NIRMAL SINHA Vs. LALSAI KHUNTE

JUDGEMENT

(1.) This election petition under Section 80 of the Representation of People Act, 1951 (henceforth 'the Act') has been preferred by calling in question the election of respondent No. 1 as Member of Legislative Assembly from Malkharauda constituency No. 38 (henceforth "Constituency") of the Chhattisgarh State Assembly which was held on 1-12-2003 and the result of which was declared on 4-12-2003.

(2.) Election Commission of India by a 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. For scrutiny of nomination papers 15-11-2003 was scheduled and last date for withdrawal of candidature was up to 17-11-2003. The election to the Legislative Assembly of the State of Chhattisgarh wherein "constituency" exists was fixed for 1st December, 2003. Including petitioner respondent No. 1 to 7 and one candidate whose nomination paper was rejected, total 9 persons submitted their nomi- nation papers. On scrutiny, petitioner along with respondents No. 1 to 7 remained contestants to contest the election to "constituency". The poling took place on 2nd December, 2003, the result was declared on 4-12-2003; declaring respondent No. 1 elected from the constituency. Respondent No. 1 has been convicted by the Court of Additional Chief Judicial Magistrate, Sakti in Criminal Case No. 208/91, State of Chhattisgarh v. Lal Sai and two others, under Section 420 read with Section 34 and 468 read with Section 34 of the I .P.C. and punished for two years Rigorous Imprisonment on each count and convicted under Section 471 of the I.P.C. and punished with Rigorous Imprisonment for one year by judgment of conviction and order of sentence dated 9-5-2002. After counting of the votes, Returning Officer declared the result on 4-12-2003, wherein the petitioner obtained 33,464 votes whereas the returned candidate who is respondent No. 1 obtained 34,360 votes.

(3.) Petitioner was a candidate of Bhartiya Janata Party whereas respondent No. 1 was the candidate for Bahujan Sarnaj Party. Both of them and other seven candidates filed their nominations. On scrutiny, nomination of one candidate was rejected. Therefore, the petitioner and all the respondents remained contestants for the seat from "constituency". Section 8 (3) of the 'Act' disqualifies a person for membership of State Legislatures, who is convicted of any offence and sentenced to imprisonment for not less than two years. Disqualification commences from the date of such conviction and continues for a further period of six years since his release. Respondent No. 1 was convicted and sentenced on 9-5-2002 for two years Rigorous Imprisonment, therefore, on the date of nomination as well as on the date of election was disqualified to be a candidate and to be returned on 4-12-2003 to fill the seat of legislative assembly from the "constituency" of the State. All the candidates were required to submit their declaration and affidavit along with nomination wherein they were required to disclose particular of conviction for two years or more. Respondent No. 1 Lalsai though he was convicted and was disqualified but mislead, misinformed and concealed vital information in his affidavit and the Returning Officer erred in accepting his nomination and notifying him to be a candidate for the Constituency. Petitioner received votes second in number, have sought for declarations that the election of respondent No. 1 from the Constituency is void and he be declared to be the elected candidate for the "constituency".