Appeal No 375 of 1959
Appeal from the Judgment and Order dated the 12th August 1958 of the Assam High Court in First Appeal No 11 of 1958
L K Jha and Sukumar Ghose for appellants Nos 1 to 3
G section Pathak and Naunit Lal for respondents Nos 1 and 2 1960
October 27
The Judgment of the Court was delivered by WANCHOO J
This is an appeal on a certificate granted by the Assam High Court in an election matter
An election was held in the double member constituency of Goalpara to the Assam Legislative Assembly
Nomination papers were filed on the 19th January 1957 by a number of persons including Anirara Basumatari hereinafter called the appellant
He was a candidate for the seat reserved for scheduled tribes
The nomination paper of the appellant was rejected by the returning officer on the ground that he was disqualified under section 7b of the Representation of the People Act No XLIII of 1951 hereinafter called the Act
The polling took place on February 251957 and Khagendranath and Hkim Chandra Rabha were elected the latter being a member of a scheduled tribe
Thereupon an election petition was filed by an elector challenging the election of the two successful candidates on a number of grounds
of these grounds however only two are now material namely 1 that the nomination paper of the appellant was wrongly rejected and 2 that a corrupt practice was committed by the successful candidates inasmuch as voters were carried on mechanically propelled vehicles to the polling booths
The election tribunal held on the first point that the nomination 135 paper of the appellant had been improperly rejected
On the second point it hold that the corrupt practice alleged had not been proved
In the result the election was set aside
Thereupon there was an appeal by the two successful candidates to the High Court
The High Court was of the view that the nomination paper of the appellant was properly rejected further on the question of corrupt practice the High Court agreed with the conclusion of the tribunal
In the result the appeal was allowed and the election petition was ordered to be dismissed
There was then an application to the High Court for a certificate to appeal to this Court which was granted and that is how the matter has come up before us
The main contention on behalf of the appellant is that the High Court was wrong in coming to the conclusion that the nomination paper of the appellant was properly rejected under section 7b of the Act
That provision lays down that a person shall be disqualified for being chosen as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State if he is convicted by a court in India of any offence and sentenced to imprisonment for not less than two years unless a period of five years or such less period as the Election Commission may allow in any particular case has elapsed since his release
The appellant in this case was convicted under section 4b of the Explosive Substances Act No VI of 1908 and sentenced to three years rigorous imprisonment on July 10 1953
The nomination paper in this case was filed in January 1957 and the election was held in February 1957 and therefore five years had not elapsed since his release
But though the appellant was sentenced to three years  rigorous imprisonment his sentence was remitted by the Government of Assam on November 8 1954 under section 401 of the Code of Criminal Procedure and he was released on November 14 1954
The contention of the appellant before the election tribunal was that in view of this remission his sentence in effect was reduced to a period of less than two years and therefore he could not be said to have incurred disqualification within the meaning of s7b
This contention 136 was accepted by the tribunal and that is why it held that the nomination paper of the appellant was improperly rejected
When the case came to be argued in the High Court on behalf of the successful candidates two arguments were addressed in support of the plea that the nomination paper of the appellant was properly rejected
In the first place it was urged that in view of the provisions of Articles 72 73 161 and 162 of the Constitution read with section 401 of the Code of Criminal Procedure the State Government had no authority to remit the sentence of the appellant and secondly even if the remission was properly granted it would not affect the sentence imposed by the Court though the appellant might not have had to undergo part of the sentence after the date of the remission order
The High Court did not decide the question as to the power of the State Government to grant remission in this case as it had not full materials before it because the matter was not raised before the tribunal though it was inclined to the view that the State Government might not have such power
But the High Court was of the opinion that a remission of sentence did not have the same effect as a free pardon and did not have the effect of reducing the sentence passed on the appellant from three years to less than two years even though the appellant might have remained in jail for less than two years because of the order of remission
What section 7b lays down is that there should be a conviction by a court in India for any offence and a sentence of imprisonment for not less than two years in order that a person may be disqualified for being chosen as a member of either House of Parliament or of Legislative Assembly or of Legislative Council of a State
In terms therefore the provision applies to the case of the appellant for he was convicted by a court in India and sentenced to imprisonment for more than two years
Further the period of five years had not expired after his release
The appellant had applied to the Election Commission for removing the disqualification but it had refused to do so
The main question therefore that falls for consideration is 137 whether the order of remission has the effect of reducing the sentence in the same way in which an order of an appellate or revisional criminal court has the effect of reducing the sentence passed by the trial court to the extent indicated in the order of the appellate or revisional court
Now it is not disputed that in England and India the effect of a pardon or what is sometimes called a free pardon is to clear the person from all infamy and from all consequences of the offence for which it is granted and from all statutory or other disqualifications following upon conviction
It makes him as it were a new man See Halsbury s Laws of England Vol
VII Third Edition p 244 para 529
But the same effect does not follow on a mere remission which stands on a different footing altogether
In the first place an order of remission does not wipe out the offence it also does not wipe out the conviction
All that it does is to have an effect on the execution of the sentence though ordinarily a convicted person would have to serve out the full sentence imposed by a court he need not do so with respect to that part of the sentence which has been ordered to be remitted
An order of remission thus does not in any way interfere with the order of the court it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court though the order of conviction and sentence passed by the court still stands as it was
The power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court
This distinction is well brought out in the following passage from Weater s  Constitutional Law on the effect of reprieves and pardons vis a vis the judgment passed by the court imposing punishment at p 176 para 134  A reprieve is a temporary suspension of the 18 138 punishment fixed by law
A pardon is the remission of such punishment
Both are the exercise of executive functions and should be distinguished from the exercise of judicial power over sentences
The judicial power and the executive power over sentences are readily distinguishable  observed Justice Sutherland 1 To render a judgment is a judicial function
To carry the judgment into effect is an executive function
To out short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter it qua judgment 
 Though therefore the effect of an order of remission is to wipe out that part of the sentence of imprisonment which has not been served out and thus in practice to reduce the sentence to the period already undergone in law the order of remission merely means that the rest of the sentence need not be undergone leaving the order of conviction by the court and the sentence passed by it untouched
In this view of the matter the order of remission passed in this case though it had the effect that the appellant was re
leased from jail before he had served the full sentence of three years  imprisonment and had actually served only about sixteen months  imprisonment did not in any way affect the order of conviction and sentence passed by the court which remained as it was
Therefore the terms of section 7b would be satisfied in the present case and the appellant being a person convicted and sentenced to three years  rigorous imprisonment would be disqualified as five years had not passed since his release and as the Election Commission had not removed his disqualification
We may now refer to a number of cases on which reliance has been placed on behalf of the appellant
In Venkatesh Yeshwant Deshpande vs Emperor 1 Bose J as he then was observed as follows at p 530  The effect of an order of remission is to wipe out the remitted portion of the sentence altogether and not merely to suspend its operation suspension 1 AIR 1938 Nag
139 is separately provided for
In fact in the case of a pardon in England statutory and other disqualification following upon conviction are removed and the pardoned man is enabled to maintain an action against any person who afterwards defames him in respect of the offence for which he was convicted
That may not apply in full here but the effect of an order of remission is certainly to entitle the prisoner to his freedom on a certain date
 It is urged that if the effect of an order of remission is to wipe out the remitted portion of the sentence altogether it means that the sentence is reduced to the period already undergone and the order of remission has the same effect as an order of an appellate or revisional court reducing the sentence to the period already undergone
That case however dealt with a different point altogether namely whether a remission having been granted and having taken effect it could be cancelled thereafter
It was in that context that these observations were made
Even so the learned judge was careful to point out that there was a difference between a pardon and a remission and the effect of an order of remission is to entitle the prisoner to his freedom on a certain date
That case is no authority for the view that the order of remission amounts to changing the sentence passed by a competent court and substituting therefor the sentence of imprisonment already undergone up to the date of release following the order of remission
Reference was also made to a number of election cases in which the view which has been urged on behalf of the appellant seems to have been taken
We may refer to only one of them namely Ganda Singh vs Sampuran Singh 1 which has specifically dealt with this point
In that case an order was passed by the Maharaja of Nabha granting amnesty to all political prisoners detained or convicted under the Punjab Public Safety Act 1947 as applied to Nabha State and releasing them unconditionally
The same order also provided for grant of remission to persons convicted for offences other than political offences on 1 140 a certain scale
The successful candidate in that case was sentenced to more than two years  rigorous imprisonment under the Punjab Public Safety Act as applied to Nabha State and was thus a political prisoner
He was therefore released before he had served two years imprisonment
The main plank of the election petition in that case was that the successful candidate was disqualified under section 7b of the Act in view of his conviction and sentence and the election tribunal held that remission by government executive authority has the same effect as an order passed by a court of law in appeal or on revision and that under section 7 of the Act the court has to look to the amount of sentence imposed on a person and it made no difference whether the sentence was reduced by a court of law on appeal or by revision or by the powers of the government reserved for it under section 401 of the Code of Criminal Procedure as the effect in both cases was the same
We are of opinion that this view is incorrect though perhaps on the facts of that case the order of the tribunal was right for it seems that political prisoners had been granted a pardon by the Ruler of Nabha and not a mere remission under section 401 of the Code of Criminal Procedure
We cannot agree that remission by government has the same effect as an order passed by a court of law in appeal or on revision
It is true that under section 7b of the Act one has to look at the sentence imposed but it must be a sentence imposed by a court
Now where the sentence imposed by a trial court is varied by way of reduction by the appellate or revisional court the final sentence is again imposed by a court but where a sentence imposed by a court is remitted in part under section 401 of the Code of Criminal Procedure that has not the effect in law of reducing the sentence imposed by the court though in effect the result may be that the convicted person suffers less imprisonment than that imposed by the court
The order of remission affects the execution of the sentence imposed by the court but does not affect the sentence as such which remains what it was in spite of the order of remission
It is also well to remember that 141 section 7b speaks of the conviction and sentence passed by a court of law it does not speak of the period of imprisonment actually suffered by the convicted person
The other election cases to which our attention was drawn by the learned counsel for the appellant are similar and they are all in our opinion wrongly decided
We are therefore of opinion that the High Court was right in the view that the nomination paper of the appellant was properly rejected
The next contention on behalf of the appellants is that both the High Court and the tribunal were wrong in holding that a corrupt practice within the meaning of section 1001b read with section 1235 had not been proved in this case
The case of the appellant was that voters were carried by mechanically propelled vehicles to the polling booths by Birendra Kumar Nath who was in charge of the electioneering campaign on behalf of the Congress Party and Bholaram Sarkar who was president of the Primary Congress Committee of Dhupdhara
The successful candidates were both contesting the election as nominees of the Congress Party and therefore these two persons who carried electors in mechanically propelled vehicles to the polling booths did so as agents of the successful candidates and with their consent
The High Court as well as the election tribunal hold that though Birendra Kumar Nath and Bholaram Sarkar might be deemed to be the agents of the successful candidates for purposes of the election and though the hiring of mechanically propelled vehicles by the agents for conveyance of electors to polling booths had been proved there was no proof that this was done with the consent express or implied of the successful candidates
The High Court pointed out that consent express or implied of the candidates was necessary for purposes of section 1001 b and was of the view that on the facts proved in this case such consent could not be inferred and the circumstances did not convincingly lead to an inference that the corrupt practice in question was committed with the knowledge and consent of the successful candidates
In view of this concurrent finding of the High Court and the 142 tribunal on this question namely whether there was consent express or implied of the successful candidates to the commission of this corrupt practice it is in our opinion idle for the appellant now to contend that there was consent express or implied as required by section 1001b
The inference whether there was consent or not from the facts and circumstances proved is still an inference of fact from other facts and circumstances and cannot be a question of law as urged by learned counsel for the appellant
Reference in this connection may be made to Meenakshi Mills Madurai vs The Commissioner of Income tax Madras1 where it was held that a finding of fact even when it is an inference from other facts found on evidence is not a question of law and that such an inference can be a question of law only when the point for determination is a mixed question of law and fact
In the present case the only question is whether the corrupt practice was committed with the consent of the candidates whether express or implied and the question whether such consent was given in the circumstances of this case is a question of fact and not a mixed question of law and fact and therefore the finding of the High Court as well as the tribunal that there was no consent either express or implied in our opinion concludes the matter
There is no force in this point either
The appeal therefore fails and is hereby dismissed with costs
Appeal dismissed


Summary:
Respondent a non resident company in the accounting year supplied goods which were sent F O R Bhopal to the buyers in British India
The railway receipts were handed over to a Bank in Bhopal with instructions to hand over the railway receipts to the buyers who were named as consignees only on receipt of payment of the bill and collection charges
The branches of the Bank within the taxable territory collected the amounts due from the buyers and transmitted them to Bhopal to the credit of the respondent
The question was whether the profits in the goods were received or deemed to be received in British India
Held that the decision of this Court in Commissioner of Income tax vs P M Rathod  Co applied to this case and the income profits or gain must be deemed to have been received within the taxable territory
The fact of payment to the agent determines the place where the money can be said to be received by the seller
Since in the instant case the railway receipts were not to be handed over to the buyers by the Bank as per instructions of the seller unless payment for the value of the goods were received by the Bank which instructions the buyers could not countermand this was sufficient to make the Bank an agent of the seller
Held also that a railway receipt is a document of title to goods and for all purposes represents the goods
When the railway receipt is handed over to the consignee on payment the property in the goods is transferred
The Commissioner of Income tax vs P M Rathod and Co   relied on