1980 Supreme(MP) 248

High Court Of Madhya Pradesh
J. S. Verma, J.
PURUSHOTTAMLAL KAUSHIK - Appellant
Versus
VIDYACHARAN SHUKLA - Respondents
Election Petn. 1 Of 1980
Decided On : 09/05/1980

Headnote:

Whether the respondent's nomination was improperly accepted or not, so as to make out the ground under Section 100 (1) (d) (i) of the Act, is to be decided with reference to Section 36 (2) (a) of the Act. The facts as they existed on the date of scrutiny of nominations are alone to be taken into account for deciding whether this ground is made out or not, and, if that is done, the respondent's acquittal in appeal by the Supreme Court being subsequent to that date, is of no consequence.

Fact of the Case:

The respondent, Vidya Charan Shukla, was convicted of several offences in sessions Case No. 340 of 1978 by the Sessions Judge, Delhi, on 27-2-1979. The substantive sentences were to run concurrently and admittedly the respondent was sentenced to imprisonment for not less than two years in that case. The respondent was released on bail by the trial Court itself under Subsection (3) of Section 389 of the Code of Criminal Procedure, 1973, suspending execution of the sentences of imprisonment to enable him to present an appeal and obtain orders of the appellate court under Sub-section (i ). During the period so granted by the trial Court, the respondent preferred Criminal Appeal no. 72 of 1979 against his convictions and sentences in the Delhi High Court and made an application for suspension of his sentences under Sub-section (1)of Section 389, Cr. P. C. On 1-3-1979, the Delhi High Court, in that appeal, suspended execution of the sentence. On 21-3-1979, vide order (Ex. B-1), the delhi High Court admitted the respondent's appeal (Criminal Appeal No. 72 of 1979) and further directed that the sentences shall remain suspended. This was the existing position when a notification was issued under Section 30 of the Representation of the People Act, 1951, calling upon the aforesaid constituency to elect a member to the Lok Sabha. The time table of the election was fixed and notified, according to which 7-12-1979 was the last date for filing nominations and 11-12-1979 was the date of scrutiny. An objection to the validity of the respondent's nomination was raised before the Returning Officer at the time of scrutiny of nominations on the basis of the respondent's convictions and sentences as aforesaid on the ground that he was disqualified to be chosen as a candidate by virtue of Sub-section (2) of Section 8 of the R. P. Act, 1951. The Returning Officer rejected that objection and accepted the respondent's nomination as valid vide his order (Ex. P-2) dated 11-12-1979 passed on the date of scrutiny. This election petition was then filed by the petitioner, who is a defeated candidate at the election, on 18-2-1980 for declaring the respondent's election to be void on two grounds, namely under section 100 (1) (a) and Section 100 (1) (d) (i) of the R. P. Act, 1951, both of which are based on the same set of facts, namely, respondent's disqualification by virtue of Section 8 (2) of the Act, resulting from his convictions and sentences as aforesaid. After the respondent's aforesaid appeal had been filed in the Delhi High Court against his convictions and sentences, a declaration was made by the Central government under the Special Courts Act, 1979, as a result of which his appeal stood transferred to the Supreme Court. In the Supreme Court, it was Criminal appeal No. 494 of 1979. The State also filed a cross appeal. These appeals were decided on 11-4-1980. The Supreme Court judgment in those appeals is reported in V. C. Shukla v. State (1980) 2 SCC 665 : (AIR 1980 SC 1382 ). The supreme Court on 11-4-1980 allowed the respondent's appeal, setting aside his convictions and sentences on all the counts and dismissed the State appeal. The result is that the convictions and sentences of the respondent awarded by the Sessions Judge on 27-2-1979 have all been set aside in appeal on 11-41980 by the Supreme Court. This judgment in appeal has come during the pendency of this election petition. The main controversy between the parties is about the effect of the Supreme Court judgment of acquittal on the respondent's disqualification under Section 8 (2) of the R. P. Act, 1951.

Finding of the Court:

The court held that the respondent's nomination was improperly accepted by the returning officer, and that the result of the election was materially affected by this improper acceptance. The court declared the respondent's election void under Section 100 (1) (d) (i) of the Representation of the People Act, 1951.

Issues: 1 (a) Was the respondent disqualified to be a candidate on the date of election? (b) Is the respondent's election void on the ground contained in section 100 (1) (a) of the R. P. Act, 1951? 2 (a) Was the respondent's nomination improperly accepted. (b) If so, has the result of election, in so far as it concerns the respondent, been materially affected? (c) Is the respondent's election void on the ground contained in section 100 (1) (d) (i) of the R. P. Act, 1951? 3. Relief and costs?

Ratio Decidendi: The court held that the crucial date for determining whether a candidate is disqualified to be 'chosen' is the date of scrutiny when the returning officer is called upon to decide validity of the nominations. It is obvious that the decision of the returning officer must depend on facts as they existed on the date of scrutiny since it is beyond human comprehension to visualise subsequent events and to base the decision of validity of nominations on the unknown future events.

Final Decision: The court allowed the petition and declared the respondent's election void under Section 100 (1) (d) (i) of the Representation of the People Act, 1951.