VIDYA CHARAN SHUKLA v. PURSHOTTAM LAL KAUSHIK

Citation: [1981] 2 S.C.R. 637

Court: Supreme Court of India

Bench: P.N. BHAGWATI, R.S. SARKARIA, E.S. VENKATARAMIAH

Case summary

Tn the Election Petitio'n, the election of the returned candidate, Vasant Rao, was challenged on the ground that his nomination had been improperly accepted by the Returning Officer within the contem plation of Section 100(1 ) (c) of the Act, as then in force, because he was...

Judgment text

6 3 7 VIDYA CHARAN SHUKLA v. PURSHOITAM LAL KAUSHIK January 15, 1981 {P. N. BHAGWATI, R. S. SARKARIA AND E. S. VENKATARAMIAH, JJ. J 8 Dfaqualificution fron1 being chosen as a candidate for election-Whether the electio11 of a returned candidate whose appeal against the orders of his convic· tion and sentence exceeding two years' imprisonment, pending at the date of scrufi,'iy of noniination papers is accepted by the appellate. court, resulting in the acquittal, before the election petition against hitn becomes void under section - ;. , lOO ( l ) (a) of the Representation of People . Act, 1951 on the ground that he wa. s disqualified from being chosen aS a candidate within the m·eaning of section 8(2) uf the Act-Representation of the People Act, section 1(b), 8(2), (I). 32, 36(2) (a), 53, 66, 67A. IOO ( l ) (a ) ; Constitution of India, 1950 Articles 84, 102, 173 and 1 9 1 .

The appellant had been convicted and sentenced to imprisonment exceeding tvvo years by the Sessions Judge, Delhi, on February 26/27, 1979. By his Order dated February 27, 1979, passed under section 389(3) of the Code of Criminal Procedure, the Sessions Judge who had convicted the appellant suspended the execution of the sentence to afford the appellant time to file an appeal. On Morch 2 1 . 1 979 the High Court of Delhi admitted his appeal and by an order of the same date directed that his sentence shall remain suspended provided the appellant furnished a personal bond and surety in the amount of Rs. 5,000/- to the satisfaction of the Sessions Judge, which was complied with. The respondent and the, appellant contested the election as rival candidates to the Lok Sabha from No. 18 Mahasamund Parliamentary Constituency in �fadhya Pradesh. The last date for filing nominations wa. s· Decembe:ri. 7, 1979. The scrutiny of the nomination papers took place on December 1 1 , 1979.

The Returning Officer by his Order dated December 1 1 , 1979 rejected tbe objection of the respondent that the appellant was disqil'alified from being chosen as candidate in view of sub·section (2) of section 8 of the . Representaotion of the People Act, 1951 and accepted the appeUant's nomination as valid. The result of the election was declared on January 7, 1980. The election result was noti· fied on January 10, 1980. The &ppellant was declared elected and the respondent was defeated . Thereafter, on February 18, 1980 the respondent filed au election petition I of 1980 in the High court of Madhya Pradesh to get the election of the appellant declared void under section IOO(l) (a) and IOO(l)(b;(i) of the Act challenging that at the da·te of the election including the date of the scrutiny of the nomination papers the appellant was disqualified by virtue of section 8(2) of the Act from being chosen as candidate on account of his aforesaid conviction and sentence.

The appellant's appeal pending in the High Court was transferred to the Supreme Court under the Special Courts Act, 1979. The Supreme Court by its judgment dated April 1 1 , 1980 allowed the appeal set aside the conviction and sentence of the appellant and acquitted him Qf charges against him. Sub'sequent 8-1 52SCl/8 1 to this decision of the Supreme Court, by its judgment dated September S, 1980, the High Court of Madhya Pradesh allowed the election petition with costs and declared the appellant's election to be void on the ground contamed in section lOO(l)(d)(i) of the Act, hence the appeal. Allowing the appeal, the Court HELD : ( 1). Abiding by the principle of stare decisis and following the ratio decidcndi of Manni Lal's case, [197.

1] 1 SCR 798, the acquittal of th~ appellant in appeal prior to the pronouncement of the judgment of the High Court in the eJection petition had the result of wiping out his disqualification as comr)letely and effectively as if it did not exist at &ny time including the date of the scrutiny of the nomination papers and that his nomination paper was properly accepted by the Returning Officer. [660B.. C] Manni Lal v. Slzri Parmai Lal & Ors. [1971] I SCR 798, a. pplied (2) An order of acquittal particularly one passed on merits wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed. An order of acquittal annulling or voiding a conviction operates. from nativity. [6S4BJ Mallni Lal v. Shri Parmai Lal & Ors. , [1971] I SCR 798; Dilip Kumar Sharma & Ors. v. State of Madhya Pradesh, [1976] 2 SCR 289, followed.

(3) The ratio decidendi logically deducible from Manni Lal's case is that if the successful candidate is disqualified for being chosen, at the date of his election or at any earlier stage of any step in the election process on account of his conviction and sentence exceeding two years' imprisonment, but his conviction and sentence are set aside and he is acquitted on appeal before the pronouncement of judgment in the election-petition pending against him, his disqualification is annulled rendered non est with retroactive force from its very inception, snd the challenge to his election on the ground that he was so disqualified is no longer sustainable. [656D-E] (4) A plain reading of section 100(1) of the Act shows that it can be conveniently divided into two parts. Clauses (a), (b) and (c) of the sub-section fall in the first part and clause (d) along with its sub-clauses falls in the second part.

The distinction between clauses (a), (b) and (c) in the first part and clause (d) in the second part lies in the fact that whereas on proof of any of the grounds mentioned in clauses (a), (b) and (c), the election has to be declared void without any further requirement, in a case falling under clause (d) the election cannot be declared void merely on proof of any of the grounds mentioned in its sub-clauses, unless it is further proved "that the result of the election in so far as it concerns the returned candidate has been materially affected". The expression "any nomination" occurring in sub-clause (i) of clause (d) in the second part may include nomination of a returned candidate as well; but in the case of a returned candidate whose nomination has been improperly accepted, the effect on the result of the election so far as it concerns him, is obvious.

However, if the election is challenged on the ground that the ' nomination of a candidate, other than the returned candidate, has been improperly accepted, the petitioner in order to succeed will be required to prove under clause (d)(i) in addition to improper acceptance the further fact that thereby V. C. SHUKLA V. P. L. KAUSHIK 639 the result of the election so far as it concerns the returned c~didate has been materilllly affected. [651H-652D] Clause (a) of sub-section (1) requires that the disqualification or lack of ' qualification of the returned candidate is to be judged with reference to "the date of his election", which date, according to section 67A is "the date on which a candidate is declared by the returning officer under the provisions of section 53 or section 66, to be elected to a House of Parliament or of the Legislature of a State".

But, the word "disqualified" used in clause (a) is capable of an expensive construction also, which may extend the scope of the inquiry under this clause to all the earlier steps in the election process. Section 7(b) defines "disqualified" to mean "disqualified for being chosen as, and for being, a member of either House of Parliament etc. " The words ;'for -~.. being chosen" in that definition have been interpreted by the Supreme Court in Chatturbhuj's case, [1954] SCR 817, to include the whole "series of steps starting with the nomination and ending with the announcement of the election. It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen. " But this definition of "disqualified" is in terms of section 7(b) meant for Chapter III, in Part II of the Act; while section lf)O falls in Chapter III of Part VI.

If the expression "for being chosen" \vhich is a central limb of the definition of "disqualified", is given such an extensive interpretation V. 'hich will bring in its train the whole series of steps an_d earlie1 stages in the election process commencing with the filing of the nominations. it will be repugnant to the context and inconsistlent with "the date of his election". Such a ronstruction which will introduce disharmony and inconsistency between the various limbs of clause (a) has to be eschewed. In the context of clause (a), therefore, the ambit of the words "for being chosen" in the de:finiti0n of "disqualified" bas to be restricted to "the date of his election" i. e. declaration of the result of the election under section 53 or section 66, and such date is to be the focal point of tin1e in an inquiry under this clause. [652H-653D] In contrast with .

;lause (a), in a case falling under clause (d)(i) of section 100, if an objection is taken before the Returning Officer against the nomination of any candidate on the ground of his being not qualified, or being disqualified for being chosen the crucial date as per section 36(2) (a) with reference to which the existence or non-existence of such disqualification is to be enquired ,, J ~to is the date of scrutiny of the nomination of the candidate. [653CJ Assuming that technically, the election-petitioner's case that survives is one under clause (d)(i), and not under clause (a) of section 100(1). Even so, the fact remains that, in substance, the election of the appellant is being challenged on the ground that on account of his conviction and sentence exceeding two years, the appellant was under Article 102(1)(e) of the Constitution read with section 8(2) and 36(2)(a) of the Act, disqualified for being chosen to fill the seat concerned.

Such being the real ground of challenge, apart from sub-clause (i), sub-clause (iv) of clause (d) of section 100(1) will also be attracted, because the phrase "non-compliance with the provisions of the Constitution or ' of this Act etc. " according to the decision of this Court in Durga Shankar Mehta's case is wide enough to cover a case where the improper acceptance or rejection of the nomination is challenged on the ground of the candidate being disqualified for being chosen. [653E-G] Dln}. ;a Sl;a11/,cr illclua v. Ihakul' Raghuraj Singh & Ors. [1955] 1 SCR 267 and Chatturbhu. j Vithaldas Jasani v. Nareshwar Parashram & Ors. , [1978] 2 SCR 272, followed. 1' (a) It is true that in order to adjudicate upon the validity of the challenge in the appellant's election under clause (d) (i) of section 100(1), what was required to be determined by the High Court was whether the nomination of the appellant ¥. 'as properly or improperly accepted ·by tile Returning Officer.

But; in order to determine this question, it was necessary for the High Court to decid::, as a preliminary step, whether the appellant was di$qualified at the date of scrutiny of the nomination papers, for if he was disqualified, his non1ination could not be said to have been properly accepted by the Returning Officer and if, on the other hand, he was not disqualified, his nomiilation would have to be regarded as properly accepted by the Returning Officer. The primary question before the High Court therefore, was whether or not the appellant was disqualified at the date of scrutiny of the nomination papers and it is difficult to see how the determination of this question could be made on any principle other than that governing the determination of a similar question under clause (a) of section 100 ( 1 ) .

If, as laid down in Manni Lal's case, the returned candidate cannot be said to be disqualified at the date of the election, if before or during the pendency of the election petition in the High Court his conviction is set aside and he is acquitted by the appellate court, on the application of the same prillciple, that, in like circumstances, the returned candidate cannot be said to be disqualified at the date of scrutiny of the nomination papers. On this view, the appellant could not be said to be disqualified on the date of scrutiny of the nomination paper since his conviction was set aside in appeal by this Court and if that be so, the conclusion must inevitably follow that the nomination of the appellant was properly accepted by the Returning Officer.

The position is analogous to that arising where a case is decided by a Tribunal on the basis of the law then prevailing and subsequently the law is amended with retrospective effect and it is then held by the High Court in the exercise of its writ jurisdiction that the order of the Tribunal discloses. an error of law apparent on the face of the record, even though having regard to the law as it then existed, the Tribunal w. is quite correct in deciding the case in the manner it did. [656C-H] Venkatachalam v. Bombay Dyeing & Manufacturing Company Lin1ited, 34 ! TR 143, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2020 of 1980. From the Judgment and Order dated 5-9-1980 of the Madhya Pradesh High Court in Election Petition No. 1 of 1980. A. K. Sen, 0. P. Sharma, Rajinder Singh, P. L. Dubey and P. N. Tewari for the appellant. S. N. Kacker, Swaraj and Mrs. Sushma Swaraj for Respondent No. 1 . Y. S. Chitale (Dr. ) and Miss Rani Jethmalani for the Iqtervener.

The Judgment of the Court was delivered by SARKARIA, J. This is an appeal under Sections HG(A) and l16(B) ' of the Representation of People Act, 1951 (hereinafter referred to as the Act) against a judgment dated September 5, 1980, of a learned Judge of the High Court of Madhya Pradesh, whereby the Election Petition 1 of 1980 filed by the respondent was acccpteu and the appellant's election to Lok Sabha was declared to be void.

Tho princip"I question that falls to be dctcnnincd in this appeal is, whether the election of a returned candidate whose appeal ogainst the ·orders of his conviction and sentence exceeding two years i1nprisonment, pending at the date of the scrutiny of nomination papers, is accepted by the appellate court, resulting in his acquittal, before the decision of Lhe l:lection-petition against him, can be declared to be" vmd under Section 100(1) of lhe Act, on the ground that he was disqualified from being chosen as a candidate within the meaning or Section 8(2) of the Act. The material facts arc as follows : The respondent and the appellant contested the election as rival candidates, to the Lok Sabha from No. 18, Mahasamund Parliamentary Constituency in Madhya Pradesh. The last date for filing nominations was December 7, 1979. The scrutiny of the nomination papers took place on December 11, 1979.

The respondent raised an objection to the validity of the appellant's nomination before the Returning OffLcer at the tiine of the scrutiny. The objection was that t)le appellant had been convicted and sentenced to in1prisonment exceeding t\VO years by the Sessions Judge, Delhi on February 22/27, I979, and, as such, the appellant was dis '.. _,. aualificd from being chosen as a candidale in view or sub-section (2) r- of Section 8 of the Act. The Returning Officer, by his order dated December I I, 1979, rejected the objection and accepted the appellanl's nomination as valid. The result l\f the election was declared on January 7, 1980. The election result was notified on January 10, 1980. Th they stood on the date of the scrutiny, which is an integral step in the process of election i. e. _. process of '"being chosen". (Reference has been made in this connection to Chaturblwj's case (ibid) and C/w111l! ln Lal v. Ram Dass and Another(').

(2) The phrase "dah: of such conviction" occurring in sub-section (2) of Section 8 of the Act means the date of the initial conviction and not the date of the final conviction. If this phrase was constm:d to nican the date of the final and ultimate cc;1viction on termination of the entire judicial precess in the hierarchy c,r courto, sub-section(3l wonlcl k rcdnndant. Sub-section (3) applies to a special category of persons n1entioncd therein, and its language n1akL:-1 it clear that in their • case, conviction will not operate as disqualifice1tion unless it becomes final in the course of judicial process. , (3) The present case is governed by clause (d) (i) and not by clause (a) of Section 100(1). Jn the election-petition, both the ----- ------ (! ) 41 E. L. R. 214 (SC). v. c. SHUKLA I". P. L. KAUSHIK (Sarkaria. !. ) 645 • grounds u"ndcr Section JOO(!

) (d) (i) and und•cr Section 100(1) (a) were taken, because - (i) the appellant was disqualified on the date of scrutiny-a ground under Section 100(1) (d) (i); and (ii) the disqualification also existed on the dauc of declaration of election rc,•. 11t. -c:Jfordin! '. ground under Section 100(1) (a). Since the aμpellant was subsequently acquitted during the pcnd·cncy of ckct'on-pctition, the ground under Section I00( I) (a) become noncxist·. nt in view of the princip:c laid down by this Court in Manni Lal's case rihid). but the Ground under Section 100(1) (d) (i) still subsisted. Co11seq11c11tly, at the stage of argument. for certain offences. Under sub-section (1), a person convicted or---l..... _ ally of the offences specified in that sub-section shall be disqualified for a period of six years from the date of such conviction.

The material ·G part of sub-sections (2) and (3) reads as under: "(2) A person convicted by a court in India for any offence and sentenced to imprisonment for not less than two • years shall be disqualified from the date of such conviction a·nct shall continue to be disqualified for a further period of five years since his release 1H Provided ..... . (I) (1969] I S. C. R. 277. (3) Notwithstanding anything in sub-section (1) and sub·section (2), a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought i'n respect of the conviction or the sentence, until that appeal or application is dispooed of by the court. " Then there is an Explanation appended to this Section, which is nut material for our purpose.

Chapter I of Part V includes Sections 30 to 39 under the main beading "Nomination of Candidates". Section 30 requires the Election Commission to appoint dates for making nominations, scrutiny of nominations, withdrawal by candidates, for poll and also to specify the date before which the election shall be completed. The provision in clause (b) requires that the date for the scrutiny of nomination~ shall be the date immediately following the last date for making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday. Section 32 lays down that any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act, or under the provisions of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be. Section 36 deals with scrutiny of nominations. Sub-section (2) (a) . of the Section is material.

It reads thus : "(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any 'nomination on any of the following grounds :- (a) that on the date fixed for the scrutiny of noru. inations the candidate either is not qualified or is disqualified • for being chosen to fill the seat under any of the following prov1s10ns that may be applicable, namely:- • Articles 84, 102, 173 a'nd 191, Part II of this Act and ......

" Under sub-section (7) , for the purposes of this Section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that lie is subject to a disqualification mentioned in Section 16 of the Representation of the. People Act, 1950. Before the amendment of 1956, clauses (a) and (b) of sub-sec tion (2) of Section 36 read as under : "The returning officer shall then examine the nomination papers and . . . . . . refuse any nomination on any of the following grounds : • (a) that the candidate is not qualified to be chosen to fill the seat under the Ccmstitution or this Act; or (b) that the candidate is disqualified for being chosen " to fill the seat under the Constitution or this Act . The Amendment Act 27 of 1956 recast clauses (a) to (e) of ihe old Section.

It also combined clauses (al and (b) and the recast clause read as follows : " (a) that the candidate is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, '. namely: . . . . . . " The Amendment Act 40 of 1961 substituted in Sub-section (2 ) (a ) , + for the words "that the candidate" the words "that on the date fixed for the scrutiny of nominations the candidate". The same Amendment Act snbstituted in sub-section (5) the proviso for the words "an objection is made" the words "an objection is raised by th� returning officer or is made by any other person''. Thus, the amendmeRt in sub-section 2(a) was only of a clarificatory character. It made it clear that the date of Bcrutiny of the nominations is a crucial date. Next, we come to Section I00. The Section enumerates the grounds oh which an election ca_n be declared to be void. Before the .

• Amendment of 1956, Section 100, so far as material, was as follows : -l "(1 ) If the Tribunal is of opinion - (a) • (b) (c) that the result of the election has been materially affocted by the improper acceptance or rejection of v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, J. ) 6 4 9 any nomination, the Tribunal shall declare the eleclion to be wholly void. Explanation. . . . . . . . . . . . . (2) Subject to the provisions of sub-section (1 ) if the Tribunal is of opinion - (a) (b) (c) that the result of the election has been materially affected by the improper receptio'n or refusal of a vote. or by the reception of any vote which is void or by any non-compliance with the provisions of the Consti ;. . tution or of this Act or of any rules or orders made under this Act or of any other Act or rul. ,. ; relating to the electio'n, or by any mistake in the use of any prescribed form, the Tribunal shall declare the election of the returned candi date to be void". In Durga Shanker Mehta v.

Thakur Raghuraj . Singh & Ors. (•') nominations were filed for a double member Legislative Assembly 'd candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied- (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent; (b) (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void". n A plain reading of Section 100(1) of the Act shows that it can be conveniently divided into two parts.

Clauses (a), (b) and (c) ' of the sub-section fall in the first part and clause ( d) along with its sub-clauses falls in the second part. The disti'nction bdween clauses (a), (b) and (c) in the first part and clause (d) in the second part lies in the fact that whereas on proof of any of the groqnds mentioned in clauses (a) , (b) and ( c ) , the election has to be declared voia without any further requirement, in a case falling under clause (d) fl the eiection cannot be declared void merely on proof of any of the grounds me'ntioned in its sub-clauses, unless it is further proved "that the result of the election in so far as it concerns the returned candidate has bee'n materially affected". The expression "any nomination" occurring in sub-clause (i) of clause (d) in the second part may include nomination of a returned candidate as well, but in the case of a i .

returned candidate whose nomination has been improperly accepted, the effect on the result of the election so far as it concerns him, is obvious. However, if the election is challenged on the ground that the nomination of a candidate, other than the returned candidate has been improperly accepted, the petitioner in order to succeed will be required to prove· under clause (d) ( i ) , iu addition to improper accep tance the further fact that thereby the result of the election so far as it concerns the returned candidate has been materially affected. Clause (a) of sub-section ( 1 ) appears to require that the dis qualification or lack of qualification of the returned candidate is to he judged with peference to "the date of his election", which date, accord ing to Section 67A, is "the date on which a candidate is declared by the returning officer under the provisions of Section 53 or Section 66, to be elected to a House of Parliament or of the Legislature of a State".

But, the word "disqualified" used in clause (a) is cfipable of an expansive construction also, which may extend the scope of the inquiry under this clau�e to all the earlier steps in the election pro cess. As already noticed, Section 7(b) defines "disqualified" to mean "disqualified for being chosen as, and for being, a member of either Houre of Parliament etc. " The words "for being chosen" in that definition have been interpreted by this Court in Chatturbhui's ca� (ibid) to include the whole "series of steps starting with the nomination and ending with the announcement of the election. It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen". But this definition of "disquali fied" is in terms of Section 7(b) meant for Chapter III, in Part II of the Act; while S·�ction 100 falls in Chapter III of Part VI.

If the expression "for being chosen" which is a central limb of the definition of "disqualified", is give'n such an extensive interpretation which wi! l bring in its train the whole �ries of steps and earlier stages in the 1\\1\etilln ])I\\ee�� commencing with the filing of the nominations. it will v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, I. ) 653 be repugnant to the context and inconsistent with "the date of his election". Such a construction which will introduce disharmony and inconsistency between the various limbs of clause (a) has to be I eschewed. In the context of clanse (a), therefore, the ambit of the words "for being chosen" in the definition of "disqualified" has to be restricted to "the date of his election" i. e. declaration of the result of the election under Section 53 or Section 66, and such date is to be the focal point of time in an inquiry under this clause.

In contrast with clause (a), in a case falling under clause (d) (i) of Section I00, if an objection is taken before the Returning Officer against the nomination of any candidate on the ground of his being not qualified, or being disqualified for being chosen the crucial date as per Section 36 (2) {a) with reference to which the existence. or nonexistence of such disqualification is to be enquired into is the date of scrutiny of the nomination of the candidate. The first question is whether on facts admitted or proved on record, thecasefallsunderSection 100(1) (a) or Section 100(1) (d),orboth? The burden of Shri Kacker's arguments is that the case falls under clause (d) (i) and not under clause (a) of Section 100(1). Learned oounsel has conceded that if clause (a) were applicable, the case would have been within the ratio of Ma1mi Lal's case and that was why at the stage of arguments before the High Court, the challenge under clause (a) of the sub-Section was given up.

We will therefore, assume that technically, the election-petitioner's case ! hat survives is one nuder clause (d) (i), and not under caluse (a) of Section· 100(1). Even so, the fact remains that, in substance, the election of the appellant is being challenged on the ground that on account of his conviction and sentence exceeding two years, the appellant was under Article 102(I) (e) of the Constitution read with Sections 8(2) and 36 (2) (a) of the Act, disqualified for being chosen to fill the seat , concerned. Such being the real ground of challenge, apart from sub- - • clause (i) sub-clause (iv) of clause (d) of Section 100 (1) will also be attracted. This is so, because the phrase, non-compliance with the provisions of the Constitution or of this Act etc.

", according to the decision of this Court in Durga Shanker Mehta's case (ibid), is wide enough to cover a case where the improper acceptance of rejection of the nomination is challenged on the ground of the candidate being dis- ) qualified for being chosen. The controversy thus narrows down into the issue: Whether on facts • undisputed or proved on record, the present case falls within the ratio of Manni Lal v. Shri Parmai Lal & Ors. , even if the challenge is con- R sidered to be one under clause (d) (i) and (iv) of Section 100(1). 9-152 SCI/81 • Before examining the facts and ratio of Manni Lat's case, it will be worthwhile to notice here a general principle of criminal law bearing on this issne. This principle as reiterated by this Court in Di/ip Kumar S/zarma's case, ibid, (at page 289), is as follows : ' An order of acquittal particularly one passed on merits wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed.

An order of acquittal annuIii ng or voiding a conviction operates from nativity. As Kelson puts it, '"it is a true annulment an annulment with retroactive force". So when the conviction (for the offence) was quashed by the High Court (in appeal) .. . 'it killed the conviction not then, but performed the formal obsequies of the order which had died at birth. ' In Manni Lal v. Parmai Lal (ibid), this Court applied this principle to the question of the disqualificaton iof a candidate for being chosen to fill a seat in State Legislative Assembly. In that case, the last date for filing nominations from the U. P. Legislative Assembly Constituency, Hardoi was January 9, 1969. The returned candidate was convicted two days later on January 11, 1969 and sentenced. inter alia, to 10 years' rigorous imprisonment under Section 304, Indian Penal Code. On January 16, 1969, he filed an appeal against l1is conviction in the High Court.

Polling took place on February 9, 1969 and the result of the election was declared on February 11, 1969, and he was successful in the election. His election was challenged by an election-petition primarily on the ground that he was disqualified under Section 8 (2) of the Represer 'on of the People Act, because on the date of his election he stood convicted for an offence of imprisonment exceeding two years. Before the election-petition was decided, the returned candidate's appeal was allowed on September 30, 1969 by the High Court and his conviction and sentence were set aside. The question for decision before the Court was : What was the effect of the acquittal in appeal of the returned candidate before the decision of the election-petition, on his conviction and sentence, which was the main ground on which he was alleged to be disqualified for being chosen? The bench presided over by J. C. Shah, J. (as he then was) answered this question thus : " ...

it is clear that, though the conviction of respondent t No. 1 was recorded by the trial court on 1lth January, 1969, he was acquitted o'n 30th September, 1969 in appeal which .. II acquittal had the effect of completely wiping out the conviction. The appeal having once been allowed, it has to be held that the conviction and sentence were vacated with effect v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, !. ) 655 • from the date on which the conviction was recorded and the A. sentence awarJod. Jn a criminal case, acquittal in appeal , does not toke effect merely from the date of the appellate order setting aside the conviction; it has the effect of retrospectively wiping out the conviction and the sentence awarded by the lower court. The disqualification relied upon by the appellant was laid under s. 8(2) of the Act read with Article 102 (l) (e) of the Constitution.

The provision is that a person convicted by a court in India for any offence and sentenced to imprisonment for not less than two years shall be disqualified for a further period of five years since his release. The argument on behalf of the appellant was that, though respondent No. 1 was not disqualified at the time of filing of nomination, he was, in fact, disqualified on 9th February, 1969, the date of polling, as well as on 11th February, 1969, when the result was declared ..... . TI1e argument overlooks the fact that an appellate order of acquittal takes effect retrospectively and the conviction and sentence are deemed to be set aside with effect from the date they were recorded. Once an order of acquittal has been made, it has to be held that the conviction has been wiped out and did not exist at all.

The disqualification, which existed nn the 9th or 1lth February, 1969 as a fact, was wiped out when the conviction recorded on 11th January, 1969 was set aside and that acquittal took effect from that very date. ft is significant that the High Court, under Section 100(1) (a) of the Act, is to declare the election of a returned candidate to be void if the High Court is of opinion that, on the date of his election, a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or the Act. It is true that the opinion has to be formed as to whether the successful candidate was disqualified on the date of his election; but this opinion is to be formed by the High Court at the time of pronouncing the judgment in the election petition. ln this case, the High Court proceeded to pronounce the judgment on 27th October, 1969. The High Court had before it the order of acquittal which had taken effect retrospectively from 1lth January, 1969.

It was therefore, impossible for the • High Court to arrive at the opinion that on 19th or 11th February 1969, respondent No. 1 was disqualified. The conviction and sentence had been restrospectively wiped out, so that the opinion required to be formed by the High Court to declare the election void could not be formed. The situation • is similar to the one that could have come into existence if Parliament itself had chosen to repeal s. 8(2) of the Act retrospectively with effect from 11th January, 1979. " (emphasis added) The essence of the decision is in ! he sentences which have been • underlined by us in the above extract. In sum, what was laid down in Manni Lal's case was that if the disqualification of the returned canclidate, viz.

, his conviction and sootence exceeding two year's imprisonment which existed as a fact at the date of the election, is subsequently set aside by the Appellate Court, then a challenge to his election on the ground under Section 100(1) (a) of the Act, in an election-petition pending in the High Court at the date of such acquittal, must fail because the acquittal has the effect of retrospectively wiping out the disqualification as completely and effectively as if it never had existed. In other words, the ratio decidendi logically deducible from the above esxtract, is that if the successful candidate is qualified at the date of the election, if before or during the pendency of the election petition in the High Court his conviction is set aside and he is acquitted by the appellate court, it must be held. on the application of the same principle, that, in like circumstances, the returned candidate cannot be said to be disqualified at the date of the scrutiny of the nomination papers.

On this view, the appellant _ . ( could not be said to be disqualified at the dale of scrutiny of the nomination paper since his conviction was set aside in appeal by this Court and if that be so, the conclusion must inevitably follow that the nomination of the appellant was properly accepted by the Returning Officer. The position is analogous to that arising where a case is decided by a Tribunal on the basi~ of the law then prevail- • ing and subsequently the Jaw is amended with retrospective effect and it is then held by the High Court in. the exercise of its writ • jurisdiction that the order of the Tribunal discloses an error of law apparent on the face of the record, even though having regard to the Jaw as it then existed, the Tribunal was quite corre<:t in deciding • the case in the manner it did, vide Vmlwtachalam v. Bombay Dyeing & Ma1111/act11ring Company Limited('). Amritlal Ambalal Patel (ibid) cited by Shri Kacker is not parallel case. It is clearly distinguishable.

The facts therein were materially different from Manni Lal's case or the one before us. In that case, the election of Amritlal Ambalal Patel to Gujarat Legislative Assembly was challenged ou the ground that he was on the date of scrutiny of nominations less than 25 years of age-which was the minimum age prescribed under Article 173 (b) of the Constitution and, as such, not being qualified for being chosen, his nomination was wrongly accepted. The candidate attained the age of 25 years on the date of election. Notwithstanding this subsequent fact, it was held by the Court that the nomination of the candidate had been "improperly accepted" within the meaning of Section 100 (1 )(d). The rationale of the decision was that the attairunent of the prescribed age by the candidate after the date of scrutiny of nominations did not operate retrospectively to remove his disqualification for being chosen, with effect from the date of the scrutiny of the nominations.

The disqualification on the date of the scrutiny remained unaffected. That was not a case like the present one where the disqualification of the candidate existing as a fact at the date of the nominations, due to his conviction and sentence exceeding two years, was retrospectively wiped out owing to his subsequent acquittal by the appelJate court, during the pendency of the elections petition in the High Court. It is possible that, difficult and anomalous situations may arise if the rule in Manni Lal v. Parmai Lal is applied to a converse hypothetical case wherein the candidate whose nomination is rejected on account of his disqualification, viz. , conviction and. sentence exceeding two years' imprisonment existing as a fact on the date of scrutiny ... i-. of nominations, brings an election-peti1ion to challenge the election of the returned candidate on the ground that his nomination was improperly rejected.

as his disqualification had been, as a result of his subsequent acquittal by an appellate court, annulled and ob! iterated with retroactive force. But we do not think it necessary to indulge in this hypothetical and academic exercise. Firstly, the instant case is not one where the election is being challenged under Section lOO(l)(c) on the • ground that the election-petitioner's nomination was improperly re- Bl jected. Secondly, it has not been urged before us by the learned (1) 34ITR 143. • A counsel for the respondent, that Manni Lal's case was wrongly decided and that its ratio needs reconsideration by a l[trger Bench. All efforts of the learned counsel have been directed to show that the principle enunciated in Manni Lal's case is ;napplicable to the present case because on facts, between these two cases, there is a difference and a distinction, where, in reality, none that matters, really exists.

In this situation therefore, we would abide by the principle of stare decisis and follow the ratio of Manni Lal's case, and m the result, hold that the acqnittal of the appellant in appeal prior to the pronouncement of the judgment by the High Court in the electionpetition had the resnlt of wiping out his disqualification as completely and effectively as if it did not exist at any time including the date •C of th•c scrutiny of the nomination papers and that his nomination paper was properly accepted by the Returning Officer. The challenge to. the election of the appellant on the ground under clause 100(1) (d) (i) rirnst, therefore, fail. For all the foregoing reasons, we allow this appeal, set aside the iD judgment of the High Court and dismiss the election-petition of the respondent. In view of the Jaw point involved, we will leave the parties to pay and bear their own coiils throughout. V. D. K. Appeal allowed. • •