SARAT CHANDRA RABHA AND OTHERS versus KHAGENDRANATH NATH AND OTHERS.

2 S.C.R. SUPREME COURT REPORTS

SARAT CHANDRA RABHA AND OTHERS v.

KHAGENDRANATH NATH AND OTHERS. (B. P. SINHA, c. J., J. L. KAPUR, P. B. GAJENDRAGADKAR, K. SuBBA RAo and K. N. W ANOHOO, JJ.)

Election Dispute-Disqualification-Conviction by Court-Rejection of nomination paper-Remission of sentence by Govern-ment, if operates as reduction of sentence by Court-Inference of consent to corrupt practice from proved facts, if mixed question of fact and law-Representation of the People Act, 1951 (43 of 1951), ss. 7(b), 1oo(r)(b)-Code of-Criminal Proeedure (Act V of 1898), s. 401.

The appellant's nomination paper for election to the Assam Legislative Assembly was rejected by the Returning Officer on the ground of disqualification under s. 7(b) of the Representa-tion of the People Act, 1951, in that he had been convicted and $entenced to three years' rigorous imprisonment under s. 4(b)' of the Explosive Substances Act (VI of 1908) and five years had not expired after his release. The appellant had applied to the Election Commission for removing the said disqualification but it had refused to do so. The appellant's sentence was, how-ever, remitted by the Government of Assam under s. 401 of the Code of Criminal Procedure and the period for which he was actually in jail was less than two years. The Election Tribunal held that the nomination paper had been improperly rejected and set aside the election but the High Court taking contrary view, dismissed the election petition.

Held, that the High Court was right in holding that the appellant was disqualified under s. 7(b) of the Representation of the People Act and that ·his nomination paper had been rightly rejected. That section speaks of conviction and sen-tence by Court and an order of remission of the sentence under s. 401 of the Code of Criminal Procedure, unlike the grant of free pardon, cannot wipe out either the conviction or the sen-tence. Such order is an executive order that merely affects the execution of the sentence and does not stand on the same foot-ing as an order of Court, either in appeal or in revision, reduc-ing the sentence passed by the Trial Court.

Venkatesh Yeshwant Deshpande v. Emperor, A.I.R. 1938 Nag. 513, distinguished.

G11nda Singh v. Sampuran Singh, (1953) 3 E.L.R. 17, over-ruled.

Held, further, that an inference as to whether successful candidate was consenting party to the corrupt practice under

Sa11a-t Chandra Rabha & Other!

Other!

Khagendranath Nath & Olhers

Wanchoo J.

s. 100(1)(b) of the Act from facts found on evidence was ques-

tion of fact and not mixed question of fact and law.

Mecnakshi Mills, Madurai v. The Commissioner of Income-tax, Madras, [1956] S.C.R. 691, referred to.

CIVIL APPELLATE JURISDICTION: Ci vii Appeal No. 375 of 1959.

Appeal from the Judgment and Order dated the 12th August, 1958, of the Assam High Court in First Appeal No. 11 of 1958. ·

L. K. Jha and Sukumar Ghose, for appellants Nos.

1 to 3.

G. S. Pathak a.nd Naunit Lal; for respondents Nos.

1 a.nd 2.

1960. October 27. The Judgment of the Court was delivered by

WANOHOO J.-Thie is a.n appeal ·on a. certificate granted by the Assam High Court in an election matter. An election was held in the double-member constituency of Goalpara to the Assam Legislative Assembly. Nomination papers were filed on the 19th January, 1957, by number of persons including Ani-ram Basumafari (hereinafter ca.lied the appellant). He wa.s a. ca.ndida.te for the seat reserved for scheduled tribes. The nomination paper of the appellant wa.s rejected by the returning officer on the ground tha.t he was disqualified under s. 7(b) of the Representation of the People Act, No. XLIII of 1951, (hereinafter called the Act). The polling took place on February 25, 1957, and Khagendra.na.th and Hakim Chandra. Ra.bha were elected, the latter being member of e. scheduled tribe. Thereupon a.n election petition wa.s filed by a.n elector challenging the election of the two successful candidates on a. number of grounds. Of these grounds, however, only two a.re now ma.teria.l, namely, (1) that the nomination paper of the appel-lant was wrongly rejected, a.nd (2) that corrupt practice was committed by the successful candidates inasmuch as voters were carried on mecha.nica.lly pro-pelled vehicles to the polling booth~. The election tribune.I held on the first point that the nomination

2 S.C.lt. SUPREME COURT REPORTS

paper of the appellant had been improperly rejected. z960 On the second point it held that the corrupt practice a.lleged had not ~een proved. In the result, the elec- ;;;;! ;a;f;.:. t10n was set aside. Thereupon there was an appeal v • .by the two successful candidates to the High Court. Khagsndranath The High Court was of the view that the nomination Nath 0- Others paper of the appellant was properly rejected ; further on the question of corrupt practice the High Court Wanchoo J. agreed with the conclusion of the tribunal. In the result the appeal was allowed and the election peti-tion was ordered to be dismissed. There was then an application to the High Court for certificate to appeal to this Cout"t which was granted; and that is how the matter has come up before us.The ma.in contention on behalf of .the appellant is that the High Court was wrong in coming to the con-clusion that the nomination pa.per of the appellant was properly rejected under s. 7(b) of the Act. That provision lays down that a. person shall be disquali: fied for being chosen as member of either House of Parliament or of the Legislative Assembly or Legisla-tive Council of a. State if he is convicted by court in India. of any offence and sentenced to imprison-ment for not less than two yea.rs, unless period of five yea.rs, or such less period as the Election Com-mission may allow in any particular case, has elapsed since his release. The appellant in this case was con-victed under s. 4(b) of the Explosive Substances Act No. VI of 1908; and sentenced to three years' rigorous imprisonment on July 10, 1953. The nomination pa.per in this case was filed in J a.nua.ry 1957 and the election was held in February 1957 and therefore five yea.rs had not -elapsed since his release. But though the appellant was sentenced to three yea.rs' rigorous imprisonment, his sentence was remitted by the Government of Assam on November 8, 1954, under s. 401 of the Code of Criminal Procedure and he was released on November 14, 1954. The contention of the appellant before the election tribunal was that in view of this remission his sentence in effect was reduced to period of less than two yea.rs and there- · fore he could not be said to have incurred disqualifica-tion within the meaning of s. 7{b). This contention .

This contention .

' 136 SUPREME COURT REPORTS

was accepted by the tribunal and that is why it held Sarat Chandra that the nomination paper of the appellant was im-Rabila c;. Others properly rejected. When the case came to be argued v. in the High Court on behalf of the successful candi-Khagendranath dates, two arguments were addressed in support of the 1 [Nath ][& ][Others ][plea ][that ][the ][nomination paper ][of ][the appellant was ]properly rejected. In the first place, it was urged Wanchoo J. ·that in view of the provisions of Articles 72, 73, 161 and 162 of the Constitution read with s. 401 of the Code of Criminal Procedure, the State Government had no authority ·to i:emit the sentence of the appel-lant; 'and secondly even if the remission was properly granted it would not affect the sentence imposed by the Court, though the appellant might not have had to undergo part of the sentence after the date of the remission order'. The High Court did not decide the question as to the power of the State Government to grant remission in this case as it had not full materi-als before it because the matter was not raised before the tribunal, though it was inclined to the view that the State Government might not have such power. But the High Court was of the opinion that remis-sion of sentence did not have the same effect as free pardon and did not have the effect of reducing the sentence passed on the appellant from three years to less than two years, even though the appellant might have remained in jail for less than two years because of the order of remission.

What s. 7(b) lays down is that there should be conviction by court in India for any offence and sentence of imprisonment for not less than two years in order that person may be disqualified for being chosen as member of either House of Parliament or of Legislative Assembly or of Legislative Council of State. In terms, therefore, the provision applies to the case of the appellant for he was convicted by court in India and sentenced to imprisonment for more than two years. Further the period of five years had not expired after his release. The appellant had applied to the Election Commission for removing the . disqualification but it had refused to do so. The main question therefore that falls for consideration is

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whether the order of remission has the effect of, reducing the sentence in ~~e same.w~y in whichhan order of an appe 11ate or rev1s1ona crimma court 11as the'effect of reducing the sentence passed by the trial court to the extent indicated in the order of the appel-late or revisional court.

I9[60 ]

in whichhan n whichhan Sarat Chandra

as Rabha & Others

v. Khagendranath Nath & Others

Now it is not disputed that in England and India. the effect of pardon or what is sometimes called free pardon is to clear the person from a1l infamy an9 from all consequences of the offence for which it is granted and from all statutory or other disqualifica-tions following upon conviction. It makes him, as it were, new man: (See Halsbury's Laws of England, Vol. VII, Third Edition, p. 244, para 529). But the same effect does not follow on mere remission which stands on different footing altogether. In the first place, an order of remission does not wipe out the offence; it also does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily convicted person would have to serve out the full sentence imposed by court, he need not do so with respect to that part of the sentence which has been ordered to be remitted. An order of remission thus does not in any way interfere with the order of the court; it affects only the execu-tion of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the court still stands as it was. The power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduc-ed sentence adjudged by the appellate or revisional court. This distinction is well brought out in the following passage from Weater's " Constitutional Law" on the effect of reprieves and pardons vis-a-vis the judgment passed by the court imposing punishment, at p. 176, para 134 :-

Wanchoo ].

" reprieve is a. ternpor<l.ry suipr.mc:iion of the

Sarat Chandra Rabha 0- Others v. Khagendranalh N•lh cSo Olh•is Wane/loo ],

punishment fixed by law. pardon is the rem1ss1on of such punishment. Both &re tlie exercise of execu-tive functions and should be distinguished from the exercise of judicial power over sentences. 'The judi-cial power and the ··executive power over sentences &re readily distinguishable,' observed Justice Suther-land, ' To render & judgment is & judicial function. To carry the judgment into effect is an executive function. To cut short & sentence by &n &ct of clemency is &n exercise of executive power which abridges the enforcement of the judgment but does not alter it qua judgment'."Though, therefore, the effect of an order of remission is to wipe out that part of the sentence of imprison-ment which has not been served out and thus in practice to reduce the sentence to the period already undergone, in law the order of remission merely means that the rest of the sentence need not be under-gone, leaving the order of conviction by the court and the sentence passed by it untouched. In this view of the matter the order of remission passed in this case though it bad the effect that the appellant was re-leased from jail before he ha.d served the full sentence of three years' imprisonment and ha.d actually served only &bout sixteen months' imprisonment, did not in any way affect the order of conviction and sentence passed by the.court which remained as it was. There-fore the terms of s. 7(b) would be satisfied in the present case and the appellant being a. person con-victed and sentenced to three years' rigorous impri-sonment would be disqualified, as five years had not passed since hif:! release and as the Election Commis-sion had not removed his disqualification.

' We may now refer to number of cases on which reliance has been placed on behalf of the appellant. In Venkatesh Yeah.want Deshpande v. Emperor ([1]), Bose, J. (as he then was), observed as follows at p. 530:-. " The effect of an order of remission is to wipe out the remitted portion of the sentence altogether and not merely to suspend its operation ; suspension (1) A.l.R. 1938 Nag. 513.

is separately provided for. In f&ct, in the case of a. r96o tion following upon conviction pardon in England statutory a.nd a.re other disqua.lifica.-removed and the R:::! 5 Ch .s. i;;,h:~. pardoned man is enabled to maintain an action v. a.go.inst any person who afterwards defames him in J<hagend•anatJ. respect of the offence for which he wa.s convicted. Nath .s. Others That may not apply in full here but the effect of a.n order of remission is certa.mly to entitle the prisoner Wanchoo f. to hie freedom on a. certain date."

It is urged that if the effect of a.n order of remission

is to wipe out the remitted portion of the sentence altogether it means that the sentence is reduced to the period already undergone a.nd the order of remission has the same effect a.s an order of a.n appellate or revisiona.l court reducing the sentence to the period already undergone. That ca.se, however, dealt with a. different point altogether, namely, whether a. remis-sion having been granted a.nd having ta.ken effect it could be cancelled thereafter. It was in that context tha.t these observations were ma.de. Even so, the learned judge wa.s careful to point out that there was. difference between pardon and a. remission and the effect of an order of remission is to entitle the prisoner to his freedom on a. certain date. That case is no authority for the view that the order of remis-sion a.mounts to changing the sentence passed by a. competent court and substituting therefor the sentence of imprisonment already undergone up to the date of release following the order of remission.

Reference was also ma.de to number of election cases in which the view which has been urged on be-half of the appellant seems to have been ta.ken. We may refer to only one of them, namely, Ganda Singh v. Sampuran Singh ([1]), which l!t~ specifically dealt with this point. In that c&re&n order was passed by the Maharaja of Nabha granting amnesty to a.II poli-tical prisoners detained or convicted ~gnder the .Pun-jab Public Safety Act, l!M:'i',.as applied-to Na.bha. Sta.te, and releasing them unconditiona.]Jy. ··The ea.me order also provided for grant of remiliiiOn w persons convicted for offences other tha.n political offences on (1) (1953) 3 E.L.R. 17.

Saraf Chandra llabha & Others v. J<hagcndrauafh Nath Qi. Others Wa·Hchoo ].

certain scale. The successful candidate in that case was sentenced to. more than two years' rigorous impri-sonment under the Punjab Public Safety Act, as applied to Nabha State, and was thus political pri-soner. He was therefore released before he had served two years imprisonment. The main plank of the election petition in that case was that the successful candidate was disqualified under s. 7(b) of the Act in view of his conviction and sentence and the, election tribunal held that remission by government (executive authority) has the same effect as an order passed by ·court of law in appeal or on revision and that under s. 7 of the Act the court has to look to the amount of sentence imposed on person and it made no difference whether the sentence was reduced by court of law on appeal or by revision or by the powers of the government reserved for it under s. 401 of the Code of Criminal Procedure, as the effect in both cases was the same. We are of opinion that this view is incorrect, though perhaps on the facts of that case the order of the tribunal was right for it seems that political prisoners had been granted pardon by the Ruler of Nabha and not mere remission under s. 401 of th!) Code of Criminal Procedure. We cannot agree that remission by government has the same effect as an order passed by court of law in appeal or on revision. It is true that under s. 7(b) of the Act one has to look at the sentence imposed ; but it must be sentence imposed by court. Now where the sentence imposed by trial court is varied by way of reduction by the appellate or revisional court, the final sentence is again imposed by court; but where sentence imposed by court is remitted in part under s. 401 of the Code of Criminal Procedure that has not the effect in law of reducing the. sentence imposed by the court, though in effect the result may be that the convicted person suffers less imprison-ment than that imposed by the court. The order of remission affects the execution of the sentence imposed by the court but does not affect the sentence as such, which remains what it was in spite of the order of remission. It is also well to remember that

s. 7(b) speaks of the conviction and sentence passed i96o by court imprisonment actually suffered by of law; it does not speak the of convicted per-the period of R;;,~ 5 Ch & ~~"·;~. son. The other election cases to which our attention v. was drawn by the learned counsel for the appellant Rhagendranath are similar and they are all in our opinion wrongly Nath & Others decided. We are therefore of opinion that the High 1Va1lc!zoo ]. Court was right in the view t at t nomination paper of the appellant was properly rejected.

R;;,~ 5 & ~~"·;~.

The next contention on behalf of the appellant is that both the High Court and the tribunal were wrong in holding that corrupt practice within the meaning of s. IOO(l)(b) read with s .. 123(5) had not been proved in this case. The case of the appellant was that voters were carried by mechanically propelled vehicles to the polling booths by Birendra Kumar Nath who was in-charge of the electioneering cam. paign on behalf of the Congress Party and Bholaram Sarkar who was president of the Primary Congress Committee of Dhupdhara.. The successful candidates were both contesting the election as nominees of the Congress Party and therefore these two persons who carried electors in mechanically propelled vehicles to the polling booths did so as agents of the successful candidates and with their consent. The High Court as well as the election tribunal held that though Birendra Kumar Nath and Bholaram Sarkar might be deemed to be the agents of the successful can-didates for purposes of the election and though the hiring of mechanically propelled vehicles by the agents for conveyance of electors to polling booths had been proved, there was no proof that this was done with the consent, express or implied, of the successfol candidates. The High Court pointed out that consent, express or implied, of the candida.tes was necessary for purposes of s. 100(1) (b) and was of the view that on the facts proved in this case such consent could not be inferred and the circumstances did not con-vincingly lead to an inference that the corrupt prac-tice in question was committed with the knowledge and consent of the successful candidates. In view of this concurrent finding of the High Court and the

SaYal ChandYa Rabha & Othet's v. J(hagendt'anath Nath & Othet's 'Wanchoo ].

142 .SUPREME COURT REPORTS [1961]

tribunal on this question, namely, whether there was consent, express or implied, of the successful candi-dates to the commission of this corrupt practice, it is in our opinion idle for the appellant now to contend tha.t there was consent express or implied, as required by s. lOO(l)(b). The inference whether there was consent or not from the facts and circumstances proved is still a.n inference of fact from other fa.eta and circumstances and cannot be question of le.w as urged by learned counsel for the appellant. Reference in this connection may be ma.de to Meenakshi Mills, Madurai v. The Commissioner of Income-tax, Madras('), where it was held that finding of fact, even when it is a.n inference from other facts found on evidence, is not question of law and that such an inference can be a. question of law only when the point for determir.ation is mixed question of law and fact. In the present case the only question is whether the corrupt practice was committed with the consent of the candidates, whether express or implied, and the question whether such consent was given in the circumstances of this case is question of fact and not mixed question of law and fact and therefore the fiinding of the High Court as well a.s the tribunal that there was no consent, either express or implied, in our opinion, concludes the matter. There is no force in this point either.

The appeal therefore fails and is hereby dismissed with costs.

Appeal dismissed.