the Parliament (Prevention of Disqualification) Act, 1959 as amended by the Amendment Act No.31 of 2006 has no application insofar as election to the office of the President is concerned. The disqualification incurred by a Presidential candidate on account of holding of an office of profit is not removed by the provisions of the said Act which deals with removal of disqualification for being chosen as, or for being a Member of Parliament. If, therefore, it is assumed that the office of Chairman, ISI is an office of profit and the Respondent had held the said office on the material date(s) consequences adverse to the Respondent, in so far as the result of the election is concerned, are likely to follow. The said facts, will therefore, be required to be proved by the election Petitioner. No conclusion that a regular hearing in the present case will be a redundant exercise or an empty formality can be reached so as to dispense with the same and terminate the Election Petition at the stage of its preliminary hearing under Order XXXIX Rule 13. The Election Petition, therefore, deserves a regular hearing under Order XXXIX Rule 20 in accordance with what is contained in the different provisions of Part III of the Supreme Court Rules, 1966.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                       ELECTION PETITION NO.1 OF 2012


PURNO AGITOK SANGMA                      … PETITIONER

                                      VERSUS

PRANAB MUKHERJEE                         … RESPONDENT



                               J U D G M E N T


ALTAMAS KABIR, CJI.


1 1.  The Petitioner herein was a candidate in  the  Presidential  elections
held on 19th July, 2012,  the results whereof were declared on  22nd  July,
2012.  The Petitioner and the Respondent were the only two  duly  nominated
candidates.  The Respondent received votes of the value of 7,13,763 and was
declared elected to the Office of the President of  India.   On  the  other
hand, the Petitioner received votes of the value of 3,15,987.

2.    The Petitioner has challenged  the  election  of  the  Respondent  as
President of India on the ground that he was  not eligible to  contest  the
Presidential election in view of  the  provisions  of  Article  58  of  the
Constitution of India, which is extracted hereinbelow :-

           “58. Qualifications for election as President.-  (1)  No  person
           shall be eligible for election as President unless he -

                 (a) is a citizen of India,
                 (b) has  completed  the age of thirty-five years, and
                 (c) is  qualified  for election as  a member of  the  House
                 of the People.


         2)  A person shall not be eligible for election as President if  he
            holds any office of profit under the  Government  of  India   or
            the  Government of  any  State  or  under  any  local  or  other
            authority subject to the control of any of the said Governments.


           Explanation.-For the purposes of this article,  a  person  shall
           not be deemed to hold any office of profit by reason  only  that
           he is the President or  Vice  President  of  the  Union  or  the
           Governor of any State or is a Minister either for the  Union  or
           for any State.”



3.    According to the Petitioner, at the time  of  filing  the  nomination
papers as a candidate for the Presidential elections, the  Respondent  held
the Office of Chairman of the  Council  of  Indian  Statistical  Institute,
Calcutta, hereinafter referred to as the “Institute”, which,  according  to
him, was an office of profit.  It appears that at the time of  scrutiny  of
the nomination papers on 2nd July, 2012, an objection to  that  effect  had
been raised before the Returning Officer  by  the  Petitioner's  authorized
representative, who urged that the nomination papers of the Respondent were
liable  to  be  rejected.   In  response  to  the  said   submission,   the
representative of the Respondent sought two days' time  to   file  a  reply
to  the  objections  raised  by the Petitioner. Thereafter,  on  3rd  July,
2012, a written reply was submitted on behalf  of  the  Respondent  to  the
objections raised by the Petitioner before  the  Returning  Officer,  along
with a copy of a resignation letter dated  20th  June,  2012,  whereby  the
Respondent claimed to have resigned from the Chairmanship of the Institute.
 A reply was also filed on behalf of  the  Respondent  to  the   objections
raised by Shri Charan Lal Sahu.  The matter was, thereafter, considered  by
the Returning Officer at the time of scrutiny of the nomination  papers  on
3rd July, 2012, when the Petitioner's representative  even  questioned  the
genuineness of the resignation letter submitted by the  Respondent  to  the
President of the Council of the Institute, Prof. M.G.K. Menon.

4.    Having considered the submissions made on behalf of the parties,  the
Returning Officer,  by  his  order  dated  3rd  July,  2012,  rejected  the
Petitioner's objections as well as the objections raised by Shri Charan Lal
Sahu, and accepted the Respondent's  nomination  papers.   Accordingly,  on
3rd July, 2012, the Petitioner and the Respondent were declared to  be  the
only two duly nominated candidates for the Presidential election.


5.    Immediately after the rejection of the Petitioner's objection to  the
Respondent's candidature for the Presidential elections, on 9th July, 2012,
a petition was submitted to the Election Commission of India, under Article
324 of the Constitution, praying for directions to the Returning Officer to
re-scrutinize the nomination papers of the Respondent  and  to  decide  the
matter afresh  after  hearing  the  Petitioner.   The  Election  Commission
rejected the said petition as not being maintainable  before  the  Election
Commission, since all disputes relating to Presidential elections could  be
inquired into and decided only by this  Court.   Thereafter,  as  indicated
hereinabove, the Presidential elections were conducted on 19th July,  2012,
and the Respondent was declared elected to the Office of the  President  of
India on 22nd July, 2012.

6.    Aggrieved by the decision of the Returning Officer  in  accepting  the
nomination papers of the Respondent as  being  valid,  the  Petitioner  has
questioned the election of the Respondent as the President of  India  under
Article 71 of the Constitution read with Order XXXIX of the  Supreme  Court
Rules, 1966, and, in particular, Rule 13 thereof.  The said Rule, which  is
relevant for a decision in this petition, reads as follows :-
         “13. Upon presentation of a  petition  the  same  shall  be  posted
         before  a  bench  of  the  Court  consisting  of  five  Judges  for
         preliminary hearing and orders for  service  of  the  petition  and
         advertisement thereof as  the  Court  may  think  proper  and  also
         appoint a time for  hearing  of  the  petition.   Upon  preliminary
         hearing, the Court,  if  satisfied,  that  the  petition  does  not
         deserve regular hearing as contemplated in Rule 20  of  this  Order
         may dismiss the petition or pass any appropriate order as the Court
         may deem fit.”

                           [Emphasis supplied]



7.    In keeping with the provisions of Rule  13  of  Order  XXXIX  of  the
Supreme Court Rules, 1966, which deals with Election Petitions  under  Part
III of the Presidential and  Vice-Presidential  Elections  Act,  1952,  the
Election Petition filed by the Petitioner was listed  for  hearing  on  the
preliminary point as  to  whether  the  petition  deserved  a  hearing,  as
contemplated by Rule 20 of Order XXXIX, which provides as follows :
         “20. Every petition calling  in  question  an  election  shall  be
         posted before and be heard and disposed of by a Bench of the  Court
         consisting of not less than five Judges.”



8.    Mr. Ram  Jethmalani,  learned  Senior  Advocate,  appearing  for  the
Petitioner, submitted that the Respondent's election as President of India,
was liable to be declared as void mainly on the ground that by holding  the
post of Chairman of the Indian Statistical Institute, Calcutta, on the date
of scrutiny of the nomination papers, the  Respondent  held  an  office  of
profit, which disqualified him from contesting the Presidential election.


9.    Mr. Jethmalani urged that  apart  from  holding  the  office  of  the
Chairman of the aforesaid Institute, the Respondent was also the Leader  of
the House in the Lok Sabha which had been declared as an office of  profit.
Urging that since the Respondent was holding both  the  aforesaid  offices,
which were offices of profit, on the  date  of  filing  of  the  nomination
papers, the Respondent stood disqualified from contesting the  Presidential
election in view of Article 58(2) of the Constitution.

10.   Mr. Jethmalani submitted that Article 71 of the Constitution  provides
that all doubts and disputes arising out  of  or  in  connection  with  the
election of a President  or  Vice-President  shall  be  inquired  into  and
decided by the Supreme Court whose decision is to be final. Mr.  Jethmalani
submitted that there were sufficient doubts to the  Respondent's  assertion
that on the date of filing of his nomination papers, he had  resigned  both
from the office of Chairman of the Indian Statistical Institute,  Calcutta,
and as the Leader of the House in the Lok Sabha, on 20th June,  2012.   Mr.
Jethmalani urged that the  doubt  which  had  been  raised  could  only  be
dispelled by a full-fledged inquiry which required evidence to be taken and
cross-examination of the witnesses whom  the  Respondent  might  choose  to
examine.  Accordingly, Mr. Jethmalani submitted that the  instant  petition
would have to be tried in the same manner as a suit,  which  attracted  the
provisions of Section 141 of the Code of Civil Procedure,  which  reads  as
follows:





         “141.  Miscellaneous Proceedings. - The procedure provided in  this
         Code in regard to suit shall be followed, as far as it can be  made
         applicable, in all proceedings in any Court of civil jurisdiction.




         Explanation  –  In  this  Section  the  expression   “proceedings”
         includes proceedings under Order IX,  but  does  not  include  any
         proceeding under Article 226 of the Constitution.”



      In addition, learned counsel also referred to Rule 34 of Order  XXXIX
of the Supreme Court Rules, 1966, which provides as follows :-




         “Order XXXIX, Rule 34

         Subject to the provisions of this Order or  any  special  order  or
         direction of the Court, the procedure of an Election Petition shall
         follow as nearly as may be the procedure in proceedings before  the
         Court in exercise of its Original Jurisdiction.”


      Mr. Jethmalani pointed out that in the Original  Jurisdiction  of  the
Supreme Court, provided for in Order XXII of the Supreme Court Rules,  1966,
the entire procedure for institution and trial of a suit has been  set  out,
providing for all the different stages in respect of a suit governed by  the
Code of Civil Procedure.  Mr. Jethmalani submitted that the  making  of  the
procedure for trial of Election Petitions  akin  to  that  of  the  Original
Jurisdiction of the Supreme Court, was a clear indication  that  the  matter
must be tried as a suit,  if  under  Rule  13  of  Order  XXXIX,  the  Court
consisting of 5 Judges was satisfied  at  a  preliminary  inquiry  that  the
matter deserved a regular hearing, as contemplated in Rule 20  of  the  said
Order.

12.   For the sake of comparison, Mr. Jethmalani referred to Section  87  of
the Representation of the People Act, 1951, laying down  the  procedure  for
the trial of Election Petitions and providing that every  Election  Petition
shall be tried by the High Court, as nearly as may be,  in  accordance  with
the procedure applicable under the Code of Civil Procedure to the  trial  of
suits.  Mr. Jethmalani urged that in matters relating to  election  disputes
it was the intention of the Legislature to have the same  tried  as  regular
suits following the procedure enunciated in Section 141 C.P.C.

13.   Mr.  Jethmalani  then  drew  our  attention  to  Article  102  of  the
Constitution and, in particular, Clause 1(1)(a) thereof, which, inter  alia,
provides as follows :-

         “102. (1)  A person shall be disqualified for being chosen as, and
         for being, a member of either House of Parliament –
         (a) if he holds any office of profit under the Government of India
         or the Government of any State, other than an office  declared  by
         Parliament by law not to disqualify its holder;
         (b)…………
         (c)…………
         (d)…………
         (e)…………


         Explanation: For the purposes of this clause a person shall not be
         deemed to hold an office of profit under the Government  of  India
         or the Government of any  State  by  reason  only  that  he  is  a
         Minister either for the Union or for such State.”


14.   Mr. Jethmalani submitted that language similar to the above, had  been
incorporated in Article 58(2) of the Constitution, which also provides  that
a person shall not be eligible for election as President, if  he  holds  any
office of profit under the Government of India  or  the  Government  of  any
State or under any local or other authority, subject to the control  of  any
of the said Governments.  Mr. Jethmalani submitted that  as  in  Explanation
to Article 102, the Explanation to Clause (2) of Article 58  also  indicates
that a person shall not be deemed to hold any office  of  profit  by  reason
only that he is  the  President  or  Vice-President  of  the  Union  or  the
Governor of any State or is a Minister either  for  the  Union  or  for  any
State.  Mr. Jethmalani urged that Article 102 cannot save a  person  elected
to the Office of President from disqualification, if he holds an  office  of
profit.

15.   Mr. Jethmalani submitted that from  the  annexures  to  the  affidavit
filed on behalf of the Respondent it was highly doubtful as to  whether  the
Respondent had actually resigned from the post of Chairman of the  Institute
on 20th June, 2012, or even from  the  Membership  of  the  Congress  Party,
including the Working Committee, and from the office of the  Leader  of  the
Congress Party in Lok Sabha on the same date,  as  contended  by  him.   Mr.
Jethmalani  submitted  that  from  the  copy  of  the  letter  addressed  to
Professor M.G.K.  Menon,  President  of  the  Institute,  it  could  not  be
ascertained as to whether the endorsement made by Professor  Menon  amounted
to acceptance of the Respondent’s  resignation  or  receipt  of  the  letter
itself.  Learned counsel urged that this was another case of “doubt”  within
the meaning of Article 71 of the Constitution of India  which  required  the
Election Petition to be tried as a suit for which  a  detailed  hearing  was
required to be  undertaken  by  taking  evidence  and  allowing  for  cross-
examination of witnesses.

16.   It was also submitted that the expression “office of profit”  has  not
been conclusively explained till today  under  the  Presidential  and  Vice-
Presidential Elections Act, 1952, nor any  other  pre-independence  statute,
and the same required to be resolved by this Court.   In  this  regard,  Mr.
Jethmalani referred to the decision of a three-Judge Bench of this Court  in
the case of Shibu Soren Vs. Dayanand Sahay & Ors. [(2001)  7  SCC  425],  in
which the aforesaid expression came to be  considered  and  in  interpreting
the provision of Articles 102(1)(a) and  191(1)(a),  this  Court  held  that
such interpretation should be realistic having regard to the object  of  the
said Articles.  It was observed that the  expression  “profit”  connotes  an
idea of some pecuniary gain other than “compensation”.  Neither the  quantum
of amount paid, nor the label under which the payment is  made,  may  always
be material to determine whether the office is one of  profit.   This  Court
went on further to observe that mere use of  the  word  “honorarium”  cannot
take the payment out of the concept of profit, if there  is  some  pecuniary
gain for the recipient.  It was held in the said case  that  payment  of  an
honorarium, in addition to daily allowances in the  nature  of  compensatory
allowances, rent-free  accommodation  and  chauffeur  driven  car  at  State
expense, were in the nature of remuneration and is  a  source  of  pecuniary
gain and, hence, constituted profit.  Mr. Jethmalani urged that  it  was  on
the basis of such observation that the Election Petition in  the  said  case
was allowed.

17.   Mr. Jethmalani also referred to the decision  of  this  Court  in  the
case of Jaya Bachchan  Vs. Union  of  India  &  Ors.  [(2006)  5  SCC  266],
wherein also the phrase “office of profit” fell  for  interpretation  within
the meaning of Article 102 and other provisions  of  the  Constitution  with
regard to use of the expression “honorarium” and its  effect  regarding  the
financial status of the holder of  office  or  interest  of  the  holder  in
profiting from the office.  It was  observed  that  what  was  relevant  was
whether the office was capable of  yielding  a  profit  or  pecuniary  gain,
other than reimbursement of out-of-pocket/actual expenses, and  not  whether
the  person  actually  received  monetary  gain  or  did  not  withdraw  the
emoluments to which he was entitled. The three-Judge Bench, which heard  the
matter, held that an office of profit is  an  office  which  is  capable  of
yielding profits of pecuniary gain and that  holding  an  office  under  the
Central  or  State  Government,  to  which  some  pay,  salary,   emolument,
remuneration or non-compensatory  allowance  is  attached,  is  “holding  an
office of profit”.  However, the question whether a person holds  an  office
of profit has to be interpreted in a realistic manner and the nature of  the
payment must be considered as a matter of substance  rather  than  of  form.
Their Lordships further observed that  for   deciding  the  question  as  to
whether one is holding an office of profit  or  not,  what  is  relevant  is
whether the office is capable of yielding a profit  or  pecuniary  gain  and
not whether the person actually obtained any monetary gain therefrom.

18.   In the same connection, reference was also made  to  the  decision  of
this Court in M.V. Rajashekaran & Ors. Vs. Vatal Nagaraj &  Ors.  [(2002)  2
SCC  704],  where  also  the  expression  “office  of   profit”   fell   for
consideration.

19.   Mr. Jethmalani urged that having regard to  the  above,  the  Election
Petition deserved a regular hearing, as contemplated in  Rule  20  of  Order
XXXIX of the Supreme Court Rules, 1966.

20.   Appearing  for  the  Respondent,  Mr.  Harish  Salve,  learned  Senior
Advocate, submitted that election to the office of the  President  of  India
is regulated under the provisions of the Presidential and  Vice-Presidential
Act, 1952, hereinafter referred to as the “1952  Act”,  and,  in  particular
Part III thereof, which deals with disputes regarding elections.  Mr.  Salve
pointed out that Sections 14 and  14A  of  the  Act  specifically  vest  the
jurisdiction to try Election Petitions under the 1952 Act with  the  Supreme
Court, in the manner prescribed  in  the  said  sections.  Accordingly,  the
challenge to a Presidential election would have to  be  in  compliance  with
the provisions of Order XXXIX of the Supreme Court Rules, 1966, which  deals
with Election Petitions under Part III of the 1952 Act.  Rule  13  of  Order
XXXIX of the Supreme Court Rules,   therefore,  becomes  applicable  and  it
enjoins that upon presentation of an Election Petition, the same has  to  be
posted  before  a  Bench  of  the  Court  consisting  of  five  Judges,  for
preliminary hearing to satisfy itself that the petition deserves  a  regular
hearing, as contemplated in Rule 20.  For the sake  of  reference,  Sections
14 and 14A of the 1952 Act, are extracted hereinbelow :-
           “14. (1) No election shall  be  called  in  question  except  by
      presenting an Election Petition to the  authority  specified  in  sub-
      section (2).


   2)  The authority having jurisdiction to try an Election  Petition  shall
      be the Supreme Court.


           (3) Every Election Petition shall be presented to such authority
      in accordance with the provisions of this Part and of the  rules  made
      by the Supreme Court under article 145.


           14A. (1) An Election Petition calling in  question  an  election
      may be presented on one or more  of  the  grounds  specified  in  sub-
      section  (1) of section 18 and section 19, to the Supreme Court by any
      candidate at such election, or—


                 (a)  in the case of Presidential  election,  by  twenty  or
           more electors joined together as petitioners ;


                 (b) in the case of Vice-Presidential election,  by  ten  or
           more electors joined together as petitioners.


           (2) Any such petition may be presented at  any  time  after  the
      date of publication of the declaration  containing  the  name  of  the
      returned candidate at the election under section  12,  but  not  later
      than thirty days from the date of such publication.”

21.   Mr. Salve submitted that  the  nomination  papers  of  the  respective
candidates had been scrutinized by the Returning Officer in accordance  with
the provisions of Section 5A of the 1952 Act.  Referring to Sub-Section  (3)
of  Section  5E,  Mr.  Salve  submitted  that  after  completing   all   the
formalities  indicated  in  Sub-Section  (3),  the  Returning  Officer   had
accepted  the  nomination  papers  of  the  Respondent  as   valid,   which,
thereafter, gave the Respondent the right  to  contest  the  election.   Mr.
Salve submitted that Section 14 of the 1952 Act  was  enacted  under  Clause
(3) of Article 71 of the Constitution which provides  that  subject  to  the
provisions of the Constitution, Parliament may by law  regulate  any  matter
relating to  or  connected  with  the  election  of  a  President  or  Vice-
President.

22.   Mr. Salve submitted that the  election  of  the  President  and  Vice-
President has been treated on a  different  level  in  comparison  with  the
election of Members  of  Parliament  and  other  State  Legislatures.  While
Article 102 deals with election of Members to the House,  Article  58  deals
with the election of the President and the Vice-President  of  India,  which
has to be dealt with strictly in accordance with the law laid down  in  this
regard.  In support of his aforesaid contention, Mr.  Salve  referred  to  a
Seven-Judge Bench decision of this Court in the case of Charan Lal Sahu  Vs.
Neelam Sanjeeva Reddy  [(1978)  2  SCC  500],  where  the  alleged  conflict
between Article 71(1) of  the  Constitution  with  Article  58  thereof  was
considered by this Court and it was held that Article 58 only  provides  for
the qualification regarding the eligibility of a candidate  to  contest  the
Presidential elections and had nothing  to  do  with  the  nomination  of  a
candidate which required 10 proposers and 10 seconders.  The  provisions  of
Sections 5B and 5C of the 1952 Act were also considered and held not  to  be
in conflict with Article 14 of  the  Constitution.   Article  71(3)  of  the
Constitution was also seen to be a law by which  Parliament  could  regulate
matters connected with the Presidential elections, including those  relating
to election disputes arising out of such an election.  Relying  on  its  own
earlier judgments, the Hon’ble Judges of the Bench held that  there  was  no
force in the attack to either Article  71(3)  of  the  Constitution  or  the
provisions of Sections 5B or 5C of the 1952 Act.

23.   The Petitioner, C.L. Sahu, had also challenged the  election  of  Shri
Giani Zail Singh as President of India and such challenge  was  repelled  by
this Court upon holding that the Petitioner had no locus standi to file  the
same.

24.   Mr. Salve lastly referred to the decision of this Court  in  Mithilesh
Kumar Vs. R. Venkataraman & Ors. [(1987)  Supp.  SCC  692],  wherein,  on  a
similar question being raised, a five-Judge Bench of this  Court  reiterated
its earlier views in the challenge made  to  the  election  of  Shri  Neelam
Sanjeeva Reddy and Shri Giani Zail Singh as former Presidents of India.

25.   Mr. Salve then urged that since the provisions of Order XXXIX  of  the
Supreme Court Rules framed under Article 145 of the  Constitution  had  been
so framed in accordance with Section 14 of the 1952 Act, the  provisions  of
Section 141 of the Code of  Civil  Procedure  could  not  be  imported  into
deciding  a  dispute  relating  to  a  challenge  to  the  election  of  the
President.

      Mr. Salve submitted that Rule 13 of Order XXXIX of the  Supreme  Court
Rules, 1966, stood substituted on 9th December, 1997,  and  the  substituted
provision came into effect on 20th December,  1997.  In  the  Original  Rule
which came to be substituted, there  was  no  provision  for  a  preliminary
hearing to be conducted to establish as to  whether  the  Election  Petition
deserved a regular hearing. However,  in  view  of  repeated  and  frivolous
challenges to the elections of almost all of  the  Presidents  elected,  the
need for such an amendment came to be felt so as to  initially  evaluate  as
to  whether  such  an  Election  Petition,  challenging   the   Presidential
election, deserved a regular hearing.

27.   Mr. Salve then submitted that the  post  of  Chairman  of  the  Indian
Statistical Institute, Calcutta, was not an office of  profit  as  the  post
was honorary and there was no salary or any other benefit  attached  to  the
said post. Learned counsel submitted that even if one  were  to  accept  the
interpretation sought to be given by Mr.  Ram  Jethmalani  that  the  office
itself may not provide for any  direct  benefit  but  that  there  could  be
indirect benefits which made it an office of profit, the said  post  neither
provides for any honorarium nor was capable of  yielding  any  profit  which
could make it an office  of  profit.   Mr.  Salve  submitted  that  the  law
enunciated in the decisions cited by Mr.  Ram  Jethmalani  in  the  case  of
Shibu Soren (supra) and Jaya Bachchan (supra) was good  law  and,  in  fact,
the post which the Respondent was holding as Chairman of the  Institute  was
not an office of profit, which would disqualify him from being  eligible  to
contest as a candidate for the office of President of India.

28. As to the holding of  the  post  of  Leader  of  the  House,  Mr.  Salve
submitted that the holder of such a post is normally a Cabinet  Minister  of
the Government and is certainly not an appointee of the Government of  India
so as to bring him within the bar  of  Clause  (2)  of  Article  58  of  the
Constitution of India.  In support of his contention that the provisions  of
Section 141 CPC would not apply  in  the  facts  of  this  case,  Mr.  Salve
referred to the decision of this Court in Mange Ram Vs. Brij  Mohan  &  Ors.
[(1983) 4 SCC 36], wherein the Code of Civil Procedure and  the  High  Court
Rules regarding trial of an Election Petition, were considered, and  it  was
held that where necessary, the provisions of the Civil Procedure Code  could
be applied, but only  when  the  High  Court  Rules  were  not  sufficiently
effective for the purpose  of  the  production  of  witnesses  or  otherwise
during the course of trial of the petition.  Mr. Salve also  referred  to  a
three-Judge Bench decision  of  this  Court  in  Ravanna  Subanna  Vs.  G.S.
Kaggeerappa [AIR 1953 SC 653], which was a case from Mysore relating to  the
election of a Councilor under the Mysore Town Municipal Act, 1951.   Of  the
two questions raised, one of the points was with regard to the  question  as
to whether the Appellant therein could be said to be holding  an  office  of
profit under the Government thereby attracting the  provisions  relating  to
disqualification.  On a plain meaning of the expression “office of  profit”,
Their Lordships, inter alia, observed that the word  “profit”  connotes  the
idea of pecuniary gain and if there  really  was  a  gain,  its  quantum  or
amount would not be material, but  the  amount  of  money  receivable  by  a
person in connection with the office he holds may be  material  in  deciding
whether the office really carries  any  profit.   Their  Lordships  went  on
further to observe as follows :
      “From the facts stated above, it can reasonably be inferred that  the
      fee of Rs.6 which the non-official Chairman is entitled to  draw  for
      each sitting of the Committee, he attends,  is  not  meant  to  be  a
      payment by way of remuneration or profit, but it is gain to him as  a
      consolidated fee for the out-of-pocket expenses which he has to incur
      for attending the meetings of the Committee.  We do not think that it
      was the  intention  of  the  Government  which  created  these  Taluk
      Development Committees which were to be manned  exclusively  by  non-
      officials, that the office of the Chairman or of the  Members  should
      carry any profit or remuneration.”


      Mr. Salve urged that  in  the  instant  case  as  well,  the  post  of
Chairman of the Indian Statistical Institute, Calcutta, did  not  yield  any
profit to the holder of the post, which was entirely meant to be  an  honour
bestowed on the holder thereof.  Mr. Salve also referred to the decision  of
this Court in the case  of  Shibu  Soren  (supra)  which  had  already  been
referred to by Mr. Ram Jethmalani, and pointed out  that  Article  102(1)(a)
of the Constitution of India deals with disqualification from  being  chosen
as a Member of the two Houses or from being a  Member  of  either  House  of
Parliament and did not affect the post of President of India.

29.   The last decision referred to by Mr. Salve in the  above  context  was
that of this Court in Madhukar G.E. Pankakar Vs. Jaswant  Chobbildas  Rajani
[(1977) 1 SCC 70], where also the expression “office of profit” came  to  be
considered.  In paragraph 31 of the said decision,  reference  was  made  to
the earlier decision of this Court in Ravanna  Suvanna's  case  (supra)  and
the ratio of the said decision was tested in relation to  Insurance  Medical
Practitioners. It was held that the petitioner did derive  profit,  but  the
question was whether he held an office under  the  Government.   Since  mere
incumbency in office is no disqualification, even if  some  sitting  fee  or
insignificant honorarium is paid, it was ultimately held  that  the  ban  on
candidature or electoral disqualification,  must  have  a  substantial  link
with the end, may be the possible misuse of position  as  Insurance  Medical
Practitioner in doing his duties as Municipal President.

30.    On  the  other  question  with  regard  to  the  acceptance  of   the
Respondent's resignation from the post of Chairman of the Institute held  by
the Respondent, Mr. Salve submitted that  the  alleged  discrepancy  in  the
signatures of the Respondent in his letter of resignation addressed  to  the
President of the Institute with his  other  signatures,  was  no  ground  to
suspect that  the  said  document  was  forged,  particularly  when  it  was
accepted by the Respondent that the same was his signature and that he  used
both signatures when signing letters and documents.   In  this  regard,  Mr.
Salve referred to the Constitution Bench decision of this Court in Union  of
India & Ors. Vs. Gopal Chandra Mishra & Ors.[(1978(2) SCC 301], wherein  the
question as to when a resignation takes place or  is  to  take  effect,  has
been considered in some detail.  While considering the  various  aspects  of
resignation, either with immediate effect or from a future date, one of  the
propositions which emerged from the ultimate conclusions arrived at by  this
Court was that in view of the provisions of Article  217(1)(a)  and  similar
provisions in regard to constitutional  functionaries  like  the  President,
Vice-President,  Speaker,  etc.   the   resignation   once   submitted   and
communicated to the appropriate authority becomes complete  and  irrevocable
and acts ex proprio vigore.  The only  difference  is  when  resignation  is
submitted with the intention of resigning from a future date, in  such  case
it was held that  before  the  appointed  date  such  resignation  could  be
rescinded.

31.   The next case referred to by Mr. Salve in this regard is the  decision
rendered by this Court in Moti Ram Vs. Param Dev [(1993) 2 SCC  725],  where
a similar question arose with regard to resignation from the office  of  the
Chairman of the Himachal Pradesh Khadi and Village Industries Board, with  a
request to accept the resignation with effect from the date  of  the  letter
itself. Considering the  said  question,  this  Court  held  that  a  person
holding the office of Chairman of the said  Board  should  resign  from  the
said office and the same would take effect from the  date  of  communication
of the resignation to the Head  of  the  Department  in  the  Government  of
Himachal Pradesh.

32.   On a different note, Mr. Salve pointed out from the Election  Petition
itself that the allegations made in paragraph 2(XVI) were  verified  by  the
Petitioner,  both  in  the  verification  and  the  affidavit  affirmed   on
20.8.2012, as being true and correct on the basis  of  information  received
and believed to be correct.  Mr. Salve submitted that under Rule 6 of  Order
XXXIX of the Supreme Court  Rules,  allegations  of  fact  contained  in  an
Election Petition challenging a Presidential election were  required  to  be
verified by an affidavit to be made personally by the Petitioner or  by  one
of the Petitioners, in case  there  were  more  than  one,  subject  to  the
condition that if the Petitioner was unable to make such  an  affidavit  for
the reasons indicated in the proviso to Rule 6, a person duly authorized  by
the Petitioner would  be  entitled,  with  the  sanction  of  the  Judge  in
Chambers, to make such an  affidavit.   Mr.  Salve  submitted  that  in  the
instant case there was no such occasion for the verification to be  done  by
the Petitioner.

      In regard to the post of “Leader of the House”, Mr. Salve referred  to
the Practice and Procedure of Parliament, with particular reference  to  the
Lok Sabha, wherein with regard to the resignation  from  the  membership  of
other bodies,  in the case  of  the  Leader  of  the  House,  the  procedure
followed was that when a Member of the Lok Sabha representing Parliament  or
Government Committees, Boards, Bodies, sought to resign from the  membership
of that body by addressing the  Speaker,  he  is  required  to  address  his
resignation to the Chairman of that Committee, Board or Body and  he  ceases
to be member of the Committee  when  he  vacates  that  office.   Mr.  Salve
submitted that by tendering his resignation to the  Congress  President  and
Chairperson of the Congress Party in Parliament on  20th  June,  2012,  with
immediate effect, such resignation came into force forthwith and no  further
formal acceptance thereof was necessary.

      Mr. Salve submitted  that  notwithstanding  the  submissions  made  in
regard to the expression “holder of an office of profit”, the said  argument
was also not available to the Petitioner, since by virtue  of  amendment  to
Section 3 of the Parliament (Prevention of Disqualification) Act,  1959,  in
2006, the office  of  Chairman  of  the  Institute  was  excluded  from  the
disqualification provisions of  Article 58(2) of the Constitution of  India.
 Mr. Salve submitted that the aforesaid Act  had  been  enacted  to  declare
that certain offices of profit under the Government, including the  post  of
Chairman in any statutory or non-statutory body, would  not  disqualify  the
holders thereof from being chosen as, or for being Members of Parliament  as
contemplated under Article 102(1)(a) of the Constitution. By virtue  of  the
said amendment,  a  new  Table  was  inserted  after  the  Schedule  to  the
Principal Act which would be deemed to have been inserted with  effect  from
4th April, 1959.  The  Indian  Statistical  Institute,  Calcutta,  has  been
placed at Serial No.4 of the Table.  Accordingly, the  submissions  advanced
by Mr. Jethmalani with regard to the Respondent holding an office of  profit
as Chairman of the Institute  on  the  date  of  filing  of  nomination  for
election to the Office of  President,  were  incorrect  and  the  same  were
liable to be discarded.

      Mr. Salve submitted that having regard  to  the  submissions  made  on
behalf of the parties, the Election Petition  filed  by  Shri  Purno  Agitok
Sangma did not deserve a regular hearing, as  contemplated  in  Rule  20  of
Order XXXIX of  the  Supreme  Court  Rules,  1966,  and  was  liable  to  be
dismissed.

36.   The learned Attorney General, Mr. Goolam E. Vahanvati,  firstly  urged
that the expression “office of profit” ought not  to  be  interpreted  in  a
pedantic manner and has to be considered in the  light  of  the  duties  and
functions and the benefits to be derived by the holder of the  office.   Mr.
Vahanvati pointed out that the post of  Chairman  of  the  Institute  was  a
purely honorary post, meant to  honour  the  holder  thereof.   It  did  not
require the active participation of the Chairman in  the  administration  of
the Institute, which was looked after  by  the  President  and  his  Council
constituted  under  the  Rules  and  Regulations  of  the  Institute.    Mr.
Vahanvati also submitted that the post was purely  honorary  in  nature  and
did not benefit  the  holder  thereof  in  any  way,  either  monetarily  or
otherwise, nor  was  there  any  likelihood  of  any  profit  being  derived
therefrom.  Accordingly, even if Mr. Jethmalani's  submission  that  on  the
date of filing of nominations the Respondent  continued  to  hold  the  said
office, it  would  not  disqualify  him  from  contesting  the  Presidential
election.

      In this regard, the learned Attorney General referred to the  decision
of this Court in Consumer Education & Research Society vs. Union of India  &
Ors. [(2009) 9 SCC 648], wherein the provisions of the 1959 Act, as  amended
by the Amending Act of  2006,  regarding  the  disqualification  of  persons
holding offices of profit from continuing as  Members  of  Parliament,  were
under consideration.  Considering the provisions of Articles  101(3)(a)  and
103 in the Writ Petitions filed before this Court under Article  32  of  the
Constitution,  the  constitutionality  of  the  Parliament  (Prevention   of
Disqualification) Amendment Act, 2006, came to be questioned on  the  ground
that the said Act retrospectively added to the list of “offices  of  profit”
which do not disqualify the holders thereof for being elected as Members  of
Parliament.  The Writ Petitioners contended  that  the  amendment  had  been
brought in  to  ensure  that  persons  who  had  ceased  to  be  Members  of
Parliament on account of incurring disqualifications, would  be  re-inducted
to Parliament without election, which, according to  the  Writ  Petitioners,
violated the provisions of Articles 101 to 104 of the Constitution.

      The said question was answered by  this  Court  by  holding  that  the
power of Parliament to enact a law  under  Article  102(1)(a)  includes  the
power of Parliament to enact such law retrospectively, as was held in  Kanta
Kathuria Vs. Manak Chand Surana [(1969) 3 SCC 268]  and  later  followed  in
the decision rendered in Indira Nehru Gandhi Vs.  Raj  Narain  [1975  (Supp)
SCC 1].  Accordingly, if a person was under a disqualification at  the  time
of his election, the  provisions  of  Articles  101(3)(a)  and  103  of  the
Constitution  would  not  apply  and  he  would  continue  as  a  Member  of
Parliament, unless the High Court in an  Election  Petition  filed  on  that
ground declared that on the date of the election, he  was  disqualified  and
consequently declares his election to be void.  In other words, the  vacancy
under Article 101(3)(a) would occur only after a decision had been  rendered
on such disqualification by the Chairman or the Speaker in the House.

      Reference was also made to the decision  of  this  Court  in  Karbhari
Bhimaji Rohamare Vs. Shanker Rao Genuji Kolhe & Ors.  [(1975)  1  SCC  252],
wherein this Court held that a Member  of  the  Wage  Board  for  the  sugar
industry  constituted  by  the  Government  of  Maharashtra,  which  was  an
honorary post and the honorarium paid to the Members was in the nature of  a
compensatory allowance, exercised powers which were essentially  a  part  of
the judicial power of the State.  Such Members did not, therefore,  hold  an
office under the Government.

      Further reference was made  to  another  decision  of  this  Court  in
Pradyut Bordoloi Vs. Swapan Roy [(2001) 2 SCC 19], in which the  post  of  a
Clerk Grade I in Coal India Ltd., a  Company  having  100%  shareholding  of
Government, was held not to be an office of profit, which  disqualified  its
holder under Section 10 of the Representation of the People  Act,  1951,  or
under Article 191(1)(a) of the Constitution of India.   While  deciding  the
case, this Court had occasion to observe  that  the  expression  “office  of
profit” had not been defined in the Constitution.  It was observed that  the
first question to  be  asked  in  this  situation  was  as  to  whether  the
Government has power to appoint and remove a person on and from  the  office
and if the answer was in the negative, no further inquiry  was  called  for.
However, if the answer was in the positive, further inquiries would have  to
be conducted as to the control exercised by the Government over  the  holder
of the post.  Since in the said  case,  the  Government  of  India  did  not
exercise  any  control  on  appointment,  removal,  service  conditions  and
functioning of the Respondent, it was held that the said Respondent did  not
hold an office of profit under the Government of  India,  and  his  being  a
Clerk in the Coal India Ltd. did not bring any influence or pressure on  him
in his independent functioning as a Member of the Legislative Assembly.

      The learned Attorney General lastly cited the decision of  this  Court
in Ashok Kumar Bhattacharyya Vs. Ajoy Biswas &  Ors.  [(1985)  1  SCC  151],
where also what amounts to an office of profit under the Government came  up
for consideration and it was held that the employees in the local  authority
did  not  hold  offices  of  profit  under  the  Government  and  were  not,
therefore, disqualified either under Articles  102(1)(a)  and  191(1)(a)  of
the Constitution of India or the provisions of  the  Bengal  Municipal  Act,
1932.  Their Lordships held that on an analysis of  the  provisions  of  the
Act, it was quite clear that  though  the  Government  exercised  a  certain
amount of control and supervision, the  respondent  who  was  an  Accountant
Incharge of the Agartala Municipality in the State  of  Assam,  was  not  an
employee of the Government and was at the relevant time  holding  an  office
of profit under a local municipality, which did not  bring  him  within  the
ambit of Article 102(1)(a) of the Constitution.

42.   The learned Attorney General submitted that the  Disqualification  Act
is not a defining Act and was never meant to be and one  cannot  import  the
definition in the Schedule where only the Institute is mentioned.    Sharing
the  sentiments  expressed  by  Mr.  Salve,  the  learned  Attorney  General
submitted that the Election Petition was liable to be dismissed.

43. Replying to the submissions made by Mr. Harish  Salve  and  the  learned
Attorney General, Mr. Ram Jethmalani asserted that  the  1959  Act  was,  in
fact, a defining Act and falls under Entry 73  of  the  First  List  in  the
Seventh Schedule to the  Constitution,  which  empowers  the  Parliament  to
legislate in regard to elections to Parliament, to the legislatures  of  the
States and to the offices of President and Vice-President and  the  Election
Commission.   Mr.  Jethmalani  also  reiterated  that  the   Institute   was
controlled by the Central Government.  The Act  under  which  the  Institute
was formed was an Act by the Central Government and  the  post  of  Chairman
must, therefore, be held to  be  an  office  of  profit  under  the  Central
Government.

44.   Reiterating his earlier stand that the Election Petition  deserved  to
be regularly heard,  Mr. Jethmalani referred to the decision of  this  Court
in M.V. Rajashekaran's case (supra), in which  the  Chairman  of  a  One-man
Commission, appointed by the Government of Karnataka to study  the  problems
of Kannadigas and was accorded the status of a Minister of Cabinet rank  and
was provided by a budget of Rs.5 lakhs for defraying  the  expenses  of  pay
and day-to-day expenditure of the  Chairman,  was  held  to  be  holding  an
office of  profit  under  the  Government.  This  Court  observed  that  the
question as to  whether  a  person  held  an  office  of  profit  under  the
Government or not, would have to be determined in  the  peculiar  facts  and
circumstances of the case.

45.   Mr. Jethmalani  lastly  referred  to  the  decision  in  the  Consumer
Education & Research Society case (supra), which had  been  referred  to  by
the learned Attorney General, and drew the attention of  the  Court  to  the
observations made in the  judgment  in  paragraph  77,  where  it  had  been
observed that what kind of office would amount to an office of profit  under
the Government and whether such an office of profit is to be exempted, is  a
matter  to  be  considered  by  the  Parliament.  While  making  legislation
exempting any office, the question whether such office is incompatible  with
his position as an M.P. and whether his independence  would  be  compromised
and whether his loyalty to the Constitution will  be  affected,  has  to  be
kept  in  mind  to  safeguard  the  independence  of  the  Members  of   the
legislature and to ensure that  they  were  free  from  any  kind  of  undue
influence from the executive.   Mr.  Jethmalani  contended  that  since  the
Respondent had held office under the Central Government, it will have to  be
considered  as to whether his functioning as the President of  India  would,
in any way, be compromised or influenced thereby.

46.   While replying, Mr. Jethmalani  introduced  a  new  dimension  to  his
submissions by urging that the Rules and Bye-laws of the Institute  did  not
permit a Chairman, once appointed, to resign from  his  post.   Accordingly,
even if the Respondent had  tendered his resignation to the  President,  Dr.
Menon, the same was of no effect and he continued to remain as the  Chairman
of the Institute.  He  was,  therefore,  disqualified  from  contesting  the
Presidential election and his election was liable to be  declared  void  and
in his place the Petitioner was liable to be declared  as  the  duly-elected
President of the country.

47. The Constitution provides for the manner in  which  the  election  of  a
President or a Vice-President may be questioned.  Article  71  provides  for
matters relating to or connected with the election of a President or a Vice-
President. Clause (1) of Article 71 provides that all  doubts  and  disputes
arising out of or in connection with the election of a  President  or  Vice-
President shall be inquired into and decided  by  the  Supreme  Court  whose
decision shall be final.   Sub-clause  (3)  provides  that  subject  to  the
provisions of  the  Constitution,  Parliament  may,  by  law,  regulate  any
matter, relating to or connected with the election of a President or a Vice-
President.  In addition, the Presidential  and  Vice-Presidential  Elections
Act was enacted in 1952  with  the  object  of  regulating  certain  matters
relating to or connected with elections to the Office of President and Vice-
President of India.  As indicated by Mr. Salve, Sections 14 and 14A  of  the
1952  Act,  specially  vest  the  jurisdiction  to  try  Election  Petitions
thereunder with the Supreme Court in  the  manner  indicated  therein.    In
fact, Part III of the said Act deals with disputes  regarding  elections  to
the posts of President and Vice-President of India, which contains  Sections
14 and 14A, as also Sections 17 and 18 which empower the  Supreme  Court  to
either dismiss the Election Petition or  to  declare  the  election  of  the
returned candidate to be void  or  declare  the  election  of  the  returned
candidate to be void and the Petitioner or any other candidate to have  been
duly elected.

48.   In view of Sub-section (3) of Section  14  of  the  Act,  the  Supreme
Court has framed Rules under Article  145  of  the  Constitution  which  are
contained in Order XXXIX of the Supreme Court  Rules,  1966.   As  has  been
discussed earlier, Rule 13 of Order XXXIX provides  that  upon  presentation
of a Petition relating to a challenge to election to the post  of  President
of India, the same is required to be posted before  a  Bench  of  the  Court
consisting of five Judges  for preliminary hearing and to consider   whether
the Petition deserved a regular hearing,  as  contemplated  in  Rule  20  of
Order XXXIX, and, in  that  context,  such  Bench  may  either  dismiss  the
Petition or pass any appropriate order as it thought fit.

49.   It is under the aforesaid Scheme that the  present  Election  Petition
filed by Shri Purno Agitok Sangma challenging the election  of  Shri  Pranab
Mukherjee as the President of  India  has  been  taken  up  for  preliminary
hearing on the question as to whether it deserved a regular hearing or not.

50.   The challenge is based mainly on the allegation that on  the  date  of
filing of nominations, the Respondent, Shri Pranab Mukherjee, held  “offices
of profit”, namely,

(i)   Chairman of the Indian Statistical Institute,
      Calcutta; and

(ii)Leader of the House in the Lok Sabha.


    In regard to the aforesaid challenges,  Mr.  Ram  Jethmalani,  appearing
for the Petitioner, had urged that  in  order  to  arrive  at  a  conclusive
decision on the said two points, it was necessary that a regular hearing  be
conducted in respect  of the Election Petition to  ascertain  the  truth  of
the allegations made by the Petitioner.  It  was  also  submitted  that  the
same required a full scale hearing  in  the  manner  as  contemplated  under
Section 141 of the Code of Civil Procedure, as would be evident  from  Order
XXXIX read with the provisions relating to the Original Jurisdiction of  the
Supreme Court, contained in Part III  of  the  Supreme  Court  Rules,  1966.


51.   On the other hand, it has been urged by Mr.  Harish  Salve,  appearing
for the Respondent, that on the date of filing of nominations,  Shri  Pranab
Mukherjee was neither holding  the  Office  of  Chairman  of  the  aforesaid
Institute nor was he the Leader of the House in the Lok Sabha, inasmuch  as,
in respect of both the posts, he had tendered his resignation on 20th  June,
2012.

52.   There is some doubt as to whether the Office of the  Chairman  of  the
Indian Statistical Institute is an office of profit or not, even though  the
same has been excluded from the ambit of Article 102 of the Constitution  by
the provisions of  the  Parliament  (Prevention  of  Disqualification)  Act,
1959, as amended in 2006. Having been included in the Table of  posts  saved
from disqualification from membership of Parliament, it must be accepted  to
be an office of profit.  However, as argued by Mr. Salve,  categorising  the
office as an “office of profit” did not really make it  one,  since  it  did
not provide any profit  and  was  purely  honorary  in  nature.   There  was
neither any salary nor honorarium or  any  other  benefit  attached  to  the
holder of the said post.  It was  not  such  a  post  which,  in  fact,  was
capable of yielding any profit, which could make it, in fact, an  office  of
profit.

53. The said proposition was considered in Shibu Soren's case (supra)  where
it was held that mere use of  the  word  “honorarium”  would  not  take  the
payment out of the concept of profit, if there was some pecuniary  gain  for
the recipient in addition to daily allowances in the nature of  compensatory
allowances, rent-free  accommodation  and  chauffeur  driven  car  at  State
expense.

54.   Similar was the view expressed in Jaya Bachchan's case  (supra)  where
also this Court observed that what was relevant was whether the  office  was
capable of yielding a profit or pecuniary gain, other then reimbursement  of
out-of-pocket/actual expenses and not whether the person  actually  received
any monetary gain or did  not  withdraw  the  emoluments  to  which  he  was
entitled.  In other words, whether a person  holding  a  post  accepted  the
benefits thereunder was not material, what was material is whether the  said
office was capable of yielding a profit or pecuniary gain.

55. In the instant case, the office of Chairman of  the  Institute  did  not
provide for any of the amenities indicated hereinabove  and,  in  fact,  the
said office was also not capable of yielding profit or pecuniary gain.

56.   In regard to the office of the Leader of the House, it is quite  clear
that the Respondent had tendered his  resignation  from  membership  of  the
House before he filed his nomination papers for the  Presidential  election.
The controversy that the Respondent had resigned from the membership of  the
Indian National Congress and its  Central  Working  Committee  allegedly  on
25th June, 2012, was set at rest by the  affidavit  filed  by  Shri  Pradeep
Gupta, who is the Private Secretary to the President of India.  In the  said
affidavit, Shri Gupta indicated that through inadvertence  he  had  supplied
the date of the Congress Working Committee meeting held on 25th June,  2012,
to bid farewell to Shri Mukherjee on his  nomination  for  the  Presidential
Election being accepted. In any event, the disqualification contemplated  on
account of holding the post of Leader of the House was with  regard  to  the
provisions of Article 102(1)(a)  of  the  Constitution,  besides  being  the
position of the leader of the party in the House which did  not  entail  the
holding of an office of profit under the Government.  In  any  event,  since
the Respondent tendered his resignation from the said post prior  to  filing
of his nomination papers, which was duly acted upon by the  Speaker  of  the
House, the challenge thrown by the Petitioner to the  Respondent's  election
as President of India on the said ground loses its relevance. In any  event,
the provisions of  the  Parliament  (Prevention  of  Disqualification)  Act,
1959, as amended in 2006, excluded the post of Chairman of the Institute  as
a disqualification from being a Member of Parliament.

57. The Constitutional Scheme, as mentioned in  the  Explanation  to  Clause
(2) of Article 58 of the Constitution, makes it quite  clear  that  for  the
purposes of said Article, a person would not be deemed to  hold  any  office
of profit, inter alia, by reason only that he is a Minister either  for  the
Union or for any State.  Article 102 of the  Constitution  contains  similar
provisions wherein in the Explanation to clause (1) it  has  been  similarly
indicated that for the purposes of the said clause, a person  would  not  be
deemed to hold an office of profit under the  Government  of  India  or  the
Government of any State by reason only that he is  a  Minister,  either  for
the Union, or for such State.  The argument that  the  aforesaid  provisions
of Article 102, as well as Article 58 of the Constitution, could not save  a
person elected to the office of President from disqualification, if he  held
an office of profit, loses much of its steam in view of  the  fact  that  as
would appear from the materials on record, the Respondent  was  not  holding
any office of profit either under the Government or otherwise  at  the  time
of filing his nomination papers for the Presidential election.

58. The various decisions cited on behalf  of  the  parties  in  support  of
their respective submissions, clearly  indicate  that  in  order  to  be  an
office of profit, the office must carry various pecuniary benefits  or  must
be capable of yielding pecuniary benefits such  as  providing  for  official
accommodation or even a chauffeur driven car, which is not so in respect  of
the post of Chairman of the Indian Statistical  Institute,  Calcutta,  which
was, in fact, the focus and raison d'etere of Mr. Jethmalani's submissions.

59. We are also not inclined to accept  Mr.  Jethmalani's  submissions  that
once a person is appointed as Chairman of the Indian Statistical  Institute,
Calcutta, the Rules and Bye-laws of  the  Society  did  not  permit  him  to
resign from the post and that he had to continue in  the  post  against  his
wishes.  There  is  no  contractual  obligation  that  once  appointed,  the
Chairman would have to continue in such post for the full  term  of  office.
There is no such compulsion under the Rules  and  Bye-laws  of  the  Society
either.  In any event, since the holder of  the  post  of  Chairman  of  the
Institute  has  been  excluded  from  disqualification  for  contesting  the
Presidential election, by the 2006 amendment to Section 3 of the  Parliament
(Prevention  of  Disqualification)  Act,  1959,  the  submissions   of   Mr.
Jethmalani in this regard is of little or no substance.

60. We are not convinced that in the facts and circumstances  of  the  case,
the Election Petition deserves a full and regular  hearing  as  contemplated
under  Rule  20  of  Order  XXXIX  of  the  Supreme   Court   Rules,   1966.
Consequently, Mr. Jethmalani's submissions regarding  the  applicability  of
Section 141 of the Code  of  Civil  Procedure  for  trial  of  the  Election
Petition is of no avail.  We are also not convinced that Section 141 of  the
Code is required to be incorporated into  a  proceeding  taken  under  Order
XXXIX of the Supreme Court Rules read with Part II of the  Presidential  and
Vice-Presidential Elections Act, 1952, which includes Sections 14 to  20  of
the aforesaid Act and Article 71 of the Constitution of India.

61. It may not be inappropriate at this stage to  mention  that  this  Court
has repeatedly cautioned that the election of a candidate who has won in  an
election should not be  lightly  interfered  with  unless  circumstances  so
warrant.

62.   We are not inclined, therefore, to set down the Election Petition  for
regular hearing and dismiss the same under Rule 13 of  Order  XXXIX  of  the
Supreme Court Rules, 1966.
63. In the facts and circumstances of the  case,   the  parties  shall  bear
their own costs in these proceedings.


                                                     …………………………………………………CJI.
                                           (ALTAMAS KABIR)


                                                     ………………………………………………………J.
                                        (P. SATHASIVAM)


                                                     ………………………………………………………J.
                                        (SURINDER SINGH NIJJAR)

New Delhi
Dated: 05.12.2012

                        IN THE SUPREME COURT OF INDIA
                 CIVIL ORIGINAL JURISDICTION
                        ELECTION PETITION NO.1 OF 2012

PURNO AGITOK SANGMA         ....PETITIONER
VERSUS
PRANAB MUKHERJEE             ....RESPONDENT

                           J  U  D  G  M  E  N  T

      RANJAN GOGOI, J.
      1.    I have had the privilege of going through the  opinion  rendered
      by the learned Chief Justice of India. With utmost respect I have  not
      been able to persuade myself to share the views expressed in the  said
      opinion. The reasons for my conclusions are as indicated below -
      2.    The short question that has  arisen  for  determination  in  the
      Election Petition, at this stage,  is  whether  the  same  deserves  a
      regular hearing under Rule 20 of Order  XXXIX  of  the  Supreme  Court
      Rules, 1966.
      3.    The Election Petition in question has been filed challenging the
      election of the respondent to the office of  the  President  of  India
      (hereinafter referred to as ‘the President’). The  election  in  which
      the petitioner and the respondent were the contesting  candidates  was
      held to the following Schedule:


      |Issue of Notification calling the |16  June 2012         |
|election                          |                      |
|Last date for making Nominations  |30 June, 2012         |
|Date for scrutiny                 |2 July, 2012          |
|Last date for withdrawal          |4 July, 2012          |
|Date of poll, if necessary        |19 July, 2012         |
|Date of counting, if necessary    |22 July, 2012         |

      4.   Both the Election Petitioner as  well  as  the  respondent  filed
      their nomination papers before the Returning Officer on  28.6.2012.  A
      total of  106 nomination papers filed by 84 persons were taken up  for
      scrutiny on the date fixed i.e. 2.7.2012. The petitioner  objected  to
      the validity of the nomination of the respondent on  the  ground  that
      the respondent  on the said date i.e. 2.7.2012 was holding the  office
      of the Chairman  of  the  Council  of  Indian  Statistical  Institute,
      Kolkata (hereinafter referred to as the  Chairman  ISI)  which  is  an
      office of profit. According to the petitioner, at the request  of  the
      representative of the respondent, the scrutiny of  the  nomination  of
      the respondent was  deferred  to  3.00  p.m.  of  the  next  day  i.e.
      3.7.2012  with  liberty  to  file  reply,  if  any,   by   2.00   p.m.
      Coincidentally,  certain  objections  having   been  raised   to   the
      nomination of the Election Petitioner, consideration of the  same  was
      also deferred to 11.00 a.m. of 3.7.2012. All the remaining  nomination
      papers were rejected on the date fixed for scrutiny i.e. 2.7.2012.
      5.    On the next date i.e. 3.7.2012 at the appointed time, i.e. 11.00
      a.m. the scrutiny of the nomination papers of the Election  Petitioner
      were taken up and Returning Officer accepted  the  same.   Thereafter,
      within the time granted on the  previous  date  i.e.  2.00  p.m.,  the
      respondent submitted a written reply to the objections raised  by  the
      petitioner alongwith a copy of a resignation letter dated 20.6.2012 by
      which the respondent claimed to have resigned from the office  of  the
      Chairman ISI. The scrutiny of the nomination papers of the  respondent
      was taken up at 3.00 p.m. on 3.7.2012  and  thereafter  the  same  was
      accepted by the Returning Officer.
      6.    As per the Schedule of the election published  by  the  Election
      Commission the poll took place on 19.7.2012  and  the  result  of  the
      counting was  announced on 22.7.2012 declaring the  respondent  to  be
      duly elected to the office of the President of India.
      7.    Contending that on all the relevant dates, including the date of
      scrutiny i.e. 2.7.2012, the respondent was holding the office  of  the
      Chairman of the Council of Indian Statistical  Institute,  Kolkata  as
      well as the office of Leader of the House (Lok Sabha)  and  Leader  of
      the Congress Party in the Lok Sabha,  which are offices of profit, the
      present Election Petition has been filed on the ground that by  virtue
      of holding the aforesaid offices of  profit  the  respondent  was  not
      qualified to be a candidate for the election  to  the  office  of  the
      President of India and that the nomination submitted by the respondent
      was wrongly accepted by the  Returning  Officer.    According  to  the
      Election Petitioner, the election of the respondent was liable  to  be
      declared void on the said ground. In the Election  Petition  filed  as
      well as in the short rejoinder that has been brought on record by  the
      Election Petitioner the claim of the respondent that he  had  resigned
      from the office of the Chairman, ISI on 20.6.2012 has  been  disputed.
      According to the petitioner the resignation letter dated 20.6.2012  is
      forged and fabricated and has been subsequently brought into existence
      to counter the case put up by the Election Petitioner. Insofar as  the
      other offices are concerned, according  to  the  Election  petitioner,
      though  the  respondent   had  resigned  from  the  Union  Cabinet  on
      26.6.2012, he continued to remain  a  Member  of  Parliament  and  the
      Leader of the Congress Legislature  Party  in  the  Lok  Sabha  up  to
      25.07.2012 i.e. date of assumption of office as President of India. In
      fact the Respondent was shown as a Member of  Parliament  and  as  the
      Leader of the House in the official Website  of  the  Lok  Sabha  till
      2.7.2012.
      8.    The respondent i.e. the returned candidate  has  filed  a  short
      counter for the purposes of the preliminary hearing. According to  the
      respondent the office of the Chairman, ISI, is not an office of profit
      as it does not carry any emoluments remuneration  or  perquisites.  In
      any  case,  according  to  the  respondent,  he  had   submitted   his
      resignation from the said office on 20.6.2012  which had been accepted
      by the President of the Institute on the  same  day.  Insofar  as  the
      other two offices are concerned it is the case of the respondent  that
      he had held the said offices by virtue of being a Cabinet Minister  of
      the Union. According to the respondent, under the  Leaders  and  Chief
      Whips of Recognized Parties and Groups in Parliament (Facilities) Act,
      1998 and the Rules framed thereunder  the  aforesaid  offices  do  not
      carry any emoluments or perquisites or benefits beyond those  attached
      to the office  of  a  Cabinet  Minister  of  the  Union.  Furthermore,
      according to the respondent, he had resigned from the  Congress  Party
      and the office of the Leader of the Legislature Party in the Lok Sabha
      on 20.6.2012 and from the Union Cabinet on 26.6.2012. Therefore he had
      ceased to hold any office of profit on the relevant date i.e. date  of
      scrutiny or acceptance of his nomination.
      9.    Article 71 of the Constitution provides for matters relating to,
      or connected with, the election of the President  or  Vice  President.
      Clause (1) of Article 71 provides that all doubts and disputes arising
      out of or in connection with the  election  of  a  President  or  Vice
      President shall be inquired into and decided  by  the  Supreme  Court.
      Under Clause (3),  Parliament  has  been  empowered,  subject  to  the
      provisions of the Constitution, to make laws to  regulate  any  matter
      relating to or connected with the election of the  President  or  Vice
      President.
      10.    In exercise of the power conferred by Article 71(3)  read  with
      Entry 72 of List I  of  the  Seventh  Schedule  to  the  Constitution,
      Parliament has framed the Presidential and Vice-Presidential  Election
      Act, 1952 ( Act 31 of 1952). Part  III  of  the  aforesaid  Act  makes
      provisions with regard to disputes regarding elections. Section 14 (1)
      provides that no election  shall  be  called  in  question  except  by
      presenting an election petition to the  authority  specified  in  sub-
      section (2) i.e. the Supreme Court. Section 14(3) provides that  every
      election petition shall be presented in accordance with the provisions
      contained in Part III of the Act and such Rules as may be made by  the
      Supreme  Court  under  Article  145  of  the  Constitution.  The  next
      provision of the Act that would require specific notice is Section  15
      which provides that the Rules made by the Supreme Court under  Article
      145 of the Constitution may regulate the form of  Election  Petitions,
      the manner in which they are to be presented, the persons who  are  to
      be made parties thereto, the procedure to  be  adopted  in  connection
      therewith and the circumstances in which petitions are  to  abate,  or
      may be withdrawn, and in which new petitioners may be substituted, and
      may require security to be given for costs. The rest of the provisions
      of the aforesaid Act would not require  any  recital  insofar  as  the
      present case is concerned.
      11.  By virtue of powers conferred by Article 145 of the Constitution,
      the Supreme Court Rules, 1966 (hereinafter referred to as  the  Rules)
      have been framed by  the  Supreme  Court  with  the  approval  of  the
      President of India in order to regulate the practice and procedure  of
      the Court. Order XXXIX contained in Part  VII  of  the  Supreme  Court
      Rules, 1966 deals with election petitions filed under Part III of  the
      Presidential and Vice Presidential Elections Act, 1952. The provisions
      of Rule 13 (inserted w.e.f. 20.12.1997), Rule 20 and Rule 34 of  Order
      XXXIX being relevant may be extracted hereinbelow:


              “13. Upon presentation of a petition the same shall be posted
              before a bench of the Court consisting  of  five  Judges  for
              preliminary hearing and orders for service  of  the  petition
              and advertisement thereof as the Court may think  proper  and
              also appoint  a  time  for  hearing  of  the  petition.  Upon
              preliminary  hearing,  the  Court,  if  satisfied,  that  the
              petition does not deserve regular hearing as contemplated  in
              Rule 20 of this Order may dismiss the petition  or  pass  any
              appropriate order as the Court may deem fit.]


                                  x x x x x




              20. Every petition calling in question an election  shall  be
              posted before and be heard and disposed of by a Bench of  the
              Court consisting of not less than five Judges.


                                  x x x x x




              34. Subject to the provisions of this Order  or  any  special
              order or  directions  of  the  Court,  the  procedure  on  an
              election petition shall follow, as  nearly  as  may  be,  the
              procedure in proceedings before the Court in the exercise  of
              its original jurisdiction.”




      12.    Rule 13 of the Supreme Court Rules, 1966, as it  existed  prior
      to insertion of the present Rule 13  w.e.f.  20.12.1997  may  also  be
      extracted herein below  for  an  effective  determination  of  precise
      circumference of the ‘preliminary hearing’ contemplated by Rule 13:
              “Upon  the  presentation  of  the  petition,  the  Judge   in
              Chambers, or the Registrar, before whom, it is presented, may
              give  such  directions  for  service  of  the  petition   and
              advertisement thereof as he thinks proper and also appoint  a
              time for the hearing of the petition.”


      13.   A preliminary hearing for determination of the  question  as  to
      whether an election petition deserves a regular hearing under Rule  20
      did not find any place in the Supreme Court Rules  till  insertion  of
      Rule 13 in the present form w.e.f. 20.12.1997. Rule 34 of Order  XXXIX
      provides that the procedure on an Election Petition shall  follow,  as
      nearly as may be, the procedure  in  proceedings  before  the  Supreme
      Court in the exercise of  its  original  jurisdiction.  The  procedure
      applicable to proceedings in the exercise of the original jurisdiction
      of the Supreme Court is contained in Order XXIII of Part  III  of  the
      Supreme Court Rules. Order XXIII, Rule 1 contemplates institution of a
      suit by means of a plaint. After dealing with the  requirements  of  a
      valid plaint, Order Rule 6 provides that a plaint shall be rejected
      (a) where it does not disclose a cause of action;
      (b) where the suit appears from the statement  in  the  plaint  to  be
      barred by any law.
      14.  To make the narration complete it will be necessary to note  that
      the other provisions of Part III of the Rules deal with the  procedure
      that would apply to the disposal of a suit  filed  under  Order  XXIII
      Rule 1 and, inter alia, provide for :
           a)  Issue and Service of Summons (Order XXIV)
           b)  Written statement set off and counterclaims(Order XXV)


           c)  Discovery and Inspection (Order XXVII)
            d)  Summoning and Attendance of witnesses (Order XXIX)
            e)  Hearing of the suit (Order XXXI)



      15.   Order XXIII, Rule 6, as noticed above, was a part of  the  Rules
      alongwith Rule 13 as it originally existed. In other words,  insertion
      of the new Rule 13  providing  for  a  preliminary  hearing  was  made
      despite the existence of the provisions of Order XXIII Rule 6 and  the
      availability of the power to reject a  plaint  and  dismiss  the  suit
      (including an Election Petition) on the twin grounds mentioned in Rule
      6 of Order XXIII. Therefore a preliminary hearing  under  Order  XXXIX
      Rule 13 would require the Court to consider something  more  than  the
      mere disclosure or otherwise of a cause of action  on  the   pleadings
      made or the question of maintainability of the  Election  Petition  in
      the light of any particular statutory enactment.  A  further  enquiry,
      which obviously must exclude matters that would fall within the domain
      of a regular hearing  under  Rule  20  would  be  called  for  in  the
      preliminary hearing under Rule 13 of Order XXXIX.  In  the  course  of
      such enquiry the Court must be  satisfied  that  though  the  Election
      Petition discloses a clear cause of action and raise triable issue(s),
      yet, a trial of the issues raised will not be necessary  or  justified
      in as much as  even  if  the  totality  of  the  facts  on  which  the
      petitioner relies are to be assumed to be  proved  there  will  be  no
      occasion to cause any interference with the result  of  the  election.
      It is only in such a situation that the Election Petition must not  be
      allowed to cross the  hurdle  of  the  preliminary  hearing.  If  such
      satisfaction cannot be reached the Election Petition must  be  allowed
      to embark upon the journey of a regular hearing under  Order  20  Rule
      XXXIX in accordance with the provisions of Part III of the Rules.   In
      my opinion, the above is  the  scope  and  ambit  of  the  preliminary
      hearing under Order XXXIX, Rule 13 of the Rules and it is  within  the
      aforesaid confines that the question raised by the  parties,  at  this
      stage, have to be answered.
      16.    At the very outset the issue with regard to the office  of  the
      Leader of the House and Leader of the  Congress  Party  may  be  dealt
      with.  Under  the  provisions  of  The  Leaders  and  Chief  Whips  of
      Recognized Parties and Groups in Parliament (Facilities) Act, 1998 Act
      and Rules framed there under no remuneration  to  the  Leader  of  the
      House or  the  Leader  of  the  Legislature  Party  in  the  House  is
      contemplated beyond the salary and perquisites payable to  the  holder
      of such an office if he is  a Minister of the Union  (in  the  present
      case the Respondent was a Cabinet Minister of the Union). That  apart,
      either of the offices is not under the  Government  of  India  or  the
      Government of any State or under  any  local  or  other  authority  as
      required under Article 58 (2) so as to make the  holder  of  any  such
      office incur the disqualification contemplated  thereunder.  Both  the
      offices in question are offices connected  with  the  Lok  Sabha.  Any
      incumbent thereof is either to be elected or nominated  by  virtue  of
      his membership of the House or his position as a Cabinet Minister,  as
      may be. The Election Petition insofar as  the  aforesaid  offices  are
      concerned, therefore, do not disclose any triable  issue  for  a  full
      length hearing under Order XXXIX, Rule 20 of the Rules.
      17.   The next question is with regard to the office of  the  Chairman
      of the Council of Indian Statistical Institute, Kolkata.  Whether  the
      said office carries any remuneration and/or perquisites or the same is
      under the control of the Union Government as also the question whether
      the respondent  had resigned from the said office on 20.6.2012 are all
      questions of fact which are in  dispute  and,  therefore,  capable  of
      resolution only on the basis of such evidence as may be adduced by the
      parties. The Court, therefore, will have to steer away from any of the
      said issues at the present stage of consideration which is  one  under
      Order XXXIX, Rule 13. Instead, for the present, we may  proceed on the
      basis that the office in question is an office of  profit   which  the
      Respondent held on the relevant date (which facts, however, will  have
      to be proved at the regular hearing if the occasion so arises) and  on
      that assumption determine whether the election of  the  Respondent  is
      still not void on the ground  that,  in  view  of  the  provisions  of
      Article 58 (2) of the Constitution, the nomination of  the  Respondent
      had been wrongly accepted, as  claimed  by  the  respondent.  In  this
      regard the specific issue that has to be  gone  into  as  whether  the
      office of the Chairman, ISI, Kolkata has been exempted  from  bringing
      any disqualification  by virtue of the provisions  of  the  Parliament
      (Prevention of Disqualification) Act 1959, as amended.
      18.    For an effective examination of the issue indicated above,  the
      provisions of Articles 58,  84  and  102  of  the  Constitution  would
      require a detailed notice and consideration. The said provisions  are,
      therefore, extracted below:-


           “Article 58 - Qualifications for election as President

            (1) No person shall  be  eligible  for  election  as  President
           unless he--

           (a) is a citizen of India,

           (b) has completed the age of thirty-five years, and

           (c) is qualified for election as a member of the  House  of  the
           People.

           (2) A person shall not be eligible for election as President  if
           he holds any office of profit under the Government of  India  or
           the Government  of  any  State  or  under  any  local  or  other
           authority subject to the control of any of the said Governments.

           Explanation.--For the purposes of this Article, a  person  shall
           not be deemed to hold any office of profit by reason  only  that
           he is the President or  Vice  President  of  the  Union  or  the
           Governor1[***] of any State or is  a  Minister  either  for  the
           Union or for any State.

           1. The words "or Rajpramukh or  Uparajpramukh"  omitted  by  the
           Constitution (Seventh  Amendment)  Act,  1956,  section  29  and
           Schedule.




           Article 84 - Qualification for membership of Parliament

           A person shall not be qualified to be chosen to fill a  seat  in
           Parliament unless he--

              1[(a) is a citizen of India, and makes and subscribes  before
              some  person  authorised  in  that  behalf  by  the  Election
              Commission an oath or affirmation according to the  form  set
              out for the purpose in the Third Schedule;]

              (b) is, in the case of a seat in the Council of  States,  not
              less than thirty years of age and, in the case of a  seat  in
              the House of the People, not less than twenty-five  years  of
              age; and

              (c) possesses such other qualifications as may be  prescribed
              in that behalf by or under any law made by Parliament.

              1. Substituted by the Constitution (Sixteenth Amendment) Act,
              1963, section 3, for clause (a) (w.e.f. 5-9-1963)




              Article 102 - Disqualifications for membership

              (1) A person shall be disqualified for being chosen  as,  and
              for being, a member of either House of Parliament--

              (a) if he holds any office of profit under the Government  of
              India or the Government of any State, other  than  an  office
              declared by Parliament by law not to disqualify its holder;

              (b) if he is of unsound mind and  stands  so  declared  by  a
              competent court;

              (c) if he is an undischarged insolvent;

              (d) if he is not a  citizen  of  India,  or  has  voluntarily
              acquired the citizenship of a foreign State, or is under  any
              acknowledgement of  allegiance  or  adherence  to  a  foreign
              State;

              (e) if he is so disqualified by or  under  any  law  made  by
              Parliament.

              1[Explanation.-- For the purposes of this  clause]  a  person
              shall not be deemed to hold an office  of  profit  under  the
              Government of India or the Government of any State by  reason
              only that he is a Minister either for the Union or  for  such
              State.

              2(2) A person shall be disqualified for  being  a  member  of
              either House of Parliament if he is so disqualified under the
              Tenth Schedule.]

              1. Substituted by the Constitution  (Fifty-second  Amendment)
              Act, 1985, section 3, for  "(2)  For  the  purposes  of  this
              Article" (w.e.f. 1-3-1985).

              2. Inserted by the Constitution (Fifty-second Amendment) Act,
              1985, section 3 (w.e.f. 1-3-1985).



      19.     Article 58(1)(c)  requires  a  presidential  candidate  to  be
      qualified for election as a Member of the House of the People. Does it
      mean that whosoever is qualified for election as a Member of the House
      of  the  People  under  Article  84  and  does  not  suffer  from  any
      disqualification under Article 102 becomes automatically eligible  for
      election to the office of  the  President?  In  other  words,  do  the
      provisions of Articles 58, 84 and 102 of the Constitution  envisage  a
      composite and homogenous scheme?
      20.    Under Article  58(1)(b)  a  Presidential  candidate  must  have
      completed the age of  35  years.  At  the  same  time,  under  Article
      58(1)(c) such a person must be eligible to seek election as  a  Member
      of the House of the People. Under Article 84(b) a  candidate,  seeking
      election to the House of the People must not be less than 25 years  of
      age. In other words, a person qualified to be a Member of the House of
      the People but below 35 years of age will not be  qualified  to  be  a
      candidate for election to the office of the President.  Similarly,  to
      be eligible for membership of Parliament (including the House  of  the
      People) a candidate must make and subscribe  an  oath  or  affirmation
      according to the prescribed form. No such condition or stipulation  is
      mandated for a  Presidential  candidate  by  Article  58.  Insofar  as
      Article 102 (1)(a) is concerned though holding an office of profit  is
      a disqualification for election as or being a Member of  either  House
      of Parliament such a disqualification can be obliterated by a law made
      by Parliament. Under Article 58(2) though a  similar  disqualification
      (by  virtue  of  holding  an  office  of  profit)  is  incurred  by  a
      Presidential candidate no power has been conferred  on  Parliament  to
      remove such a disqualification. That apart, the Explanations  to  both
      Articles 58 and 102 contain provisions  by  virtue  of  which  certain
      offices are deemed not to be offices of profit.  The  similarities  as
      well as the differences between the two provisions of the Constitution
      are too conspicuous to be ignored or over looked. In a situation where
      Article 102(1)(a) specifically empowers Parliament to enact a  law  to
      remove the disqualification incurred for being a Member of  Parliament
      by virtue of holding of an office of profit and in the absence of  any
      such provision in Article 58 it will be impossible to read Article  58
      alongwith Article 102 to comprehend a composite constitutional scheme.
      Keeping in view that the words in the Constitution should be  read  in
      their ordinary and natural meaning so that a construction which brings
      out the true legislative intent is achieved, Article 58 has to be read
      independently of Articles 84 and 102 and the purport of the  two  sets
      of Constitutional provisions have to be understood to  be  independent
      of each other. In fact such a view  finds  expression  in  an  earlier
      opinion of this  Court  rendered    in  Baburao  Patel  v.  Dr.  Zakir
      Hussain[1] which is only being reiterated herein.
      21.    The net result of the above discussion is that
 the  Parliament
      (Prevention of Disqualification) Act, 1959 as amended by the Amendment
      Act No.31 of 2006 has no application insofar as election to the office
      of the President is concerned.  
The  disqualification  incurred  by  a
      Presidential candidate on account of holding of an office of profit is
      not removed by the provisions of the said Act which deals with removal
      of disqualification for being chosen as, or  for  being  a  Member  of
      Parliament. 
If, therefore, it is assumed that the office of  Chairman,
      ISI  is an office of profit and  the  Respondent  had  held  the  said
      office on the material date(s) consequences adverse to the Respondent,
      in  so far as the result of the election is concerned, are  likely  to
      follow. 
The said facts, will therefore, be required to  be  proved  by
      the election Petitioner.
 No conclusion that a regular hearing  in  the
      present case will be a redundant exercise or an empty formality can be
      reached so as to dispense with the same  and  terminate  the  Election
      Petition at the stage of its preliminary  hearing  under  Order  XXXIX
      Rule 13. 
The Election Petition, therefore, deserves a regular  hearing
      under Order XXXIX Rule 20 in accordance with what is contained in  the
      different provisions of Part III of the Supreme Court Rules, 1966.




                                  ..............................J.
                                  [ Ranjan Gogoi ]


      New Delhi,
      December 5, 2012

                        IN THE SUPREME COUR OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                       ELECTION PETITION NO.1 OF 2012

Purno Agitok Sangma                          ….Petitioner

           Versus

Pranab Mukherjee                             ….Respondent




                                  O R D E R


      I have had the advantage of reading the judgments of both My Lord  the
Chief Justice and my learned brother Justice  Ranjan  Gogoi.   I  regret  my
inability to agree  with  the  conclusion  recorded  by  the  learned  Chief
Justice that the instant  Election  Petition  does  not  deserve  a  regular
hearing.  I shall pronounce my reasons for such disagreement shortly.

                                                            ………………………………….J.
                                                    (J. CHELAMESWAR )
New Delhi;
December 5, 2012

-----------------------
[1]         (1968) 2 SCR 133

Section 8(2) of the Abkari Act does not fix any upper limit for the fine but lays down that the fine shall not be less than Rs.1,00,000/-. Since the minimum amount of fine prescribed by the law is kept so high, the courts naturally give the default sentence of imprisonment for a substantially longer period. As noted above, the trial court has given the default sentence of one year which was reduced by the High Court to six months. We may note that in cases where poor people like the appellants who may only be the carrier of the arrack or who may be trying to eke out a living from the illegal trade are caught committing the offence, they are hardly in position to pay the fine of Rs.1,00,000/- and for them the default sentence becomes an additional period of incarceration. In a way, fixing the minimum fine at such a high amount, regardless of the countless possible variables in the commission of the offence under Section 8(1), leads to discrimination in favour of those convicts who have sufficient means to pay the fine and, thus, avoid any default imprisonment and the small fries for whom the default sentence would invariably mean an additional sentence of imprisonment. To our mind, it is desirable to leave the Court free in exercise of judicial discretion in the matter of imposition of fine. 14. In the light of the discussion made above, the appeal is allowed to the limited extent, as directed above.

                                                       REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                      CRIMINAL APPELLLATE JURISDICTION


                       CRIMINAL APPEAL NO.1987 OF 2012
                 (ARISING OUT OF SLP(CRL.) NO.2025 OF 2012)


      SASIKUMAR & ANR.                            APPELLANTS


                                            VERSUS


      STATE OF KERALA                             RESPONDENT






                               J U D G M E N T


      Aftab Alam, J.


      1. Leave granted.
      2. The two appellants (who are accused Nos.2  &  3),  along  with  one
      Narayanan (accused No.1) have been convicted under Section  8(1)  read
      with 8(2) of the (Kerala) Abkari Act.   
They  were  sentenced  by  the
      trial court to rigorous imprisonment for three years  and  a  fine  of
      Rs.1,00,000/-  with  the  default  sentence  of  one   year   rigorous
      imprisonment. 
 In  appeal  the  High  Court,  though  maintaining  the
      conviction, reduced the  sentence  to  rigorous  imprisonment  for  18
      months and the default sentence  for  failure  to  pay  the  fine,  to
      rigorous imprisonment for a period of six months.  The High Court also
      directed that the accused would be entitled to get the benefit of  set
      off under Section 428 of the Code of Criminal Procedure.
      3. According to the prosecution case, on March 12, 2005 at about 11:15
      AM  the  accused  were  seen  coming  in  an   auto-rickshaw   bearing
      registration No.KL-03-F-3146.  The auto-rickshaw belonged  to  and  it
      was being driven by appellant No.2.  On seeing the police  party,  all
      the three occupants ran away leaving the auto-rickshaw  at  the  spot.
      On its inspection, the police found two (2) 20 litres cans  containing
      40  litres  of  arrack  lying  inside  the  auto-rickshaw  and,  thus,
      according to the police, the accused had committed the  offence  under
      Section 8(1) of the Abkari Act.
      4. The three accused  were  tried  by  the  Court  of  the  Additional
      District   and   Sessions   Judge   (Ad-hoc)   Fast   Track   Court-I,
      Pathanamthitta who, by his judgment and order dated June 22,  2010  in
      Sessions Case No.682/2006  convicted  and  sentenced  them,  as  noted
      above.
      5. The three accused came to the High Court in two  separate  appeals,
      being Criminal Appeal No.1338 of 2010 preferred by the two  appellants
      before this Court and Criminal Appeal No.2198 of 2010 submitted to the
      High Court as jail appeal on behalf of  accused  No.1  Narayanan.  The
      High Court disposed of both the appeals by judgment  and  order  dated
      August 4, 2011.  It  maintained  their  conviction  but  modified  and
      reduced their sentence, as noted above.
      6. The accused No.1 Narayanan apparently accepted the judgment of  the
      High Court and has not preferred any special  leave  petition  against
      the High Court judgment.  The other two accused, i.e., the  appellants
      are before this Court in the present appeal.


      7. We have heard Mr. R. Basant, learned counsel for the appellants and
      we have gone through the materials on record. We find  that  both  the
      trial court and  the  High  Court  have  meticulously  considered  the
      evidences led by the prosecution  and  have  rightly  arrived  at  the
      conclusion in  regard  to  the  appellants’  guilt.   Insofar  as  the
      conviction of the appellants under Section 8(1) of the Abkari  Act  is
      concerned, there is no scope for any interference and  we  uphold  the
      conviction of the appellants  as  recorded  by  the  trial  court  and
      affirmed by the High Court.
      8. Mr. Basant, however, urged before us to  take  a  lenient  view  in
      regard to the sentence awarded to the appellants.
      9. On the question of sentence, the High Court in paragraph 19 of  its
      judgment has made the following observations:-
           “It is relevant to note that at the time of registration of  the
           crime, first accused was at the age of 57 and accused Nos.2  and
           3 were at the age of 42 and 48 respectively.  Now six years  are
           over. Therefore, first accused will be at the age of 63,  second
           accused at the age of 48 and third accused at  the  age  of  54.
           The prosecution has  no  case  that  the  accused  are  habitual
           offenders.  Having regard to the above facts and the  mitigating
           circumstances, I am of the view that  the  substantial  sentence
           imposed against the  accused  requires  reconsideration.   Thus,
           according  to  me,  18  months  rigorous  imprisonment  will  be
           sufficient to meet the ends of justice.   While  confirming  the
           sentence of fine, the default sentence can  be  reduced  to  six
           months.  In the result, in modification of sentence  imposed  by
           the trial court, the accused are sentenced to  undergo  rigorous
           imprisonment for 18 months each and to pay  fine  of  Rs.1  lakh
           each and in default, each of them is directed to undergo  simple
           imprisonment for a period of six  months  instead  of  one  year
           rigorous  imprisonment  ordered  by  the   trial   court.    The
           appellants are entitled to get the  benefit  of  set  off  under
           Section 428 of Cr.P.C.”


      10.        We agree with the view taken by the High Court.
      11.        We would like to further observe that from the facts of the
      case it is evident that the appellants and the other accused  in  this
      case are not the real  men  behind  the  nefarious  trade  of  illicit
      intoxicants  in  the  State.   From  the  quantity  seized  from   the
      possession of the accused  and  the  manner  in  which  it  was  being
      carried, it is evident that the three accused  were  only  small  time
      operators in the illicit trade of  arrack  and  though  visible,  they
      constitute the weakest link in the chain of illicit trade  in  arrack.
      In those circumstances, we think a further reduction of  the  sentence
      would be quite in order.  We,  accordingly,  reduce  the  sentence  of
      imprisonment from 18 months, as awarded by the High Court, to one year
      and further reduce the sentence in default of payment of fine from six
      months to fifteen days.
      12.        Accused No.1, Narayanan is not before this Court presumably
      on account of poverty, as his appeal to the High Court was also a jail
      appeal. We find there is  no  distinction  between  the  case  of  the
      appellants and the case of accused No. 1 and, accordingly, extend  the
      relief granted to the two appellants  to  accused  No.1  Narayanan  as
      well.
      13.        Before parting with the record of the case, we  would  like
      to point out that
Section 8(2) of the Abkari  Act  does  not  fix  any
      upper limit for the fine but lays down that the fine shall not be less
      than Rs.1,00,000/-.  
Since the minimum amount of  fine  prescribed  by
      the law is kept  so  high,  the  courts  naturally  give  the  default
      sentence of imprisonment for a substantially longer period.
  As  noted
      above, the trial court has given the  default  sentence  of  one  year
      which was reduced by the High Court to six months. We may note that in
      cases where poor people like  the  appellants  who  may  only  be  the
      carrier of the arrack or who may be trying to eke out  a  living  from
      the illegal trade are caught committing the offence, they  are  hardly
      in position to pay the fine of Rs.1,00,000/- and for them the  default
      sentence becomes an additional period of  incarceration.  
 In  a  way,
      fixing the minimum fine at such  a  high  amount,  regardless  of  the
      countless possible variables in the commission of  the  offence  under
      Section 8(1), leads to discrimination in favour of those convicts  who
      have sufficient means to pay the fine and,  thus,  avoid  any  default
      imprisonment and the small fries for whom the default  sentence  would
      invariably mean an additional sentence of imprisonment. 
To  our  mind,
      it is desirable to leave  the  Court  free  in  exercise  of  judicial
      discretion in the matter of imposition of fine.
      14.        In the light of the discussion made above,  the  appeal  is
      allowed to the limited extent, as directed above.




                                            ………………….....................J
                                            (Aftab Alam)








                                            .………………….....................J
                                            (Ranjana Prakash Desai)
      New Delhi,
      December 4, 2012

“It is settled law that on the basis of plea bargaining the court cannot dispose of the criminal cases. The Court has to decide it on merits. If the accused confesses his guilt, an appropriate sentence is required to be imposed. Further, the approach of the court in appeal or revisions should be to find out whether the accused is guilty or not on the basis of the evidence on record. If he is guilty, an appropriate sentence is required to be imposed or maintained. If the appellant or his counsel submits that he is not challenging the order of conviction, as there is sufficient evidence to connect the accused with the crime, then also the court's conscience must be satisfied before passing the final order that the said concession is based on the evidence on record. In such cases, sentence commensurating with the crime committed by the accused is required to be imposed. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty the sentence be reduced.”= At this juncture, we are obliged to state that when a convicted person prefers an appeal, he has the legitimate expectation to be dealt with by the Courts in accordance with law. He has intrinsic faith in the criminal justice dispensation system and it is the sacred duty of the adjudicatory system to remain alive to the said faith. That apart, he has embedded trust in his counsel that he shall put forth his case to the best of his ability assailing the conviction and to do full justice to the case. That apart, a counsel is expected to assist the Courts in reaching a correct conclusion. Therefore, it is the obligation of the Court to decide the appeal on merits and not accept the concession and proceed to deal with the sentence, for the said mode and method defeats the fundamental purpose of the justice delivery system. We are compelled to note here that we have come across many cases where the High Courts, after recording the non- challenge to the conviction, have proceeded to dwell upon the proportionality of the quantum of sentence. We may clearly state that the same being impermissible in law should not be taken resort to. It should be borne in mind that a convict who has been imposed substantive sentence is deprived of his liberty, the stem of life that should not ordinarily be stenosed, and hence, it is the duty of the Court to see that the cause of justice is subserved with serenity in accordance with the established principles of law. 22. Ex consequenti, the appeal is allowed and the judgment and order passed by the High Court are set aside and the appeal is remitted to the High Court to be decided on merits in accordance with law. As the appellants were on bail during the pendency of the appeal before the High Court and are presently in custody, they shall be released on bail on the said terms subject to the final decision in the appeal.

                                                   Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                 CRIMINAL APPEAL NO.                 OF 2012
             (Arising out of S.L.P. (Criminal) No. 8234 of 2012


Jeetu @ Jitendera & Ors.                             ... Appellants
                                   Versus
State of Chhattisgarh                          ...Respondent


                               J U D G M E N T

Dipak Misra, J.


      Leave granted.

     2. The present  appeal  by  special  leave  is  directed  against  the
        judgment of conviction and order of sentence  passed  by  the  High
        Court of Chattisgarh at Bilaspur in Criminal Appeal No. 639 of 2009
        whereby the High Court affirmed the conviction of the appellant for
        offences punishable under Sections 147 and 327/149  of  the  Indian
        Penal Code (for short “the I.P.C.”), but reduced the sentence  from
        three years rigorous imprisonment on the second score to  one  year
        and maintained the sentence  of  rigorous  imprisonment  for  three
        months in respect of the offence on the first  score  i.e.  Section
        147, I.P.C.  Be it noted, both the sentences were  directed  to  be
        concurrent.

     3. The facts as has been exposited are that
 on the basis of an  F.I.R.
        lodged by the informant, Aarif Hussain, PW-10,  at  11.50  P.M.  on
        16.4.2008 alleging that about 10.00 P.M. when he was going  towards
        Telibandha P.S., the accused persons met him near Telibandha  chowk
        and demanded Rs.500/- for liquor and on his refusal they  took  him
        towards Awanti Vihar railway  crossing  in  an  auto  rickshaw  and
        assaulted  him,  Crime  Case  No.  129/2008  was  registered  under
        Sections 327, 366 and 323 read with Section 34 of the I.P.C. at the
        concerned police station.
 After  the  criminal  law  was  set  in
        motion, said Aarif Hussain was medically examined by Dr. Vishwanath
        Ram Bhagat, PW-1, and as per the injury report, Exhbt. P-1, he  had
        sustained four injuries on his person.  The investigating  officer,
        after completing the investigation,  placed  the  charge  sheet  on
        6.8.2008 against the accused persons for offences punishable  under
        Sections 147, 327, 364-A, 323 and  34  of  the  I.P.C.  before  the
        learned trial Magistrate who committed the matter to the  court  of
        Sessions.

     4. The learned Additional Sessions Judge, considering the material  on
        record, framed charges for offences punishable under Sections  148,
        329/149 and 364/149 of the I.P.C.

     5.  The  accused  persons  abjured  their  guilt  and  pleaded   false
        implication in the crime in question.

     6. The prosecution, in  order  to  substantiate  its  stand,  examined
        eleven witnesses and exhibited number of documents. The defence, in
        support of its plea, chose not to adduce any evidence.

     7. The learned trial judge, on the basis of the ocular and documentary
        evidence brought on record, came to hold that the  accused  persons
        were not guilty of the offences under  Sections  148,  329/149  and
        364/149 of the I.P.C. but found them guilty  for  the  offences  as
        mentioned  earlier  and  sentenced  them   as   has   been   stated
        hereinbefore.

     8. Being aggrieved by the aforesaid decision of conviction  and  order
        of sentence, the accused-appellant preferred  Criminal  Appeal  No.
        639 of 2009.  Before the High Court, the learned  counsel  for  the
        appellants did not press the appeal as far as the conviction aspect
        is concerned and confined the submissions as regards the imposition
        of sentence highlighting certain mitigating circumstances.

     9. At this juncture, we think it seemly to reproduce what the  learned
        single Judge has recorded  about  the  submission  of  the  learned
        counsel for the accused-appellants: -

        “Learned counsel appearing for the appellants submits  that  he  is
        not pressing this appeal as far as it relates to conviction part of
        the impugned  judgment  and  would  confine  his  argument  to  the
        sentence part thereof only.  He submits that the incident had taken
        place more than four years back, there was no premeditation and  on
        the spur of moment the incident had taken place, appellant Nos.  1,
        4 & 5 have already remained in jail for 23 days and appellant No. 2
        for 166 days whereas appellant No. 3 is in jail for last  about  18
        months, all the  appellants  are  young  boys  having  no  criminal
        antecedents against them, therefore, the sentence imposed  on  them
        may be reduced to the period already undergone by them.”

10.   Be it noted, the learned counsel for the State resisted the  aforesaid
submission and contended that  regard  being  had  to  the  gravity  of  the
offence, no leniency should be shown to the appellants.

11.   The learned single Judge did not address himself with  regard  to  the
legal sustainability of the conviction.  He  took  note  of  the  submission
advanced at the bar and reduced the rigorous imprisonment to one  year  from
three years.  As a  consequence  of  the  reduction  in  sentence,  all  the
accused-appellants barring appellant No. 3 therein were sent to  custody  to
suffer  the  remaining  part  of  the  sentence  imposed  on  them.    Being
dissatisfied, the present appeal has been preferred by  accused  Nos.  1,  4
and 5.

12.   We have heard Mr. C.N. Sreekumar, learned counsel for  the  appellant,
and Mr. C.D. Singh, learned counsel for the respondent State.

13.   Questioning the legal substantiality of the  decision  passed  by  the
learned single Judge, it is contended by Mr. Sreekumar that  the  conviction
under Section 327 is not sustainable inasmuch as no charge was framed  under
Section 383 of the IPC.  
It is his further submission that the  prosecution
has miserably failed to establish its case beyond reasonable doubt; and  had
the evidence been appreciated in an apposite manner,  the  conviction  could
not have been sustained.
Alternatively, it is  argued  that  in  any  case,
there could have been a conviction only under Section 323 of the I.P.C.  and
for the said offence, the sentence of  one  year  rigorous  imprisonment  is
absolutely disproportionate and excessive.

14.   Mr. C.D. Singh, learned counsel for the State, per contra,  propounded
that for proving an offence under Section 327  of  the  I.P.C.,  framing  of
charge under Section 383 of the I.P.C is not warranted.  It is urged by  him
that the material brought on record clearly prove the offences to  the  hilt
against the accused-appellants and, therefore, no fault can  be  found  with
the delineation made by the High Court.

15.   The hub of  the  matter,  as  we  perceive,  really  pertains  to  the
justifiability and legal propriety of the manner in  which  the  High  Court
has dealt with the appeal.   It is clear as day that  it  has  recorded  the
proponement of the learned counsel  for  the  appellants  relating  to  non-
assail of the conviction, extenuating factors for reduction of sentence  and
proceeded to address itself with regard to the quantum of sentence.  It  has
not recorded its opinion as regards the correctness of the conviction.

16.   The learned counsel for the appellants has made an effort to  question
the pregnability of the conviction recorded by the learned  trial  Judge  on
many a score. But, a significant one, the conclusion is sans delineation  on
merits. We are required to address whether deliberation on  merits  was  the
warrant despite a concession given in that regard  by  the  learned  counsel
for the appellants.   Section 374 of the Code of  Criminal  Procedure,  1973
(for short “the Code”) deals with appeals from conviction.   Section 382  of
the Code deals with petition of appeal.  Section 384 of the Code deals  with
summary dismissal of appeal.  A three Judge Bench  in  Dagadu  v.  State  of
Maharashtra[1] referred to  the  decisions  in  Govinda  Kadtuji  Kadam  and
others v. The State of Maharashtra[2]  and Sita Ram and others v. The  State
of Uttar Pradesh[3] and thereafter  opined  that  even  if  the  High  Court
chooses to dismiss the appeal summarily, some brief reasons should be  given
so as to enable this Court to judge whether or not  the  case  requires  any
further examination.  If no reasons  are  given,  the  task  of  this  Court
becomes onerous inasmuch as this Court would  be  required  to  perform  the
function of the High  Court  itself  by  reappraising  the  entire  evidence
resulting in serious harassment and expense to the accused.

17.   It is apt to note that  sometimes  the  accused  enters  into  a  plea
bargaining.  Prior to coming into force of Chapter 21 A  dealing  with  plea
bargaining under  Sections 265 A and 265 L by Act 2 of 2006, the concept  of
 plea bargaining was not envisaged  under  the  Code.    In  Thippaswamy  v.
State of  Karnataka[4],  the  accused  pleaded  guilty  and  was  eventually
convicted by the learned Magistrate under Section 304 A of the IPC  and  was
sentenced to pay a sum of Rs.1000/- towards fine.   He  did  not  avail  the
opportunity to defend himself.   On an appeal preferred by  the  State,  the
High  Court  found  him  guilty  maintaining  the  sentence  of   fine   and
additionally imposed a substantive sentence of rigorous imprisonment  for  a
period of one year.   A three-Judge Bench of this Court  took  note  of  the
fact that it was a case  of  plea  bargaining  and  observed  that  had  the
accused known that he would not be let off with a mere sentence of fine  but
would be imprisoned, he would not have pleaded  guilty.   In  that  context,
this Court observed as follows:-


      “It would be clearly violative of Article 21 of  the  Constitution  to
      induce or lead an accused to plead guilty under a promise or assurance
      that he would be let off lightly and then in appeal  or  revision,  to
      enhance the sentence. Of course when we say this,  we  do  not  for  a
      moment wish to suggest that the Court of appeal or revision should not
      interfere where a disproportionately low sentence is  imposed  on  the
      accused as a result of plea-bargaining. But in such a case,  it  would
      not be reasonable, fair just to act on the  plea  of  guilty  for  the
      purpose of enhancing the sentence. The Court  of  appeal  or  revision
      should, in such a case, set aside the conviction and sentence  of  the
      accused and remand the case to the trial court  so  that  the  accused
      can, if he so wishes, defend himself against the charge and if  he  is
      found guilty, proper sentence can be passed against him.”

After so holding, the conviction was set aside and the matter was sent  back
to the trial Magistrate with a direction that the accused shall be  afforded
a proper and adequate opportunity to defend himself.  It was  further  ruled
that if he was guilty as a result of the trial, the judicial Magistrate  may
impose proper sentence upon him and, on the other hand, if he is  not  found
guilty, he may be acquitted.
18.   As is evincible from the impugned judgment, the  learned  counsel  for
the appellants before the High Court did not challenge  the  conviction  but
sought imposition of a lenient sentence.   In  State  of  Uttar  Pradesh  v.
Chandrika[5], the High Court in an appeal  accepted  the  plea  bargain  and
maintained the conviction of the respondent under  Section  304  Part  1  of
I.P.C but   altered the sentence  to  the  period  of  imprisonment  already
undergone and to pay a fine of Rs. 5000/-, in default of payment, to  suffer
R.I. for six months.  Be it noted, the High Court had not stated the  actual
period of imprisonment undergone by  the  respondent  therein.   This  Court
took note of the judgment and order of conviction  and  sentence  passed  by
the learned sessions Judge who had convicted him under Section  304  Part  I
of I.P.C and sentenced him to undergo eight years’ R.I.    At  the  time  of
hearing of appeal, the finding of conviction was not challenged with a  view
to bargain on the question of sentence.  The learned single  Judge  accepted
the bargain and partly allowed the appeal by  altering  the  sentence.   The
legal acceptability of the said judgment  was  called  in  question  by  the
State before this Court.    Taking note of the fact  situation,  this  Court
observed that the concept of  plea  bargaining  is  not  recognized  and  is
against public policy under the criminal justice system.    After  referring
to the decisions in Madanlal Ramchandra Daga  v.  State  of  Maharashtra[6],
Murlidhar Meghraj Loya v. State  of  Maharashtra[7],  Ganeshmal  Jashraj  v.
Govt. of Gujarat[8] and Thippaswamy (supra), a two-Judge Bench ruled thus:-
      “It is settled law that on the basis  of  plea  bargaining  the  court
      cannot dispose of the criminal cases. The Court has to  decide  it  on
      merits. If the accused confesses his guilt, an appropriate sentence is
      required to be imposed. Further, the approach of the court  in  appeal
      or revisions should be to find out whether the accused  is  guilty  or
      not on the basis of the evidence  on  record.  If  he  is  guilty,  an
      appropriate sentence is required to be imposed or maintained.  If  the
      appellant or his counsel submits that he is not challenging the  order
      of conviction, as there is sufficient evidence to connect the  accused
      with the crime, then also the court's  conscience  must  be  satisfied
      before passing the final order that the said concession  is  based  on
      the evidence on record. In such cases,  sentence  commensurating  with
      the crime committed by the accused is required  to  be  imposed.  Mere
      acceptance or admission of the  guilt  should  not  be  a  ground  for
      reduction of sentence. Nor can the accused bargain with the court that
      as he is pleading guilty the sentence be reduced.”
                                                       [ Emphasis Supplied ]
19.   In Padam Singh v. State of U.P.[9],  it  has  been  held  that  in  an
appeal against conviction, the appellate court is under duty and  obligation
to look into the evidence adduced in the case and arrive at  an  independent
conclusion.


20.   At this stage, we may refer with profit to a two-Judge Bench  decision
in Dilip S. Dahanukar v. Kotak Mahindra Co.  Ltd.  And  Another[10]  wherein
this Court, after referring to the pronouncements in Babu Rajirao Shinde  v.
State  of  Maharashtra[11]  and  Siddanna  Apparao   Patil   v.   State   of
Maharashtra[12], opined thus :-


      “An appeal is indisputably a statutory right and an offender  who  has
      been convicted is entitled to avail  the  right  of  appeal  which  is
      provided for under Section 374 of the Code. Right  of  appeal  from  a
      judgment of conviction affecting the liberty of a  person  keeping  in
      view the expansive definition of Article  21  is  also  a  fundamental
      right. Right of appeal,  thus,  can  neither  be  interfered  with  or
      impaired, nor can it be subjected to any condition.
           xxx         xxx        xxx        xxx
      The right to appeal  from  a  judgment  of  conviction  vis-à-vis  the
      provisions of Section 357 of the Code of Criminal Procedure and  other
      provisions thereof, as  mentioned  hereinbefore,  must  be  considered
      having regard to the fundamental right of an accused  enshrined  under
      Article 21 of the Constitution of  India  as  also  the  international
      covenants operating in the field.”

21.   Tested on the touchstone of the  aforesaid  legal  principles,  it  is
luminescent that the High Court has not  made  any  effort  to  satisfy  its
conscience and accepted the concession given by the  counsel  in  a  routine
manner.
At this juncture, we are obliged to state  that  
when  a  convicted
person prefers an appeal, he has the  legitimate  expectation  to  be  dealt
with by the Courts in accordance with law. 
 He has intrinsic  faith  in  the
criminal justice dispensation system and  it  is  the  sacred  duty  of  the
adjudicatory system to remain alive to the said faith. 
That apart,   he  has
embedded trust in his counsel that he shall put forth his case to  the  best
of his ability assailing the conviction and to do full justice to the  case.
 That apart, a counsel is expected  to  assist  the  Courts  in  reaching  a
correct conclusion.  
Therefore, it is the obligation of the Court to  decide
the appeal on merits and not accept the concession and proceed to deal  with
the sentence, for the said mode and method defeats the  fundamental  purpose
of the justice delivery system.  
We are compelled to note here that we  have
come across many cases where the  High  Courts,  after  recording  the  non-
challenge  to  the  conviction,   have   proceeded   to   dwell   upon   the
proportionality of the quantum of sentence.  
We may clearly state  that  the
same being impermissible in law should not be taken resort  to.  
 It  should
be borne in mind that a convict who has been  imposed  substantive  sentence
is deprived of his liberty, the stem of life that should not  ordinarily  be
stenosed, and hence, it is the duty of the Court to see that  the  cause  of
justice is subserved  with  serenity  in  accordance  with  the  established
principles of law.
22.   Ex consequenti, the appeal is  allowed  and  the  judgment  and  order
passed by the High Court are set aside and the appeal  is  remitted  to  the
High Court to  be  decided  on  merits  in  accordance  with  law.   As  the
appellants were on bail during the pendency of the appeal  before  the  High
Court and are presently in custody, they shall be released on  bail  on  the
said terms subject to the final decision in the appeal.


                                    ……………………………….J.
                                    [K. S. Radhakrishnan]



                                                             ……………………………….J.
                                                        [Dipak Misra]


New Delhi;
December 04, 2012.




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[1] AIR 1982 SC 1218
[2] AIR 1970 SC 1033
[3] AIR 1979 SC 745
[4] AIR 1983 SC 747

[5] (1999) 8 SCC 638

[6] AIR 1968 SC 1267
[7] (1976) 3 SCC 684
[8] (1980) 1 SCC 363
[9] 2000 (1) SCJ 143
[10] (2007) 6 SCC 528
[11] (1971) 3 SCC 337
[12] (1970) 1 SCC 547