ORDER
J.S. Verma, J.
1. The petitioner Purshottamlal Kaushik and the respondent Vidya Charan Shukla were two of the contesting candidates in the last Lok Sabha general elections held in January, 1980 from No. 18, Mahasamund Parliamentary Constituency. The result of the election was declared on 7-1-1980 and the respondent Vidya Charan Shukla was declared elected to the Lok Sabha from that constituency. This election result was notified in the official gazette on 10-1-1980. The present petition has been filed 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 Representation of the People Act, 1951. Facts on which both the grounds are based are the same. All the relevant facts are admitted between the parties and the only question is whether on the admitted facts both or any of the grounds on which the petition is based have been made out. These facts are stated hereafter.
2. 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. A copy of the relevant portion of the Judgment of the Sessions Judge is Ex. P. 1. 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 Sub-section (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.
3. 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.
4. 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 11-4-1980 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 theeffect of the Supreme Court judgment of acquittal on the respondent's disqualification under Section 8(2) of the R. P.Act, 1951.
5. There are only two questions arising for decision in this petition, which are the subject-matter of the two main issues framed in the case. These issues are as under :--
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?
The first question is about the existence of ground under Section 100(1)(a) of the R. P. Act and the other is about the existence of the ground under Section 100(1)(d)(i) of the Act, for the purpose of declaring the respondent's election to be void.
6. As earlier stated, the petitioner's case is that both these grounds are made out on the same set of facts, namely, respondent's disqualification by virtue of Section 8(2) of the R. P. Act, 1951. At the hearing of the petition, Shri K.M. Agrawal, learned counsel for the petitioner, did not press the first ground, namely, under Section 100(1)(a) and stated that the petition was being confined only to the existence of the other ground under the Section 100(1)(d)(i) of the Act. It is, therefore, the existence of ground under Section 100(1)(d)(i), which remains for decision in this petition.
7. Briefly stated, the contention of Shri Agrawal, learned counsel for the petitioner, is that the crucial date for deciding whether the nomination of the respondent was improperly accepted or not, so as to make out the ground under Section 100(1)(d)(i) of the Act, is 'the date fixed for the scrutiny of nominations', as provided in Section 36(2)(a) of the Act. Learned counsel contends that the facts as they existed on the date fixed for scrutiny of nominations are alone to be taken into account for deciding whether this ground is made out ornot, and, if that is done, the respondent's acquittal in appeal by the Supreme Court being subsequent to that date, is of no consequence. It is urged that this is the distinction between the ground under Section 100(1)(d)(i) and the ground under Section 100(1)(a), in the latter case, events subsequent to the date of scrutiny also being relevant but not so in the former. Obviously, it is in view of this distinction drawn by the learned counsel for the petitioner between these two grounds, that he decided to give up the petitioner's case based on the ground contained in Section 100(1)(a) of the Act. Learned counsel for the petitioner also contended that Sub-section (2) of Section 8 of the Act results in automatic disqualification of a person for being chosen to fill a seat from the date of his conviction for any offence, he has been sentenced to imprisonment for not less than two years. Reference is made to Sub-section (3) of Section 8 for contending that the only exception to the automatic disqualification resulting by virtue of Sub-section (2) of Section 8 is contained in Sub-section (3) thereof which applies only to a sitting member, which character the respondent admittedly did not fulfil, since on the date of his conviction, he was neither a member of Parliament, nor of the State Legislature. As for the effect of suspension of the respondent's sentence during the pendency of his appeal Shri Agrawal contends that the suspension was only of execution of the sentence but not of the disqualification resulting automatically therefrom by virtue of Sub-section (2) of Section 8 of the Act.
8. In reply, Shri Rajendra Singh, learned counsel for the respondent, advanced arguments in the alternative. His primary contention is that even though the crucial date for determining whether the respondent's nomination was improperly accepted or not is 'the date fixed for the scrutiny of nominations' as laid down in Section 36(2)(a) in order to decide the existence of the ground under Section 100(1)(d)(i) yet, that determination being made on the date of decision of this election petition, the subsequent events of respondent's acquittal in appeal, which fact exists on the date of decision of the election petition, has to be taken into account. It is contended that the respondent's acquittal in appeal, before the decision of this election petition, has the effect of retrospectively wiping out the respondent'sconvictions and sentences with the result that convictions and sentences, in law, never existed, not even on the date of the scrutiny. It is urged that since it cannot be held on the date of decision of this petition that there was improper acceptance of the respondent's nomination, his conviction and sentence having been wiped out during the pendency of this petition, it follows that the ground under Section 100(1)(d)(i) of the Act is not made out. The other contention of Shri Rajendra Singh is that the word 'conviction' in Sub-section (2) of Section 8 means the final conviction and not a 'pro tempore' conviction liable to be set aside in an appeal which had already been filed. It is also urged that the construction suggested by the petitioner's counsel would lead to anomalous results; and that Sub-section (3) of Section 8 only enacts that in the case of sitting member, even without an order of suspension, the disqualification under Section 8(2), remains in abeyance by the mere filing of an appeal, while in other cases an order of suspension by the appellate Court is also necessary. It is also urged that an appeal is a mere continuation of the trial so that the disqualification by virtue of Sub-section (2) of Section 8 comes into operation only when the lis has finally ended resulting in the final order of conviction. In the alternative, it has also been contended that the effect of suspension of sentence under Section 389, Cr. P. C. was to arrest the disqualification resulting from Section 8(2) of the R. P. Act. The gist of Shri Rajendra Singh's argument is that the respondent's acquittal on 11-4-1980 by the Supreme Court in appeal has retrospectively wiped out the convictions and sentences with the result that the respondent has to be treated as never having been convicted and sentenced to attract the disqualification under Section 8(2) of the Act.
9. The relevant statutory provisions may now be referred. Article 102 of the Constitution of India lays down the disqualifications for membership of either House of Parliament. The relevant part of Article 102 is as under:--
'102. Disqualifications for member- ship.-- (1) A person shall be disqualified for being chosen as, and for being a member of either House of Parliament.
XX XX XX XX XX (e) if he is so disqualified by or under any law made by Parliament.
The Representation of the People Act, 1951, is such a law made by Parliament. The relevant provisions therein are as follows:--
'8. Disqualification on conviction for certain offences:--
(1) A person convicted of an offence punishable under Section 153A or Section 171E or Section 171F or Sub-section (2) or Sub-section (3) of Section 505 of the Indian Penal Code (45 of 1860), or under the Prevention of Civil Rights Act, 1955 (22 of 1955) or under Section 125 or Section 135 or Clause (a) of Sub-section (2) of Section 136 of this Act shall be disqualified for a period of six years from the date of such conviction.
(2) 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:
Provided that a person convicted by a court in India for the contravention of any law providing for the prevention of hoarding or profiteering or of adulteration of food or drugs and sentenced to imprisonment for not less than six months 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.
(3) Notwithstanding anything in Sub-section (1) and Sub-section (2), a disqualification under either Sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the Court.
Explanation...............'
'32 Nomination of candidates for election.-- Any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act or under the provisions of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be.36(1) Scrutiny of nominations. --(1) On the date fixed for the scrutiny of nominations under Section 30, the candidates, their election agents, one proposer of each candidate and one other person duly authorised in writing by each candidate but no other person, may attend at such time and place as the returning officer may appoint, and returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Section 33.
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds. -
(a) That on the date fixed for the scrutiny of nominations, the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:--
Articles 84, 102, 173 and 191.
Part II of this Act and Sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963).
100. Grounds for declaring election to be void:--
(1) Subject to the provisions of Sub-section (2), if the High Court is of opinion,
(a) That on the date of his election 3 returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) xx xx xx xx
(c) That any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate has been materially affected,
(i) by the improper acceptance of any nomination, or
XX XX XX XX the High Court shall declare the election of the returned candidate to be void'.
It is mainly with reference to the above provisions and Section 389 Cr. P. C. that the points in controversy have to be decided in this petition.
10. It may also be mentioned that there is no controversy between the parties that in case the respondent's nomination was 'improperly accepted' withinthe meaning of that expression as used in Sub-clause (i) of Clause (d) of Sub-section (1) of Section 100 of the Act, then the result of the election in so far as it concerns the returned candidate has been materially affected in the present case in order to make out the ground under Section 100(1)(d)(i) of the Act, without anything more being required to be proved. Obviously, this is so since improper acceptance of the nomination being that of the returned candidate himself, he could not have contested the election and be declared elected but for such improper acceptance of his nomination. This position is settled by the decision in Vashist Narain v. Dev Chandra, AIR 1954 SC 513, and the same view has been reiterated in Mahadeo v. Udai Pratap, AIR 1966 SC 824 (Para 10), Amrit Lal v. Himathbhai, AIR 1968 SC 1455, as well as in Durai Muthuswami v. N. Nachiappan, AIR 1973 SC 1419. The only question, therefore, is whether on the basis of the above statutory provisions and the admitted facts, it can be held that the respondent's nomination was improperly accepted by the returning officer to make out the ground under Section 100(1)(d)(i) of the Act, for setting aside the respondent's election.
11. The first question is about the date with reference to which disqualification of a candidate has to be tested for deciding whether his nomination was improperly accepted. In other words, is it only the facts existing on the date of scrutiny as claimed by the petitioner or also subsequent events happening till decision of the election petition and their effect, which must be taken into account as contended by the respondent.
12. Article 102 of the Constitution of India lays down the disqualifications 'for being chosen' as, and for being, a member of Parliament. One such disqualification is, if he is so disqualified by or under any law made by Parliament. Use of the word 'chosen' indicates the stage of choice of a candidate which means the date of filing and scrutiny of the nominations. Reference may now be made to the provisions of the R. P. Act, 1951, wherein Section 8(2) lays down the disqualifications with which we are concerned. Chapter I of Part V of the Act containing Sections 30 to 39 relates to nomination of candidates. Section 30 deals with fixation of the election time-table. Under Section 31 public notice of election is given by the returning officer inviting nominations of candidates. Section 32 says that any person may be nominated as a candidate for election to fill a seat if he is qualified 'to be chosen' to fill that seat under the provisions of the Constitution and this Act. This also means that the qualification must be to be chosen as a candidate to fill the seat. The word 'chosen' has been used again to indicate that choice of candidates is confined only to persons duly qualified under the Constitution and the Act. In other words, qualification must subsist at the stage of being chosen as a candidate for the election and not later. The next relevant provision, and the crucial one according to both sides, is Section 36 dealing with scrutiny of nominations. Sub-section (2) of Section 36 lays down the duty of the returning officer to decide all objections taken to any nomination and provides that either on such objection or on his own motion, he must reject any nomination, which suffers from any of the defects specified in Clauses (a), (b) or (c). For this case, the relevant Clause is Clause (a). The defect specified therein is that 'on the date fixed for the scrutiny of nominations' the candidate either is not qualified or is disqualified 'for being chosen' to fill the seat under any of the provisions, viz., Articles 84, 102, 173 and 191 of the Constitution or Part II of this Act etc. Section 8 of the R. P. Act, 1951, is in Part II of the Act and, therefore, disqualification by virtue of Section 8(2) requires rejection of the nomination under Section 36(2)(a). Herein also, the word 'chosen' has been used to indicate that disqualification is relevant at the stage of being chosen as a candidate 'on the date of scrutiny of nominations' and if the disqualification subsists on the date of scrutiny, the nomination must be rejected by the returning officer.
13. These provisions, therefore, do indicate that the crucial date for deciding 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. The 'improper rejection' of a nomination within the meaning of expression used in Section 100(1)(c) and 'improper acceptance' in Section 100(1)(d)(i) of the R. P. Act, 1951,must, therefore, mean whether the rejection or acceptance of the nomination by the returning officer was improper with reference to Section 36(2)(a) on the basis of facts existing on the date of scrutiny which alone were available to him and were relevant for deciding the validity of the nomination. Section 100(1)(c) and Section 100(1)(d)(i) provide for converse situations with the only difference that in a case of 'improper rejection' of nomination, material effect on the election of returned candidate is not required to be further proved, whereas in the case of 'improper acceptance' it is to be proved, unless improper acceptance of nomination be of the returned candidate himself in which case, the ingredient of material effect is obvious.
14. The above indication of the date of scrutiny being the crucial date on which the existing facts have to be taken into account for deciding the question of improper rejection or acceptance of a nomination is found in the relevant statutory provisions. If the respondent be correct in the contention that all subsequent events happening after the date of scrutiny till the date of decision of the election petition must also be taken into account together with their effect for this purpose, then the result is that validity of the nomination is to be decided, not on the date of scrutiny of nominations' as laid down in Section 36(2)(a) but on the date of decision of the election petition. No such indication appears in the relevant statutory provisions already noticed. While deciding the existence of the ground under Section 100(1)(c) or Section 100(1)(d)(i), as the case may be, the Court has to place itself in the position of the returning officer on the date of scrutiny and then decide on those facts alone whether the rejection or acceptance of nomination was improper. The decisions construing these provisions may, therefore, now be noticed.
15. In Veluswami Thevar v. Raja Nainar, AIR 1959 SC 422, it was pointed out that the word 'improper' in Section 100(1)(c) and Section 100(1)(d)(i) of the R. P. Act, 1951 must have the same meaning and the test for both is the same, the answer to be found with reference to Section 36(2). The relevant extracts from the decision are as follows:--
'Now, to decide what the expression 'improperly rejected' in Section 100(1)(c) precisely imports, it is necessary to examine the relevant provisions of theAct bearing on the question and the setting of the above sections therein. Under Section 32 of the Act, any person may be nominated as a candidate for election if he is duly qualified under the provisions of the Constitution and the Act. Section 36(2) authorises the returning officer to reject any nomination paper on the ground that he is either not qualified, that is, under Sections 3 to 7 of the Act, or is disqualified, under the provisions to referred therein. If there are no grounds for rejecting a nomination paper under Section 36(2), then it has to be accepted and the name of the candidate is to be included in a list. Vide Section 36(8). Then we come to Section 100(1)(c) and Section 100(1)(d)(i), which provide a remedy to persons who are aggrieved by an order improperly rejecting or improperly accepting any nomination. In the context, it appears to us that the improper rejection or acceptance must have reference to Section 36(2) and that the rejection of a nomination paper of a candidate who is qualified to be chosen for election and who does not suffer from any of the disqualifications mentioned in Section 36(2) would be improper within Section 100(1)(c) and that, likewise, acceptance of a nomination paper of a candidate who is not qualified or who is disqualified will equally be improper under Section 100(1)(d)(i). Section 32 confers a substantive right on a candidate to be chosen to the legislature subject only to the limitations enacted in Articles 84, 102, 173 and 191 of the Constitution and Sections 3 to 7 of the Act and Sections 36 and 100 provide the machinery for the exercise and enforcement of that right.' (Para 8)
'Section 100(1)(d)(i) deals with improper acceptance of a nomination paper, and if the word, 'improper' in that provision has reference to the matters mentioned in Section 36(2), it must have the same, connotation in Section 100(1)(c) as well. The word 'improper' which occurs in both Section 100(1)(c) and Section 100(1)(d)(i) must bear the same meaning in both the provisions, unless there is something in the context to the contrary, and none such has been shown.' (Para 12)
From this decision it is clear that where a nomination is rejected or accepted contrary to the provisions of Section 36(2), it is a case of 'improper rejection' under Section 100(1)(c) or 'improper acceptance' under Section 100(1)(d)(i), as the case may be, the two grounds dealing with converse situations. The test to be applied in both cases is the same since the word 'improper has the same 'meaning in both provisions. This also shows that the principles laid down in cases under Section 100(1)(c) are equally applicable to a case under Section 100(1)(d)(i), like the present.
16. Cases laying down that facts existing on the date of scrutiny alone are relevant for deciding whether there was 'improper rejection' or 'improper acceptance' of nomination are referred now. In Chatturbhuj Vithaldas v. Moreshwar Parashram, AIR 1954 SC 236, the expression 'disqualified for being chosen' occurring in the old Section 7(d) of the R. P. Act, 1951, came up for construction. Their Lordships construed the expression as follows:--
'Now the words of the section are 'shall be disqualified for being chosen'. The choice is made by a series of steps starting with the nomination and ending with the announcement of the election. It follows that if disqualification attaches to a candidate at any one of these stages, he cannot be chosen.'
The same expression 'disqualified for being chosen' occurs in Section 36(2)(a) which is relevant in this case and, therefore, it must be given the same meaning with reference to the 'date fixed for scrutiny of nominations', which expression has been substituted by Act No. 40 of 1961 for 'that the candidate' with effect from 20-9-1961, subsequent to this decision.
17. In Pashupati Nath v. Harihar Prasad, AIR 1968 SC 1064, the question was whether there was improper rejection of the nomination of a candidate. It was held that there was no improper rejection of the nomination because the disqualification for being chosen to fill the seat existed 'on the date fixed for scrutiny of nomination' which was the crucial date for deciding the existence of disqualification on the then existing facts in accordance with Section 36(2)(a) of the R. P. Act, 1951. The same view was reiterated following this decision, in Hussain Khan v. S. Nijalingappa AIR 1969 SC 1034. Again, in Sk. Abdul Rehman v. Jagat Ram AIR 1969 SC 1111, the view expressed in Pashupati Nath's case was followed, while construing analogous provisions in the Constitution and the R. P. Act of Jammu and Kashmir. Theratio in Pashupati Nath's was summarised to be that the nomination paper was liable to be rejected under Section 36(2)(a) of the R. P. Act, 1951, if the qualification required by Article 173(a) of the Constitution did not exist 'on the date of scrutiny of nominations'. Thus, 'date of scrutiny' was held to be the crucial date for taking into account the existing facts to determine the qualification or disqualification of a candidate. Article 173 is mentioned as one of the relevant provisions along with Article 102 of the Constitution and Part II of the R. P. Act, 1951, and some other provisions, in Section 36(2)(a) with reference to which the qualification or disqualification of a candidate has to be seen for determining validity of the nomination. These decisions, therefore, have equal application to the present case.
18. Another decision to be noticed is Amrit Lal v. Himathbhai, AIR 1968 SC 1455. There, the candidate whose nomination had been accepted by the returning officer did not satisfy the requirement of minimum age, according to Article 173 of the Constitution, 'on the date of scrutiny of nominations' even though he had completed that age 'on the date of election'. It was held that the requisite qualification did not exist 'on the date of scrutiny', which was the crucial date and, therefore, his nomination had to be rejected under Section 36(2)(a) and a ground under Section 100(1)(d)(i) to declare the election void had been made out since his nomination had been improperly accepted and he was the returned candidate. It was also held that the subsequent event of completion of the minimum qualifying age for a candidate on or before the date of election but after the date of scrutiny was of no consequence. The distinction between the grounds under Section 100(1)(a) and Section 100(1)(d)(i) was also pointed out. The relevant extracts from this decision are as under :--
'It was urged that under this Article,the requirement is that the person mustnot be less than 25 years of age to bequalified to be chosen to fill a seat in theLegislative Assembly and, since a personcan be held to be chosen when he is declared elected, all that is required bythis article is that he should have attained the age of 25 years prior to the declaration of the result of the election.Similarly, reference was also made toSection 100(1)(a) of the Act which is asfollows'.
..... .....
'The argument was that under Section 100(1)(a) the question that falls for determination is whether the returned candidate was not qualified on the date of his election, and the date of election must be the date when the result of the election was declared, or at the earliest the date on which the polling took place. In the present case, the result was declared on the 22nd February, 1967 while the polling took place on the 18th February, 1967, and before these dates the appellant had attained the age of 25 years'. (Para 5)
'No doubt, these arguments advanced on behalf of the appellant are correct, but, apart from these provisions effect has to be given also to the additional provision contained in Section 36(2) of the Act, which reads as under:--'
..... ..... 'It is to be noticed that this provision makes a departure inasmuch as it lays down that the nomination paper is to be rejected if the candidate is not qualified under Article 173 of the Constitution on the date fixed for the scrutiny of nominations. In the present case, the appellant had not attained the age of 25 years on 21st January, 1967, which was the date for scrutiny of nominations. Consequently, the nomination paper of the appellant was liable to be rejected under Section 36(2)(a) of the Act. Since it was liable to be rejected on this ground, it must be held that his nomination had been improperly accepted. In such a case, under Section 100(1)(d), the High Court is to declare the election void, if the result of the election, in so far as it concerns the returned candidate is found to have been materially affected. On the face of it, the consequence of the improper acceptance of the nomination of the appellant was that the result of the election was materially affected, because he was declared as duly elected when he was not entitled to that right on the ground that his nomination paper should have been rejected by the Returning Officer under Section 36(2)(a) of the Act. The election of the appellant had to be declared as void in these circumstances by the High Court not under Section 100(1)(a) but under Section 100(1)(d)(i) of the Act. The order made by the High Court setting aside the election of the appellant is, therefore, in accordance with the law. There is no ground for interfering with it.' (Para 6)
This decision also clearly lays down that the ground under Section 100(1)(d)(i) can be made out even where the disqualification ceases or qualification is acquired after the date of scrutiny and prior to the date of election so as to negative the ground under Section 100(1)(a). For the ground under Section 100(1)(a) subsequent events coming into existence after the date of scrutiny are relevant but not so far the ground under Section 100(1)(d)(i) for which only those facts which exist on the date of scrutiny are relevant.
19. The decision of the Supreme Court in Chandanlal v. Ram Dass (1972) 41 Ele LR 214, places this matter beyond controversy. Their Lordships held that facts which did not at all exist on the date of scrutiny and come into existence subsequently cannot be taken into account in order to consider the propriety of the rejection of nomination. Rejection of the nomination by the returning officer on the date of scrutiny could only be justified if it was based on facts existing at the time of scrutiny. In that case, the nomination of one Saloch was rejected on 23-1-1967, the date of scrutiny, on the ground that he was holding an office of profit under the Government which disqualified him from being a candidate. Prior to the date of scrutiny, the letter of appointment was issued on 19-1-1967 but it was received by Saloch after the date of scrutiny and he took charge of the post on 3-2-1967. On these facts, it was contended that the rejection of nomination of Saloch was proper and election of the returned candidate could not be declared void under Section 100(1)(c) of the R. P. Act. Repelling that contention and holding that there was improper rejection of the nomination of Saloch, their Lordships stated as under:
'Saloch, according to the finding of fact, reported to the Director of Agriculture later when he went to his office and, thereafter, he joined the post on 3rd February, 1967. On the basis of these further facts, learned counsel for the appellant urged an alternative ground that at least on 3rd February, 1967, Saloch became disqualified to be elected as a candidate and if so, the rejection of his nomination paper by the Returning Officer must be held to be justified. This submission has to be rejected because a rejection of the nomination paper by the Returning Officer on the date of scrutiny could only be justified and proper if it was based on facts which existed at thetime of scrutiny. Facts which did not exist at all on that date and came into existence subsequently cannot be taken into account in order to consider the propriety of the order of rejection of nomination. This alternative ground also, therefore, has no force at all',
20. The contrary submission on this point of Shri Rajendra Singh learned counsel for the respondent, is based on the decision in Manni Lal v. Parmai Lal AIR 1971 SC 330, which was a case dealing only with the ground under Section 100(1)(c) and not with Section 100(1)(d)(i). In that case, the returned candidate suffered disqualification as a result of his conviction by the trial Court after the last date for filing nominations, so that Section 36(2) did not require his nomination to be rejected. The election was challenged only on the ground contained in Section 100(1)(a) on the ground that 'on the date of election' the returned candidate was disqualified under Section 8(2). In the appeal filed by the returned candidate against his conviction, he was acquitted during the pendency of the election petition. It was held that acquittal made in the appeal retrospectively wiped out the conviction and sentence awarded by the trial Court with effect from the date they were recorded: and since the opinion about existence of the ground under Section 100(1)(a) has to be formed at the time of deciding the election petition, this retrospective wiping out of conviction and sentence prior to formation of this opinion has to be taken note of. Accordingly, it was held that the ground under Section 100(1)(a) was not made out. Shri Rajendra Singh argued that the same consequence must follow to remove the disqualification even on the date of scrutiny.
21. The decision in Mannilal's ease relied on by Shri Rajendra Singh has to be read along with the decision in Amritlal v. Himathbhai AIR 1968 SC 1455, both of which are by the same Bench (J.C. Shah and V. Bhargava, JJ.) and incidentally the judgment in both cases is by Bhargava, J. In Amrit Lal's case, the distinction between the grounds in Section 100(1)(a) and Section 100(1)(d)(i) it has been pointed out and it has been held that even where the ground under Section 100(1)(a) is negatived by an event happening subsequent to the date of scrutiny, the ground under Section 100(1)(d)(i) may still be made out because the latter depends only on facts existing onthe date of scrutiny. Amrit Lal's case clearly rules that subsequent events happening after the date of scrutiny have no relevance to the ground under Section 100(1)(d)(i). In Amritlal's case the effect of subsequent event was expressly considered and while accepting it to negative the ground under Section 100(1)(a), it was excluded from consideration for the purpose of Section 100(1)(d)(i) which ground was held proved. Consequently, there can be no doubt that the ratio of Mannilal's case has no application to the ground under Section 100(1)(d)(i) and it must be confined only to the ground under Section 100(1)(a). No other reasonable view is possible from these two decisions which cannot be treated as conflicting when it is possible to reconcile them. Acceptance of Shri Rajendra Singh's argument would also amount to overlooking other decisions of the Supreme Court already referred.
22. In the face of a string of decisions of the Supreme Court consistently taking the view indicated, there is no escape from the conclusion that the question of 'improper acceptance' of a nomination within the meaning of that expression used in Section 100(1)(d)(i) has to be answered with reference to Section 36(2) of the Act on the basis of only those facts which existed 'on the date of scrutiny of the nominations', excluding from consideration all facts coming into existence subsequent to that date; and the disqualification, if any, existing on the date of scrutiny cannot be cured by any subsequent event. The contrary submission of the learned counsel for the respondent cannot, therefore, be accepted.
23. From the above conclusion, it follows that only the facts as they existed on the date of scrutiny, i.e. 11-12-1979 in the present case, have to be taken into consideration for deciding whether the ground under Section 100(1)(d)(i) is made out or not. These facts were that the respondent had been convicted and sentenced on several counts by the Sessions Judge, Delhi, to imprisonment for not less than two years; the respondent had not served any part of the sentence, execution of the same having been suspended by the trial court and thereafter the appellate Court under Section 389, Cr. P. C., and the respondent's appeal against his convictions and sentences wag pending on the date of scrutiny. The question now is, whether on these facts the respondent was disqualified underSection 8(2) of the R. P. Act, 1951, requiring rejection of his nomination under Section 36(2)(a) in order to make out the ground under Section 100(1)(d)(i). For this purpose, the requirement and meaning of Section 8(2) has now to be seen.
24. According to the learned counsel for the petitioner, the disqualification under Section 8(2) is attracted as soon as the conviction and sentence of imprisonment for not less than two years is recorded irrespective of the fact whether the sentence is executed or it remains suspended and continues for the specified period since his release. In other words, the two termini for fixing the total period of disqualification are the date of such conviction and the date of release, the total period being extended by deferring the date of release, if there be suspension of sentence after it is passed; and there is no other consequence of suspension of sentence. At any rate, disqualification commences automatically as soon as such conviction is made, there being nothing to arrest it till either the conviction is set aside or the specified period expires after the date of release. On the other hand, learned counsel for the respondent has advanced a two-fold argument. He contends that the word 'convicted' in Section 8(2) refers to the final conviction by the last Court where an appeal or revision has been filed and not conviction by the trial Court or a 'pro tempore' conviction liable to be set aside in appeal. On this basis, he urges that the disqualification under Section 8(2) could never be attracted where the trial Court's conviction is challenged in appeal and is later set aside. Section 8(3) relied on by learned counsel for the petitioner to show that it is merely an exception to Section 8(2) for the benefit of sitting members is explained by Shri Rajendra Singh as indicating that no order of suspension by the appellate court is needed by a sitting member even though it becomes necessary for a person who is not a sitting member on the date of his conviction. The other argument of Shri Rajendra Singh is that an order of suspension under Section 389, Cr. P. C. has the effect of arresting the operation of Section 8(2) and consequently the disqualification.
25. The arguments of Shri Rajendra Singh about the construction of Section 8(2) are mutually destructive. It is not his contention that Section 8(3) enacted for the benefit of sitting members is redundant. Obviously, unless there is no option any construction which renders a provision redundant has to be rejected. It is also significant that provisions analogous to Sub-sections (2) and (3) of Section 8 in substantially same terms are continuing in the R. P. Act, 1951, laying down the disqualification on conviction making an exception only in case of sitting members, in spite of several amendments in the Act. If Shri Rajendra Singh is right in contending that the word 'convicted' in Section 8(2) refers only to the final conviction by the Court of last resort, then there was no need to enact Section 8(3) which benefit has all along been retained for sitting members in spite of several amendments in the Act. If mere filing of an appeal arrests the disqualification under Section 8(2) and that disqualification results only from the final judgment of conviction, that would hold good for all including the sitting members and Section 8(3) is superfluous. But then such an intention cannot be attributed to the legislature unless that be the only possible construction of Section 8(2). In Section 8(2) the expression used is 'convicted by a Court in India' which should ordinarily mean any Court, whether final or not.
26. Section 8(3) is in the nature of an exception to Section 8(2) and that benefit is given only to sitting members, if they file an appeal or revision within the prescribed period. The expression 'date of conviction' in all the sub-sections of Section 8(2) must have the same meaning as they are used in the same context. It is not doubted that the 'date of conviction' used in Sub-section (3) means also the date on which conviction is made even by the trial court. This is also obvious from the fact that there would be no occasion to file any appeal or revision against conviction made by the final Court. This being the undoubted meaning of 'date of conviction' in Sub-section (3) to indicate the starting point of disqualification incurred by virtue of Sub-section (2) even by sitting members, there is no occasion to construe that expression differently for persons other than sitting members and that too when the legislature has chosen not to extent such a benefit to them. Giving the same meaning to the expression 'date of conviction' in both sub-sections, it is obvious that the respondent's contention is incorrect. Section 8(3) also indicates that mere filing of an appeal or revision by a person other than a sitting member does not arrest the disqualification under Section 8(2) which automatically commences from |the date of conviction. It is, therefore, not correct to say that Section 8(2) is attracted only as a result of such conviction by the last court of resort and not earlier.
27. The only cases dealing with construction of the corresponding old provisions in the R. P. Act, 1951, cited at the bar are, Udainath Singh v. Jagat Bahadur Singh 3 Ele LR 26 (Ele Tribunal, Rewa) and Khagendranath v. Umesh Chandra, AIR 1958 Assam 183, affirmed in Sarat Chandra v. Khagendranath AIR 1961 SC 334. Udainath Singh's case was a decision by Election Tribunal in which it was held that there was 'improper acceptance' of nominatioin of a candidate who had been so convicted and sentenced prior to his filing the nomination, even though his appeal against the conviction was pending in the Supreme Court and his sentence was suspended. This view was considered so obvious that it was actually conceded by the other side. In the Assam case, the question was of the effect of remission grantted under Section 401 of the Cr. P. C. of 1898. There, the conviction of the candidate was for more than two years but he was granted remission and released without any condition after he had served the total sentence of one year and four months. It was contended that the actual sentence was curtailed to less than two years after remission and so the disqualification under old Section 7(b) of the R. P. Act, 1951, corresponding to the present Section 8(2) was not attracted. Repelling this contention, the Assam High Court held that remission may be effective for early release but it does not modify the period of sentence awarded by the Court which remained uncurtailed. While deciding the point, it was also observed as follows:--
'In order to attract the disqualification referred to in Section 7(b) of the Act, it is not necessary that the person should have undergone any part of the sentence imposed upon him. What is necessary is the actual sentence imposed by the Court and where the sentence is two years or above, the mischief of the section begins to operate against the person concerned.
The fact that the person had preferred an appeal against the conviction and sentence and the appeal was pending at the time When his nomination paperswere being considered would not remove the disqualification under Section 7(b) except in the cases of a sitting member, who has been convicted after his election, as provided under Section 8(a) of the Act,
An illustration in point is the decisionof the Election Tribunal in Udainath Singh v. Jagat Bahadur Singh, 3 Ele LR 26 (Ele Tribunal, Rewa) on which reliance has been placed by the learned Advocate General. The Tribunal there rightly observed that there was nothing in Clause (b) of Section 7 of the Act to indicate that execution of the sentence was necessary to disqualify a convicted person to offer himself as a candidate for the election and nothing could be read in the section, which was actually not there'.
28. The Supreme Court in Sarat Chandra v. Khagendra Nath, AIR 1961 SC 334 affirmed the decision of the Assam High Court and its view about the effect of an order of remission. The Supreme Curt pointed out that Section 7(b) speaks of conviction and sentence passed by a Court of law, it does not speak of the period of imprisonment actually suffered by the convicted person. The Supreme Court, however, made no reference either way to the effect of a pending appeal against conviction. No decision taking a contrary view of this provision has been cited before me.
29. The result, therefore, is that the legislature which is presumed to have known this construction made in judicial decisions of this provision did not choose to alter the same even though several amendments have been made in the Act thereafter. This shows that the above construction is in consonance with the legislative intent and has its approval, (See Veluswami v. Raja Nainar, AIR 1959 SC 422 para 15. It is at least to this extent that the decision in Udainath Singh v. Jagat Bahadur Singh, 3 Ele LR 26 (Ele Tribunal, Rewa) and Khagendra Nath v. Umesh Chandra, AIR 1958 SC 183 are relevant. I may also add with respect, that I am in full agreement with the Assam High Court's view expressed in the above extract which applies equally to the construction of the present Section 8 (2) and (3) of the R. P. Act which are corresponding provisions.
30. The decision in Mannilal v. Parmai Lal, AIR 1971 SC 330 also indicates that the word 'convicted' in Section 8(2) does not mean final conviction by theCourt of last resort and not conviction by the trial Court itself. If the learned counsel for the respondent is right, then this reason alone was sufficient to hold that the disqualification under Section 8(2) was never attracted because of acquittal in appeal. But this is not what the Supreme Court said. It said that the disqualification under Section 8(2) which existed as a fact on account of the trial Court's conviction and sentence was wiped out retrospectively to negative the ground under Section 100(1)(a). It is obvious that no question of wiping out the disqualificaton would arise unless it had existed as a result of the trial Court's judgment of conviction and sentence. Moreover, the Supreme Court clearly said that disqualification existed as a fact from the date of trial Court's judgment. This too is a clear pronouncement to negative the contention that Section 8(2) is not attracted by the trial Court's judgment of conviction and sentence and remains in abeyance till confirmation by the final Court.
31. Shri Rajendra Singh also placed reliance on Dilip Kumar v. State of M.P. AIR 1976 SC 133. That was a case dealing with the construction of Section 303, L P. C. to find the meaning of the expression 'under sentence of imprisonment for life' used therein. The real question was whether there should be a subsisting life sentence at the time of commission of murder or at the time of conviction for murder. It was held that the relevant time is the date of conviction and not the date of crime, since the words 'whoever commits murder' in Section 303 should be construed to mean 'whoever is proved to have committed murder. In that case, the accused was convicted of a murder and sentenced to life imprisonment by the Sessions Court, He preferred an appeal to the High Court and while on bail during the pendency of that appeal, he committed another murder. For the subsequent murder he was sentenced to death by the Sessions Court under Section 303, I. P. C. The High Court thereafter acquitted the accused in the appeal against the first conviction. Question then arose whether after acquittal in the earlier appeal, conviction could still be maintained for the susbsequent murder under Section 303, I. P. C. The High Court applied Section 303 on those facts but the Supreme Court reversed that view holding that on the date of conviction by the High Court forthe subsaquent murder, there was no subsisting life sentence, the accused having been acquitted in the earlier appeal. In this context it was pointed out that an order of acquittal wipes out the guilt and turpitude attaching to the previous conviction, as if the same did not exist.
32. This decision relating to the construction of Section 303, I. P. C. does not support the contention that the word 'convicted' wherever it occurs, means only final conviction by the Court of last resort. The expression for construction in that case was different. Moreover, in para 6 of the judgment of Chandrachud, J. (as he then was), it has been clearly stated that the Sessions Judge had no option in the matter of sentence because when it found the accused guilty of the subsequent murder, he was 'under sentence of imprisonment for life' imposed in the earlier case and, therefore, award of death panalty under Section 303, IPC by the Sessions Judges was justified. If Shri Rajendra Singh is right in his reading of this decision, then the view taken by the Sessions Judge would also have been held wrong because an appeal against conviction in the earlier case was already pending in the High Court at the time of decision by the Sessions Judge and was actually allowed later which gave rise to this controversy. Even applicability of Section 303, IPC was held to be dependent on facts existing when it was to be applied, without taking into account the pendency of appeal against earlier conviction and the possibility of acquittal therein. For this reason, in Dilip Kumar's case the Sessions Judge was held to be right and the High Court wrong.
33. The question now is of the effect of suspension on the sentence by the appellate court. Section 389 Cr. P. C. which gives this power to the first Court till filing of appeal and then to the appellate Court enables suspension of execution of the sentence or order appealed from. It is only the execution which is suspended and nothing more with the result that the sentence awarded is not to be suffered during the pendency of the appeal even though it subsists and the appellant is released on bail. There is no indication in Section 8(2) of the R. P. Act that the disqualification thereunder remains in abeyance during the pendency of appeal against conviction. On the other hand, Section 8(3) gives the contrary indication by laying down an exception only in case of sitting member. Suspension of execution of the sentence or order and gram of bail under Section 389, Cr. P. C. has the only effect of avoiding sufferance of sentence pending appeal, but then in order to attract the disqualification under Section 8(2) it is not necessary to suffer any part of the sentence awarded. This has also been held by the Supreme Court as Sarat Chandra's case (AIR 1961 SC 334) (supra). This decision also indicates that suspension of sentence does not wipe out the conviction and sentence. It was held that a reprieve is a temporary suspension of the sentence which does not wipe it out; all that it does is to have an effect on the execution of the sentence. If suspension of sentence during pendency of an appeal does not have the effect of wiping it out, it is difficult to accept the contention that the disqualification under Section 8(2) remains arrested or in abeyance during operation of the suspension order pending appeal against the conviction and sentence. This is more so, when in Section 8(3) there is nothing to support this view and Section 8(2) gives contrary indication.
34. Shri Rajendra Singh referred to Mahtab Singh v. State of U.P., AIR 1979 SC 1263, for the effect of suspension under Section 389, Cr. P. C. That case holds that the limitation does not start to run under Section 70 IPC during the period of stay or suspension of fine granted by the appellate Court. For computing the limitation for recovery of fine, it was held, that the period during which it could not be recovered on account of the suspension order must be excluded. It is difficult to see how this decision assists the respondent. Reliance was placed on para 6 of the decision which says 'if sentence of fine is so suspended, it ceases to be in force pro-tempore. Obviously this is so for the purpose of recovery of the fine under Section 70, IPC which is a process in execution and cannot, therefore, be commenced during suspension of execution of the sentence or order under Section 389, Cr. P. C. This decision has no application here and relates only to the effect at suspension for the purpose of execution of the sentence or order. Section 8(2) of the R. P. Act does not require execution of the sentence or any part of it, to attract the disqualification and the mere making of such conviction is sufficient for its compliance. This is clearly laid downin Sarat Chandra's case, AIR 1961 SC 334, as under:--
'It is also well to remember that Section 7(b) speaks of the conviction and sentence passed by a court of law; it does not speak of the period of imprisonment actually suffered by the convicted person'.
Assam High Court's decision on this point which was expressly approved also pointed out that suffering any part of the sentence awarded is not necessary to attract and incur the disqualification. It is, therefore, not possible to accept the contention of the respondent that suspension of the sentence under Section 359, Cr. P. C. arrested the operation of Section 8(2) of the R. P. Act to avoid disqualifying him at the last election,
35. Shri Rajendra Singh relying on Annamalay v. Thornhill, AIR 1031 PC 2G3 and Mohammadi Gul v. Emperor, AIR 1932 Nag 121 (FB), also contended that an appeal is a continuation of the trial and therefore, it is conviction by the final Court of resort which is intended to attract the disqualification laid down in Section 8(2), There can be no dispute with the proposition laid down in these cases but they do not assist in construing Section 8(2) of the R. P. Act in the manner suggested by Shri Rajendra Singh. Reasons for taking this view have already been given. These two decisions are to be read in the context in which they were made and that was entirely different.
36. Learned counsel for the respondent also contended that rejection of his construction of Section 8(2) that the conviction referred therein is the final conviction made by the last court of resort and suspension of sentence by the appellate Court arrests the disqualification, would lead to great hardship as it would exclude from the election contest persons who have suffered conviction and sentence of not less than two years even though their appeal be pending leading to ultimate acquittal. Such a consequence cannot, however, be averted since that appears to be the legislative intent also and the provision being clear, it is for the legislature to step in and avoid the consequence by a suitable amendment, if it so desires. As already pointed out in spite of serveral amendments made in the Act, the legislature has not thought it fit to amend this provision to give it the meaning suggested by the counsel for the respondent. It is also significant that in spite at the provisionbeing understood in this manner as interpreted in the decisions in Udainath Singh v. Jagat Bahadur Singh, 3 Ele LR 26 (Ele Tribunal, Rewa) and Khagendra nath v. Umesh Chandra, AIR 1958 Assam 183, there being no contrary decision cited, the legislature with this knowledge has chosen to retain the provisions in the same terms. This too indicates that the judicial interpretation so made in these decisions has the approval of the legislature. The Supreme Court in Sarat Chandra's case, AIR 1961 SC 334, has affirmed the Assam view and not expressed any disapproval on this point. It, is therefore, not open to this Court to accept the respondent's construction made of Section 8(2) which is also contrary to the above quoted Supreme Court decisions by which this Court is bound. Without geeting over these Supreme Court decisions, respondent's contention cannot be accepted and that this Court cannot do. If the respondent be right, it is possible only for the Supreme Court to after its earlier view taken in the above quoted decisions but not for this Court to overlook or ignore them.
37. There is another reason for rejecting the respondent's construction of Section 8(2). When the stage for considering the validity of nominations is the date of scrutiny, how can it be said that this particular disqualification must depend on the ultimate outcome of a pending appeal against conviction so that the candidate would be disqualified after election, if the appeal fails and qualified, if it succeeds? Such an uncertain test depending on an unknown future event could never have been intended by the legislature and it being an unreasonable view has to be discarded when the plain construction indicates the opposite. If the respondent be right, then a part of the cause of action for the ground relating to improper rejection or acceptance of nomination under Section 100(1)(c) or Section 100(1)(d)(i) as the case may be would come into existence only after filing the election petition and its decision would also depend on the fortuitous circumstance of the appeal against conviction being decided during the pendency of the election petition. In this very case, if the respondent's appeal against conviction had been still pending, which is nothing unusual in view of long pendency of such cases, and this petition had to be disposed of expeditiously according to the practice of expeditious disposal of electionpetitions and the requirement of Section 86(7) of the R. P. Act, could it be claimed that the election petition be kept pending to await the final outcome of the criminal appeal? At least there is no such provision made in the law and if Section 8(2) has the meaning suggested by the respondent's counsel, care would have been taken by the legislature to provide for such an obvious eventuality particularly when it required expeditious disposal of election petitions by Section 86(7), if possible within six months. There is another aspect of this matter. Assuming the respondent's nomination had been rejected by the returning officer on these facts, could he file an election petition on the ground of improper rejection of nomination under Section 100(1)(c) and succeed if his criminal appeal had not been decided? Would the fate of that petition depend on the fortuitous circumstance of the ultimate decision of criminal appeal during the pendency of the petition, so that if he was acquitted, the ground was to be held proved and if convicted, the ground rejected? Surely, the legislature would not provide a ground of challenge dependent on such vagaries.
38. There appears no indication that the legislature has enacted Section 8(2) to lead to this uncertain result depending on some fortuitous circumstances in the future, even though it is required to be taken into account on the date of scrutiny by the returning officer to determine validity of the nominations. A lis is to be commenced on an existing cause of action and if no such cause of action is disclosed at the commencement of the lis, it is liable to be thrown out without going to trial as there is nothing to try. Subsequent events are ordinarily not to be taken into account, except for the purpose of moulding the ultimate relief, if it has become inappropriate. If this is the general law which applies also to trial of election petitions, it is difficult to accept an argument which results in a subsequent event forming a part of the cause of action. The ground under Section 100(1)(c) or Section 100(1)(d)(i) of the R. P. Act must be made out by stating material facts constituting the cause of action in the petition itself. This cannot be done if any subsequent event forms part of the cause of action. Surely the legislature could not require this ground for setting aside the election to be pleaded in the petition which has to be filed within forty five days of the election, if a future event was to decide the existence of that ground.
39. The object of this provision clearly is to exclude from the election arena all persons who have a subsisting conviction and sentence of not less than two years on the date of scrutiny in order to ensure beyond doubt the qualifications of contesting candidates and to obviate a fresh election made necessary due to doubtful qualifications. The only exception made is in the case of sitting members by virtue of Section 8(3) to enable continuity in their tenure till the final Court decides their criminal case. No such continuity is needed for others, they being already out of the legislature. Otherwise, Section 8(3) makes no sense and is redundant which intention cannot be attributed to the legislature. Right, to contest election is a statutory right and can be exercised only in the manner prescribed by the statute. Section 8(2) is a part of the statute and the right is subject to it. There is thus no hardship as suggested, by the learned counsel for the respondent.
40. As a result of the aforesaid discussion, it follows that the contentions advanced on behalf of the respondent have no force and must be rejected, while those of the petitioner's counsel accepted. The respondent was clearly disqualified for being chosen as a candidate at the last Lok Sabha elections by virtue of the disqualification incurred by him under Section 8(2) of the R. P. Act, 1951 and, therefore, his nomination paper had to be rejected by the returning officer in accordance with Section 36(2)(a) of the Act. Acceptance of his nomination was accordingly improper which has materially affected the result of election, and the ground under Section 100(1)(d)(i) of the Act is made out to declare his election void. The other ground under Section 100(1)(a) is not pressed.
41. On the above findings, my answers to the issues framed in this petition are as under:--
Issue No. 1-- Not pressed.
Issue No. 2. -- Yes.
Issue No. 3. -- Respondent's election is declared void under Section 100(1)(d)(i) of the R. P. Act, 1951.
42. Consequently, this petition is allowed. The respondent's ejection is declared to be void on the ground contained in Section 100(1)(d)(i) of the R. P. Act, 1951. The petitioner shall get hiscosts from the respondent. Counsel's fee Rs. 500/- if certified.