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member of the legislative assembly

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Declaring sub-section (4) of Section 8 of the Representation of the People Act, 1951 as ultra vires the Constitution.=The result of our aforesaid discussion is that the affirmative words used in Articles 102(1)(e) and 191(1)(e) confer power on Parliament to make one law laying down the same disqualifications for a person who is to be chosen as member of either House of Parliament or as a member of the Legislative Assembly or Legislative Council of a State and for a person who is a sitting member of a House of Parliament or a House of the State Legislature and the words in Articles 101(3)(a) and 190(3)(a) of the Constitution put express limitations on such powers of the Parliament to defer the date on which the disqualifications would have effect. Accordingly, sub-section (4) of Section 8 of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution. Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly subsection (4) of Section 8 of the Act is ultra vires the Constitution.;Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only nonoperative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying the consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction. In the aforesaid case, a contention was raised by the respondents that the appellant was disqualified from contesting the election to the Legislative Assembly under sub-section (3) of Section 8 of the Act as he had been convicted for an offence punishable under Sections 366 and 376 of the Indian Penal Code and it was held by the three-Judge Bench that as the High Court for special reasons had passed an order staying the conviction, the disqualification arising out of the conviction ceased to operate after the stay of conviction. Therefore, the disqualification under sub-section (1), (2) or (3) of Section 8 of the Act will not operate from the date of order of stay of conviction passed by the Appellate Court under Section 389 of the Code or the High Court under Section 482 of the Code.;whether our declaration in this judgment that sub-section (4) of Section 8 of the Act is ultra vires the Constitution should affect disqualifications already incurred under subsections (1), (2) and (3) of Section 8 of the Act by sitting members of Parliament and State Legislatures who have filed appeals or revisions against their conviction within a period of three months and their appeals and revisions are still pending before the concerned court. =However, if any sitting member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by subsection (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence.; whether a person, who is confined in prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police is not entitled to vote by virtue of sub-section (5) of Section 62 of the 1951 Act and accordingly is not an “elector” and is, therefore, not qualified to contest elections to the House of People or the Legislative Assembly of a State because of the provisions in Sections 4 and 5 of the 1951 Act. By the impugned common order, the Patna High Court accepted this contention in the writ petitions and held: “A right to vote is a statutory right, the Law gives it, the Law takes it away. Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament, and all other public elections. The Court has no hesitation in interpreting the Constitution and the Laws framed under it, read together, that persons in the lawful custody of the Police also will not be voters, in which case, they will neither be electors. The Law temporarily takes away the power of such persons to go anywhere near the election scene. To vote is a statutory right. It is privilege to vote, which privilege may be taken away. In that case, the elector would not be qualified, even if his name is on the electoral rolls. The name is not struck off, but the qualification to be an elector and the privilege to vote when in the lawful custody of the police is taken away.” – a person who has no right to vote by virtue of the provisions of sub-section (5) of Section 62 of the 1951 Act is not an elector and is therefore not qualified to contest the election to the House of the People or the Legislative Assembly of a State.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40545 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 490 OF 2005 Lily Thomas … Petitioner Versus Union of India & Ors. … Respondents WITH WRIT PETITION (CIVIL) NO. 231 OF 2005 Lok Prahari, through its General Secretary S.N. Shukla … Petitioner Versus Union of India & … Continue reading

bail- Therefore, as of now, prima facie, the participation of these accused in the occurrence of 30.4.2011 cannot be seriously doubted, unless of course, during the course of evidence, the video clipping is shown to be doctored.The MLA is alleged to have received gun shot injuries as well. The allegations constitute an open challenge to civil society. Persons involved in the alleged incident can not be accepted to remain disciplined if enlarged on bail. It is likely that they would threaten witnesses, which would severely prejudice the outcome of the trial – Insofar as the other cases filed by the State of Andhra Pradesh are concerned, a video clipping clearly demonstrates the presence of accused nos. 2 to 5, 7 and 14 at the place of occurrence. As such, bail granted to accused nos. 2, 3, 5, 7 and 14 (since accused no. 4 whose presence was shown in the video clipping, has already died) by the High Court, is hereby set aside. Taking into consideration the fact that the complainant, in the First Information Report, has involved a large number of members in one family, wherein the accused nos. 1, 2 and 6 are real brothers, and the other accused are their children, it would be just and appropriate to affirm the order passed by the High Court qua all the accused other than the main accused and the accused depicted in the video clipping. Accordingly, the order of the High Court extending the benefit of bail to accused nos. 2, 3, 5, 7 and 14 is hereby set aside. The bail granted to the rest of the accused, by the High Court, is affirmed.

“NON-REPORTABLE” IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.1595-1596  OF 2012 (Arising out of SLP (Criminal) Nos. 4409-4410 of 2012) Younus Bin Omer Yafai @ Younus Bhai & Ors.                                 …. Appellants Versus State of A.P. … Continue reading

when the original complainant has expired and as such the present appellant has no locus to file the instant appeal?

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 893 OF 2005 Ashish Chadha …Appellant Versus Smt. Asha Kumari & Anr. …Respondents JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. The first respondent was the member of the Legislative Assembly of Banikhet Constituency from the year 1984 to 1990 and 1994 to … Continue reading

Constitution of India, 1950: Article 191(1)(c). Election- “Undischarged insolvent”-Disqualification-For election as MLA- Determination of-Held: Cannot be determined by High Court trying an election petition-A person has to be adjudged as insolvent under the Insolvency Act before attracting disqualification under Art. 191(1)(c)- Insolvency Act is a complete code and court constituted under that Act alone is competent to decide that question and not any court or authority- Dictionary or general meaning of “insolvency” has no relevance-The special meaning of “undischarged insolvent” under the law of insolvency is only applicable-The meaning of `insolvent’ under the Sale of Goods Act, 1930 irrelevant-Representation of the People Act, 1951, S.100. Article 191-Disqualification-Conditions for-Election as MLA-Held: Cannot be enlarged by importing any meaning other than permissible on a strict interpretation of the expressions used therein. Representation of the People Act, 1951: Section 100-Election-Election petition-Trial-High Court- Jurisdiction of- Held : Is limited to the extent conferred by the Act- Constitution of India, 1950, Art. 329(b). Election-Voting, electing and contesting-Rights of-Held: These are statutory rights circumscribed by limitation contained therein-Therefore, if the statutes clearly indicate the policy of law, it is not open to the court to interpret such statutes to find out the legislative intent of the provisions. Section 123-Election-Corrupt practices-Bribery-Allegation that the returned candidate using his position and status secured several bottles of rum from Military Canteen and supplied them in his constituency-Witnesses did not have any personal knowledge and came to know about the matter from the employee of the Military Canteen who was not examined-Held: In the absence of examination of the said employee, evidence is vague, not clear and definite much less reliable-Hence, High Court rightly held there was no acceptable evidence which could bring the case within the expression of “bribery” under S.123-Other allegations of corrupt practices also not established. Interpretation of Statutes: External aids-Dictionary meaning-Relevancy of- Held: If an expression has acquired a special connotation in law, it must be assumed that the legislature has used it in a legal sense, not according to dictionary or general meaning. External aids-Constituent Assembly Debates-Discussion in- Reference to- Implication of-Stated. Words and Phrases : “Undischarged insolvent”-Meaning of-In the context of Art. 191(1)(c) of the Constitution of India, 1950. Insolvent”-Meaning of-In the context of S. 2(8) of the Sale of Goods Act, 1930. “Bribery”-Meaning of-In the context of S.123 of the Representation of the People Act, 1951. The appellant was declared elected to State Legislative Assembly. The respondent, the defeated candidate, filed an election petition challenging the election of the appellant on the grounds that he was disqualified from being chosen as a MLA since he was an undischarged insolvent within the meaning of Article 191(l)(c) of the Constitution and that he had indulged in corrupt practices within the meaning of Section 123 of the Representation of the People Act, 1951. The respondent alleged that the appellant using his position and status secured several bottles of rum from a Military Canteen and supplied them in his constituency. The witnesses had no personal knowledge of the bottles being carried but they came to know about the matter from the employee of the Military Canteen who was not examined. The High Court held that the expression “undischarged insolvent” which was not defined in the Provincial Insolvency Act, 1920 should be given its natural meaning, instead of a technical meaning given in the Insolvency Act so that the disqualification applied to any person who was shown to be unable to pay his debts on the relevant date. The High Court referring to the Debates in the Constituent Assembly and to the suggestion of Sir Alladi Krishnaswamy Ayyar that the expression “if he is an undischarged insolvent” should be in terms of Section 73 of the Insolvency Act which was not accepted by the Constituent Assembly and held that the framers of the Constitution did not want to confine the operation of the disqualification only to cases where a person was adjudged insolvent under the Insolvency Act. The High Court, therefore, accepted the submission that pre- adjudication by an insolvency court is not required and observed that a candidate who was found to be an insolvent by the Court trying the election petition and a candidate who had already been adjudicated insolvent by the Insolvency Court but who had not obtained an order for discharge were both covered by Article 191(l)(c) of the Constitution. The High Court declared the appellant as an “undischarged insolvent” and held his election as void. The High Court, however, decided against the respondent-Election Petitioner-on the allegation of corrupt practices. Hence this appeal. On behalf of the appellant it was contended that the High Court could not in deciding an election petition under the R.P. Act examine the question whether the appellant was an undischarged insolvent. =Allowing the appeals, the Court HELD : 1. The expression `undischarged insolvent’ has acquired a special meaning under the Law of Insolvency, the Court must understand that that is the meaning that is sought to be attributed to the expression used in Article 191(l)(c) of the Constitution. The High Court was not justified in holding that the expression `undischarged insolvent’ should be understood de hors the Insolvency Act in a general sense. [434-H; 435-A] Bhagwati Prasad Dixit `Ghorewala’ v. Rajeev Gandhi, (1985) All WC 682, referred to. 2.1. The Provincial Insolvency Act, 1920 is a complete code and determination of all questions regarding insolvency including a question as to whether (1) a person is an insolvent or not, or (2) an insolvent be discharged or not and subject to what conditions, can be decided by the court constituted under that Act alone. It is only when exceptions are carved out as is done in the case of Section 2(8) of the Sale of Goods Act, 1930, any other court or authority can decide such questions. [430-E] 2.2. Under the scheme of the provisions of the Insolvency Act, the exclusive jurisdiction to deal with any question relating to insolvency could be adjudicated upon only by the court constituted under that Act In such a situation, it would not be possible to hold that the High Court had, while dealing with an election petition, jurisdiction to decide a question as to whether a person is an undischarged insolvent or not. Admittedly, in this case, there is no such adjudication. Hence The High Court could not declare the appellant to be an “undischarged insolvent”. [431-F-G] 3. Conferment of power under the Representation of the People Act, 1951 to try an election petition does not amount to enlargement of existing jurisdiction of the High Court. The jurisdiction exercisable under the R.P. Act is a special jurisdiction conferred on the High Court by virtue of Article 329(b) of the Constitution. Even an ordinary Civil Court will not have jurisdiction to decide questions arising under insolvency enactment; much less a special Authority like the High Court when it is not invested with such power under the Insolvency Act. [430-G; 431-B] Upadhyaya Hargovind Devshanker v. Dhirendra Singh Virbhadrasinhil Solanki, AIR (1988) SC 915 and Bhagwati Prasad Dixit `Ghorewala’ v. Rajeev Gandhi, (1985) All WC 682, followed. 4. Under what circumstances and subject to what limitations a person could be declared to have incurred disqualification is a matter of policy of law and the courts have cautioned themselves by stating that right to vote, right to elect or contest an election is a creature of statute and circumscribed by the limitations contained therein. Therefore, so long as the Constitution or the R.P. Act indicates in clear terms as to what its policy is, it would not be open to a court to interpret such a provision by trying to find out what the intent could be by ignoring the actual expressions used. Therefore, the supposed scheme of the provisions would not afford sufficient guidance to take the view that the expression “undischarged insolvent” should be understood as meaning an insolvent who is a person who is in impecunious circumstances as is unable to repay the debt. [432-E-F] 5. Even though Article 191(1) of the Constitution does not include declaration by an insolvency court, but by reason of expression used that he is an “undischarged insolvent” it clearly indicates that he could become “discharged” only in terms of the provisions of the insolvency Acts and not otherwise. It is implicit in the expression “undischarged insolvent” that a person does not become so unless he has been adjudged insolvent and is not discharged by the court under the insolvency Acts. The expression “undischarged insolvent” has acquired a particular legal connotation and such expression cannot be used otherwise than in terms of the insolvency enactment Redundancy and tautology cannot be attributed to the Legislature. When the Legislature has used the expression “undischarged insolvent” that expression must be given its full meaning. [432-H; 433-A] 6. Article 191(l)(c) does not contemplate mere impecuniousity or incapacity of a person to repay one’s debts but he should not only be adjudged insolvent but also remain undischarged. Such a contingency could only arise under the insolvency law. Article 191(l)(c) refers to disqualification of a person from getting elected to the State Legislature. The conditions for disqualification cannot be enlarged by importing to it any meaning other than permissible on strict interpretation of expressions used therein for it is a case of disqualification. Whenever any disqualification is imposed naturally the right of a citizen is cut down and in that event a narrow interpretation is required. Therefore, the liberal view taken by the High Court to the contrary does not appear to be correct. [433-G-H] 7. In ascertaining the meaning of an expression used in a statute, certain norms are adopted. If the legislature has used an expression which has acquired a technical meaning and such expression is used ordinarily in the context of a particular branch of law, it must be assumed that because of its constant use the legislature must be deemed to have used such expression in a particular sense as is understood when used in the similar context If an expression has acquired a special connotation in law, dictionary or general meaning ceases to be helpful in interpreting such a word. Such an expression must be given its legal sense and no other. If the expression “undischarged insolvent” has acquired a special meaning under the law of insolvency, the court must understand that that is the meaning that is sought to be attributed to the expression used in Article 191(1) (C) of the Constitution. [434-F-H] State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd., [1959] SCR 379, relied on. 8. The reference made by Sir Alladi Krishnaswamy Ayyar is to reduce the rigour of the disqualification in the event the adjudication is annulled or if an insolvent obtains a discharge with the certificate that it was caused by misfortune and not by misconduct. Merely because the suggestion made by Sir Alladi Krishnaswamy Ayyar is not accepted by the Constituent Assembly it does not mean that the expression used in Article 191(l)(c) as to “undischarged insolvent” will be different from what is contained under the insolvency enactment. The reference to Section 73 of the Insolvency Act made by Sir Alladi Krishnaswamy Ayyar is in the background stated above and, therefore, has no effect on the interpretation of the meaning of the expression “undischarged insolvent”. [433-D-E] 9. Under the Sale of Goods Act, a special definition of the expression `insolvent’ had to be given to the effect that a person is said to be `insolvent’ who has ceased to pay his debts in the ordinary course of business, or cannot pay his debts as they become due, whether he has committed an act of insolvency or not, and the definition is declaratory in character. Question of insolvency of a buyer is of considerable importance in the context of the seller’s lien. It is in special context a meaning is given to the expression `insolvent’ even though a person had not been adjudged an insolvent in the Insolvency Act to be insolvent for the purposes of the Act. That definition cannot be imported into the R.P. Act. [434-B-C] 10. In the absence of examination of the employee of the Military Canteen the evidence adduced is vague and not clear and definite much less reliable and, therefore, the High Court rightly held that there is no acceptable evidence which can bring the case against the appellant within the expression of “bribery” under Section 123 of the R.P. Act. The other acts of undue influence or that the returned candidate has made an appeal in the name of religion or that he has made any statement with a false reference to the personal character and conduct of the candidate were not established. [436-B-C] CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7395-96 of 1997.

PETITIONER: THAMPANOOR RAVI Vs. RESPONDENT: CHARUPARA RAVI & ORS. DATE OF JUDGMENT: 15/09/1999 BENCH: S.R.Babu, R.C.Lahoti JUDGMENT: RAJENDRA BABU, J. : Civil Appeal Nos. 7395-7396 of 1997 The appellant in these appeals was declared elected to the Kerala Legislative Assembly from No. 139, Neyyattinkara constituency in an election held on April 27, 1996. Two election … Continue reading

Constitution of India, 1950: Article 191(1)(c). Election- “Undischarged insolvent”-Disqualification-For election as MLA- Determination of-Held: Cannot be determined by High Court trying an election petition-A person has to be adjudged as insolvent under the Insolvency Act before attracting disqualification under Art. 191(1)(c)- Insolvency Act is a complete code and court constituted under that Act alone is competent to decide that question and not any court or authority- Dictionary or general meaning of “insolvency” has no relevance-The special meaning of “undischarged insolvent” under the law of insolvency is only applicable-The meaning of `insolvent’ under the Sale of Goods Act, 1930 irrelevant-Representation of the People Act, 1951, S.100. Article 191-Disqualification-Conditions for-Election as MLA-Held: Cannot be enlarged by importing any meaning other than permissible on a strict interpretation of the expressions used therein. Representation of the People Act, 1951: Section 100-Election-Election petition-Trial-High Court- Jurisdiction of- Held : Is limited to the extent conferred by the Act- Constitution of India, 1950, Art. 329(b). Election-Voting, electing and contesting-Rights of-Held: These are statutory rights circumscribed by limitation contained therein-Therefore, if the statutes clearly indicate the policy of law, it is not open to the court to interpret such statutes to find out the legislative intent of the provisions. Section 123-Election-Corrupt practices-Bribery-Allegation that the returned candidate using his position and status secured several bottles of rum from Military Canteen and supplied them in his constituency-Witnesses did not have any personal knowledge and came to know about the matter from the employee of the Military Canteen who was not examined-Held: In the absence of examination of the said employee, evidence is vague, not clear and definite much less reliable-Hence, High Court rightly held there was no acceptable evidence which could bring the case within the expression of “bribery” under S.123-Other allegations of corrupt practices also not established. Interpretation of Statutes: External aids-Dictionary meaning-Relevancy of- Held: If an expression has acquired a special connotation in law, it must be assumed that the legislature has used it in a legal sense, not according to dictionary or general meaning. External aids-Constituent Assembly Debates-Discussion in- Reference to- Implication of-Stated. Words and Phrases : “Undischarged insolvent”-Meaning of-In the context of Art. 191(1)(c) of the Constitution of India, 1950. Insolvent”-Meaning of-In the context of S. 2(8) of the Sale of Goods Act, 1930. “Bribery”-Meaning of-In the context of S.123 of the Representation of the People Act, 1951. The appellant was declared elected to State Legislative Assembly. The respondent, the defeated candidate, filed an election petition challenging the election of the appellant on the grounds that he was disqualified from being chosen as a MLA since he was an undischarged insolvent within the meaning of Article 191(l)(c) of the Constitution and that he had indulged in corrupt practices within the meaning of Section 123 of the Representation of the People Act, 1951. The respondent alleged that the appellant using his position and status secured several bottles of rum from a Military Canteen and supplied them in his constituency. The witnesses had no personal knowledge of the bottles being carried but they came to know about the matter from the employee of the Military Canteen who was not examined. The High Court held that the expression “undischarged insolvent” which was not defined in the Provincial Insolvency Act, 1920 should be given its natural meaning, instead of a technical meaning given in the Insolvency Act so that the disqualification applied to any person who was shown to be unable to pay his debts on the relevant date. The High Court referring to the Debates in the Constituent Assembly and to the suggestion of Sir Alladi Krishnaswamy Ayyar that the expression “if he is an undischarged insolvent” should be in terms of Section 73 of the Insolvency Act which was not accepted by the Constituent Assembly and held that the framers of the Constitution did not want to confine the operation of the disqualification only to cases where a person was adjudged insolvent under the Insolvency Act. The High Court, therefore, accepted the submission that pre- adjudication by an insolvency court is not required and observed that a candidate who was found to be an insolvent by the Court trying the election petition and a candidate who had already been adjudicated insolvent by the Insolvency Court but who had not obtained an order for discharge were both covered by Article 191(l)(c) of the Constitution. The High Court declared the appellant as an “undischarged insolvent” and held his election as void. The High Court, however, decided against the respondent-Election Petitioner-on the allegation of corrupt practices. Hence this appeal. On behalf of the appellant it was contended that the High Court could not in deciding an election petition under the R.P. Act examine the question whether the appellant was an undischarged insolvent.

PETITIONER: THAMPANOOR RAVI Vs. RESPONDENT: CHARUPARA RAVI & ORS. DATE OF JUDGMENT: 15/09/1999 BENCH: S.R.Babu, R.C.Lahoti JUDGMENT: RAJENDRA BABU, J. : Civil Appeal Nos. 7395-7396 of 1997 The appellant in these appeals was declared elected to the Kerala Legislative Assembly from No. 139, Neyyattinkara constituency in an election held on April 27, 1996. Two election … Continue reading

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