Judgment

BHARGAVA, J : - This is an appeal by Manni Lal who was one of the candidates for election to the U. P. Legislative Assembly from Ahirori (Scheduled Caste) Constituency of Hardoi District, and who was defeated at that election by respondent No. 1, Parmai Lal. The election was challenged on two principal grounds. One ground was that respondent No. 1 was disqualified under Section 8 (2) of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") for being chosen as a member of the Legislative Assembly, because he was convicted for offenses under Sections 148 and 304 of the Indian Penal Code on 11th January, 1969, and was sentenced to imprisonment exceeding two years. The other ground was that a number of ballot papers cast in favour of the appellant had been wrongly rejected instead of being counted in favour of the appellant, that some ballot papers were wrongly counted for respondent No. 1 instead of being rejected, and that some ballot papers were wrongly counted in favour of respondent No. 1 instead of being counted in favour of the appellant or other candidates The High Court of Allahabad framed three different issues in respect of this claim of wrong rejection or wrong counting of the ballot papers. In the written statement, respondent No. 1 pleaded that a number of ballot papers were wrongly counted in favour of the appellant instead of being counted in favour of the other candidates, that a number of ballot papers were wrongly rejected instead of being counted in favour of respondent No. 1, and, further, that a number of ballot papers were wrongly counted in favour of the appellant instead of being rejected. The learned Judge, who tried the election petition, framed three issues in respect of these pleadings also which were put forward in the written statement and not by was of a petition of recrimination. On the basis of examination of the ballot papers and the evidence before him, a finding was recorded that, after correcting the errors made in counting, the net result would be that the appellant will have a net gain of only 6 votes, while respondent No. 1 would have a net loss of 24 votes. It appears that respondent No. 1 had received 13,508 votes, while the appellant had received 13,271 votes. After taking into account the finding, the valid votes received by the appellant would total to l3,277, while respondent No. 1 would still have 13,484 valid votes, so that the election of respondent No. 1 could not be declared void. The appellant had claimed that, on a proper counting, it would be found that he had a majority of votes, and had prayed for a declaration that he is the successful candidate. On the finding recorded, both the prayers of the appellant failed. The High Court further held that respondent No. 1 was not disqualified under Section 8 (2) of the Act and, consequently, his election was valid. The petition having been dismissed by the High Court, the appellant has now come up in this appeal under Section 116-A of the Act.

2. On the issue relating to disqualification, the facts that need be noticed are that 9th January, 1969 was the last date for filing nominations in this constituency and respondent No. 1 was convicted two days later on 11th January, 1969 and sentenced, inter alia, to ten years rigorous imprisonment under Sec. 304, I. P. C. On 16th January. 1969 he filed an appeal against this conviction in the High Court. Polling took place on 9th February, 1969 and the result was declared on 11th February 1969. Respondent No. 1 was declared as the successful candidate having secured the largest majority of votes. On 30th September, 1969, his appeal was allowed by the High Court and his conviction and sentence were set aside. At this time, the election Petition was still pending. In fact, the judgment in the election petition was delivered on 27th October, 1969.

3. On these facts, it is clear that, though the conviction of respondent No. 1 was recorded by the trial Court on 11t