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2003 DIGILAW 303 (RAJ)

Narayan Lal v. State of Rajasthan

2003-02-25

M.R.CALLA, PRAKASH TATIA, SUNIL KUMAR GARG

body2003
JUDGMENT 1. - This reference has come up before us on the basis of the order dated 3.4.2002 passed by the Division Bench in D.B. Civil Special Appeal No. 715/2001 to answer the question framed by the Division Bench as under "Whether a Sarpanch elected by a valid democratic process can be ousted from the office on the ground that he was disqualified to contest the election as on the date of nomination viz; he was undergoing a trial before the competent Court which had taken cognisance of the offence and framed a charge against him of the offence punishable with imprisonment for five years or more inviting applicability of clause (gg) of Sec. to 19 of the Rajasthan Panchayati Raj Act, 1994 in spite of the fact that on the date the Tribunal upset the election, he stood acquitted of the charges levelled against him?" 2. Before we proceed to answer the question as has been referred, we may precisely narrate the set of facts which have given rise to the making of 15 this reference. (A) In case of Narain Lal v. State of Rajasthan & Ors., (D.B. Civil Special Appeal (Writ) No. 715/2001 arising out of S.B. Civil Writ Petition No. 3171/2001). (i) The nominations for the election of Gram Panchayat Denda, Tehsil and District Pali in Jodhpur Division were submitted on 3.2.2000 which was the last day for submission of nominations. The nomination papers were scrutinised on the same day. (ii) The election of Sarpanch was held on 4.2.2000. (iii) Original petitioner-Narain Lal secured 525 valid votes i.e. the highest number of votes, one Shri Beenja secured 283 valid votes, Shri Pukhraj secured 261 valid votes, Shri Mena Ram secured 174 valid votes and Shri Anoopa Ram secured 59 valid votes. (iv) The election of Shri Narain Lal was challenged by Shri Pukhraj, one of the defeated candidates in the election, on the ground that the original petitioner Narain Lal was facing trial for a cognisable offence in a criminal case in which cognisance had already been taken by the Chief Judicial Magistrate (Environment), Pali on 10.2.1998 under sections 420, 467, 468, 471 & 120-B IPC. The charge had already been framed on 18.8.1999 under sections 420 & 120-B IPC. (v) Subsequently, a compromise was entered into between the parties on 27.1.2000 i.e. a week prior to filing of the nomination papers. The charge had already been framed on 18.8.1999 under sections 420 & 120-B IPC. (v) Subsequently, a compromise was entered into between the parties on 27.1.2000 i.e. a week prior to filing of the nomination papers. The Returning Officer has, therefore, accepted the nomination paper. However, the fact remains that on account of employees strike the compromise could not be verified and the 5 same was verified on 5.8.2000 by the Court. On 5.8.2000, the order of acquittal was passed. The election petition was filed by the defeated candidate Shri Pukhraj on 1.3.2000. (vi) On 7.8.2001, the Tribunal allowed the election petition setting aside the election of Narain Lal as being void. (vii) This order dated 7.8.2001 was challenged by way of writ petition u/Art. 226 of the Constitution of India before this Court and the learned Single Judge decided the petition on 21.8.2001 and dismissed the same. (viii) Against the order dated 21.8.2001 passed by the learned Single 15 Judge, the present D.B. Civil Special Appeal (Writ) No. 715/2001 was filed out of which this reference arose in terms of the order dated 3.4.2002. (B) In case of Babu Lal v. District Judge, Merta, (S.B. Civil Writ Petition No. 1185/2002) . (i) Petitioner Babu Lal, Shri Mana Ram and Manak Ram were the candidates who contested the election for the post of Sarpanch of Gram Panchayat Jasnagar, Tehsil Merta, District Nagaur on 31.1.2000. (ii) Shri Babu Lal petitioner was declared elected as Sarpanch of 25 Gram Panchayat Jasnagar on 31.1.2000. (iii) One of the defeated candidates namely Shri Manak Ram challenged the election of Shri Babu Lal by way of election petition before the District Judge, Merta under section 43 of the Rajasthan Panchayati Raj Act, 1954 r/w Rajasthan Panchayati Raj (Election) Rules, 1994. The basic ground of challenge was that Shri Babu Lal was disqualified to contest the election of Sarpanch because the trial for the offence under sections 420 & 406 1PC was pending against him, wherein, the charges had been framed. He was, therefore, disqualified for contesting the election of Gram Panchayat Jasnagar because of the provisions of Section 19(gg) of the Act, 1994. (iv) In the criminal case arising out of FIR No. 70/98 of Police Station Merta City F.R. was filed holding that no offence was made out against Sri Babu Lal. He was, therefore, disqualified for contesting the election of Gram Panchayat Jasnagar because of the provisions of Section 19(gg) of the Act, 1994. (iv) In the criminal case arising out of FIR No. 70/98 of Police Station Merta City F.R. was filed holding that no offence was made out against Sri Babu Lal. A protest petition was then filed by the complainant and thereupon the cognisance of the offence was taken against him and the charges were framed vide order dated 21.6.1999. (v) Against this order dated 21.6.1999, a Revision Petition No. 28/99 was moved before District Judge, Merta and this revision petition was registered on 30.8.1999 and the record of the lower Court was summoned. (vi) Revision petition as had been filed was allowed by the District Judge, Merta on 12.5.2000. (vii) Against this order passed by the learned District Judge, Merta, a revision petition was again filed before the High Court being S.B. so Cr. Revision Petition No. 418/2000, but the same was dismissed by the Court on 30.8.2001. The District Judge, Merta allowed the election petition on 19.8.2002 and the election of Shri Babu Lal was set aside by judgment and order dated 19.3.2000. (viii) Against this order dated 19.3.2000, a Writ Petition No. 1185/2002 was filed before this Court. When this petition came up before the Court on 6.8.2002, the learned Single Judge before whom the matter came took note of Division Bench decision dated 25.1.2002 in the case of D.B. Civil Writ Petition No. 2463/2001 (Bengali Ram v. District Judge, Aiwar) and relying upon the judgment in the case of Hanuman Prasad v. District Judge, Merta , he came to the conclusion that if a charge for the offence punishable with imprisonment for five years or more is farmed prior to holding of election, that will be a disqualification under section 19(gg) of the Rajasthan Panchayati Raj Act, 1994. Similar matter again arose before another Division Bench in case of Narain Lal v. State of Rajasthan & Ors., (as stated herein above) in D.B. Civil Special Appeal (Writ) No. 715/2001 . The Division Bench did not concur and by an order dated 3.4.2002, the matter was referred to the larger Bench in Narain Lal's case (as stated herein above). Similar matter again arose before another Division Bench in case of Narain Lal v. State of Rajasthan & Ors., (as stated herein above) in D.B. Civil Special Appeal (Writ) No. 715/2001 . The Division Bench did not concur and by an order dated 3.4.2002, the matter was referred to the larger Bench in Narain Lal's case (as stated herein above). In this contest, the writ petition No. 1185/2002 has been kept pending to await the decision of larger Bench and this is how both the matters have been heard by us. 3. It is in this background of aforesaid set of facts that we have to answer the question extracted above. 4. For the purpose at hand, let us first consider the scope and ambit of Section 19(gg) of the Rajasthan Panchayati Raj Act, 1994, which is reproduced as under:- "19. Qualifications for election as a Panch or a member. Every person registered as a voter in the list of voters of a Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayti Raj Institution unless such person (gg) is under trial in the competent Court which has taken cognisance of the offence and framed the charges against him of any offence punishable with imprisonment for five years or more." 5. Section 19(gg) as has been quoted above was inserted by clause (iv) of Section 5 of the Rajasthan Panchayati Raj (IIIrd Amendment) Ordinance, 1999 vide Notification No. F.4(12)Vidhi/2/1999 dated 27.12.1999 published in Rajasthan Gazette Extra-ordinary dated 27.12.1999. Section 19 in fact lays down the qualification for election as a Panch or a Member and renders such candidate to be disqualified against whom a cognisance has been taken by the Court, the charges have been framed for any offence punishable with imprisonment for five years or more. 6. In the scheme of Rajasthan Panchayati Raj (Election) Rules, 1994 under Chapter 13 relating to Election Disputes, Rule 80 provides the manner of challenging an election under the Act and the grounds on which the election can be set aside have been enumerated in the body of the Rule itself. One of the grounds at item (a) is that on the date of election a returned candidate was not qualified or was disqualified for such election. One of the grounds at item (a) is that on the date of election a returned candidate was not qualified or was disqualified for such election. Rule 80(a) is reproduced as under: "Rule 80(a)-that on the date of election a returned candidate was not qualified or was disqualified for such election, or" 7. As per Rule, the crucial date to test the eligibility of the candidate is the date of election. Therefore, the touchstone to determine the test as to whether the returned candidate was qualified to contest the election or not is the date of election. What has happened till the date of election to test his candidature is important and nothing which happened subsequent to the date of election can be taken note of for the purpose of determining the validity of his election. In other words, no fact which is subsequent to the date of election can be taken notice of to justify the validity of the election. Accordingly, if the returned candidate was in fact suffering the disqualification xi the date of election and merely because his nomination paper has been wrongly accepted and somehow or the other he has been able to get the Highest number of votes and he has been declared elected and acquitted thereafter would not mean that as on the date of election he should be taken to be qualified. The argument which has been raised is that once he is acquitted, the position is to be taken as if the cognisance had not been taken against him and anything which has happened on account of this trial should not come as a legal impediment against him because he has been ultimately acquitted. Acquittal in such cases certainly removes the disqualification but such removal of disqualification is neither retrospective nor retroactive. Therefore, it cannot be said that as on the date of scrutiny rejection or acceptance of nomination paper of a candidate, who was suffering from Disqualification under section 19(gg) was invalid or valid respectively as the case may be, and the subsequent acquittal in such cases does not remove the disqualification for the purpose of upholding the election in an election petition. 8. In case of Hanuman Prasad v. District Judge, Merta & Ors., reported in 2001(2) WLC (Raj.) 423 (quorum Hon'ble Dr. Justice B.S. Chauhan). 8. In case of Hanuman Prasad v. District Judge, Merta & Ors., reported in 2001(2) WLC (Raj.) 423 (quorum Hon'ble Dr. Justice B.S. Chauhan). a Single Bench of this Court dealing with the disqualification on the ground of criminal charge under section 19(gg) of the Rajasthan Panchayati Raj 25 Act, 1994 held that in case the charges were framed prior to the filing of the nomination paper, the acquittal of such candidate after the election does not remove the disqualification. The disqualification referring to a charge for an offence is a statutory disqualification which cannot be wiped off on account of subsequent acquittal and the election of such candidate had been rightly set aside by the Election Tribunal on the ground that he was charged with criminal offences at the time of filing of his nomination paper. After considering the catena of cases decided by Supreme Court and High Courts, the Court found that the democratic rights of voting or contesting the election are statutory rights and they have to be exercised in accordance with the statute creating the same. The Court also found that the case law in relation to conviction resulting in acquittal has no application to the disqualification of facing the charge under section 19(gg) which by itself is a disqualification incapable of being wiped off by subsequent acquittal. 9. In the case of Vidya Charan Shukla v. Purshottam Lal Kaushik, reported in AIR 1981 SC 547 , which was a case under the Representation of People Act, 1951, the Court considered the question of disqualification suffered by a candidate as contemplated under section 100(1) Clause (a) and Clause (d)(i). In para 29 of the Judgment, the Supreme Court has noted the question as had been considered in the case of Manni Lal v. Parmal Lal, reported in AIR 1971 SC 330 to the following effect "What was the effect of the acquittal in appeal of the returned candidate before the decision of the election petition, on his conviction and sentence, which was the main ground on which he was alleged to be disqualified or being chosen?" 10. In the facts of that case, the conviction was recorded by the trial Court on 11.1.1969 which resulted into acquittal in appeal on 30.9.1969 and the Court held that effect of conviction was completely wiped off. In the facts of that case, the conviction was recorded by the trial Court on 11.1.1969 which resulted into acquittal in appeal on 30.9.1969 and the Court held that effect of conviction was completely wiped off. In a criminal case, acquittal in appeal does not take effect merely from the date of appellate order setting aside the conviction but it has the effect of retrospectively wiping out the conviction and sentence awarded by the lower Court. The appellate order of acquittal takes effect retrospectively and the conviction and sentence are deemed to be set aside w.e.f the date they were recorded. Once an order of acquittal has been made it has to be held that the conviction stands wiped out and did not exist at all. Therefore, the disqualification which existed on the date of the filing of nomination papers, as a fact, stood wiped out when the conviction was set aside then he was acquitted and as a matter of fact it stands wiped off w.e.f. the same date on which he was convicted as that is the date on which the acquittal must be deemed to be effective. 11. Under Section 100(1)(a) of the Act, 1951, the election of returned 15 candidate has to be declared void if High Court is of the opinion that, on the date of his election a returned candidate was not qualified or was disqualified, to be chosen to fill the seat under the Constitution or the Act. Opinion has to be formed as to whether the successful candidate was disqualified on the date of his election; but this opinion is to be formed by the High Court at the 20 time of pronouncing the judgment in the election petition. In the case before the Supreme Court, it was noticed that the High Court had before it the order of acquittal which had taken effect retrospectively from 11.1.1969. It was, therefore, impossible for the High Court to arrive at the opinion that on 9th or 11.1.1969 the respondent was suffering from disqualification. The conviction and sentence had been retrospectively wiped out so that the opinion required to be formed by the High Court to declare the election void could not be formed. 12. It was, therefore, impossible for the High Court to arrive at the opinion that on 9th or 11.1.1969 the respondent was suffering from disqualification. The conviction and sentence had been retrospectively wiped out so that the opinion required to be formed by the High Court to declare the election void could not be formed. 12. In para 30, the Supreme Court itself has noted as to what was laid down in Manni Lars case (supra) and it has been quoted that, "if the disqualification of the returned candidate, viz., his conviction and sentence exceeding two years' imprisonment which existed as a fact at the date of election, is subsequently set aside by the appellate Court, then a challenge to his election on the ground under section 100(1)(a) of the Act, in an election petition pending in the High Court at the date of such acquittal, must fail because the acquittal has the effect of retrospectively wiping out the disqualification as completely and effectively as if it never had existed." It was thus held that, the acquittal before the decision of election petition pending in the High Court is with retrospective effect rendering the disqualification to be non-existent, even on the scrutiny of nominations. This case clearly spells out the distention between the fact situation of facing the trial for a cognisable offence in which the charge has been framed on the one hand and the conviction on the other hand. As a result of acquittal, the conviction stands wiped off. 13. In the cases before us under section 19(gg) the disqualification is the fact situation of facing the trial for a cognisable offence in which the charge has already been framed. The intention of the Legislature is, therefore, clear to send a message to the entire electoral college that the facing of a trial for a cognisable offence in which charge has been framed is by itself a disqualification. What happened to this charge later on, as a result of the trial which results into acquittal or conviction rather even if has resulted into acquittal, has no impact to undo the fact of disqualification suffered on the date of scrutiny of the nomination papers and, therefore, the subsequent acquittal in such cases will not be sufficient to hold the candidate to be qualified on the date of scrutiny of the nomination papers. This is the fine distinction between the statutorily provided fact situation of facing the trial for a cognisable offence in which charge has been framed and conviction as such. While incorporating this amendment under section 19(gg) and providing the disqualification as above, the Legislature knew this fine distinction and it cannot be said that the Legislature was not aware that a person who is facing the trial for a cognisable offence in which the charge has been framed may be acquitted in the case. The genus of the disqualification is not the ultimate outcome of the trial but the charge which the concerned candidate is facing at the time of election. Legislature wanted to send a message to the 10 members of the electoral college to maintain purity in the election. Such candidates if acquitted, it is well and good but in case such candidates are convicted, they must have already continued to hold the important elective post till the date of conviction and, therefore, the damage is already done. The apprehension that such disqualification may be misused in certain cases, is and the rival political hands may falsely implicate the person so as to keep him out of the race to contest the election, to our mind is not safe to allow such candidate to contest the election and the result of the trial cannot be pre-empted nor this disqualification, based on the fact situation as it exists on the date of scrutiny of the nomination papers, can be made to depend on the result of the trial. 14. The validity of the provisions of Section 19(gg) was challenged in the case of S hiv Ram Singh & 5 Ors. v. State of Rajasthan & Ors., reported in 2000(4) WLC (Raj.) 412 (quorum Hon'ble N.N. Mathur and D.N. Joshi, JJ.) and it was observed in para 12 of the judgment as under: "We are also not oblivious of the fact that while there is increase in criminalisation in the country, there is also growing tendency of false implication to achieve political, business or private motives. In a country like ours where criminal Courts excel in slow motion, once a case is registered against a person, the political opponent may not 30 allow the trial to be concluded and succeed in keeping him away from the election for ever or at least for a substantial period. In a country like ours where criminal Courts excel in slow motion, once a case is registered against a person, the political opponent may not 30 allow the trial to be concluded and succeed in keeping him away from the election for ever or at least for a substantial period. A reading of the offending Ordinance under challenge shows that this aspect has been taken care of as only such of the persons have been kept out of election fray against whom a charge has been framed for serious offences." 15. In para 22 of the very same judgment, the Division Bench also observed that, "prohibition to contest the election is provided at the stage when correctness of the allegations constituting the offence punishable with imprisonment for five years has been thoroughly investigated by the police and filtered by the judicial scrutiny. Thus, after the charge is framed, the accused cannot be heard to say outside the trial that he has been falsely implicated for certain ulterior motives." 16. It was for such weighty reasons that Section 19(gg) was held to be valid. 17. In partible with the reasons given in Shiv Ram & Ors. v. State of Rajasthan & Ors. (supra). 18. In the case of B.R. Kapur v. State of Tamilnadu & Anr., reported in (2001) 7 SCC 231 at the end of para 72 at page 313 the Supreme Court has categorically observed that: "the action of the majority of the elected members of a political party in choosing their leader to head the Government, if found to be contrary to the Constitution and the laws of the land then the Constitution and the laws must prevail over such unconstitutional decision, and the argument of Mr. Rao, that the will of the people would prevail must give way. in a democratic society there are important reasons for obeying the law, which do not exist in other forms of government. Our political system stilt is not prefect and there is always the scope of many legislative reforms to be made. But the maintenance of life in modern society requires a willingness from most citizens for most of the time to observe laws, even when individually they may not agree with them." 19. Our political system stilt is not prefect and there is always the scope of many legislative reforms to be made. But the maintenance of life in modern society requires a willingness from most citizens for most of the time to observe laws, even when individually they may not agree with them." 19. The dictum laid down by the Supreme Court is, therefore, very clear that ultimately it is the law which should prevail over the will of the people. Such a dictum may not be acceptable and may be troublesome to some minds but it has to be accepted and is binding on all as the law laid down by the Apex Court u/Art. 141 of the Constitution of India. 20. The principles and propositions of law as have been laid down in the various decisions referred to herein above and the reasoning as aforesaid leads us to an irresistible conclusion that the disqualification as provided under section 25 19(gg) is a penalty of a trial against a person concerned for a cognisable offence with imprisonment for five years or more, wherein, a charge has been framed and, therefore, the result of the trial in such cases is irrelevant. 21. The disqualification does not refer to conviction but refers to the pendency of trial. The factum of the pendency of trial for a cognisable offence punishable with imprisonment for five years or more in which a charge has been framed by the Court at the relevant time when the nomination papers are subjected to scrutiny is by itself a disqualification and such disqualification has nothing to do with the contingent situation of acquittal or conviction. 22. 22. We, therefore, do not agree with the view taken by the Division Bench as contained in the order dated 3.4.2002, whereby, reference has been made and agree with the reasons as given in the judgment and order dated 25.1.2002 in D.B. Civil Writ Petition No. 2463/2001 and have no hesitation in answering the question referred to us as under:A Sarpanch elected by a democratic process can certainly be ousted from the office on the ground that he was disqualified to contest the election under section 19(gg) of the Rajasthan Panchayati Raj Act, 1994 as on the date of filing nomination papers when he was undergoing a trial before the competent Court which had already taken the cognisance of the offence and had framed the charge against him for the offence punishable with imprisonment for five years or more and even if he stood acquitted of such charge at the end of the trial, it could not be a ground not to upset his election. 23. Reference is answered accordingly and both these matters are sent back before the concerned Court for decision in accordance with law.Reference answered as above. *******