LALSAI KUNTE Vs. NIRMAL SINHA

JUDGEMENT

(1.) This appeal is directed against the order dated 1.8.2006 passed by the learned Single Judge of the Chhattisgarh High Court at Bilaspur in Election Petition No. 9/2004 whereby the learned Single Judge has allowed the election petition in part and set aside the election of the appellant for Malkharaud Assembly Constituency No. 38 to the Chhattisgarh State Legislative Assembly. Aggrieved against the said order the present appeal was filed

(2.) The Election Commission of India by Notification dated 7.11.2003, notified the election to the Legislative Assembly of the State of Chhattisgarh inviting persons to submit their nomination papers between 7.11.2003 to 14.11.2003 and 15.11.2003 was the date of scrutiny of the nomination papers & the last date for withdrawal of candidature was 17.11.2003. The election was fixed for 2.12.2003. Nine candidates filed their nominations. After scrutiny, petitioner along with respondents Nos. 1 to 7 remained in contest. The polling took place on 2.12.2003 and the result was declared on 4.12.2003 declaring the appellant as elected for constituency. The appellant was convicted by the Court of Additional Chief Judicial Magistrate, Sakti in Criminal Case No. 208/91- State of Chhattisgarh V/s. Lal Sai and two others u/s. 420 read with Sec. 34 and 468 read with Sec. 34 of the Indian Penal Code and punished for two years, rigorous imprisonment on each count and convicted u/s. 471 of the Indian Penal Code and punished with rigorous imprisonment for one year by judgment and order dated 9.5.2002. Aggrieved against this order appellant filed appeal before District Judge and learned Additional Sessions Judge by his order dated 31.5.2002 released appellant on furnishing Bond & Security & suspended judgment & Order of Additional Chief Judicial Magistrate dated 9.5.2002. All candidates were required to submit their nomination alongwith their declaration and affidavit wherein they were required to disclose particulars of conviction for two years or more. The appellant Lalsai though he was convicted and was disqualified but mislead the returning officer and concealed the vital information in the affidavit of his conviction. Therefore, the returning officer could not cancel his nomination.

(3.) The lost candidate filed the present election petition raising the question of disqualification of appellant u/s. 8(3) of the Representation of People Act, 1951 (hereinafter referred as the R.P. Act ). The defence of the appellant was that the execution of judgment and conviction dated 9.5.2002 was stayed by the appellate Court by its order dated 31.5.2002. Therefore, the returning Officer rightly rejected the objection raised before him during the scrutiny and he was not disqualified and is not guilty of suppression of the facts. He also took the plea that the election petitioner did not deposit the security amount within the prescribed time period, therefore, petition be dismissed being barred by time. The security deposit was made on 19.1.2004 whereas the election petition was filed on 17.1.2004. As such election petition is barred by time. However, it may be stated at the outset that so far as this objection is concerned we ourselves checked up the date and we find that the election petition was filed on 19.1.2004 with security amount. Hence, this objection is factually incorrect and overruled.