13 August 1970
Supreme Court


Case number: Appeal (civil) 2632 of 1969






DATE OF JUDGMENT: 13/08/1970


CITATION:  1971 AIR  330            1971 SCR  (1) 798  1970 SCC  (2) 462  CITATOR INFO :  R          1981 SC 547  (7,8,25,26,27,28,30,32,35,36,3

ACT: Representation   of   the  People  Act,   1951,   s.   8(2)- Disqualification  Candidate stood convicted on date  of  his election  but  acuittal  in  appeal  Effect  of-Conduct   of Election Rules, 1961 r. 56(2)(b)-Rejection of ballot  paper- Mark made with otherwise than the seal supplied.

HEADNOTE: The   appellant  challenged  the  election  of   the   first respondent to the State Legislative Assembly on the  grounds :  (1) the respondent was disqualified under s. 8(2) of  the Representation  of the People Act, because, on the  date  of his  election  he stood convicted ’for offenses  under  .the Penal Code, though later, he was acquitted by the High Court and (ii) the Returning Officer rejected some’ ballot  papers cast  in the appellant’s favour holding that the marks  made on  those  ballot papers were made otherwise than  with  the instrument  supplied for the purpose and that  those  ballot papers  were therefore liable to rejection under r.56(2)  of the  Conduct  -of  Election Rules,  1961.   The  High  Court dismissed the petition.  In appeal to this Court, HELD: Dismissing the appeal, (1)  In a criminal case, acquittal in appeal does  not  take effect  merely from the date of the appellate order  setting aside  the conviction, it has the effect of  retrospectively wiping out the conviction and sentence awarded by the  lower court.   The  opinion  whether a  successful  candidate  was disqualified on the date of his election is to be formed  by the  High Court .at the time of pronouncing judgment in  the election  petition.  When the High Court had before  it  the order  of acquittal which had taken effect  retrospectively, it  was  impossible for the court to arrive at  the  opinion that   on   the  date  of  election   the   respondent   was disqualified.   The  High  Court  was  therefore,  right  in holding  that the respondent was not disqualified  and  that his election was not void on the ground. [800 F] (2) For rejection under r. 56(2)(d) there must be a definite finding  that  the ballot papers bore marks  made  otherwise than with the seal supplied for the purpose.  In the present



case,  the  finding recorded by the High Court  amounted  to holding that the marks made could not be identified with the seal  which  was supplied for marking the, votes.   On  this finding the High court was right in not upsetting the  order of   Returning  Officer  for  rejecting  these  votes,   and consequently  an inference follows that they must have  been made  by  some other means.  If these votes were not  to  be counted in favour of the appellant the appellant’s case had to  fail, because, on the evidence recorded and  the  issues framed  on  the  basis  of the  pleadings  in  the  election petition  the  respondent  had still a   majority  of  valid votes. [803 A]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2632 of 1969. Appeal  under s. 116-A of the Representation of  the  People Act, 1951 from the judgment and order dated October 27, 799 1969 of the Allahabad High Court in Election Petition No.  I of 1969. G. N. Kikshit, for the appellant. K. C. Sharma, M. S. Gupta and S. K. Dhingra, for  respondent No. 1. The Judgment of the Court was delivered by Bhargava,  J. This is an appeal by Manti 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. I 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. I 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.  I 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  way  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. I would have a net  loss of 24 votes.  It appears that respondent No. I 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  13,277,  while respondent  No. I would still have 13,484 valid’  votes,  so that  the  election  of  respondent  No.  1  could  not   be declared-- 800 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. I was not disqualified under s.  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 II 6A of the Act. 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 section 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. On  these facts, it is clear that, though the conviction  of respondent  No.  1 was recorded by the trial Court  on  11th January’,  1969, he was acquitted on 30th September 1969  in appeal  which acquittal had the effect of completely  wiping out the conviction.  The appeal having once been allowed, it has to be held that the conviction and sentence were vacated with  effect  from  the date on -which  the  conviction  was recorded  and  the sentence awarded.  In  a  criminal  case, acquittal  in  appeal does not take effect merely  from  the date of the appellate order setting aside the conviction; it has the effect of retrospectively wiping out the  conviction and   the  sentence  awarded  by  the  lower   Court.    The disqualification relied upon by the appellant wag laid under s.  8 (2) of the Act read with Article 102 (1 ) (e)  of  the Constitution.  The provision is that a person convicted by a court   in   India  for  any  offence  and   sentenced   ,to imprisonment   for  not  less  than  two  years  shall   be, disqualified  .from  the date of such conviction  and  shall continue  to  be disqualified for a further period  of  five years  since  his release.  The argument on  behalf  of  the appellant  was  that,  though  respondent  No.  I  was   not disqualified at the time of filing of nomination, he was, in fact,  disqualified  on  9th February,  1969,  the  date  of polling,  as  well  as on 11th   February,  1969,  when  the result,  was  declared,  -because his  conviction  had  been recorded  and he had been sentenced to ten  years’  rigorous imprisonment  on 11th January, 1969.  It was  further  urged that, though the appeal had been filed, that 801 appeal   did  not  have  the  effect  of  Wiping  out   this conviction.   In these circumstances, it was urged that  his election  was  void and should have been set  aside  on  the ground of this disqualification.



This argument overlooks the fact that an appellate order  of acquittal,  takes effect retrospectively and the  conviction and sentence are deemed to be set aside with effect from the date  they  were recorded.  Once an order of  acquittal  has been  made, it has to be held that the conviction  has  been wiped  out and did not exist at all.  The  disqualification, which existed on the, 9th or 11th February, 1969 as a  fact, was wiped out when the conviction recorded on 11th  January, 1969 was set aside and that acquittal  took effect from that very  date.   It is significant that the High  Court,  under section 106 ( 1) (a) of the Act, is to declare the  election of  a returned candidate to be void if the High Court is  of opinion  that,  on  the date of  his  election,  a  returned candidate  was  dot qualified, or was  disqualified,  to  be chosen  to fill the seat under the Constitution or the  Act. It  is true that the opinion has to be formed as to  whether the successful candidate was disqualified on the date of his election;  but,  this opinion is to be formed  by  the  High Court  at the time of pronouncing the judgment in the  elec- tion  petition.  In this. case, the High Court proceeded  to pronounce  the  judgment on 27th October,  1969.   The  High Court  had before it the order of acquittal which had  taken effect  retrospectively  from 11th January, 1969.   It  was, therefore,  impossible for the High Court to arrive  at  the opinion that on 9th or 11th February, 1969, respondent No. 1 was  disqualified.  The  conviction and  sentence  had  been retrospectively  wiped out, so that the opinion required  to be  formed  by the High Court to declare the  election  void could  not be formed.  The situation is similar to one  that could  have  come into existence if  Parliament  itself  had chosen  to repeal s. 8 (2) of the Act  retrospectively  with effect  from 11th January, 1969.  Learned  counsel  conceded that, if a law had been passed repealing s. 8 (2) of the Act and  the law had been deemed to come into effect  from  11th January, 1969, he could not have possibly urged  thereafter, when  the  point  came  up  before  the  High  Court,   that respondent  No. 1 was disqualified on 9th or 11th  February, 1969.  The setting aside of the conviction and sentence  in- appeal  has a similar effect of wiping  out  retrospectively the disqualification.  The High Court was, therefore,  right in holding,, that respondent No. 1 was not disqualified  and that his election was not void on that ground. On  the second point, the main argument of counsel  for  the appellant  was  that the High Court committed the  error  of framing  three  issues  on the basis  of  pleadings  in  the written  statement which challenged the correctness  of  the acceptance  or  rejection  of  ballot  papers  without   any recrimination being filed by respondent L 169 Sup.  C I (P)/71--7 802 No. 1 under section 97 of the Act.  Counsel wanted to  argue this question of law in detail, but we consider that, in the present  case, 10 is not necessary to go into this point  at all.   Even  if  the three issues framed  on  the  basis  of pleadings in the written statement are ignored, and  account is  taken  only  of findings recorded on  the  three  issues framed  on the basis of pleadings in the election  petition, it would be found that respondent No. 1 still had a majority of  valid votes, and the appellant could not claim that  the election of respondent No. 1 be set aside and the appellant be  declared as the successful candidate.  The  findings  of fact  recorded by the Judge are that, under Issue No. 5,  18 ballot  papers mentioned in Schedules III and IV  should  be counted  as valid votes for the appellant, while  24  ballot papers  were wrongly counted in favour of respondent No.  1.



Under  Issue  No. 3, the finding is that  the  appellant  is entitled  to  add 111 valid votes in his favour  and,  under Issue  No. 4, the finding is that 74 votes would be lost  by respondent  No. 1. If these figures are accepted  and  taken into  account,  the  appellant would  receive  13,400  valid votes,  being the total of 13,271 votes found in his  favour at the time of declaration of the result and 129 votes which the appellant is entitled to add as a result of-the findings on  the  three  issues.   So far  as  respondent  No.  1  is concerned,  he  loses 98 votes as a result of  the  findings recorded  by the High Court; and, on deducting  these  votes from  13,508 received by him, respondent No. 1 is left  with 13,410 votes.  Respondent No. 1, thus, has a majority of  10 votes, so that his election is valid.’ Counsel,  however,  challenged one finding recorded  by  the High  Court  in  respect  of 64  ballot  papers  which,  the appellant had claimed, had been wrongly rejected and  should have  been counted in his favour.  These ballot papers  have not  been  produced before us. The learned Judge  held  that they  were invalid votes because "thy bear  no  recognizable seal  impression that might be said to have been  made  with the instrument supplied for marking the vote." The  argument of  counsel for the appellant is that, even on this  finding recorded  by  the High Court, these votes should  have  been counted in his favour, because they cannot be held liable to rejection  under rule 56(2) (b) of the Conduct of  Elections Rules, 1961.  That sub-rule runs as follows :-               "The  returning officer shall reject a  ballot               paper  if, to indicate the vote, it  bears  no               mark  at  all or bears a mark  made  otherwise               than  with  the instrument  supplied  for  the               purpose." The  argument urged is that, according to the Judge,  the impressions   on  these  64  ballot  papers  could  not   be identified  with  the seal supplied for marking  the  votes, which  only leads to the inference that they may bear  marks with that seal or may not.  For 803 rejection  under  rule 56(2)(b), there must  be  a  definite finding  that they bore marks made otherwise than  with  the seal supplied for the purpose.  In this case, the  Returning Officer  rejected the ballot pairs holding that  the  marks made on these ballot papers were mad otherwise than with the instrument   supplied  for  the  purpose.    The   appellant challenged  that decision of the Returning Officer  in  this election petition.  The burden lay on him to establish  that the  Returning  Officer had wrongly  rejected  these  ballot papers.   He  could only succeed if he had proved  that  the marks  made  were  with  the  instrument  supplied  for  the purpose.   This  the appellant failed to do.  In  fact,  the finding  recorded  by the learned Judge of  the  High  Court amounts to holding that the marks made cannot be  identified with the seal which was supplied for marking the votes  and, consequently, an inference, follows-that they must have been made  by  some other means.  On this  finding,  the  learned Judge  was quite correct in not upsetting the order  of  the Returning Officer rejecting these-votes.  If these 64  votes are  not counted in favour of the appellant, the  appellants case  fails  for  the majority of  votes  still  remains  in favour of respondent  No.     1. The appeal, therefore, fails and is dismissed with costs. Y.P.                               Appeal dismissed. 804