SARITHA S. NAIR versus HIBI EDEN

[2020] 13 S.C.R. 635

SARITHA S. NAIR

HIBI EDEN

(Special Leave Petition (Civil) No. 10678 of 2020)

DECEMBER 09, 2020

[S.A. BOBDE, CJI, A.S. BOPANNA ANDV. RAMASUBRAMANIAN, JJ.]

Representation of the People Act, 1951 – s.8(3) –Disqualification under – The petitioner filed nominations from twoLok Sabha Constituencies – The nominations were rejected on theground that she was convicted in 2 criminal cases – In both cases,she was imposed with punishment of imprisonment for 3 yearsseparately – The High Court, in one case suspended the convictionand in another case stayed the execution of sentence – After theelections were over, the petitioner filed two election petitionscontending that the rejection of her nomination was illegal andunjustified – Lots of defects were noticed in her election petitionsby the Registry of the High Court including the defect in prayer ofone of the election petition – The High Court rejected both theelection petitions on the grounds that there were incurable defectsin terms of s.86(1) of 1951 Act and that the petitioner wasdisqualified u/s.8(3) of the 1951 Act r/w. Art.102(1)(e) of theConstitution – Aggrieved two SLPs were filed, one arising out ofeach election petition – One SLP was dismissed for non-prosecution– In the remaining SLP, it was observed that what weighed with theHigh Court in election petition was; (i) lack of proper verification;(ii) an incomplete prayer; (iii) serious allegations made againstChief Minister – Held: defective verification is curable defect –The High Court committed grave error in holding defects asincurable – The defects were curable and an opportunity to curedefects ought to have been given – Further, the Rules of the HighCourt of Kerala, 1971 contains set of Rules from Rule Nos.207 to219 in Chapter XVI, these rules govern the procedure for institutionand trial of election petitions – There is nothing to indicate in theRules that the designated Judge was powerless to return the petitionto petitioner for curing the defects – The High Court was wrong inthinking that the defective verification of the election petition was

CDEF

Aa pointer to the game plan of the election petitioner after makingserious allegations against former Chief Minister – High Courtshould have given opportunity to the petitioner to cure defects beforereaching such conclusion – No motives motives could have beenattributed to the petitioner, only because she made seriousallegations against someone – The defect in the prayer made by theBpetitioner was also curable defect – As far as effect of punishmentby criminal court is concerned, the suspension of the execution ofthe sentence would not alter or affect the conviction and thattherefore such person would remain disqualified u/s.8(3) of the1951 Act – The Appellate Court has ample powers u/s.389(1) of theCCode, to stay the conviction as well as the sentence and that wherevera stay of conviction has been granted, the disqualification will notoperate – In the instant case, the disqualification u/s.8(3) of the1951 Act will continue so long there is no stay of conviction – Thepetitioner only obtained stay of execution of the sentence andcould not obtain stay of conviction – Hence, her nominations wereDvalidly rejected.

Dismissing the Special Leave Petition, the Court

HELD: 1. The upshot of the various Supreme Courtdecisions is that defective verification is curable defect. AnEelection petition cannot be thrown out in limine, on the groundthat the verification is defective. [Para 43][652-C-D]

2. Therefore, the High Court committed grave error inholding the 3 defects mentioned as incurable. The defects arecurable and as rightly contended by the counsel for the petitioner,Fan opportunity to cure the defects ought to have been given.Instead, the election petition was posted before Court withoutnumbering, in view of the defects noticed. The Court directedthe petition to be numbered subject to arguments on the curabilityof defects. Thereafter notices were issued to the respondents inthe election petition and finally the order impugned herein wasGpassed after hearing both sides. The High Court did not evenrely upon any rule framed by the High court to follow the saidprocedure. [Para 44][652-D-F]

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

4. The procedure adopted by the High Court of Keralacannot be approved. The High Court was wrong in thinking thatthe defective verification of the election petition was pointer tothe game plan of the election petitioner to disown the pleadingsat later stage, especially after making serious allegations againstthe former Chief Minister. If only the High Court had given anopportunity to the petitioner to cure the defects in the verificationand if, despite such an opportunity, the petitioner had failed tocome up with proper verification, the High Court could havethen held the petitioner guilty of playing hide and seek. The failureof the High Court to give an opportunity to cure the defects isimproper. [Para 47][653-D-F]

5. The defect in the prayer made by the petitioner was alsoa curable defect, as the words “as void” were omitted to beincluded, making the prayer as it existed, meaningless. It is truethat the election petitioner should have been more careful anddiligent in incorporating an appropriate relief and making properverification. But no motives could have been attributed to thepetitioner, only because she made serious allegations againstsomeone. Hence, this Court holds on the first issue that thedefects in the verification and prayer made by the petitioner werecurable and an opportunity ought to have been given to thepetitioner to cure the defects. [Para 48][653-F-H]

A6. Constitution Bench of this Court held in B.R. Kapurvs. State of Tamil Nadu that an order of the appellate/revisionalCourt suspending the sentence of imprisonment has to be readin the context of Section 389 of the Code of Criminal Procedureand that under the said provision, what is suspended is only theexecution of the sentence and not the sentence itself. TheBConstitution Bench made it clear that the suspension of theexecution of the sentence would not alter or affect the convictionand that therefore such person would remain disqualified underSection 8(3). In fact, in B.R. Kapur person whose nominationwas rejected on the ground of disqualification, got elected as theCleader of the party which secured majority in the elections andbecame the Chief Minister and hence Article 164 was pressedinto service. But even the same was rejected on the ground thata person who was disqualified from contesting the elections,cannot take the route of Article 164. [Para 57][655-B-E]

D7. Possibly taking cue from what was observed in B.R.Kapur, 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, thisCourt held in Lily Thomas that Member of Parliament or theState Legislature who suffers frivolous conviction, will not beEremediless. Taking note of the decisions in Rama Narang vs.Ramesh Narang and Ravikant S. Patil vs. Sarvabhouma S. Bagalithis Court held in Lily Thomas that the appellate Court has amplepowers under Section 389(1) of the Code, to stay the convictionas well as the sentence and that wherever stay of convictionFitself has been granted, the disqualification will not operate. [Para59][655-G-H; 656-A-C]

8. Just as the observations made in B.R. Kapur led to achallenge to Section 8(4) of the Act in Lily Thomas, the discussionin Lily Thomas about the power of the appellate Court to stay theGconviction as well as the execution of sentence, led to anotherbout of litigation. In Lok Parhari vs. Election Commissioner ofIndia the petitioner sought declaration that even stay ofconviction by the appellate Court will not have the effect of wiping

out the disqualification. The contention of the petitioner was thatthe law does not provide for stay of conviction. But this Courtrejected the challenge on the ground that the decisions in RamaNarang and Lily Thomas clinched the issue in this regard. [Para60][656-C-E]

9. Therefore, in effect, the disqualification under Section8(3) will continue so long as there is no stay of conviction. In thecase on hand, the petitioner could not obtain stay of convictionbut obtained only stay of execution of the sentence. Hence hernominations were validly rejected by the Returning Officer.Merely because the Returning Officer in Amethi Constituencycommitted an error in overlooking this fact, the petitionercannot plead estoppel against statutory prescription. [Para61][656-E-F]

B.R. Kapur v. State of Tamil Nadu (2001) 7 SCC231:[2001] 3 Suppl. SCR 191 – followed.

Murarka Radhey Shyam Ram Kumar v. Roop SinghRathore 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 – reliedon.

R.P. Moidutty v. P.T. Kunju Mohammad (2000) 1 SCC481;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 SCC511:[2012] 4 SCR 56; G.M. Siddeshwar v. PrasannaKumar (2013) 4 SCC 776; Lily Thomas v. Union of India(2013) 7 SCC 653:[2013] 10 SCR 1130; Rama Narangv. 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.

CSPECIAL LEAVE PETITION (CIVIL) NO. 10678 OF 2020 :Civil Appeal Nos. 2175-2178 of 2018.

From the Judgment and Order dated 31.10.2019 of the High Courtat Kerala at Ernakulam in Election Petition No. 4 of 2019.

DMs. D.Geetha, Ms. Priya Ramola Devi, V. Ramasubramanian,Advs. for the appearing parties.

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

1. As against common order passed by the High Court of KeralaEthrowing out 2 election petitions filed by the petitioner herein, on theground of incurable defects, the election petitioner has come up with theabove Special Leave Petition. This SLP arises out of Election PetitionNo.4 of 2019. Another Election Petition filed by the very same petitioneragainst the very same common order, but arising out of Election PetitionFNo.3 of 2019 was dismissed by this Court on 02.11.2020 for non-prosecution. Therefore, this order covers Election Petition No.4 of 2019.

2. Heard Ms. D. Geetha, learned counsel for the petitioner.

3. In the elections held to the Lok Sabha in April-May, 2019, thepetitioner filed her nomination on 04.04.2019 in the ErnakulamGConstituency. The petitioner was to contest as an independent candidate.

4. On 06.04.2019 the nomination of the petitioner was rejected onthe ground that she was convicted in 2 criminal cases, one in CC No.1300of 2013 on the file of the JFMC-I, Pathanamthitta and another in CCNo.102 of 2014 on the file of the JFMC-I, Perumbavoor. In the firstH

case the petitioner was imposed with punishment of imprisonment for3 years, with fine of Rs.45 lakhs, by judgment dated 08.06.2015. Inthe second case she was imposed with punishment of imprisonmentfor 3 years, with fine of Rs.10 lakhs, by judgment dated 16.02.2016.

5. The petitioner filed Criminal Appeal No.87 of 2015 before theSessions Court, Pathanamthitta, against her conviction in CC No.1300of 2013. But the appeal was dismissed and the petitioner filed revisionbefore the High Court in Criminal R.P.No.9 of 2018. On 04.01.2018, theHigh Court merely suspended the execution of the sentence and enlargedthe petitioner on bail, subject to her executing bond for Rs.5 lakhs with2 solvent sureties and also upon her depositing Rs.10 lakhs towards thefine amount.

6. Similarly, the petitioner filed Criminal Appeal No.25 of 2017before the Sessions Court, Ernakulam against her conviction in CCNo.102 of 2014. The Appellate Court stayed the execution of the sentenceon condition of the appellant executing bond for Rs.1 lakh with 2sureties.

7. The Returning Officer, noted in his order dated 06.04.2019 thatthe petitioner stood disqualified in terms of Section 8(3) of theRepresentation of the People Act, 1951, as the period of disqualificationhad not lapsed.

8. Aggrieved by the order of rejection of the nomination, thepetitioner filed an appeal to the Chief Electoral Officer. Thereafter, thepetitioner moved writ petition in W.P.(C)No.11282 of 2019. But theWrit Petition was dismissed on 09.04.2019. The petitioner filed writappeal but the same was also dismissed on 12.04.2019.

9. Therefore, after the elections were over, the petitioner filed anelection petition in Election Petition No.4 of 2019, primarily contendingthat the rejection of her nomination was illegal and unjustified and thatsuch rejection materially altered the outcome of the election in whichthe Respondent herein was declared elected. The main contention ofthe petitioner in her election petition was that she had simultaneouslyfiled nomination in the Amethi Constituency of Uttar Pradesh and thatdespite disclosure of the very same information about her convictionand pendency of appeals, her nomination was accepted there. Therefore,she contended that 2 different yardsticks cannot be applied and that inany case, so long as the sentence of imprisonment remained suspended,

Athe disqualification under Section 8(3) of the Representation of the PeopleAct, 1951, may not be attracted.

10. It is to be noted at this stage that the petitioner filed hernomination from one more constituency, namely Wayanad Constituencyand her nomination was rejected even in the said Constituency, for theBvery same reasons. Therefore, she filed another election petition inElection Petition No.3 of 2019 as regards the election from the WayanadConstituency.

11. It appears that lot of defects were noticed by the Registry ofthe High Court in both the election petitions. The defects noticed in bothCthe election petitions were more or less the same. But in so far as ElectionPetition No.4 of 2019 is concerned, out of which the present SLP arises,the Registry noted one additional defect namely that the prayer of thepetitioner was incomplete.

12. Therefore, both the election petitions were posted before theDCourt without being numbered. However, the Court, by order dated29.07.2019 directed the election petitions to be numbered subject to thecondition that the petitioner should address arguments on the question ofcurability of the defects. Thereafter, notices were issued to the ElectionCommission, the respective Returning Officers and the respectivereturned candidates.E

13. It may be relevant to note at this stage that the fact that thepetitioner was convicted in 2 independent criminal cases and sentencedto imprisonment for 3 years in each of those cases and the fact thatthough the execution of the sentence was suspended in both the cases,the conviction was not suspended, were all admitted by the petitionerFherself. The case of the petitioner was that it is enough if an appellate/revisional court had suspended the sentence and not the conviction.

14. In view of the aforesaid stand of the petitioner, the High Courtframed preliminary issue on 01.10.2019 as to whether the electionpetitions were maintainable, when the conviction was not suspended inGappeal or revision. The High Court decided to take up this preliminaryissue also for consideration along with the question relating to curabilityof defects noticed in the election petitions.

15. Thereafter, the High Court heard the learned counsel for thepetitioner and learned counsel for the returned candidates and passed

an order dated 31.10.2019 rejecting both the election petitions on 2 groundsnamely:-

(i)that there were incurable defects in the election petitions interms of Section 86(1) of the Representation of the PeopleAct, 1951; and

(ii)that the petitioner was disqualified in view of the inhibitionscontained in Section 8(3) of the Act read with Article102(1)(e) of the Constitution.

16. Aggrieved by the common order passed on 31.10.2019 inElection Petition Nos. 3 and 4 of 2019, the petitioner filed SLP(C) DiaryNo.4200 of 2020 and SLP(C) No.10678 of 2020. The SLP in SLP(C)Diary No.4200 of 2020, arising out of the order in Election Petition No.3of 2019, was dismissed for non-prosecution on 02.11.2020. The presentSLP arising out of Election Petition No. 4 of 2019 came up thereafterfor hearing.

17. As pointed out above, the election petition of the petitionerwas dismissed on 2 grounds namely (i) that it contained incurable defects;and (ii) that in any case, the petitioner admittedly suffered from adisqualification. Let us now examine the correctness of the findings ofthe High court in regard to these 2 issues.

Issue-1 (Incurability of defects)

18. On the first issue, the High court noted that some of the defectsin the election petition are covered by Sections 81 and 82 and that therewas no semblance of any verification in terms of section 83 (1) (c) readwith Order VI, Rule 15 of the CPC. The High court held that there were3 defects which were incurable. They were:

(i)Petitioner has not signed in the declaration portion ofverification of the election petition;

(ii)In verification portion, in respect of Annexures, affidavitsand petitions, it is stated that the index has been verifiedinstead of Annexures, affidavits and petitions;

(iii)Annexures are not verified by the petitioner as mandatedand instead of verification, annexures are seen certified astrue copies by the petitioner and the counsel.

A19. In addition to the above 3 defects, which the High Courtconsidered as incurable in both the election petitions, the High Courtnoted that in Election Petition No. 4 of 2019, even the relief sought wasincomplete and meaningless. Prayer (a) made in the election petitionwas “To declare that the election of the 5th respondent fromErnakulam Lok Sabha Constituency”. It actually meant nothing, unlessBthe word “void” had been added thereto. Since the word “void” was notthere in prayer (a), the High Court thought that the election petition hadbeen prepared and filed in casual manner. Coupled with this, was thefact that the election petition also contained some allegations of seriousnature against the former Chief Minister of Kerala. Therefore, the HighCCourt thought that the petitioner had malafide intentions to malign thereputation of third parties, through the election petition without properverification and prayer and that this is nothing but ruse for the petitionerto escape at later stage from owning up the pleadings.

20. In other words, what weighed with the High Court were:-

D(i)Lack of proper verification;

(ii)An incomplete prayer; and

(iii)Allegations of serious nature made against the former ChiefMinister with possible leverage not to own up the pleadings.

ETo hold that the defects stated above are incurable, the High Courtrelied upon Sections 81, 82 and 83 read with Section 86 of theRepresentation of the People Act, 1951. Let us now test the correctnessof the approach of the High Court, with regard to the statutory provisions.

21. Chapter-II, Part-VI of the Representation of the People Act,1951, contains provisions for “Presentation of election petitions to HighFCourt” and Chapter III contains provisions for “Trial of election petitions”.Section 86(1), with which Chapter-III begins, obliges the High Court todismiss an election petition which does not comply with the provisions ofSection 81 or Section 82 or Section 117. The dismissal of an electionpetition under Section 86(1) is deemed by the Explanation under SectionG86(1) to be decision under Section 98(a). Section 98 speaks about 3types of orders that could be passed at the conclusion of the trial of anelection petition. They are:-

(i)The dismissal of the election petition; or

(ii)A declaration that the election of the returned candidate isHvoid; or

(iii)A declaration not only that the election of the returnedcandidate is void, but also that the petitioner or any othercandidate was duly elected.

22. It is important to note that the above 3 different types ofdecisions under Section 98, can be rendered by the High Court only atthe conclusion of the trial. But the dismissal under Section 86(1) is anexception. The reference in the Explanation under Section 86(1) toSection 98(a), makes it clear that the power of the High Court todismiss an election petition which does not comply with the provisionsof Section 81 or Section 82 or Section 117, is available at the pre-trial stage.

23. As stated earlier, the procedure for presentation of electionpetitions to the High Court are dealt with in Sections 80 to 84 falling inChapter-II of Part-VI. For our present purpose, Sections 81(3), 83(1),83(2) and 84 are relevant.

24. Section 81(3) makes it mandatory for every election petitionto be accompanied by as many copies as there are respondents. Everysuch copy is required to be attested by the petitioner under his ownsignature to be true copy of the petition. Section 81(3) reads as follows:-

“81. Presentation of petitions.- (1)….

(2) Omitted

(3) Every election petition shall be accompanied by as many copiesthereof as there are respondents mentioned in the petition, andevery such copy shall be attested by the petitioner under his ownsignature to be true copy of the petition.”

25. Section 83 speaks about:-

(i)The contents of the election petition;

(ii)The signature and verification of the election petition; and

(iii)The signature and verification of any schedule or annexureto the election petition.

Section 83 reads as follows :-

“83. Contents of petition.—(1) An election petition—

(a) shall contain concise statement of the material facts onwhich the petitioner relies;

A(b) shall set forth full particulars of any corrupt practice that thepetitioner alleges including as full statement as possible ofthe names of the parties alleged to have committed suchcorrupt practice and the date and place of the commissionof each such practice; and

B(c) shall be signed by the petitioner and verified in the mannerlaid down in the Code of Civil Procedure, 1908 (5 of 1908)for the verification of pleadings:

[Provided that where the petitioner alleges any corruptpractice, the petition shall also be accompanied by an affidavitCin the prescribed form in support of the allegation of suchcorrupt practice and the particulars thereof.]

(2) Any schedule or annexure to the petition shall also be signedby the petitioner and verified in the same manner as the petition.”

26. Section 84 indicates the relief/reliefs that could be claimed inDan election petition. It reads as follows:-

“84. Relief that may be claimed by the petitioner.—Apetitioner may, in addition to claiming declaration that the electionof all or any of the returned candidates is void, claim furtherdeclaration that he himself or any other candidate has been dulyEelected.”

27. In the trial of an election petition, the High Court is bound tofollow the procedure as applicable to the trial of suits under the Code ofCivil Procedure, 1908, as nearly as may be. This is by virtue of Section87(1). The provisions of Indian Evidence Act, 1872 are made applicableFin all respects to the trial of all elections petitions, under Section 87(2).Section 87 reads as follows:-

“87. Procedure before the High Court.—(1) Subject to theprovisions of this Act and of any rules made thereunder, everyelection petition shall be tried by the High Court, as nearly as mayGbe, in accordance with the procedure applicable under the Codeof Civil Procedure, 1908 (5 of 1908) to the trial of suits: Providedthat the High Court shall have the discretion to refuse, for reasonsto be recorded in writing, to examine any witness or witnesses ifit is of the opinion that the evidence of such witness or witnessesis not material for the decision of the petition or that the party

tendering such witness or witnesses is doing so on frivolous groundsAor with view to delay the proceedings.

(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872),shall subject to the provisions of this Act, be deemed to apply in allrespects to the trial of an election petition.”

28. It is relevant to note that the Act keeps in two separatecompartments-

(i) the presentation of election petitions; and

(ii) the trial of election petitions.

The presentation of election petitions is covered by Sections 80 to84 falling in Chapter-II. The trial of election petitions is covered bySections 86 to 107 and they are contained in Chapter-III.

29. This compartmentalization, may be of significance, as seenfrom 2 facts namely:-

(i)That under Section 80 no election shall be called in questionexcept by an election petition presented in accordance withthe provisions of “this part”; and

(ii)That limited reference is made to the provisions of theCode of Civil Procedure, 1908 in Chapter-II, only in placeswhere signature and verification are referred to.

30. In so far as presentation of election petitions is concerned,Chapter-II is complete code. This is because, the various provisions ofChapter-II cover all aspects of the presentation of an election petition,such as:-

(i)The person(s) who is/are entitled to file;

(ii)Person(s) who could be joined as respondents;

(iii)The types of different reliefs that can be sought;

(iv)The grounds on which such reliefs could be sought;

(v)Period of limitation for filing an election petition;

(vi)The court where the petition could be filed;

(vii) Contents of such petition; and

(viii) Format of the election petition and the manner in which it isto be signed and verified.

A31. Some of the rules contained in Chapter II are inflexible andinviolable. But some may not be. Whether the manner of signing andverifying an election petition is an inflexible rule, is what is to be seenhere.

32. Section 83 (1) (c) mandates that an election petition shall beBsigned by the petitioner and verified in the manner laid down in the Codeof Civil Procedure for verification of pleadings. Signing petition andverifying the petition are 2 different aspects. While Order VI, Rule 14deals with the signing of the petition, Order VI, Rule 15 deals with theverification of pleading. Rule 14 mandates that every pleading shall besigned by the party as well as the pleader, if any. But the proviso carvesCout an exception by stating that where party is unable to sign thepleading, by reason of absence or for other good cause, it may besigned by any person duly authorized by him to sign the same or tosue or defend on his behalf. Order VI, R.14 reads as follows:-

“14. Pleading to be signed.-Every pleading shall be signed byDthe party and his pleader(if any):

Provided that where party pleading is, by reason of absence orfor other good cause; unable to sign the pleading, it may be signedby any person duly authorized by him to sign the same or to sue ordefend on his behalf.”E33. Order VI, R.15 which speaks about verification of pleadingsreads as follows:-

“15. Verification of pleadings.- (1) Save as otherwise providedby any law for the time being in force, every pleading shall beFverified at the foot by the party or by one of the parties pleadingor by some other person proved to the satisfaction of the court tobe acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to thenumbered paragraphs of the pleading, what he verifies of his ownknowledge and what he verifies upon information received andGbelieved to be true.

(3) The verification shall be signed by the person making it andshall state the date on which and the place at which it was signed.

(4) The person verifying the pleading shall also furnish an affidavitHin support of his pleadings.”

34. It is to be noted that Sub-rule (1) of Rule 15 of Order VI alsopermits the verification of pleading to be done by person otherthan the party pleading, provided it is proved to the satisfaction of theCourt that such other person was acquainted with the facts of the case.

35. Section 86(1) empowers the High Court to dismiss an electionpetition which does not comply with the provisions of Section 81, Section82 or Section 117 and it does not include Section 83 within its ambit.Therefore, the question whether or not an election petition which doesnot satisfy the requirements of Section 83, can be dismissed at the pre-trial stage under section 86(1), has come up repeatedly for considerationbefore this Court. We are concerned in this case particularly with therequirement of Clause (c) of Sub-section (1) of Section 83 and theconsequence of failure to comply with the same.

36. In Murarka Radhey Shyam Ram Kumar vs. Roop SinghRathore[1], preliminary objection to the maintainability of the electionpetition was raised on the ground that the verification was defective.The verification stated that the averments made in some paragraphs ofthe petition were true to the personal knowledge of the petitioner andthe averments in some other paragraphs were verified to be true onadvice and information received from legal and other sources. Therewas no statement that the advice and information received by the electionpetitioner were believed by him to be true. Since this case arose beforethe amendment of the Act under Act 47 of 1966, the election petitionwas dealt with by the Tribunal. The Tribunal held the defect in theverification to be curable defect. The view of the Tribunal was upheldby this Court in Murarka Radhey Shyam Ram Kumar (supra). ThisCourt held that “it is impossible to accept the contention that defectin verification which is to be made in the manner laid down in theCode of Civil Procedure for the verification of pleadings as requiredby Clause (c) of Sub-section (1) of Section 83 is fatal to themaintainability of the petition”.

37. The ratio laid down in Muraraka was reiterated by threemember Bench of this Court in F.A. Sapa vs. Singora[2] holding that“the mere defect in the verification of the election petition is notfatal to the maintainability of the petition and the petition cannot be

1 AIR (1964) SC 1545

2 (1991) 3 SCC 375

Athrown out solely on that ground”. It was also held in F.A. Sapa that“since Section 83 is not one of the three provisions mentioned inSection 86(1), ordinarily it cannot be construed as mandatory unlessit is shown to be an integral part of the petition under Section 81”.

38. In F.A. Sapa (supra) this Court framed two questions inBparagraph 20 of the Report, as arising for consideration. The first questionwas as to what is the consequence of defective or incompleteverification. While answering the said question, this Court formulatedthe following principles: –

(i) defect in the verification, if any, can be cured

C(ii) It is not essential that the verification clause at the foot ofthe petition or the affidavit accompanying the same shoulddisclose the grounds or sources of information in regard tothe averments or allegations which are based on informationbelieved to be true

D(iii) If the respondent desires better particulars in regard tosuch averments or allegations, he may call for the same, inwhich case the petitioner may be required to supply the sameand

(iv) The defect in the affidavit in the prescribed Form 25 canEbe cured unless the affidavit forms an integral part of thepetition, in which case the defect concerning material factswill have to be dealt with, subject to limitation, under section81(3) as indicated earlier.”

39. It was also held in F.A. Sapa (supra) that though an allegationFinvolving corrupt practice must be viewed very seriously and the HighCourt should ensure compliance with the requirements of Section 83before the parties go to trial, the defective verification of defectiveaffidavit may not be fatal. This Court held that the High Court shouldensure its compliance before the parties go to trial. This decision wasfollowed by another three-member Bench in R.P. Moidutty vs. P.T.GKunju Mohammad[3].

40. In Sardar Harcharan Singh Brar vs. Sukh Darshan Singh[4],this Court held that though the proviso to Section 83(1) is couched in

3 (2000) 1 SCC 481H4 (2004) 11 SCC 196

mandatory form, requiring petition alleging corrupt practice tobe accompanied by an affidavit, the failure to comply with therequirement cannot be ground for dismissal of an election petitionin limine under Section 86(1). The Court reiterated that non-compliancewith the provisions of Section 83 does not attract the consequencesenvisaged by Section 86(1) and that the defect in the verification andthe affidavit is curable defect. The following portion of the decisionis of significance:

“14. xxxx

Therefore, an election petition is not liable to be dismissed in limineunder Section 86 of the Act, for alleged non-compliance withprovisions of Section 83(1) or (2) of the Act or of its proviso. Thedefect in the verification and the affidavit is curable defect.What other consequences, if any, may follow from an allegedly“defective” affidavit, is required to be judged at the trial of anelection petition but Section 86(1) of the Act in terms cannot beattracted to such case.”

41. In K.K. Ramachandran Master vs. M.V. Sreyamakumar[5],this Court followed F.A. Sapa (supra) and Sardar Harcharan SinghBrar (supra) to hold that defective verification is curable. The Courtagain reiterated that the consequences that may flow from defectiveaffidavit is required to be judged at the trial of an election petition andthat such election petition cannot be dismissed under Section 86(1).

42. Though all the aforesaid decisions were taken note by two-member Bench in P.A. Mohammed Riyas vs. M.K. Raghavan[6], theCourt held in that case that the absence of proper verification may leadto the conclusion that the provisions of Section 81 had not been fulfilledand that the cause of action for the election petition would remainincomplete. Such view does not appear to be in conformity with theseries of decisions referred to in the previous paragraphs and henceP.A. Mohammed Riyas cannot be taken to lay down the law correctly.It appears from the penultimate paragraph of the decision in P.A.Mohammed Riyas (supra) that the Court was pushed to take such anextreme view in that case on account of the fact that the petitionertherein had an opportunity to cure the defect, but he failed to do so.

5 (2010) 7 SCC 428

6 (2012) 5 SCC 511

ATherefore, P.A. Mohammed Riyas (supra) appears to have turned onits peculiar facts. In any case P.A. Mohammed Riyas was overruled inG.M.Siddeshwar vs. Prasanna Kumar[7]on the question whether it isimperative for an election petitioner to file an affidavit in terms of OrderVI Rule 15(4) of the Code of Civil Procedure, 1908 in support of theaverments made in the election petition in addition to an affidavit (in aBcase where resort to corrupt practices have been alleged against thereturned candidate) as required by the proviso to Section 83(1). As amatter of fact, even the filing of defective affidavit, which is not inForm 25 as prescribed by the Rules, was held in G.M. Siddeshwar to bea curable defect and the petitioner was held entitled to an opportunity toCcure the defect.43. The upshot of the above discussion is that defectiveverification is curable defect. An election petition cannot be thrownout in limine, on the ground that the verification is defective.

44. Therefore, the High Court committed grave error in holdingDthe 3 defects mentioned in paragraph 18 hereinabove as incurable. Thedefects are curable and as rightly contended by the learned counsel forthe petitioner, an opportunity to cure the defects ought to have beengiven. Instead, the election petition was posted before Court withoutnumbering, in view of the defects noticed. The Court directed the petitionEto be numbered subject to arguments on the curability of defects.Thereafter notices were issued to the respondents in the election petitionand finally the order impugned herein was passed after hearing bothsides. The High Court did not even rely upon any rule framed by theHigh court to follow the said procedure.F45. The Rules of the High Court of Kerala, 1971 contains set ofRules from Rule Nos.207 to 219 in Chapter XVI. These Rules governthe procedure for institution and trial of election petitions. Rule 210 ofthese rules reads as follows:-

“210.Summons.-Immediately after registering, the petition shallGbe placed before the Judge for such orders as may be required tobe passed under Section 86 of the Act. If the petition is notdismissed under Section 86(1) of the Act, summons, on thedirection of the Judge shall be issued to the respondents to appearbefore the High Court on fixed date and answer the claim or

H7 (2013) 4 SCC 776

claims made in the petition. Such date shall not be earlier thanthree weeks from the date of the issue of the summons. Thesummons shall be for written statement and settlement of issuesand shall be served on the respondents by the process staff of theHigh Court or the District Courts, all steps being taken to effectservice with the utmost expedition.”

46. The manner in which Rule 210 has been worded gives animpression as though an election petition should be placed before theJudge, immediately after it is registered, for passing Orders under Section86(1). If the petition is not dismissed under Section 86(1), summonsshould be issued to the respondents on the direction of the Judge. In thecase on hand the learned designated Judge before whom the electionpetition was listed as defective, chose to issue summons to therespondents, calling upon them to argue on the curability of defects aswell as the maintainability of the petition. There is nothing to indicate inthe Rules that the learned designated Judge was powerless to return thepetition to the petitioner for curing the defects.47. The procedure adopted by the High Court of Kerala cannotbe approved. The High Court was wrong in thinking that the defectiveverification of the election petition was pointer to the game plan of theelection petitioner to disown the pleadings at later stage, especiallyafter making serious allegations against the former Chief Minister. Ifonly the High Court had given an opportunity to the petitioner to cure thedefects in the verification and if, despite such an opportunity, the petitionerhad failed to come up with proper verification, the High Court couldhave then held the petitioner guilty of playing hide and seek. The failureof the High Court to give an opportunity to cure the defects is improper.

48. The defect in the prayer made by the petitioner was also acurable defect, as the words “as void” were omitted to be included,making the prayer as it existed, meaningless. It is true that the electionpetitioner should have been more careful and diligent in incorporating anappropriate relief and making proper verification. But no motives couldhave been attributed to the petitioner, only because she made seriousallegations against someone. Hence we hold on the first issue that thedefects in the verification and prayer made by the petitioner were curableand an opportunity ought to have been given to the petitioner to cure thedefects.

654SUPREME COURT REPORTS

AIssue-2 (effect of punishment by criminal court)

49. That takes us to the next issue regarding the punishmentsimposed upon the petitioner in two criminal cases and the suspension ofexecution of sentence alone granted by the appellate/revisional Courts.

50. Admittedly the petitioner was imposed with punishment ofBimprisonment for period not less than two years in two independentcriminal cases. Therefore, her case is covered by Section 8(3) of theAct.

51. What was suspended by the appellate Court in one case andthe revisional Court in another case was only the execution of the sentenceCof imprisonment and not the conviction. The contention of the petitioneris that the suspension of the sentence was sufficient to save her fromthe applicability of Section 8(3).

52. But we do not think so. Section 8(3) reads as follows:

D“Disqualification on conviction for certain offences.-

(3) person convicted of any offence and sentenced toimprisonment for not less than two years [other than any offenceEreferred to in sub-section (1) or sub-section (2)] shall be disqualifiedfrom the date of such conviction and shall continue to bedisqualified for further period of six years since his release.”

53. It is seen from reading of Section 8(3) that it deals with twoaspects namely (i) the conditions for disqualification; and (ii) the periodFof disqualification. The conditions for disqualification are (i) convictionfor any offence other than an offence referred to in Sub-sections (1)and (2); and (ii) sentence of imprisonment for not less than two years.

54. In so far as the period of disqualification is concerned, Section8(3) says that the disqualification will commence from the date ofGconviction. This is made clear by the usage of the words “shall bedisqualified from the date of such conviction”. It is needless to statethat the words “the date” appearing in Section 8(3) refers to the eventof conviction and it is post facto. The disqualification which commencesfrom the date of conviction, continues till the expiry of period of sixHyears from the date of his release.

55. In other words, the date of conviction is what determinesthe date of commencement of the period of disqualification. However,it is date of release which determines the date on which thedisqualification will cease to have effect.

56. When viewed in that context, it will be clear that the meresuspension of the execution of the sentence is not sufficient to take therigour out of Section 8(3).

57. In fact, Constitution Bench of this Court held in B.R. Kapurvs. State of Tamil Nadu[8] that an order of the appellate/revisional Courtsuspending the sentence of imprisonment has to be read in the contextof Section 389 of the Code of Criminal Procedure and that under thesaid provision, what is suspended is only the execution of the sentenceand not the sentence itself. The Constitution Bench made it clear thatthe suspension of the execution of the sentence would not alter or affectthe conviction and that therefore such person would remain disqualifiedunder Section 8(3). In fact, in B.R. Kapur (supra) person whosenomination was rejected on the ground of disqualification, got elected asthe leader of the party which secured majority in the elections and becamethe Chief Minister and hence Article 164 was pressed into service. Buteven the same was rejected on the ground that person who wasdisqualified from contesting the elections, cannot take the route of Article164.

58. contention was raised in B.R. Kapur (supra) that the sittingmembers of Parliament or Legislatures are granted by Section 8(4) ofthe Act, with protection against removal from office, during thependency of their appeal or revision against conviction and that it isviolative of the guarantee of equality under the Constitution, if the classof persons getting convicted before elections are placed at adisadvantageous position than the class of persons who are convictedafter getting elected to the Parliament or the State Legislatures. But theConstitution Bench rejected this contention in B.R. Kapur (supra) onthe ground that the constitutional validity of Sub-section (4) of Section 8was not in question.

59. Possibly taking cue from what was observed in B.R. Kapur(in Para 38 and 39 of the Report), challenge was made to Section 8(4)

8 (2001) 7 SCC 231

Ain Lily Thomas vs. Union of India[9], on the ground that it is ultra viresthe Constitution. While declaring the said provision to be unconstitutional,this Court held in Lily Thomas (supra) that Member of Parliament orthe State Legislature who suffers frivolous conviction, will not beremediless. Taking note of the decisions in Rama Narang vs. RameshNarang[10] and Ravikant S. Patil vs. Sarvabhouma S. Bagali[11], thisBCourt held in Lily Thomas (supra) that the appellate Court has amplepowers under Section 389(1) of the Code, to stay the conviction as wellas the sentence and that wherever stay of conviction itself has beengranted, the disqualification will not operate.

60. Just as the observations made in B.R. Kapur (supra) led to aCchallenge to Section 8(4) of the Act in Lily Thomas (supra), the discussionin Lily Thomas (supra) about the power of the appellate Court to staythe conviction as well as the execution of sentence, led to another boutof litigation. In Lok Parhari vs. Election Commissioner of India[12], thepetitioner sought declaration that even stay of conviction by theDappellate Court will not have the effect of wiping out the disqualification.The contention of the petitioner was that the law does not provide forstay of conviction. But this Court rejected the challenge on the groundthat the decisions in Rama Narang (supra) and Lily Thomas (supra)clinched the issue in this regard.E61. Therefore, in effect, the disqualification under Section 8(3)will continue so long as there is no stay of conviction. In the case onhand, the petitioner could not obtain stay of conviction but obtainedonly stay of execution of the sentence. Hence her nominations werevalidly rejected by the Returning Officer. Merely because the ReturningOfficer in Amethi Constituency committed an error in overlooking thisFfact, the petitioner cannot plead estoppel against statutory prescription.

CONCLUSION

62. Therefore, in fine, we hold that the petitioner was disqualifiedfrom contesting the elections in terms of Section 8(3) of the Act. In suchGcircumstances, she could not have maintained an election petition as “acandidate at such election” in terms of Section 81(1). Therefore, the

9 (2013) 7 SCC 65310 (1995) 2 SCC 51311 (2007) 1 SCC 673H12 (2018) AIR 4675

High Court was right in not venturing into an exercise in futility, by takingup the election petition for trial, though the High Court was wrong inrejecting the election petition on the ground of existence of incurable ofdefects.

63. In view of the above, the Special Leave Petition is dismissed.There will be no order as to costs.

Ankit Gyan

SLP dismissed.