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2012 Supreme(Pat) 572
IN THE HIGH COURT OF JUDICATURE AT PATNA
SAMARENDRA PRATAP SINGH, J.
Binod Kumar More - Petitioner/s
Versus
The State Election Commissioner, State Election commission, Bihar , Sone Bhawan, III floor, Veer Chand Patel Path, Patna & Ors. - Respondent/s
Civil Writ Jurisdiction Case No.12889 of 2008
Decided on : 11-04-2012
For the Petitioner/s:Mr. S.B.K. Mangalam, Mr. Ravi Ranjan, Advocates
For the Respondents:Mr. R.S. Pradhan, Senior Advocate, Mr. Jainandan Kumar, Mr. Sanjeev Nikesh Advocate. Mr. Shailendra Kumar Singh, Advocate
The main legal point established is that subsequent acquittal does not wipe off initial disqualification in election matters, and the relevant date for judging eligibility or disqualification is the date of filing nomination and its scrutiny.
Headnote:
Election Disqualification - Municipal Election - Bihar Municipal Act, 2007, Section 18(1)(g) - The court discussed the disqualification clause under section 18(1)(g) of the Act, 2007, and the impact of subsequent acquittal on initial disqualification. The court held that subsequent acquittal does not wipe off initial disqualification, and a person disqualified at the time of filing nomination and scrutiny remains ineligible to contest the election.
Fact of the Case:
The petitioner challenged the election of respondent no.5, who was under a sentence of conviction exceeding six months at the time of filing nomination papers, but subsequently acquitted. The State Election Commissioner rejected the complaint, stating that the subsequent acquittal wiped off the initial disqualification.
Finding of the Court:
The court held that the disqualification at the time of filing nomination and scrutiny remains valid, and subsequent acquittal does not remove the initial disqualification. The court also ruled that the election of respondent no.5 was invalid, and he stands unseated.
Issues: The issues involved were whether the respondent was ineligible to contest the election due to the initial disqualification under section 18(1)(g) of the Act and whether subsequent acquittal would remove the initial disqualification.
Ratio Decidendi: The relevant date for considering disqualification in election matters is the date of filing nomination paper and its scrutiny. Subsequent acquittal does not relate back to the date of scrutiny of nomination, and the initial disqualification remains valid.
Final Decision: The court allowed the writ petition, set aside the State Election Commissioner's order, and held that respondent no.5 was disqualified at the time of nomination and scrutiny, making his election invalid.
Heard learned counsel appearing on behalf of the petitioner, the learned counsel appearing on behalf of the private respondent as well as the learned counsel for the State.
2. The petitioner is aggrieved by order dated 10.8.2007 passed by the State Election Commissioner in Case No.12 of 2007 declining to declare respondent no.5 disqualified to contest election on the date of filing nomination though at the relevant time he was under order of sentence of conviction of more than six months. The State Election Commissioner held that the disqualification on account of conviction of respondent no.5 which had gone unnoticed at the time of scrutiny of nomination papers, is wiped off if the elected candidate is subsequently acquitted.
3. Before I consider the issues involved in the instant case, it will be appropriate to bring the facts of the case in brief on the record.
4. The election of Municipal Wards of Supaul District including that of Ward No.4 was announced sometime in April, 2007. The date of filing of nomination paper was 5.5.2007. Both petitioner and respondent no.5 filed their nominations for Ward No.4. The date of scrutiny of nomination paper is not mentioned in the petition. The result of election of Ward No.4 was announced on 28.5.2007. The respondent no.5, Kishori Sah was elected as the Councilor from Ward No.4 having secured the highest votes. On 18.6.2007, the petitioner made a complaint to the State Election Commissioner that respondent no.5 was not eligible to contest the said election under section 18(1)(g) of the Bihar Municipal Act, 2007 (hereinafter referred to as ’the Act, 2007’) as on the date of filing of nomination and scrutiny of papers, he was under order of sentence of conviction for more than 6 months in a criminal case which is a disqualification under section 18(1)(g) of the Act, 2007.
5. The State Election Commissioner, vide its order dated 10.8.2007, rejected the complaint on the ground that respondent no.5 was subsequently acquitted of the criminal charges, and as such the disqualification incurring on the date of filing of nomination stood wiped off. The petitioner being aggrieved by the order of the Commissioner has filed the instant writ petition.
6. It is not in dispute that at the time of filing of his nomination paper, respondent no.5 had disclosed that he was convicted under sections 324. 323 and 149 of the Indian Penal Code vide Sessions Trial No.55 of 1985 arising out of Nirmali P.S. Case No.70 of 2003 under sections 147, 148, 149, 324, 307 and 379 of the Indian Penal Code and has been sentenced to two years imprisonment under section 324/149 of the Indian Penal Code for six months. The sentence of conviction was recorded on 27.1.2007. However, in appeal, the respondent no.5 was acquitted on 6.6.2007. The petitioner made a complaint on 18.6.2007 before the State Election Commission.
(I) The issue is whether respondentno.5 was ineligible to contest election as he was under order of conviction and sentence exceeding six months by a criminal court on the date of filing of nomination and scrutiny of nomination paper, in view of disqualification clause under section 18(1)(g) of the Act.
(II) Whether subsequent acquittal would wipe off initial disqualification which has gone unnoticed.
7. The contention of respondent no.5 is that though he was under sentence of conviction exceeding six month on the date of filing and scrutiny of nomination papers, the same was accepted and was eventually elected as Ward Councilor. He was subsequently acquitted in appeal on 6.6.2007 and as such, it would be deemed that he did not suffer from any disqualification under section 18(1)(g) of the Act, 2007. Thus the State Election Commissioner rightly held that subsequent acquittal would wipe off initial disqualification to contest election that may have subsisted on the date of filing of nomination in election.
8. To answer the issue, it would be necessary to notice some of the provisions of Municipal Act, 2007
