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SUPREME COURT OF INDIA
P.N. BHAGWATI, R.S. SARKARIA AND E.S. VENKATARAMIAH, JJ.
Vidya Charan Shukla, Appellant
Versus
Purshottam Lal Kaushik, Respondent.
Civil Appeal No. 2020 of 1980, D/- 15-1-1981.
Advocates appeared
Mr. A. K. Sen, Sr. Advocate, M/s. O. P. Sharma Rajinder Singh, P. L. Dubey and Tewari, Advocates, for Appellant. Mr. S. N. Kacker, Sr. Advocate, Mr. Swaraj and Mrs. Sushama Swaraj, Advocates, for Respondent No.1, Dr. Y. S. Chitale, Sr. Advocate and Miss Rani Jethmalani Advocate, for the Intervener.
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 fall 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 the result of the election so far as it concerns the returned candidate has been materially affected. [Para 23]
In the context of clause (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 all inquiry under this clause. [Para 24]
(2) Representation of the People Act, 1951-Ss. 100 (1) and 8 (2)-candidate convicted for more than two years prior to filing of the nomination paper - his sentence was suspended - sentence aqashed before the result was declared-sentence wiped out-election cannot be declared void.
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 and rendered nonest with retrospective force from its very inception, and the challenge to his election on the ground that he was so disqualified is no longer sustainable. (1971) 1 SCR 798 relied on. 1980 JLJ 704 reversed. [Para 32]
The acquittal of the appellant herein by the appellate Court, during the pendency of the election-petition must be held to have completely and effectively wiped out the disqualification of the appellant with retrospective effect from the date of the conviction, so that in the eye of law it existed neither at the date of scrutiny of nominations, nor at the date of the 'election' or at any other stage of the process of "being chosen". [Para 34]
(3) Practice (Criminal)-conviction set aside in appeal-it is wiped out for all purposes. [Para 30]
Judgment
SARKARIA, J.:- This is an appeal under Sections 116-A and 116-B of the Representation of the People Act, 1951, (hereinafter referred to as the Act) against a judgment dated Sept. 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 accepted and the appellants election to Lok Sabha was declared to be void.
2. The principal question that falls to be determined in this appeal is, whether the election of a returned candidate whose appeal against the orders of his conviction and sentence exceeding two years imprisonment, pending at the date of the scrutiny of nomination papers, is accepted by the appellate court, resulting in his acquittal, before the decision of the election-petition against him, can be declared to be void under Section 100 (1) of the Act, on the ground that he was disqualified from being chosen as a candidate within the meaning of Section 8 (2) of the Act. The material facts are 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.
3. The respondent raised an objection to the validity of the appellants nomination before the Returning Officer at the time of the scrutiny. The objection was that the appellant had been convicted and sentenced to imprisonment exceeding two years by the Sessions Judge, Delhi on Feb. 22/27, 1979 and, as such, the appellant was disqualified from being chosen as a candidate in view of sub-section (2) of Section 8 of the Act. The Returning Officer, by his order dated December 11, 1979, rejected the objection and accepted the appellants nomination as valid. The result of the election was declared on January 7, 1980. The election result was notified on Jan. 10, 1980. The appellant was declared elected, and the respondent was defeated. Thereafter on February 18, 1980, the respondent filed an Election Petition in the High Court to get the election of the appellant herein, declared void under, Sections 100 (1) (a) and 100 (1) (d) (i) of the Act, alleging that at the date 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 a candidate on account of his aforesaid conviction and sentence.
4. The Sessions Judge who had convicted the appellant, had, by his order dated February 27, 1979, passed under Section 389 (3) of the Code of Criminal Procedure, suspended the execution of the sentence to afford the appellant time to file an appeal. On March 21, 1980, 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. 5000/- to the satisfaction of the Sessions Judge.
5. The appellants appeal pending in the High Court was transferred to the SC under the Special Courts Act, 1979. This Court by its judgment dated April 11, 1980, allowed the appeal, set aside the conviction and sentence of the appellant and acquitted him of the charges against him.
6. Subsequently, by its impugned judgment, dated September 5, 1980, the High Court of Madhya Pradesh, allowed with costs, the election petition filed by the respondent, and declared the appellants election to be void on the ground contained in Section 100 (1) (d) (i) of the Act. Hence this appeal.
7. The contentions canvassed by Shri Asoke Sen, learned counsel for the appellant may be summarised as follows:
(1) The conviction and sentence of the appellant had been quashed by the High Court in appeal. The acquittal of the appellant had the effect of wiping out the conviction with retrospective effect as if he had never been convicted and sentenced. In support of this proposition
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