- (1.) THIS appeal under Section 116A of the Representation of the People Act, 1951 (for short, the Act) has been preferred by the elected candidate. The facts are brief and few. The appellant was an elected member of the Karnataka Legislative Assembly which was dissolved in February 2004. By judgment and order dated 28th July 2000, the appellant was convicted and sentenced to undergo imprisonment for a period of seven years by the VI Addl. Sessions Judge, Solapur, in S.C.No.203/1999. Immediately thereafter, Criminal Appeal No.658 of 2000 was preferred by the appellant challenging the judgment of conviction and order of sentence. Pending the appeal, the Bombay High Court granted stay of the execution of the sentence.
(2.) THE fresh elections to Karnataka Legislative Assembly were notified. THE election programme notified was as under: JUDGEMENT_578_JT10_2006Html1.htm THE appellant moved an application in the pending appeal, for stay of the order of conviction dated 28th July, 2000, so that he can contest the election. THE Bombay High Court, by order dated 26th March, 2004, stayed the conviction pending appeal. THEreafter, the appellant filed his nomination on 29th March 2004. THE respondent raised an objection to the acceptance of appellant's nomination contending that the appellant was disqualified under Section 8(1) and (3) of the Act. THE said objection raised by the respondent was rejected by the Returning Officer. THE appellant was declared elected on 13th May 2004. The election of the appellant was challenged by the respondent before the Karnataka High Court on the ground that the appellant was not qualified to contest the election. In the Election Petition, the case set up by the respondent was that on the date of filing of nominations and on the date of declaration of the results, the elected candidate was disqualified for being chosen as a member of the Legislative Assembly, in view of Section 8(1 )(3)(4) of the Act, as he had been convicted for an offence punishable under Sections 366 and 376 of the Indian Penal Code and sentenced to imprisonment for more than two years. During the pendency of the election petition, the appellant's appeal against conviction was allowed by the Bombay High Court by judgment dated 10th September, 2004 and he was acquitted.
(3.) BY the judgment under appeal the High Court relying upon the decision of this Court in K. Prabhakaran v. P. Jayarajan came to the conclusion that the appellant was disqualified to contest the election, in view of the fact that as on the date of nomination, there was a conviction against the appellant which had not been set aside by a higher court. The High Court has opined that the decisive dates are the date of election and the date of scrutiny of nomination and not the date of judgment in an election petition or in appeal against it. Accordingly the election petition was allowed and it was declared that the election and declaration of result of the appellant to the Indian Assembly Constituency were null and void. Article 191 of the Constitution of India provides for disqualification for being chosen as, and for being, a member of the Legislative Assembly of a State, if a person is disqualified by or under any law made by the Parliament. The Representation of People Act, 1951 is the law contemplated by Article 191 (1)(e) of the Constitution. Section 7(b) of the Act defines the expression "disqualified" as under: "disqualified" means disqualified for being chosen as and for being a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State." Section 8 of the Act provides for disqualification on conviction for certain offences. Section 8(1), inter alia, provides that a person convicted of an offence punishable under clauses (a) to (n) thereof shall be disqualified where the affected person is sentenced to imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. The offence punishable under Section 376(1) or (2) is one of the offences enumerated in clause (a) of subsection (1) of Section 8. Sub-section (3) of Section 8 provides that a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. If the nomination of a person is improperly accepted under the Act, it is a ground for seeking declaration that the election of such disqualified candidate be void. The qualification or disqualification is to be determined with reference to the date fixed for scrutiny of the nomination. The subsequent acquittal is not relevant to remove the disqualification as on the date of the scrutiny of the nomination.;