“A critique of Sarat Chandra Rabha v.
Khagendra Nath”
Submitted by:
Nidhi Prakriti
B.B.A., LL.B. (Hons.)
Roll no.- 2236
Submitted to:
Prof. Dr. Anirudh Prasad
Professor of Law
This rough draft is submitted in fulfilment of project in Constitutional
Law-II for the completion of B.B.A., LL.B. (Hons.) course.
19th February, 2022.
Chanakya National Law University, Patna.
DECLARATION BY THE CANDIDATE
I, hereby declare that the work reported in the B.B.A., LL.B. (Hons.) Project Report titled “A
critique of Sarat Chandra Rabha v. Khagendra Nath” submitted at CHANAKYA NATIONAL
LAW UNIVERSITY, PATNA is an authentic record of my work carried out under the
supervision of Prof. Dr. Anirudh Prasad. I have not submitted this work elsewhere for any other
degree or diploma. I am fully responsible for the contents of my Project Report.
(Signature of the Candidate)
NAME: NIDHI PRAKRITI
ROLL NO: 2236
COURSE: B.B.A., LL.B. (Hons.)
SEMESTER: 6th
2|Page
ACKNOWLEDGMENT
I give all the honour and glory to God Almighty, who gave me the grace to complete this
project. I acknowledge with great appreciation, my professor, Prof. Dr. Anirudh Prasad, for his
guidance and commitment to the success of this work, despite the large workload on his table.
I am grateful, sir.
I also appreciate with great joy my parents, the best parent on the face of the planet, who ensures
my success academically. Thank you for your support spiritually, financially and morally.
I owe the present accomplishment of my project to our CNLU librarians, who helped me
immensely with materials throughout the project and without whom I couldn’t have completed
it in the present way.
I would also like to extend my gratitude to my friends and all those unseen hands that helped
me out at every stage of my project and for accommodating my trouble during the writing
period of this project. God bless you all.
THANK YOU,
NIDHI PRAKRITI
SEMESTER- 5th
CNLU, Patna.
3|Page
INDEX
DECLARATION BY THE CANDIDATE ...................................................................................... 2
ACKNOWLEDGMENT ..................................................................................................................... 3
INTRODUCTION................................................................................................................................ 5
AIM AND OBJECTIVE OF THE STUDY ........................................................................... 5
HYPOTHESIS ....................................................................................................................... 5
RESEARCH METHODOLOGY ........................................................................................... 6
SOURCES OF DATA COLLECTION.................................................................................. 6
LIMITATION OF THE STUDY ........................................................................................... 6
PARDONING POWER UNDER INDIAN CONSTITUTION ..................................................... 7
Purpose of pardoning power .................................................................................................. 8
FACTS OF THE CASE....................................................................................................................... 9
RELEVANT PROVISIONS APPLICABLE ................................................................................. 11
ANALYSIS OF THE JUDGEMENT OF THE CASE ................................................................. 13
SUPREME COURT JUDGEMENTS PERTAINING TO SIMILAR MATTER ..................... 17
CONCLUSION AND SUGGESTIONS ......................................................................................... 21
BIBLIOGRAPHY .............................................................................................................................. 23
BOOKS AND ARTICLES .................................................................................................. 23
INTERNET SOURCES ....................................................................................................... 23
4|Page
INTRODUCTION
What is the effect of the exercise of the power of pardon by the President/ Governor on the
judicial record of the sentence of the convicted person? Is this effect the same in cases where
the sentence is merely remitted, or commuted? This question is of far-reaching consequence,
particularly in election disputes, where questions of disqualification from contesting elections
on the grounds of earlier convictions have arisen time and again before the Courts.
In Sarat Chandra Rabha v. Khagendra Nath, this question came up before the Supreme Court.
The Court, in order to answer the question raised before it regarding the effect of remission of
the sentence examined several authorities on the subject and came to the conclusion that a
remission of a sentence did not in any way interfere with the order of the court; it affected only
the execution of the sentence passed by the court and freed the convicted person from his
liability to undergo the full term of imprisonment inflicted by the court, though the order of
conviction and sentence passed by the court still stood as it was.
A distinction was drawn between reduction of a sentence done by an appellate or revisional
court and an order of remission by an executive authority. The latter was held to be an executive
power which could not interfere with or alter the judicial sentence, and the appellant was
therefore held to be rightly disqualified under Section 7(b) of the Representation of the People
Act.
AIM AND OBJECTIVE OF THE STUDY
1. To under the pardoning power enshrined in the Indian Constitution.
2. To analyse the case of Sarat Chandra Rabha v. Khagendranath Nath.
3. To discuss the effect of the power granted.
HYPOTHESIS
In Sarat Chandra Rabha v. Khagendranath Nath, the Supreme Court distinguished between
the practical effect and the legal effect of an order of remission by the President/ Governor.
5|Page
RESEARCH METHODOLOGY
The researcher will do doctrinal type of research in which she will go through both the primary
and secondary sources.
SOURCES OF DATA COLLECTION
The researcher will collect data from primary as well as secondary sources.
The primary sources are:
1. Legislations
2. Case Laws
The secondary sources are:
1. Journals
2. Books
3. Lectures
LIMITATION OF THE STUDY
Since the researcher is a student of law, she has access to a limited area. The historical need
and background are also necessary for having a bird’s eye view of the particular topic and it
gets developed only by effective and extended reading over a long period of time. But the
required materials are not available through the e-resource access of our library. The researcher
has a restricted access to the various reports and other form of relevant literature but a huge
portion of require literature is not available at the researcher’s disposal due to limited access
and paucity of time as well. But still researcher with her hard work will manage to take out the
best possible work.
6|Page
PARDONING POWER UNDER INDIAN CONSTITUTION
The clemency power of the President is one of the powers which has been conferred on the
executive. Article 72 of the Indian Constitution confers the power of pardon on the President
and Article 161 gives the same power to the Governor. The power of clemency has been
exercised for centuries. In the earlier period, the power was used by the kings for gaining a
political advantage while in today’s times the use and understanding of pardoning power are
more often associated with the concept of mercy and fairness1.
The meaning of pardon can be termed as “clemency”, “amnestics”, “grace” or mercy, the
clemency power is mentioned in the written Constitution of many nations. The President’s
clemency power deals with providing justice to the people which is essentially a function of
the judiciary2.
The scope of clemency power by the President under Article 72 of the Indian Constitution is
wider than the pardoning power of the Governor as mentioned under Article 161 of the Indian
Constitution. Article 72 condors the power on the President to grant pardon, reprieve, respites,
or remissions of punishment or to suspend, remit or commute the punishment of any person
convicted in crime in the following cases3-
1. Where the punishment is by court-martial.
2. Where the punishment is for the offense against any law relating to the matters of
executive power of the union.
3. Where the sentence is a death penalty.
Article 161 confers the power of clemency on the Governor to grant pardon etc in certain cases.
The Governor of the State shall have the power to grant clemency, reprieves, respites, or
remission of punishment or to suspend or cancel or lessen the punishment of any person
convicted of any offense.
The powers of President and Governor differs in the following ways:
1
[Link]
2
[Link]
3
[Link]
7|Page
1. The power of the President to grant clemency extends in the cases where the
punishment is by the Court Martial but Article 161 does not provide such power to
the Governor under Indian Constitution.
2. The President can allow pardon in all cases where the sentence of death but the
pardoning power of the Governor does not extend to the death sentences cases4.
Purpose of pardoning power
A pardon is an act of granting mercy, forgiveness, clemency. The Constitution of India
empowers the President and Governors to grant mercy or pardon to any person. The President
is granted the power of clemency with the view that there should be provisions in the legislation
to save the person from the consequences of punishment adjudged by carelessness and mistake
against that person by the judiciary. It is, for this reason, the provision of mercy is included in
the Constitution of India.5
As per the views that come forward about the existence of clemency in contemporary times.
One of them includes the Hegelian view that promotes clemency power which enhances justice
in society. Another one who believes in rehabilitation and redemption theory. The belief is that
the person should get a second chance to become a good person and their reasoning is based
on public welfare.
The object of pardoning power is to correct judicial errors, for no human system of judicial
administration can be free from imperfections. The pardon is an instrument of mercy and the
way to correct those grave injustices either on their facts or by an anticipated operation of the
criminal’s laws that simply must be reminded. Hence, clemency power is an indispensable
element of even the perfect system of laws6.
4
[Link]
758790-2012-06-15
5
[Link]
6
[Link]
8|Page
FACTS OF THE CASE
In this given case of Sarat Chandra Rabha v. Khagendranath Nath7, the Appellant's nomination
paper for election to the Assam Legislative Assembly was rejected by the Returning Officer on
the ground of disqualification under Section 7(b) of the Representation of the People Act, 195,
in that he had been convicted and sentenced to three years' rigorous imprisonment under
Section 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, however, remitted by the Government
of Assam under Section 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.
Then the Supreme Court held in this case that the High Court was right in holding that the
appellant was disqualified under Section 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
sentence by a Court and an order of remission of the sentence under Section 401 of the Code
of Criminal Procedure, unlike the grant of a free pardon, cannot wipe out either the conviction
or the sentence. Such order is an executive order that merely affects the execution of the
sentence and does not stand on the same footing as an order of Court, either in appeal or in
revision, reducing the sentence passed by the Trial Court8.
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 Anirara Basumatari (hereinafter called the appellant). He was a candidate for the seat
reserved for scheduled tribes. The nomination paper of the appellant was rejected by the
returning officer on the ground that he was disqualified under Section 7(b) of the
Representation of the People Act, No. XLIII of 1951, (hereinafter called the Act). The polling
7
Sarat Chandra Rabha v. Khagendranath Nath, AIR 1961 SC 334.
8
[Link]
9|Page
took place on February 25, 1957, and Khagendranath and Hakim Chandra Rabha were elected,
the latter being a member of a scheduled tribe.
Thereupon an election petition was filed by an elector challenging the election of the two
successful candidates on a number of grounds. of these grounds, however, only two are now
material, namely, (1) that the nomination paper of the appellant was wrongly rejected, and (2)
that a corrupt practice was committed by the successful candidates inasmuch as voters were
carried on mechanically propelled vehicles to the polling booths.
The appellant in this case was convicted under s. 4(b) of the Explosive Substances Act No. VI
of 1908, and sentenced to three years rigorous imprisonment on July 10, 1953. The nomination
paper in this case was filed in January 1957 and the election was held in February 1957 and
therefore five years had not elapsed since his release. But though the appellant was sentenced
to three years' rigorous imprisonment, his sentence was remitted by the Government of Assam
on November 8, 1954, under s. 401 of the Code of Criminal Procedure and he was released on
November 14, 19549.
9
[Link]
10 | P a g e
RELEVANT PROVISIONS APPLICABLE
Section 7 of the Representation of the People Act, 1951-
a) “Appropriate Government” means in relation to any disqualification for being chosen
as or for being a member of either House of Parliament, the Central Government, and
in relation to any disqualification for being chosen as or for being a member of the
Legislative Assembly or Legislative Council of a State, the State Government;
b) “disqualified” means disqualified for being chosen as, and for being, a member of either
House of Parliament or of the Legislative Assembly or Legislative Council of a State.
The provision of Section 7 (b) of the Representation of the People Act, 1951, lays down that a
person shall be disqualified for being chosen as a member of either House of Parliament or of
the Legislative Assembly or Legislative Council of a State if he is convicted by a court in India
of any offence and sentenced to imprisonment for not less than two years, unless a period of
five years, or such less period as the Election Commission may allow in any particular case,
has elapsed since his release10.
Section 4 (b) of the Explosive Substances Act, 1908-
Punishment for attempt to cause explosion, or for making or keeping explosive with intent to
endanger life or property11.
Any person who unlawfully and maliciously—
a) does any act with intent to cause by an explosive substance or special category
explosive substance, or conspires to cause by an explosive substance or special category
explosive substance, an explosion of a nature likely to endanger life or to cause serious
injury to property; or
b) makes or has in his possession or under his control any explosive substance or special
category explosive substance with intent by means thereof to endanger life, or cause
serious injury to property, or to enable any other person by means thereof to endanger
life or cause serious injury to property in India, shall, whether any explosion does or
10
[Link]
11
[Link]
11 | P a g e
does not take place and whether any injury to person or property has been actually
caused or not, be punished,
i. in the case of any explosive substance, with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine;
ii. in the case of any special category explosive substance, with rigorous imprisonment for
life, or with rigorous imprisonment for a term which may extend to ten years, and shall
also be liable to fine.
Article 161 in The Constitution of India, 1949-
161. Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in
certain cases The Governor of a State shall have the power to grant pardons, reprieves, respites
or remissions of punishment or to suspend, remit or commute the sentence of any person
convicted of any offence against any law relating to a matter to which the executive power of
the State extends.
Article 72 in The Constitution of India, 1949-
Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain
cases. The President shall have the power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any
offence
a) in all cases where the punishment or sentence is by a court Martial;
b) in all cases where the punishment or sentence is for an offence against any law relating to a
matter to which the executive power of the Union extends;
c) in all cases where the sentence is a sentence of death12.
12
[Link]
12 | P a g e
ANALYSIS OF THE JUDGEMENT OF THE CASE
This case is an appeal on a certificate granted by the Assam High Court from the Judgment and
order dated the 12th August, 1958, of the Assam High Court related to an election matter. The
Judgment of the Court was delivered by Justice Kailas Nath Wanchoo.
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 Anirara Basumatari (hereinafter called the appellant). He was a candidate for the seat
reserved for scheduled tribes. The nomination paper of the appellant was rejected by the
returning officer on the ground that he was disqualified under Section 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 Khagendranath and Hakim Chandra Rabha were elected,
the latter being a member of a scheduled tribe.13
Thereupon an election petition was filed by an elector challenging the election of the two
successful candidates on a number of grounds. of these grounds, however, only two are now
material, namely, (1) that the nomination paper of the appellant was wrongly rejected, and (2)
that a corrupt practice was committed by the successful candidates inasmuch as voters were
carried on mechanically propelled vehicles to the polling booths.
The election tribunal held on the, first point that the nomination paper of the appellant had been
improperly rejected. On the second point it holds that the corrupt practice alleged had not been
proved. In the result, the election was set aside. Thereupon there was an appeal by the two
successful candidates to the High Court.
The High Court was of the view that the nomination paper of the appellant was properly
rejected; further on the question of corrupt practice the High Court agreed with the conclusion
of the tribunal. In the result the appeal was allowed and the election petition was ordered to be
dismissed. There was then an application to the High Court for a certificate to appeal to this
Court which was granted; and that is how the matter has come up before the Supreme Court of
India.
The main contention on behalf of the appellant is that the High Court was wrong in coming to
the conclusion that the nomination paper of the appellant was properly rejected under Section
13
0 [Link]
1960- 10-27
13 | P a g e
7(b) of the Representation of the People Act. That provision lays down that a person shall be
disqualified for being chosen as a member of either House of Parliament or of the Legislative
Assembly or Legislative Council of a State if he is convicted by a court in India of any offence
and sentenced to imprisonment for not less than two years, unless a period of five years, or
such less period as the Election Commission may allow in any particular case, has elapsed
since his release.
The appellant in this case was convicted under Section 4(b) of the Explosive Substances Act
No. VI of 1908, and sentenced to three years rigorous imprisonment on July 10, 1953. The
nomination paper in this case was filed in January 1957 and the election was held in February
1957 and therefore five years had not elapsed since his release. But though the appellant was
sentenced to three years' rigorous imprisonment, his sentence was remitted by the Government
of Assam on November 8, 1954, under Section 401 of the Code of Criminal Procedure and he
was released on November 14, 1954.
The contention of the appellant before the election tribunal was that in view of this remission
his sentence in effect was reduced to a period of less than two years and therefore, he could not
be said to have incurred disqualification within the meaning of Section 7(b) of the
Representation of the People Act. This contention was accepted by the tribunal and that is why
it held that the nomination paper of the appellant was improperly rejected14.
When the case came to be argued in the High Court on behalf of the successful candidates, two
arguments were addressed in support of the plea that the nomination paper of the appellant was
properly rejected. In the first place, it was urged that in view of the provisions of Articles 72,
73, 161 and 162 of the Constitution read with s. 401 of the Code of Criminal Procedure, the
State Government had no authority to remit the sentence of the appellant; and secondly even if
the remission was properly granted it would not affect the sentence imposed by the Court,
though the appellant might not have had to undergo part of the sentence after the date of the
remission order. The High Court did not decide the question as to the power of the State
Government to grant remission in this case as it had not full materials before it because the
matter was not raised before the tribunal, though it was inclined to the view that the State
Government might not have such power15.
14
[Link]
15
[Link]
14 | P a g e
But the High Court was of the opinion that a remission of sentence did not have the same effect
as a free pardon and did not have the effect of reducing the sentence passed on the appellant
from three years to less than two years, even though the appellant might have remained in jail
for less than two years because of the order of remission. What Section 7(b) lays down is that
there should be a conviction by a court in India for any offence and a sentence of imprisonment
for not less than two years in order that a person may be disqualified for being chosen as a
member of either House of Parliament or of Legislative Assembly or of Legislative Council of
a State.
In terms, therefore, the provision applies to the case of the appellant for he was convicted by a
court in India and sentenced to imprisonment for more than two years. Further the period of
five years had not expired after his release. The appellant had applied to the Election
Commission for removing the disqualification but it had refused to do so.
The main question therefore that falls for consideration is whether the order of remission has
the effect of reducing the sentence in the same way in which an order of an appellate or
revisional criminal court has the effect of reducing the sentence passed by the trial court to the
extent indicated in the order of the appellate or revisional court. Now it is not disputed that in
England and India the effect of a pardon or what is sometimes called a free pardon is to clear
the person from all infamy and from all consequences of the offence for which it is granted and
from all statutory or other disqualifications following upon conviction. It makes him, as it were,
a new man16.
But the same effect does not follow on a mere remission which stands on a different footing
altogether. In the first place, an order of remission does not wipe out the offence; it also does
not wipe out the conviction. All that it does is to have an effect on the execution of the sentence;
though ordinarily a convicted person would have to serve out the full sentence imposed by a
court; he need not do so with respect to that part of the sentence which has been ordered to be
remitted. An order of remission thus does not in any way interfere with the order of the court;
it affects only the execution of the sentence passed by the court and frees the convicted person
from his liability to undergo the full term of imprisonment inflicted by the court, though the
order of conviction and sentence passed by the court still stands as it was. The power to grant
remission is executive power and cannot have the effect which the order of an appellate or
16
Halsbury's Laws of England, Vol. VII, Third Edition, pg. 244, para 529.
15 | P a g e
revisional court would have of reducing the sentence passed by the trial court and substituting
in its place the reduced sentence adjudged by the appellate or revisional court.
This distinction is well brought out in the following passage from Weater's Constitutional Law
on the effect of reprieves and pardons vis-a-vis the judgment passed by the court imposing
punishment-- “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, observed Justice Sutherland, to
render a judgment is a judicial function. To carry the judgment into effect is an executive
function. To cut short a sentence by an act of clemency is an exercise of executive power which
abridges the enforcement of the judgment but does not alter it qua judgment.”17
Though, therefore, the effect of an order of remission is to wipe out that part of the sentence of
imprisonment which has not been served out and thus in practice to reduce the sentence to the
period already undergone, in law the order of remission merely means that the rest of the
sentence need not be undergone, leaving the order of conviction by the court and the sentence
passed by it untouched.
In this view of the matter the order of remission passed, in this case though it had the effect
that the appellant was released from jail before he had served the full sentence of three years'
imprisonment and had actually served only about sixteen months' imprisonment, did not in any
way affect the order of conviction and sentence passed by the court which remained as it was.
Therefore, the terms of Section 7(b) of the Representation of the People Act would be satisfied
in the present case and the appellant being a person convicted and sentenced to three years'
rigorous imprisonment would be disqualified, as five years had not passed since his release and
as the Election Commission had not removed his disqualification. Hence, the appeal therefore
failed and the Supreme Court hereby dismissed the case with costs18.
17
Weater's " Constitutional Law" at pg. 176, para 134.
18
[Link]
16 | P a g e
SUPREME COURT JUDGEMENTS PERTAINING TO SIMILAR
MATTER
While dealing with this case of Sarat Chandra Rabha and Others vs Khagendranath Nath and
Others, the Supreme Court discussed many other judgments of the case relating to the same
matter like Venkatesh Yeshwant Deshpande v. Emperor,19 in this case Supreme Court
distinguished the matter, in Ganda Singh v. Sampuran Singh,20 the Supreme Court overruled
its judgement. The Supreme Court also referred to the Meenakshi Mills, Maduyai v. The
Commissioner of Incometax, Madyas21.
In Venkatesh Yeshwant Deshpande v. Emperor,22 Bose, J., observed as follows- “The effect of
an order of remission is to wipe out the remitted portion of the sentence altogether and not
merely to suspend its operation; suspension is separately provided for. In fact, in the case of a
pardon in England statutory and other disqualification following upon conviction are removed
and the pardoned man is enabled to maintain an action against any person who afterwards
defames him in respect of the offence for which he was convicted. That may not apply in full
here but the effect of an order of remission is certainly to entitle the prisoner to his freedom on
a certain date.”
It is urged that if the effect of an order of remission is to wipe out the remitted portion of the
sentence altogether it means that the sentence is reduced to the period already undergone and
the order of remission has the same effect as an order of an appellate or revisional court
reducing the sentence to the period already undergone. That case, however, dealt with a
different point altogether, namely, whether a remission having been granted and having taken
effect it could be cancelled thereafter. It was in that context that these observations were made.
Even so, the learned judge was careful to point out that there was a difference between a pardon
and a remission and the effect of an order of remission is to entitle the prisoner to his freedom
on a certain date. That case is no authority for the view that the order of remission amounts to
changing the sentence passed by a competent court and substituting therefor the sentence of
imprisonment already undergone up to the date of release following the order of remission.
19
Venkatesh Yeshwant Deshpande v. Emperor, A.I.R. 1938 Nag. 513.
20
Ganda Singh v. Sampuran Singh, (1953) 3 E.L.R. 17.
21
Meenakshi Mills, Maduyai v. The Commissioner of Income-tax, Madyas, [1956] S.C.R. 691.
22
Venkatesh Yeshwant Deshpande v. Emperor, A.I.R. 1938 Nag. 513.
17 | P a g e
Reference was also made to a number of election cases in which the view which has been urged
on behalf of the appellant seems to have been taken. We may refer to only one of them, namely,
Ganda Singh v. Sampuran Singh23, which has specifically dealt with this point. In that case an
order was passed by the Maharaja of Nabha granting amnesty to all political prisoners detained
or convicted under the Punjab Public Safety Act, 1947, as applied to Nabha State, and releasing
them unconditionally. The same order also provided for grant of remission to persons convicted
for offences other than political offences a certain scale. The successful candidate in that case
was sentenced to more than two years' rigorous imprisonment under the Punjab Public Safety
Act, as applied to Nabha State, and was thus a political prisoner. He was therefore released
before he had served two years imprisonment.
The main plank of the election petition in that case was that the successful candidate was
disqualified under Section 7(b) of the Act in view of his conviction and sentence and the
election tribunal held that remission by government (executive authority) has the same effect
as an order passed by a court of law in appeal or on revision and that under Section 7 of the
Act the court has to look to the amount of sentence imposed on a person and it made no
difference whether the sentence was reduced by a court of law on appeal or by revision or by
the powers of the government reserved for it under Section 401 of the Code of Criminal
Procedure, as, the effect in both cases was the same.
The Supreme Court was of opinion that this view was incorrect, though perhaps on the facts of
that case the order of the tribunal was right for it seems that political prisoners had been granted
a pardon by the Ruler of Nabha and not a mere remission under Section 401 of the Code of
Criminal Procedure. We cannot agree that remission by government has the same effect as an
order passed by a court of law in appeal or on revision. It is true that under Section 7(b) of the
Act one has to look at the sentence imposed; but it must be a sentence imposed by a court.
Now where the sentence imposed by a trial court is varied by way of reduction by the appellate
or revisional court, the final sentence is again imposed by a court; but where a sentence imposed
by a court is remitted in part under Section 401 of the Code of Criminal Procedure that has not
the effect in law of reducing the sentence imposed by the court, though in effect the result may
be that the convicted person suffers less imprisonment than that imposed by the court. The
order of remission affects the execution of the sentence imposed by the court but does not affect
23
Ganda Singh v. Sampuran Singh, (1953) 3 E.L.R. 17.
18 | P a g e
the sentence as such, which remains what it was in spite of the order of remission. It is also
well to remember that Section 7(b) speaks of the conviction and sentence passed by a court of
law; it does not speak of the period of imprisonment actually suffered by the convicted person.
The other election cases to which our attention was drawn by the learned counsel for the
appellant are similar and they are all in Supreme Court’s opinion wrongly decided. It was
therefore of opinion that the High Court was right in the view that the nomination paper of the
appellant was properly rejected24.
The next contention on behalf of the appellants is that both the High Court and the tribunal
were wrong in holding that a corrupt practice within the meaning of s. 100(1)(b) read with s.
123(5) had not been proved in this case. The case of the appellant was that voters were carried
by mechanically propelled vehicles to the polling booths by Birendra Kumar Nath who was in-
charge of the electioneering campaign on behalf of the Congress Party and Bholaram Sarkar
who was president of the Primary Congress Committee of Dhupdhara. The successful
candidates were both contesting the election as nominees of the Congress Party and therefore
these two persons who carried electors in mechanically propelled vehicles to the polling booths
did so as agents of the successful candidates and with their consent. The High Court as well as
the election tribunal hold that though Birendra Kumar Nath and Bholaram Sarkar might be
deemed to be the agents of the successful candidates for purposes of the election and though
the hiring of mechanically propelled vehicles by the agents for conveyance of electors to
polling booths had been proved, there was no proof that this was done with the consent, express
or implied, of the successful candidates.
Reference in this connection may be made to Meenakshi Mills, Madurai v. The Commissioner
of Income-tax, Madras25, where it was held that a finding of fact, even when it is an inference
from other facts found on evidence, is not a question of law and that such an inference can be
a question of law only when the point for determination is a mixed question of law and fact. In
the present case the only question is whether the corrupt practice was committed with the
consent of the candidates, whether express or implied, and the question whether such consent
was given in the circumstances of this case is a question of fact and not a mixed question of
law and fact and therefore the finding of the High Court as well as the tribunal that there was
24
[Link]
25
Meenakshi Mills, Madurai v. The Commissioner of Income-tax, Madras, (1956) S.C.R. 691.
19 | P a g e
no consent, either express or implied, in Supreme Court’s opinion, concluded the matter and it
came to the conclusion that there is no force in this point either.
20 | P a g e
CONCLUSION AND SUGGESTIONS
Besides a pardon the President and Governor can also grant the following:
1. Reprieves, i.e., the temporary suspension of the punishment fixed by law;
2. Respites, i.e., postponement to the future the execution of a sentence;
3. Commutation, i.e., changing a punishment to one of a different sort than that originally
proposed;
4. Remission, i.e., reduce the amount of punishment without changing the character of
punishment.
In this given case we are dealing with power of remission of the executive. The granting of
pardons is an executive act and not a judicial act, it follows that exercise of this power would
not in any way alter judgement of the court qua judgement, and that the exercise of such right
would not in any way interfere with the course of justice and that the courts are free to
adjudicate upon the guilt or otherwise of people concerned26.
The reason why the executive is given power to grant pardons and reprieves, etc. is explained
by Chief Justice Taft in an American case as follows27:
“Executive clemency exists to afford relief from undue harshness or evident mistake and in the
operation or enforcement of criminal law. The administration of justice by the courts is not
necessarily always wise or certainly considerate the circumstances which may properly
mitigate guilt. To offer a remedy, it has always been thought essential in popular governments,
as well as in monarchies, to vest in some other authority than the courts power to avoid
particular criminal judgements. It is a check entrusted to the executive for special cases. To
exercise it to the extent of destroying the deterrent effect of judicial punishment would be to
pervert it; but whosoever is to make it useful must have full discretion to exercise it. Our
Constitution confers this discretion on the highest officer in the nation, in confidence that he
will not abuse it.”
Section 7 (b), Representation of the People Act, 1951 disqualifies a person sentenced to
imprisonment for not less than two years from being a candidate at an election. The appellant
in Sarat Chandra Rabha v. Khagendranath Nath28, was sentenced to 3 years imprisonment but
26
Channugadu, re, AIR 1954 Mad 911.
27
Grossman, ex p, 69 L ED 527: 267 US 87 (1925).
28
Sarat Chandra Rabha v. Khagendranath Nath, (1961) 2 SCR 133.
21 | P a g e
the Assam government remitted the punishment to that already undergone which came to about
16 months. The question of determination was: Is the appellant disqualified from being a
candidate at the election? The Supreme Court pointed out that legal effect of judicial reduction
of a sentence and the executive remission of that sentence are quite different in their nature.
Had the court in exercise of its appellate or revisional jurisdiction reduce the sentence passed
by the trial court so as to be less than two years the appellant would not have been disqualified
to be a candidate under the Act. Hence. The researcher finds her hypothesis to be proved
because of the above discussed reasons and came to the conclusion that executive clemency
gives benefit in that particular case but it does not wipe out disqualification arising out under
any law.
22 | P a g e
BIBLIOGRAPHY
BOOKS AND ARTICLES
1. The Constitution of India, 1950.
2. The Representation of the People Act, 1951-
3. The Explosive Substances Act, 1908-
4. V. N. Shukla, Constitution of India, 13th edition, EBC Publication, (2017)
5. M. P. Jain, Indian Constitutional Law, 14th edition, LexisNexis Publication, (2018)
6. Madhav Khosla, The Oxford Handbook of the Indian Constitution 816 (2016).
INTERNET SOURCES
1. [Link]
2. [Link]
%20and%2C%20when%20the%20Judges
3. [Link]
4. [Link]
5. [Link]
6. [Link]
VersusKhagendranath-Nath-and-Others-1960-10-27
7. [Link]
23 | P a g e
