Sarat Chandra Rabha And Others vs Khagendranath Nath And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 375 of 1959

Decision Date: 27 October 1960

Coram: K.N. Wanchoo, Bhuvneshwar P. Sinha, J.L. Kapur, P.B. Gajendragadkar

In the matter titled Sarat Chandra Rabha and others versus Khagendranath Nath and others, the Supreme Court rendered its judgment on 27 October 1960. The opinion was authored by Justice K.N. Wanchoo and was delivered by a bench comprising Justice K.N. Wanchoo, Justice Bhuvneshwar P. Sinha, Justice J.L. Kapur and Justice P.B. Gajendragadkar. The report of the decision appears in 1961 AIR 334 and in 1961 SCR (2) 133, with subsequent citations recorded as RF 1969 SC1201 (47), D 1977 SC1485 (19), RF 1980 SC2147 (58), RF 1989 SC 653 (10). The case concerned an election‑dispute involving the disqualification of a candidate under the Representation of the People Act, 1951. The petitioner, Sarat Chandra Rabha and co‑applicants, had filed a nomination for election to the Assam Legislative Assembly. The Returning Officer rejected the nomination on the ground of disqualification under section 7(b) of the Representation of the People Act, because the petitioner had been convicted and sentenced to three years’ rigorous imprisonment under section 4(b) of the Explosive Substances Act, 1908, and the five‑year period prescribed after release had not elapsed. The petitioner subsequently applied to the Election Commission for removal of the disqualification, but the Commission refused. Later, the Government of Assam exercised its power under section 401 of the Code of Criminal Procedure to remit the sentence, resulting in the petitioner actually serving less than two years in custody. The Election Tribunal held that the rejection of the nomination was improper and set aside the election, but the High Court, taking a contrary view, dismissed the election petition. The Supreme Court held that the High Court was correct in sustaining the disqualification under section 7(b) and that the nomination paper had been rightfully rejected. The Court explained that section 7(b) refers to a conviction and a sentence imposed by a court, and that an order of remission under section 401, being an executive act, does not erase either the conviction or the sentence, unlike a free pardon or a judicial reduction of sentence on appeal or revision. The Court distinguished Venkatesh Yeshwant Deshpande v Emperor, AIR 1938 Nag 513, and overruled the earlier authority of Ganda Singh v Sampuran Singh, (1953) 3 ELR 17. In addition, the Court clarified that an inference that a successful candidate consented to a corrupt practice under section 100(i)(b) of the Representation of the People Act, based on evidence, is a question of fact rather than a mixed question of fact and law. The judgment concludes with the signature of Justice Meenakshi Mills.

The case cited Maduyai v. The Commissioner of Income‑tax, Madyas, [1956] S.C.R. 691. The matter before this Court was a civil appeal numbered 375 of 1959, filed under the civil appellate jurisdiction. The appeal originated from the judgment and order dated 12 August 1958 delivered by the Assam High Court in First Appeal No. 11 of 1958. Counsel L. K. Jha and Sukumar Ghose appeared for appellants numbered one to three, while G. S. Pathak and Naunit Lal represented respondents one and two. The judgment was pronounced on 27 October 1960 and was delivered by Justice Wanchoo.

This appeal concerned a certificate that the Assam High Court had granted in an election dispute. The election in question was held for a double‑member constituency called Goalpara for the Assam Legislative Assembly. On 19 January 1957, several individuals, including Anirara Basumatari—hereinafter referred to as the appellant—filed nomination papers. The appellant sought the seat that was reserved for members of scheduled tribes. The returning officer rejected the appellant’s nomination on the ground that he was disqualified under section 7(b) of the Representation of the People Act, No. XLIII of 1951 (the Act). Subsequent polling took place on 25 February 1957, resulting in the election of Khagendranath and H Kim Chandra Rabha, the latter also belonging to a scheduled tribe. An elector then filed an election petition challenging the election of the two successful candidates on several bases. Only two of those grounds remained material at the time of hearing: first, that the appellant’s nomination paper had been wrongly rejected; and second, that the successful candidates had committed a corrupt practice by transporting voters to polling stations using mechanically propelled vehicles. The election tribunal found that the appellant’s nomination had indeed been improperly rejected, but it held that the allegation of corrupt practice was not proved; consequently, the tribunal set aside the election. The two successful candidates appealed this decision to the High Court. The High Court concluded that the appellant’s nomination had been properly rejected under section 7(b) of the Act and, regarding the alleged corrupt practice, it concurred with the tribunal’s finding of non‑proof. Accordingly, the High Court allowed the appeal and ordered the dismissal of the election petition. An application was subsequently made to the High Court for a certificate authorising an appeal to this Court, and such a certificate was granted, bringing the matter before the Supreme Court. The appellant’s principal contention before us is that the High Court erred in holding that his nomination paper was correctly rejected under section 7(b) of the Act, a provision which disqualifies a person who has been convicted and sentenced to imprisonment of not less than two years unless a period of five years, or a shorter period permitted by the Election Commission, has elapsed since his release.

In this case, the Court observed that Section 7(b) disqualified a person from being chosen as a member of either House of Parliament or a State Legislative Assembly or Council unless the person had been sentenced to imprisonment for at least two years, and unless a period of five years, or a shorter period that the Election Commission might permit, had elapsed since his release. The appellant had been convicted under Section 4(b) of the Explosive Substances Act, No. VI of 1908, and on 10 July 1953 he was sentenced to three years of rigorous imprisonment. He filed his nomination paper in January 1957, and the election was held in February 1957; therefore, the five‑year period after his release had not yet passed. Although the original sentence was for three years, the Government of Assam exercised the power under Section 401 of the Code of Criminal Procedure to remit the sentence on 8 November 1954, and the appellant was released on 14 November 1954. The appellant argued before the election tribunal that the remission effectively reduced his period of imprisonment to less than two years, and consequently he could not be said to be disqualified under Section 7(b). The tribunal accepted this argument and held that the appellant’s nomination paper had been improperly rejected. When the matter was later argued before the High Court on behalf of the successful candidates, two principal arguments were raised to support the view that the nomination paper had been correctly rejected. First, it was submitted that, in view of Articles 72, 73, 161 and 162 of the Constitution read with Section 401 of the Code of Criminal Procedure, the State Government lacked authority to remit the appellant’s sentence. Second, it was contended that even if the remission had been lawfully granted, it would not alter the sentence imposed by the court, although the appellant might not have had to serve the entire term after the remission order. The High Court did not finally decide whether the State Government possessed the power to grant remission, because the issue had not been fully presented before the tribunal, although the Court was inclined to think that such power might be absent. Nevertheless, the High Court expressed the view that a remission of sentence did not have the same effect as a free pardon and did not reduce the original three‑year sentence to a term of less than two years, even though the appellant may have remained in custody for fewer than two years because of the remission. The Court reiterated that Section 7(b) requires both a conviction by an Indian court for any offence and a sentence of imprisonment of not less than two years before a person becomes disqualified for election to the Parliament or a State legislative body.

According to the statutory provision, it applied to the appellant because he had been convicted by a court in India and had received a sentence of imprisonment that exceeded two years. Moreover, the five‑year period prescribed by the provision had not yet elapsed after the appellant’s release from custody. The appellant subsequently made an application to the Election Commission seeking removal of the disqualification that arose from his conviction, but the Commission declined to grant the relief. Consequently, the principal issue for determination was whether an order of remission operates in the same manner as an order issued by an appellate or revisional criminal court, that is, whether remission reduces the original sentence in the same way as a judicial modification of the sentence by a higher court.

The Court observed that, in both English and Indian law, a pardon—or what is sometimes described as a free pardon—clears the individual of all the stigma associated with the offence, eliminates all the legal consequences of the conviction, and removes any statutory or other disqualifications that stem from the conviction. Such a pardon effectively renders the person a “new man,” as explained in Halsbury’s Laws of England, Volume VII, Third Edition, page 244, paragraph 529. However, the Court emphasized that a remission does not produce the same result. An order of remission does not erase the offence, nor does it annul the conviction itself. Its sole effect is to modify the manner in which the sentence is executed. Ordinarily, a convicted person is required to serve the entire term imposed by the court; a remission merely permits the individual to avoid serving the portion of the sentence that has been remitted.

The Court further explained that a remission does not interfere with the original judicial order. The conviction and the sentence pronounced by the court remain intact; only the execution of that sentence is altered, allowing the convicted person to be released from the obligation to serve the remainder of the term. The authority to grant remission resides in the executive, and therefore it cannot produce the same legal effect as an appellate or revisional court’s order, which actually reduces the sentence and substitutes a new determinate term for the original one. This distinction was highlighted in Weater’s Constitutional Law, page 176, paragraph 134, which states: “A reprieve is a temporary suspension of the punishment fixed by law. A pardon is the remission of such punishment. Both are the exercise of executive functions and should be distinguished from the exercise of judicial power over sentences. The judicial power and the executive power over sentences are readily distinguishable.”

Accordingly, while the practical outcome of a remission is that the portion of the sentence not yet served is effectively cancelled—so that, in practice, the time the appellant actually spends in prison is reduced—the legal effect is limited to the execution of the sentence. The order of conviction and the sentence imposed by the court remain unaltered. In the present case, although the remission resulted in the appellant’s release from jail after serving approximately sixteen months of a three‑year term, it did not modify the court’s judgment of conviction and sentence, which continued to stand.

In this case the Court observed that the act of delivering a judgment belongs to the judicial function, whereas the implementation of that judgment, including the carrying out of a sentence, is an executive function. The Court further explained that when a sentence is shortened by an act of clemency, the executive power is exercised to abridge the enforcement of the judgment, but the judgment itself remains unchanged. Accordingly, the legal effect of an order of remission is to eliminate the portion of the imprisonment that has not yet been served, thereby reducing the practical sentence to the time already undergone. Nevertheless, the order of conviction and the original sentence pronounced by the court are left intact. Applying this principle, the Court noted that although the remission order in the present matter resulted in the appellant being released from jail after serving roughly sixteen months of a three‑year rigorous imprisonment, the conviction and the three‑year sentence remained as originally recorded. Consequently, the conditions of section 7(b) were satisfied, and the appellant, having been convicted and sentenced to three years’ rigorous imprisonment, remained disqualified because less than five years had elapsed since his release and the Election Commission had not withdrawn his disqualification.

The Court then turned to the authorities relied upon by the appellant, beginning with the decision in Venkatesh Yeshwant Deshpande v. Emperor. In that case, Justice Bose, speaking as then‑Judge, stated at page 530 that the effect of a remission order is to wipe out the remitted portion of the sentence altogether, rather than merely suspending its operation, which is a distinct concept provided for separately. He further observed that, unlike a pardon in England—where statutory and other disqualifications following a conviction are removed and the pardoned individual may sue for defamation related to the offence—the effect of remission is simply to entitle the prisoner to freedom on a specified date. The appellant argued that because remission eliminates the unserved portion, it effectively reduces the sentence to the period already served, thereby having the same effect as an appellate or revisional court reducing the sentence. The Court clarified, however, that the Deshpande decision dealt with a different issue, namely whether a remission that had been granted and had taken effect could subsequently be revoked. In that context, the observations were made, and the judgment carefully distinguished between the legal consequences of a pardon and those of a remission, emphasizing that remission does not alter the original sentence recorded by the court.

The Court explained that the effect of an order of remission is simply to grant the prisoner liberty on a specified date. The Court held that the earlier decision cited by the parties does not support the proposition that a remission order alters the sentence originally imposed by a competent court and substitutes it with the period of imprisonment already served up to the release date resulting from the remission. The Court noted that the parties also referred to several election‑related cases in which a similar view had apparently been adopted on behalf of the appellant. The Court said it would discuss one such case, namely Ganda Singh v. Sampuran Singh (1), which directly addressed the issue. In that case the Maharaja of Nabha issued an order that granted amnesty to all political prisoners who were detained or convicted under the Punjab Public Safety Act, 1947, as applied in Nabha State, and released them without any conditions. The same order also provided remission to persons convicted of offences other than political offences on a prescribed scale. The successful candidate in that matter had been sentenced to rigorous imprisonment for more than two years under the Punjab Public Safety Act, as applied to Nabha State, and therefore qualified as a political prisoner. Consequently he was released before completing the two‑year term of imprisonment. The principal ground of the election petition was that the successful candidate was disqualified under section 7(b) of the Act because of his conviction and sentence. The election tribunal held that remission granted by the government, i.e., by the executive authority, had the same effect as an order passed by a court of law on appeal or revision. It further held that, for the purpose of section 7 of the Act, the court must consider the amount of sentence imposed on a person and that it made no difference whether the sentence was reduced by a court on appeal or revision or by the executive powers conferred under section 401 of the Code of Criminal Procedure, because the effect in both situations was the same. The Court expressed the opinion that this view is incorrect, although it acknowledged that, on the facts of that case, the tribunal’s order may have been appropriate because the political prisoners appear to have received a pardon from the Ruler of Nabha rather than a simple remission under section 401 of the Code of Criminal Procedure. The Court stated that it could not agree with the proposition that remission by the government is equivalent to an order passed by a court of law on appeal or revision. While accepting that section 7(b) of the Act requires a focus on the sentence imposed, the Court emphasized that the sentence must be one imposed by a judicial authority. The Court observed that where the sentence imposed by a trial court is altered by reduction through an appellate or revisional court, the final sentence remains a judicially imposed sentence; however, where a sentence imposed by a court is partially remitted under section 401 of the Code of Criminal Procedure, the remission affects only the execution of the sentence and does not alter the sentence itself.

The Court observed that a remission order issued under the Code of Criminal Procedure does not, in law, reduce the sentence that a court originally imposed, even though the practical effect may be that the convicted individual serves less time than the original term. It explained that such an order merely influences the manner in which the court‑imposed sentence is carried out, without altering the sentence itself, which remains unchanged despite the remission. The Court further emphasized that section 7(b) refers specifically to the conviction and the sentence passed by a court of law and does not concern the actual period of imprisonment that the convicted person ultimately endures. The Court also noted that the election‑related cases cited by counsel for the appellant were similar to the present matter and, in the Court’s view, had been wrongly decided by the lower tribunals. Accordingly, the Court affirmed that the High Court was correct in holding that the appellant’s nomination paper had been properly rejected.

The appellant’s next argument was that both the High Court and the election tribunal erred in concluding that a corrupt practice, as defined by section 100(1)(b) read with section 123(5), had not been proved. The appellant contended that voters had been transported to polling stations in mechanically propelled vehicles by two individuals – Birendra Kumar Nath, who managed the electioneering campaign for the Congress Party, and Bholaram Sarkar, president of the Primary Congress Committee of Dhupdhara. Because the successful candidates were contesting the election as Congress nominees, the appellant argued that these two persons acted as agents of the successful candidates and did so with the candidates’ consent. Both the High Court and the election tribunal, however, held that although Birendra Kumar Nath and Bholaram Sarkar could be regarded as agents for election purposes and the use of mechanically propelled vehicles to convey electors was established, there was no evidence that such transport was carried out with the express or implied consent of the successful candidates. The High Court pointed out that consent, whether express or implied, is a necessary element under section 100(1)(b) and found that the facts did not allow any inference of such consent; the circumstances did not convincingly show that the corrupt practice was committed with the candidates’ knowledge and approval. Given this concurrent finding by the High Court and the tribunal regarding the absence of consent, the Court considered it futile for the appellant to now assert that consent, either express or implied, existed as required by section 100(1)(b). The inference as to whether consent existed

In this matter the Court observed that an inference drawn from the proven facts and circumstances remains an inference of fact rather than a question of law, contrary to the submission advanced by counsel for the appellant. The Court referred to the decision in Meenakshi Mills, Madurai v. The Commissioner of Income‑tax, Madras, reported in 1956 SCR 691, wherein it was held that a factual finding, even when it is derived as an inference from other established facts, does not become a question of law. Such an inference may be treated as a legal question only when the issue to be decided is a mixed question involving both law and fact. Applying this principle, the Court identified that the sole issue in the present appeal was whether the corrupt practice was carried out with the consent of the candidates, either expressly or impliedly. Determining whether such consent existed, based on the evidence and circumstances of this case, was a matter of fact and not a mixed question of law and fact. Consequently, the factual findings of both the High Court and the tribunal that there was no express or implied consent were upheld as conclusive. The Court found no merit in the appellant’s argument on this point. Accordingly, the appeal was dismissed, and costs were awarded against the appellant. The appeal was therefore dismissed with costs.