Hon’ble Tarun Agarwala, J.—The present election petition has been filed under Section 80 and 81 of the Representation of the People Act, 1951 (hereinafter referred to as the Act) praying that the election of the respondent Sri Vijay Singh, as a member of Vidhan Sabha, Uttar Pradesh from 194, Farrukhabad Assembly Constituency be declared as null and void.

2. The facts leading to the filing of the present election petition is, that the Governor of Uttar Pradesh issued a notification under Section 15 of the Act for constituting the 16th House of the Vidhan Sabha calling upon all the Assembly constituencies in the State of Uttar Pradesh to elect their members. The election schedule for holding the election of the 16th House of the Vidhan Sabha for 194, Farrukhabad Assembly Constituency was 19.2.2012 for the date of polling and 6.3.2012 was the date of counting of votes and the declaration of the result. There were 16 persons in the fray. The result was declared on 6.3.2012, declaring the respondent Sri Vijay Singh as elected to the U.P. Legislative Assembly. The respondent polled a total number of 33005 votes against 32858 votes secured by the petitioner. Thus, the returned candidate won by a margin of 147 votes.

3. The petitioner, being aggrieved by the result has filed the election petition on the premise that on the date of scrutiny and election, the sole respondent was disqualified under Article 191 of the Constitution of India read with Section 8(3) of the Act. It was contended that the respondent was convicted under Section 302 and 34 and 307 read with Section 34 IPC in Sessions Trial No. 22 of 1998 by the Additional Sessions Judge No. 3, Lucknow by judgment and order dated 17.7.2003 and was sentenced to life imprisonment under Section 302/34 IPC and five years rigorous imprisonment under Section 307/34 IPC.

4. The petitioner further contended that the respondent filed Criminal Appeal No. 1219 of 2003 against the conviction and sentence before the Lucknow Bench of the Allahabad High Court where the appeal is still pending. It was further contended that the respondent preferred a stay application in which an order dated 23.8.2003 was passed keeping in abeyance the execution of the sentence and conviction order during the pendency of the appeal. For facility, the operative portion of the order dated 23.8.2013 of the Court is extracted hereunder:

“Keeping in view all what has been discussed above, I am of the opinion that the application for suspension of the sentence pursuant to his conviction order passed by learned Additional Sessions Judge Sri Kalimullah Khan deserves to be allowed. Accordingly, the execution of the sentence and conviction order passed by the trial Court is kept in abeyance and the appellant, pending appeal, may be released on bail on furnishing a personal bond of Rupees one lac with two sureties each of the like amount to the satisfaction of the trial Court.”

5. The petitioner contends that the respondent was a sitting member of the 14th House of Legislative Assembly of U.P. when he was convicted and appeal was filed by him. It was urged that the filing of the appeal could only afford protection to the respondent under Section 8(4) of the Act till the continuance of the House which came to an end on 13.5.2005 when the 15th House was constituted.

6. The petitioner contended that under Section 8(3) of the Act, a person convicted of an offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of said conviction and shall continue to be disqualified for a further period of six years since his release. The petitioner, therefore, contended that the respondent stood disqualified under Section 8(3) of Act and continued to remain disqualified for being chosen and for being a member of the Legislative Assembly of U.P. on the date of nomination, its scrutiny and election.

7. The petitioner contended that an order obtaining a stay of the sentence and conviction was i