LexSARAT CHANDRA RABHA AND OTHERS versus KHAGENDRANATH NATH AND OTHERS.
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2 S.C.R. SUPREME COURT REPORTS 133 SARAT CHANDRA RABHA AND OTHERS v. KHAGENDRANATH NATH AND OTHERS. (B. P. SINHA, c. J., J. L. KAPUR, P. B. GAJENDRAGADKAR, K. SuBBA RAo and K. N. W ANOHOO, JJ.) Election Dispute-Disqualification-Conviction by Court- Rejection of nomination paper-Remission of sentence by Govern- ment, if operates as reduction of sentence by Court-Inference of consent to corrupt practice from proved facts, if a mixed question of fact and law-Representation of the People Act, 1951 (43 of 1951), ss. 7(b), 1oo(r)(b)-Code of-Criminal Proeedure (Act V of 1898), s. 401. The appellant's nomination paper for election to the Assam Legislative Assembly was rejected by the Returning Officer on the ground of disqualification under s. 7(b) of the Representa- tion of the People Act, 1951, in that he had been convicted and $entenced to three years' rigorous imprisonment under s. 4(b)' of the Explosive Substances Act (VI of 1908) and five years had not expired after his release. The appellant had applied to the Election Commission for removing the said disqualification but it had refused to do so. The appellant's sentence was, how- ever, remitted by the Government of Assam under s. 401 of the Code of Criminal Procedure and the period for which he was actually in jail was less than two years. The Election Tribunal held that the nomination paper had been improperly rejected and set aside the election but the High Court taking a contrary view, dismissed the election petition. Held, that the High Court was right in holding that the appellant was disqualified under s. 7(b) of the Representation of the People Act and that ·his nomination paper had been rightly rejected. That section speaks of a conviction and sen- tence by a Court and an order of remission of the sentence under s. 401 of the Code of Criminal Procedure, unlike the grant of a free pardon, cannot wipe out either the conviction or the sen- tence. Such order is an executive order that merely affects the execution of the sentence and does not stand on the same foot- ing as an order of Court, either in appeal or in revision, reduc- ing the sentence passed by the Trial Court. Venkatesh Yeshwant Deshpande v. Emperor, A.I.R. 1938 Nag. 513, distinguished. G11nda Singh v. Sampuran Singh, (1953) 3 E.L.R. 17, over- ruled. Held, further, that an inference as to whether a successful candidate was a consenting party to the corrupt practice under Sa11a-t Chandra Rabha & Other! v. Khagendranath Nath & Olhers 134 SUPREME COURT REPORTS [1961] s. 100(1)(b) of the Act from facts found on evidence was a ques- tion of fact and not a mixed question of fact and law. Mecnakshi Mills, Madurai v. The Commissioner of Income-tax, Madras, [1956] S.C.R. 691, referred to. CIVIL APPELLATE JURISDICTION: No. 375 of 1959. Ci vii Appeal Appeal from the Judgment and Order dated the 12th August, 1958, of the Assam High Court in First Appeal No. 11 of 1958. · L. K. Jha and Sukumar Ghose, for appellants Nos. 1 to 3. G. S. Pathak a.nd Naunit Lal; for respondents Nos. 1 a.nd 2. 1960. October 27. The Judgment of the Court was delivered by Wanchoo J. WANOHOO J.-Thie is a.n appeal ·on a. certificate granted by the Assam High Court in an election matter. An election was held in the double-member constituency of Goalpara to the Assam Legislative Assembly. Nomination papers were filed on the 19th January, 1957, by a number of persons including Ani- ram Basumafari (hereinafter ca.lied the appellant). He wa.s a. ca.ndida.te for the seat reserved for scheduled tribes. The nomination paper of the appellant wa.s rejected by the returning officer on the ground tha.t he was disqualified under s. 7(b) of the Representation of the People Act, No. XLIII of 1951, (hereinafter called the Act). The polling took place on February 25, 1957, and Khagendra.na.th and Hakim Chandra. Ra.bha were elected, the latter being a member of e. scheduled tribe. Thereupon a.n election petition wa.s filed by a.n elector challenging the election of the two successful candidates on a. number of grounds. Of these grounds, however, only two a.re now ma.teria.l, 1 namely, (1) that the nomination paper of the appel- lant was wrongly rejected, a.nd (2) that a corrupt practice was committed by the successful candidates inasmuch as voters were carried on mecha.nica.lly pro- pelled vehicles to the polling booth~. The election tribune.I held on the first point that
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