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No disqualification when an appeal is pending

THE RATIO, logic and the principles of the doctrines of sub judice, lis pendens, res judicata,
autrefois acquit, autrefois convict and the binding judicial precedents and Articles 14, 20 and 21
of the Constitution bar the disqualification under Section 8 of the Representation of the People
Act when an appeal against the judgment of conviction is pending, a fortiorari (much more so or
applies with greater force or reason) when the judgment of conviction (either sentence or
conviction or both) is suspended or stayed pending the appeal.

The High Court also has an inherent power to suspend or stay the conviction when, on appraisal
of facts, considers it necessary in order to meet the ends of justice and avoid grave injustice
happening or prevent irreparable wrong or damage or hardship that is likely to happen, to put an
end to a controversy and bar multiplicity of proceedings or even by way of abundant caution.

`Conviction' meaning

Under subsections (1), (2) and (3) of Section 8, the disqualification starts from the date of
conviction. As held by the Supreme Court in Rama Narang's case 1995 (2) SCC 513 unlike under
the Repealed Code of Criminal Procedure 1888, the new Code of 1973 provides for two stages in
the trial. First, recording a finding of guilt and the second, questioning the accused on the
question of sentence and delivering the judgment imposing sentence. The recording of a finding
is not an order or judgment and is not appealable. The appeal provisions in the Criminal
Procedure Code 1973 (hereafter referred to as Code) also make this clear. A judgment where a
person is found guilty and sentenced is called ``conviction'' and a judgment finding not guilty is
called ``acquittal''.

The law does not envisage a person being convicted for an offence without a sentence. Sentence
is normally imprisonment or fine or both. In relation to an offence, `sentence' includes any order
made by a court when dealing with an offender and an order under Sections 356, 357, 359 & 360
is contingent on the finding of guilt and falls within the meaning of ``sentence'' and appealable.

It may be that in an appeal you can challenge both the finding of guilt and sentence or restrict to
the question of sentence alone as excessive or disproportionate or on any other ground. One may
question the finding of guilt alone as in the case where he had already undergone the sentence in
order to erase the stigma resulting in the finding of guilt also (vide 1979(4) SCC 600).

At the time (in 1951) when Representation of the People Act was enacted, the word `conviction'
is used only to denote the judgment wherein the court finds the accused guilty and imposes a
sentence on him and there were no two stages referred to above. The word `conviction' is thus a
synonym for judgment in which a person is found guilty of an offence and sentenced. The date of
judgment is the date on which the sentence on the accused is passed, and the words `from the
date of conviction' in Section 8 has to be read and understood as `from the date of judgment'.
Effect of filing an appeal

Though it may be correct to say that a finding of guilt or conviction does not disappear or cease
to exist on the filing of an appeal, it is well settled that the finality attached to the finding of guilt
or conviction is set at large on filing of an appeal and the finding or the sentence or both can be
altered or varied by the appellate court.

It is well settled that the admission of an appeal against a judgment of acquittal under Section
378 has the effect of reviving the proceedings against an accused person who has been acquitted
and therefore the appellate court can order the arrest of such persons pending the appeal
(Empress of India v Mangu ILR 2 ALL 340 and Queen v Govind Tewari ILR 1 CAL 281). At the
time when these cases were decided there was no specific power conferred on the appellate court
to order arrest. The power to order arrest was inferred from the legal position that on admission
of appeal the finality attached to the finding of not guilty or acquittal is removed and the
proceeding gets revived and as the charges thus get revived an arrest can be ordered.

In 1961 MLJ (Crl.) 180, the High Court observed that the ``proceedings forming the subject
matter of a criminal charge against a person from the primary court of trial to the ultimate court
of final appeal or revision really constitute one proceeding and however varying the fortunes of
the person indicted may be, the proceedings always can have only one result and that is the result
of the last proceeding which becomes indefeasibly final''. When an appeal is filed the finality of
the judgment of the trial court disappears and the whole issue is in a flux afresh (vide 1985
criminal law journal 584 Patna).

Date of conviction in Section 8

The Supreme Court has held, in Dilip v State of M.P. AIR 1976 SC 133, Manni Lal v Parmai Lal
AIR 1971 SC 330, V. C. Shukla v Purshottam AIR 1981 SC 547, as a general principle of law
that if an appeal filed against an order of conviction and sentence is allowed, the conviction and
sentence becomes non-est and the judgment in the appeal operates with retrospective effect and
anything done on the basis of the conviction becomes null and void.

In V. C. Shukla's case, the nomination of Mr. Shukla was accepted by the Returning Officer even
though on the date of nomination his conviction was in force and not even suspended. On behalf
of the unsuccessful candidate it was argued that the phrase `date of such conviction' occurring in
subsection (2) of Section 8 of the Act meant the date of the initial conviction and not the date of
the final conviction and that if the phrase was construed as referring to the date of the final and
ultimate conviction on termination of a judicial process in the hirerarcy of courts, subsection (3)
which is now sub-section (4)0 would be redundant. This argument was not accepted by the
learned judges.

In AIR 1976 SC 133 the Supreme Court construing the words undergoing a ``sentence of
imprisonment for life'' on the date when he committed another ``offence of murder'' in Section
303 of IPC, after setting out the possible ways the trial court could have dealt with it, held that
the phrase ``being under sentence of imprisonment for life'' takes in only that sentence of
imprisonment which under the law being the ultimate end product of the entire gamut of
litigation fought on the hireracy of courts has become final, conclusive and indefeasible and as
such is not liable to be impugned, annulled or voided by further judicial action''.

On the ratio of these judgments there could be no doubt that conviction and sentence referred to
in Section 8 is the final judgment against which no appeal or revision lies.

Another situation

It is useful to note one other situation, which is not impossible or cannot be said to be unlikely,
where time is given under Section 235 (2) to the accused to make his representation on the
question of sentence, and the case is adjourned for that purpose and in the meantime the date for
scrutiny of nomination comes in. Can the Returning Officers reject the nomination on the ground
that there is a finding of guilt or conviction though it is not followed by a judgment and sentence.
Obviously, he could not.

Another aspect to be kept in mind is that if the disqualification had already been given effect to
when the appeal was allowed, it would not be possible of restitution, in the sense of annulling the
wrong done, and an illegal and irreparable damage would have been perpetrated by the wrong
judgment of the trial court. The legislation would not have intended this injustice to happen. On
the other hand, if the appeal against the conviction is dismissed, it would be possible to impose
the disqualification from the date of the final appellate judgment. If the candidate had been
elected he would cease to be a Member of Parliament or legislature.

Not evidence

A judgment in a criminal case is a judgment in personam. It is evidence in any collateral

proceedings only insofar as it states that a person was charged for a particular offence or he is
convicted or acquitted of that charge. However even for this purpose only a judgment which is
indefeasibly final can be admitted as evidence and not one which is subject matter of an appeal.
Whether the judgment or the sentence is suspended or not, once an appeal against a conviction is
admitted, the entire matter becomes sub judice and the judgment of the trial court ceases to have
any evidentiary value in any collateral proceedings.

Sub judice means a matter or the finding is under judicial consideration and therefore prohibited
from public discussions or use elsewhere than in the court where it is pending. It is not open to
any third party to rely on the finding of the trial court in any collateral proceedings as conclusive
or established against the person proceeded against in the criminal case.

The doctrine of lis pendens means that when a lis (dispute or case) is pending consideration in a
court anything done which affects the ultimate judgment becomes null and void. In 1978 (3)
SCC 544, speaking for the court, Justice V. R. Krishna Iyer, held that in a criminal case the right
of filing an appeal is part of natural justice and this is manifest in Article 21 of the Constitution.
He further observed ``what follows from this appellate imperative? Every step that makes the
right of appeal fruitful is obligatory and every action or inaction which stultifies it is unfair and
ergo unconstitutional''. Thus if the finding of guilt by the trial court has any consequence or
effect in a collateral proceeding under Section 8, the provision Section 8 itself will be vulnerable
to attack as unconstitutional and ultra vires of Articles 14, 20 and 21 of the Constitution.

A decision or a judgment in a prior case could operate as res judicata and bar the trial of an
identical issue in a subsequent proceeding. It is the settled law when a judgment of a court of
first instance is appealed against it ceases to be res judicata (vide AIR 1954 MDS 563: ILR 11
ALL 148 FB: 39 CAL 925 to cite a few cases). It is now well settled that the ratio and the
principles of Section 11 CPC are a general principle of law and are applicable to all proceedings
of a judicial or quasi judicial nature.

It is the same principle which is incorporated in Article 20 (2) of the Constitution in relation to
Criminal Law which provides that no person shall be prosecuted and punished for the same
offence more than once. It is known in Latin as autrefois acquit or autrefoisconvict. Autrefois
convict or autrefois acquit means that the accused has been previously convicted or acquitted on
a charge for the same offence as that in respect of which he is arraigned. However in order to
apply this principle, the judgment of conviction shall be a final judgment and not one against
which an appeal is pending.

There shall be conclusive evidence to prove prior conviction and sentence. A judgment of the
trial court which is under appeal is not final or conclusive and could not be relied on as evidence.
This is in consonance with the ratio, logic and the well settled principles of sub judice, lis
pendens, res judicata, autrefois acquit and autrefois convict. Any other construction would void
Section 8 (1) (2) & (3) as violative of Articles 14, 20 and 21 of the Constitution.

In the proceedings for acceptance or rejection of the nomination, the Returning Officer shall act
judicially and it is in the nature of a quasi judicial proceeding. It is also a collateral proceeding so
far as the criminal case is concerned and if any judgment against a candidate who had filed the
nomination paper for acceptance is produced as evidence to prove disqualification under Section
8, such judgment should be a final judgment in the sense that there is no further appeal or
revision against it, and it is not subject matter of an appeal.

Effect of suspension of sentence

The `sentence' for the required period is a conjunctive or additional requirement and therefore
unless there is a sentence of imprisonment subsection (2) or (3) could not be attracted. When the
sentence to imprisonment is suspended, on the language used, subsections (2) and (3) cannot
operate.

In Rama Narang's case, the Supreme Court held that though conviction by itself is not
executable, it may, in certain situations, as in the case of appointment of Managing Director in a
company, by reason of Section 267 of the Company's Act. The decision related to appointment in
a company which is contractual and not Constitutional as in the case of an election. Therefore in
the opinion of the author of this article, it is not an authority for a general proposition that unless
``conviction'' is also suspended, it may operate as a disqualification.
The view of the author is consistent with the uniform earlier decisions of the Supreme Court
where the court has taken the view that the conviction when set aside in appeal becomes non-est
as if it never existed, and the various other aspects noted in this article.

Art. 311 (2) cases

Under the first proviso to Art. 311 (2), ``where a person is dismissed or removed or reduced in
rank on the ground of conduct which has led to his conviction on a criminal charge,'' the
procedure of framing charges and enquiry and giving reasonable opportunity of being heard in
respect of the charges need not be followed.

Construing this provision, the Madras, Punjab and Allahabad High Courts have held in AIR 1961
Madras 486, 1959 Punjab 401, and 1961 ALL 336 that conviction here can have only one
meaning, and that is the person must have been convicted finally.

When the Central Government did not wait for the appeal to be disposed of and dismissed a
government servant, the Supreme Court, in 1974 (4) SCC 396, observed ``since an appeal
against the conviction was preferred to this court, the President could have waited for the
disposal of the appeal before taking any action against the appellant on the basis of the
conviction.''

Redundancy argument

Subsection 4 of Section 8 states in the case of a sitting Member of Parliament or legislature of a

State, the disqualification under any of the provisions in subsections (1), (2) and (3) shall not
take effect until there is an indefeasible final judgment. If Section 8 (4) is construed as treating
differently a person who has been convicted, with reference to his position as a Member of
Parliament or legislature of a State from others who are not, then it may be hit by the vice of
discrimination under Art. 14 of the Constitution. A classification could be sustained only if it has
an intelligible differentia which distinguishes persons or things that are grouped together from
others left out of the group and that differentia has a rational relation to the object sought to be
achieved by the statute in question i.e. to say that there shall be a nexus between the
classification and the object of the provision in the Act.

If subsections (1), (2) and (3) are construed as bringing in disqualification immediately on
conviction, even if there is an appeal pending against that judgment, it could be voided as
providing for a hostile discrimination in respect of a person who seeks to contest an election and
a person who is already a Member of Parliament, though both of them have committed the same
offence, more or less the same time and convicted and sentenced to the same extent, but on
different dates.

Taking an illustration, if a person commits an offence before the election and was being tried, but
the conviction and sentence came to be imposed after he was elected, then by virtue of Section 8
(4), until the conviction and sentence becomes final after he had exhausted all the remedies no
disqualification attaches.
If in the same illustration, he has been convicted and sentenced before the election he would be
disqualified. The delay in the trial is the only reason for discrimination.

It is a well known principle of construction of statutes that a provision will have to be construed
so as not to bring in unreasonable classification but in such a way as not to operate
discriminately and thus avoid discrimination. A discrimination could and will be avoided if, as
we have seen already, the phrase convinction and sentence in subsections (1), (2) and (3) is
construed and interpreted as meaning final order of conviction and sentence which is not
defeasible or capable of being voided or annulled by further judicial action.

The provisions of Section 8 (1), (2) and (3) also cannot be interpreted or their meaning curtailed
by reason of the special provision like Section 8 (4). Subsection (4) is not an exception to
subsections (1), (2) and (3). It is also not uncommon to find such redundant provisions in statutes
and the Supreme Court and the various High Courts have noticed many cases of such
redundancy but on that ground the meaning of another provision cannot be restricted. Any other
approach or construction will, in the opinion of the author, invalidate the provisions as ultra vires
of Articles 14, 20 and 21 of the Constitution.

There is also another rule of construction, that is, if a provision is vulnerable to attack on the
ground of discrimination, the court could apply what is known as the principle of affirmative
action to the question by applying the beneficial provision restricted to a class or group as
applicable also to those who are left out of the class or group. In this case also for the various
reasons mentioned above, one has to construe subsections (1), (2) and (3) as having the same
contents as in subsection (4), and thus avoid a conflict or discrimination.

The decision of the Supreme Court in 1978 (3) SCC 544 already referred to is an authority for
the proposition that if the finding of guilt by the trial court has any consequence or effect pending
the appeal, in a collateral proceeding, that provision itself will be vulnerable to attack as
unconstitutional and ultra vires of Articles 14, 20 and 21 of the Constitution.

Directions of the EC

It is stated that the Election Commission had given directions in August 1997 to the Returning
Officers to the effect that ``disqualification of candidature for election under this Section would
commence from the date of conviction regardless of whether the `sentence' is stayed and the
person intending to be a candidate is out on bail or not''.

As may be seen from the directions given that related to a case where ``sentence'' alone is
suspended. This view is neither based on any legal principles nor on any binding precedence. In
fact, 1980 MP 188 which was the earliest in which this view was adumbrated, the Supreme Court
reversed the judgment.

It is also doubtful whether such a direction at all could be given by the Election Commission in
exercise of its power under Article 324, which interferes or has the tendency to interfere with the
decision of the Returning Officer who has to exercise his independent judicial mind in the
determination of the question on disqualification.
In fine, we shall remember that we are a great democracy and the construction or interpretation
of any provision in the Representation of the People Act shall be such as to foster democracy and
have least interference with the effectuation of the same and the people shall be permitted to
choose a person of their choice to govern them.

JUSTICE V. RAMASWAMI

Former Supreme Court Judge