 147, 323/149, 341/149, 353/149, 427/149 and 506/149 IPC, on the same day, but the conviction and sentence were handed over at 2.30 P.M. He was sentenced to various periods of imprisonment for those offences, but all of them were to run concurrently. The maximum punishment was for the offence under Section 506/149 and the Court awarded RI for a period of two years; (vi) Since the election to the Council of States is by a system of proportional representation by means of single transferable vote, the counting of votes began at 7.30 RM on 23.03.2018. Out of the 80 votes cast, two were declared invalid by the Returning Officer. The remaining 78 votes, which were validly cast, were converted into points (at the rate of 100 points per vote) and Pradeep Kumar Sonthalia was declared to have secured 2599 value of votes, Samir Uraon was declared to have secured 2601value of votes and Dhiraj Prasad Sahu was declared to have secured 2600 value of votes. Thus, the election petitioner was declared defeated and the other two, declared duly elected; (vii) It appears that an objection was lodged at 11.20 P.M. requesting the Returning Officer to declare the vote cast by Shri Amit Kumar Mahto invalid, on the basis of the conviction and sentence imposed in the afternoon on the same day by the Criminal Court; (viii) However, the Returning Officer went ahead and declared the results at 12.15 A.M. on 24.03.2018. Shri Samir Uraon and Shri Dhiraj Prasad Sahu were declared by the Returning Officer to be duly elected and they were also issued with a certificate in Form No. 24 in terms of Rule 85 of the Conduct of Election Rules, 1961; (ix) Therefore, Pradeep Kumar Sonthalia, the defeated candidate filed an election petition in Election Petition No.01/2018, praying for a declaration that the Returning Officer has caused improper reception of the void vote of Shri Amit Kumar Mahto. He also prayed for setting aside the election of Shri Dheeraj Prasad Sahu with a consequential declaration that the petitioner was duly elected as a member of Rajya Sabha; (x) The High Court framed as many as 6 issues for consideration in the Election Petition and they are as follows: - 1. Whether Shri Amit Kumar Mahto has cast his vote in favour of respondent no. 1 in Biennial Election to the Council of States, 2018 in connection with State of Jharkhand? 2. Whether on conviction and sentence of two years in Sessions Trial No. 481 of 2010 by the Additional Judicial Commissioner-XVIII, Ranchi, Shri Amit Kumar Mahto ceased to be a Member of Legislative Assembly and his disqualification came into effect immediately from the date of his conviction and sentence of two years and, therefore, the vote of Shri Amit Kumar Mahto could not have been taken into consideration at the time of counting? 3. Whether the disqualification of Shri Amit Kumar Mahto rendered his vote void/illegal that was cast to respondent no.1 and, therefore, reception of his vote was improper and, thus, in terms of Section 100 (1) (d)(iii) of the Representation of People Act, 1951, the election of respondent no. 1 is liable to be declared void? 4. Whether the communication from the Returning Officer (e-mail dated 24.03.2018) rejecting the objection made on behalf of the petitioner on the ground that the Returning Officer had not received the judgment of conviction of Shri Amit Kumar Mahto till the declaration of the results, is absolutely illegal and unlawful? 5. Whether disqualification of Shri Amit Kumar Mahto in terms of Section 8 (3) of the Representation of People Act, 1951, takes effect from the date of his conviction and sentence of two years i.e. 23.03.2018 which means the day as per English calendar beginning at midnight and covering a period of 24 hours i.e. with effect from 23.03.2018 at 00.00 hours? 6. The respondent no. 1 having been declared to be elected in the Biennial Election to the Council of States - 2018 by a margin of 0.01 vote and in the event, the vote of Shri Amit Kumar Mahto which has been received improperly is ignored, then whether the petitioner is entitled to be declared successful and consequently for being elected as a Member of Rajya Sabha? (xi) By a judgment dated 17.01.2020, the High Court dismissed the Election Petition, after recording a finding in favour of the election petitioner on Issue Nos. 1, 2, 3 and 5. On Issue Nos. 4 and 6, the High Court did not record any finding. (xii) Despite deciding Issue Nos. 1, 2, 3 and 5 in favour of the election petitioner, the High Court refused to grant any relief to the election petitioner, primarily on the ground that the election to the Council of States by a system of proportional representation by means of single transferable vote, is a highly complex, technical issue and that it is not possible for the Court to find out whether the election petitioner could have won the election, if that one vote had been rejected; (xiii) Finding that the surgery was successful but the patient died, the election petitioner has come up with one appeal in Civil Appeal No.611 of 2020. Aggrieved by the findings on Issue Nos. 1, 2, 3 and 5, one of the two returned candidates, namely Shri Dhiraj Prasad Sahu, has come up with the other appeal namely Civil Appeal No.2159 of 2020.For the purpose of convenience, we refer to the appellant in Civil Appeal No. 611 of 2020, as the appellant throughout and the appellant in the other appeal as the returned candidate. ;