Bombay High Court Adjudicates Election Petition Regarding Improper Rejection of Nomination Paper Due to Disqualification Under Representation of People Act, 1951. Issue Centers on Whether Suspension of Conviction and Sentence Under Section 389 CrPC Removes Disqualification for Contesting Elections.

Election Petition under Section 81 of the Representation of the People Act, 1951 challenging the rejection of nomination paper and seeking declaration of the election as void.

The petitioner sought setting aside of the respondent's election on the ground of improper rejection of his nomination paper and a declaration that the election is void under Section 100(1)(c).

The Returning Officer rejected the petitioner's nomination on 23/09/2004, treating him disqualified under Section 8(3) of the RP Act despite an appellate court order suspending his conviction and sentence in a criminal case.

The petitioner was convicted and sentenced to two years' rigorous imprisonment by the trial court on 30/04/2003. He filed Regular Criminal Appeal No. 38 of 2003 and the appellate court suspended the conviction and sentence under Section 389 CrPC without recording reasons. The Returning Officer rejected the nomination, and the respondent was declared elected on 14/10/2004.

Whether the nomination paper of the petitioner was wrongly and improperly rejected and the election of the respondent is liable to be declared void under Section 100(1)(c) of the Representation of the People Act? Whether the written statement of the respondent can be taken on record since it was filed beyond the period of 90 days from the date of service of summons and there is no prayer for condonation of delay? Whether the respondent proves that the present election petition is not maintainable as it does not disclose a cause of action? Whether the respondent proves that the election petition is not maintainable for non-joinder of necessary party, namely the Returning Officer? Whether the petitioner proves that he was fully qualified to contest the election of Maharashtra State Legislative Assembly Constituency No. 278, Ichalkaranji?

Petitioner argued that the written statement was filed beyond ninety days without explanation and thus should not be taken on record, relying on Kailash v. Nankhu. Petitioner contended that the suspension of conviction and sentence by the appellate court under Section 389 CrPC erased the disqualification under Section 8(3) of the RP Act, making the rejection improper. Relied on Bharamu Subrao Patil v. Narsingrao Gurunath Patil and Rama Narang v. Ramesh Narang. Petitioner distinguished K. Prabhakaran v. P. Jayarajan, arguing it dealt with different factual issues and did not directly concern the effect of a Section 389 order staying conviction; the reference to larger bench concerned the correctness of Vidya Charan Shukla and Manni Lal, not the stay of conviction issue. Petitioner submitted that B.R. Kapur v. State of T.N. dealt with the continuation of a Chief Minister whose conviction was not suspended and was thus distinguishable. Petitioner contended that non-joinder of the Returning Officer was not fatal as no allegations were made against him and no alternative declaration was sought about another candidate winning. Respondent relied on K. Prabhakaran and Dr. Sarvabhoum S. Bagali (Karnataka High Court), arguing that suspension of sentence alone does not remove disqualification unless conviction itself is stayed with recorded reasons, and that Bharamu Subrao Patil was based on overruled precedents. Respondent submitted that Rama Narang's observation that suspension of conviction renders disqualification inoperative was also overruled by the Constitution Bench in K. Prabhakaran, and that mere stay of sentence without reasons is insufficient.

He invited my attention to para 2 of the said judgment in which a similar issue, as involved in this case, was considered by the learned Single Judge. He submitted that the learned Single Judge relying upon two judgments of the Supreme Court in the case of Rama Narang Vs. Ramesh Narang and others reported in (1955) 2 SCC 513 and in the case of Vidya Charan Shukla Vs. Purshottam Lal Kaushik reported in (1981) 2 SCC 84 had held that effect of suspension of sentence and conviction by virtue of the order passed under section 389 of the Criminal Procedure Code was that the candidate was entitled to contest the election on account of the said order which was passed by the Court. He submitted that, in the said case, the principal issue which fell for consideration before the Supreme Court was : whether the person who is convicted of criminal offence and whose conviction had not been suspended pending appeal, can be sworn in and continue to function as Chief Minister of the State? He strenuously urged that the entire ratio of the judgment centred around this issue regarding continuation of such person as Chief Minister of the State, whose conviction had not been suspended, pending the appeal.

The petitioner was convicted and sentenced by the trial court on 30/04/2003. He filed Regular Criminal Appeal No. 38 of 2003, and the appellate court suspended the conviction and sentence under Section 389 CrPC without recording reasons. Elections to Assembly Constituency AC No.278 Ichalkaranji were announced, and the petitioner filed his nomination on 21/09/2004. The Returning Officer rejected the nomination on 23/09/2004 on the ground of disqualification under Section 8(3) of the RP Act. The election was held and the respondent was declared elected on 14/10/2004. The present election petition was filed in time. The respondent filed his written statement on 22/08/2005, beyond the ninety-day period prescribed. The court framed issues on 19/09/2005. On 17/10/2005, the petitioner stated he would not lead evidence and submitted a praecipe to that effect. The matter was heard on 26/10/2005.

• Representation of the People Act, 1951: 81, 8(3), 100(1)(c)
• Indian Penal Code, 1860: 147, 353, 427, 146
• Code of Criminal Procedure, 1973: 389
• Constitution of India: Article 141