Holding

An appellate acquittal retroactively nullifies the conviction and any disqualification, so the candidate is not disqualified at any stage and the election cannot be declared void under Section 100(1).

Summary

Vidya Charan Shukla was convicted and sentenced to imprisonment exceeding two years, but his conviction was stayed pending appeal. He filed his nomination for the Lok Sabha election, which was accepted despite an objection that he was disqualified under Section 8(2) of the Representation of the People Act, 1951. He was elected, and the opponent, Purshoitam Lal Kaushik, filed an election petition under Section 100(1)(a) and (d)(i) alleging disqualification. While the petition was pending, the Supreme Court allowed Shukla's appeal and acquitted him, effectively wiping out the conviction. The Madhya Pradesh High Court nonetheless declared the election void under clause (d)(i). The Supreme Court held that an appellate acquittal has retrospective effect, nullifying the disqualification at all stages, including the date of scrutiny of nominations, and therefore the nomination was properly accepted and the election could not be declared void. The appeal was allowed, the High Court judgment set aside, and the election petition dismissed.

Issues considered

Whether an acquittal on appeal, granted before the decision of an election petition, extinguishes the disqualification under Section 8(2) for the purposes of Section 100(1)(a) and (d)(i).
Whether the challenge to the election falls under clause (a) or clause (d)(i) of Section 100(1).
Whether the date of scrutiny of nomination papers is the relevant date for determining disqualification under clause (d)(i).
Whether the ratio in Manni Lal v. Shri Parmai Lal applies to the present facts.

Legislation cited

Code of Criminal Procedures. 389(3)
Constitution of Indias. 102, s. 173, s. 191, s. 84
Representation of the People Act, 1951s. 100(1)(a), s. 100(1)(d)(i), s. 36(2)(a), s. 53, s. 66, s. 67A, s. 8(2)
Special Courts Act, 1979

Subjects

election lawdisqualificationRepresentation of the People ActSection 8Section 100acquittalretrospective effectnomination scrutinyLok Sabha electionSupreme Courtstare decisis

Judgment

637

VIDYA CHARAN SHUKLA A
v.

PURSHOITAM LAL KAUSHIK
January 15, 1981
{P. N. BHAGWATI, R. S. SARKARIA AND E. S. VENKATARAMIAH, JJ.J 8

Dfaqualificution fron1 being chosen as a candidate for election-Whether the
electio11 of a returned candidate whose appeal against the orders of his convic·
tion and sentence exceeding two years' imprisonment, pending at the date of
scrufi,'iy of noniination papers is accepted by the appellate. court, resulting in the
acquittal, before the election petition against hitn becomes void under section
- ;., - C
lOO ( l ) (a) of the Representation of People .Act, 1951 on the ground that he wa.s
disqualified from being chosen aS a candidate within the m·eaning of section
8(2) uf the Act-Representation of the People Act, section 1(b), 8(2), (I). 32,
36(2) (a), 53, 66, 67A. IOO ( l ) (a ) ; Constitution of India, 1950 Articles 84, 102,
173 and 1 9 1 .

The appellant had been convicted and sentenced to imprisonment exceeding
tvvo years by the Sessions Judge, Delhi, on February 26/27, 1979. By his Order
D
dated February 27, 1979, passed under section 389(3) of the Code of Criminal
Procedure, the Sessions Judge who had convicted the appellant suspended the
execution of the sentence to afford the appellant time to file appeal. On
an
Morch 2 1 . 1 979 the High Court of Delhi admitted his appeal and by an order
of the same date directed that his sentence shall remain suspended provided the
appellant furnished a personal bond and surety in the amount of Rs. 5,000/- to
the satisfaction of the Sessions Judge, which was complied with.
E

The respondent and the, appellant contested the election as rival candidates
to the Lok Sabha from No. 18 Mahasamund Parliamentary Constituency in
�fadhya Pradesh. The last date for filing nominations wa.s· Decembe:ri. 7, 1979.
The scrutiny of the nomination papers took place on December 1 1 , 1979. The
Returning Officer by his Order dated December 1 1 , 1979 rejected tbe objection
of the respondent that the appellant was disqil'alified from being chosen as a F
candidate in view of sub·section (2) of section 8 of the .Representaotion of the
People Act, 1951 and accepted the appeUant's nomination as valid. The result
of the election was declared on January 7, 1980. The election result was noti·
fied on January 10, 1980. The &ppellant was declared elected and the
respondent was defeated . Thereafter, on February 18, 1980 the respondent
filed au election petition I of 1980 in the High court of Madhya Pradesh to get
the election of the appellant declared void under section IOO(l) (a) and
G
IOO(l)(b;(i) of the Act challenging that at the da·te of the election including
the date of the scrutiny of the nomination papers the appellant was disqualified
by virtue of section 8(2) of the Act from being chosen as candidate on account
of his aforesaid conviction and sentence.

The appellant's appeal pending in the High Court was transferred to the
Supreme Court under the Special Courts Act, 1979. The Supreme Court by its
H
judgment dated April 1 1 , 1980 allowed the appeal set aside the conviction and
sentence of the appellant and acquitted him Qf charges against him. Sub'sequent
8-1 52SCl/8 1
638 SUPREME COURT REPORTS (1981] 2 S.C.R.

A to this decision of the Supreme Court, by its judgment dated September S, 1980,
the High Court of Madhya Pradesh allowed the election petition with costs and
declared the appellant's election to be void on the ground contamed in section
lOO(l)(d)(i) of the Act, hence the appeal.

Allowing the appeal, the Court

B HELD : ( 1). Abiding by the principle of stare decisis and following the
ratio decidcndi of Manni Lal's case, [197.1] 1 SCR 798, the acquittal of th~
appellant in appeal prior to the pronouncement of the judgment of the High
Court in the eJection petition had the result of wiping out his disqualification as
comr)letely and effectively as if it did not exist at &ny time including the date of
the scrutiny of the nomination papers and that his nomination paper was pro-
perly accepted by the Returning Officer. [660B..C]
c Manni Lal v. Slzri Parmai Lal & Ors. [1971] I SCR 798, a.pplied

(2) An order of acquittal particularly one passed on merits wipes off the
conviction and sentence for all purposes, and as effectively as if it had never
been passed. An order of acquittal annulling or voiding a conviction operates.
from nativity. [6S4BJ
D Mallni Lal v. Shri Parmai Lal & Ors., [1971] I SCR 798; Dilip Kumar
Sharma & Ors. v. State of Madhya Pradesh, [1976] 2 SCR 289, followed.

(3) The ratio decidendi logically deducible from Manni Lal's case is that if
the successful candidate is disqualified for being chosen, at the date of his election
or at any earlier stage of any step in the election process on account of his
conviction and sentence exceeding two years' imprisonment, but his conviction
E and sentence are set aside and he is acquitted on appeal before the pronounce-
ment of judgment in the election-petition pending against him, his disqualification
is annulled rendered non est with retroactive force from its very inception, snd
the challenge to his election on the ground that he was so disqualified is no
longer sustainable. [656D-E]

(4) A plain reading of section 100(1) of the Act shows that it can be
F conveniently divided into two parts. Clauses (a), (b) and (c) of the sub-section
fall in the first part and clause (d) along with its sub-clauses falls in the
second part. The distinction between clauses (a), (b) and (c) in the first part
and clause (d) in the second part lies in the fact that whereas on proof of any
of the grounds mentioned in clauses (a), (b) and (c), the election has to be
declared void without any further requirement, in a case falling under clause (d)
the election cannot be declared void merely on proof of any of the grounds
G mentioned in its sub-clauses, unless it is further proved "that the result of the
election in so far as it concerns the returned candidate has been materially
affected". The expression "any nomination" occurring in sub-clause (i) of
clause (d) in the second part may include nomination of a returned candidate
as well; but in the case of a returned candidate whose nomination has been
improperly accepted, the effect on the result of the election so far as it concerns
him, is obvious. However, if the election is challenged on the ground that the
H nomination of a candidate, other than the returned candidate, has been impro-
'
perly accepted, the petitioner in order to succeed will be required to prove under
clause (d)(i) in addition to improper acceptance the further fact that thereby
V. C. SHUKLA V. P. L. KAUSHIK 639

the result of the election so far as it concerns the returned c~didate has been A
materilllly affected. [651H-652D]

' Clause (a) of sub-section (1) requires that the disqualification or lack of
qualification of the returned candidate is to be judged with reference to "the
date of his election", which date, according to section 67A is "the date on
which a candidate is declared by the returning officer under the provisions of B
section 53 or section 66, to be elected to a House of Parliament or of the
Legislature of a State". But, the word "disqualified" used in clause (a) is
capable of an expensive construction also, which may extend the scope of the
inquiry under this clause to all the earlier steps in the election process.
Section 7 (b) defines "disqualified" to mean "disqualified for being chosen as,
and for being, a member of either House of Parliament etc." The words ;'for
-~..
being chosen" in that definition have been interpreted by the Supreme Court
in Chatturbhuj's case, [1954] SCR 817, to include the whole "series of steps
c
starting with the nomination and ending with the announcement of the election.
It follows that if a disqualification attaches to a candidate at any one of these
stages he cannot be chosen." But this definition of "disqualified" is in terms
of section 7(b) meant for Chapter III, in Part II of the Act; while section lf)O
falls in Chapter III of Part VI. If the expression "for being chosen" \vhich
is a central limb of the definition of "disqualified", is given such an extensive D
interpretation V.'hich will bring in its train the whole series of steps an_d earlie1
stages in the election process commencing with the filing of the nominations. it
will be repugnant to the context and inconsistlent with "the date of his election".
Such a ronstruction which will introduce disharmony and inconsistency between
the various limbs of clause (a) has to be eschewed. In the context of
clause (a), therefore, the ambit of the words "for being chosen" in the de:finiti0n
of "disqualified" bas to be restricted to "the date of his election" i.e. declaration
of the result of the election under section 53 or section 66, and such date is
to be the focal point of tin1e in an inquiry under this clause. [652H-653D]

In contrast with .;lause (a), in a case falling under clause (d)(i) of section
100, if an objection is taken before the Returning Officer against the nomination
of any candidate on the ground of his being not qualified, or being disqualified F
for being chosen the crucial date as per section 36(2) (a) with reference to
which the existence or non-existence of such disqualification is to be enquired
,, J ~to is the date of scrutiny of the nomination of the candidate. [653CJ

Assuming that technically, the election-petitioner's case that survives is one
under clause (d)(i), and not under clause (a) of section 100(1). Even so, the
fact remains that, in substance, the election of the appellant is being challenged G
on the ground that on account of his conviction and sentence exceeding two
years, the appellant was under Article 102(1)(e) of the Constitution read with
section 8(2) and 36(2)(a) of the Act, disqualified for being chosen to fill the
seat concerned. Such being the real ground of challenge, apart from sub-clause
(i), sub-clause (iv) of clause (d) of section 100(1) will also be attracted,
because the phrase "non-compliance with the provisions of the Constitution or
' of this Act etc." according to the decision of this Court in Durga Shankar H
Mehta's case is wide enough to cover a case where the improper acceptance or
rejection of the nomination is challenged on the ground of the candidate being
disqualified for being chosen. [653E-G]
640 SUPREME COURT REPORTS [1981] 2 S.C.R.

A Dln}.;a Sl;a11/,cr illclua v. Ihakul' Raghuraj Singh & Ors. [1955] 1 SCR 267
and Chatturbhu.j Vithaldas Jasani v. Nareshwar Parashram & Ors., [1978] 2 SCR
272, followed.
1'

adjudicate upon the validity of the challenge
(a) It is true that in order to
in the appellant's election under clause (d) (i) of section 100(1), what was
required to be determined by the High Court was whether the nomination of
B the appellant ¥.'as properly or improperly accepted ·by tile Returning Officer.
But; in order to determine this question, it was necessary for the High Court
to decid::, as a preliminary step, whether the appellant was di$qualified at the
date of scrutiny of the nomination papers, for if he was disqualified, his
non1ination could not be said to have been properly accepted by the Returning
Officer and if, on the other hand, he was not disqualified, his nomiilation would
have to be regarded as properly accepted by the Returning Officer. The primary
c question before the High Court therefore, was whether or not the appellant was
disqualified at the date of scrutiny of the nomination papers and it is difficult
to see how the determination of this question could be made on any principle
other than that governing the determination of a similar question under clause
(a) of section 100 ( 1 ) . If, as laid down in Manni Lal's case, the returned
candidate cannot be said to be disqualified at the date of the election, if before
or during the pendency of the election petition in the High Court his conviction
D is set aside and he is acquitted by the appellate court, on the application of the
same prillciple, that, in like circumstances, the returned candidate cannot be
said to be disqualified at the date of scrutiny of the nomination papers. On
this view, the appellant could not be said to be disqualified on the date of
scrutiny of the nomination paper since his conviction was set aside in appeal
by this Court and if that be so, the conclusion must inevitably follow that the
nomination of the appellant was properly accepted by the Returning Officer.
E The position is analogous to that arising where a case is decided by a Tribunal
on the basis of the law then prevailing and subsequently the law is amended
with retrospective effect and it is then held by the High Court in the exercise
of its writ jurisdiction that the order of the Tribunal discloses. an error of law
apparent on the face of the record, even though having regard to the law as it
then existed, the Tribunal w.is quite correct in deciding the case in the manner
it did. [656C-H]
F
Venkatachalam v. Bombay Dyeing & Manufacturing Company Lin1ited, 34
!TR 143, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2020 of 1980.

G
From the Judgment and Order dated 5-9-1980 of the Madhya
Pradesh High Court in Election Petition No. 1 of 1980.

A. K. Sen, 0. P. Sharma, Rajinder Singh, P. L. Dubey and
P. N. Tewari for the appellant.

S. N. Kacker, Swaraj and Mrs. Sushma Swaraj for Respondent
H
No. 1 .

Y. S. Chitale (Dr.) and Miss Rani Jethmalani for the Iqtervener.
v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, J.) 641

The Judgment of the Court was delivered by

SARKARIA, J. This is an appeal under Sections HG(A) and l16(B)
' of the Representation of People Act, 1951 (hereinafter referred to
as the Act) against a judgment dated September 5, 1980, of a learned
Judge of the High Court of Madhya Pradesh, whereby the Election
Petition 1 of 1980 filed by the respondent was acccpteu and the
appellant's election to Lok Sabha was declared to be void.

Tho princip"I question that falls to be dctcnnincd in this appeal
is, whether the election of a returned candidate whose appeal ogainst
the ·orders of his conviction and sentence exceeding two years i1npri-
sonment, pending at the date of the scrutiny of nomination papers,
c
is accepted by the appellate court, resulting in his acquittal, before the
decision of Lhe l:lection-petition against him, can be declared to be"
vmd under Section 100(1) of lhe Act, on the ground that he was dis-
qualified from being chosen as a candidate within the meaning or
Section 8(2) of the Act. The material facts arc as follows : D

The respondent and the appellant contested the election as rival
candidates, to the Lok Sabha from No. 18, Mahasamund Parliament-
ary Constituency in Madhya Pradesh. The last date for filing nomina-
tions was December 7, 1979. The scrutiny of the nomination papers
took place on December 11, 1979. E

The respondent raised an objection to the validity of the appel-
lant's nomination before the Returning OffLcer at the tiine of the scru-
tiny. The objection was that t)le appellant had been convicted and
sentenced to in1prisonment exceeding t\VO years by the Sessions Judge,
F
Delhi on February 22/27, I 979, and, as such, the appellant was dis
'.._,.aualificd from being chosen as a candidale in view or sub-section (2)
r - of Section 8 of the Act. The Returning Officer, by his order dated
December I I, 1979, rejected the objection and accepted the appellanl's
nomination as valid. The result l\f the election was declared on
January 7, 1980. The election result was notified on January 10, G
1980. Th<0 appellant was declared elected, and the respondent was
• defeated. Thereafter on February 18, 1980, the respondent filed an
Election Petition in the High Courf to get the election of the appellant
herein, declared void under Section 100(1) (a) and I 00(1) ( d) (i)
' of the Act. alleging that at the date of the election, including the date
of the scrutiny of the nomination papers, the appellant was disqualified H
by vi1tue of Section 8(2) of the Act from being chosen as a candidate
on account of his aforesaid conviction and sentence.
642 SUPREME COURT REPORTS [1981) 2 S.C.R.

A The Sessions Judge who had convicted the appellant, had, by his
order dated February 27, 1979, passed under Section 389 (3) of the
Code of Criminal Procedure, suspended the execution of the sentence
to afford the appellant time to file an appeal. On March 21, 1979,
the High Court of Delhi admitted his appeal and by an order of the
same date directed that his sentence shall remain suspended provided
B
the appellant furnished a personal bond and surety in the amount of
Rs. 5000/- to the satisfaction of the Sessions Judge.
The appellant's appeal pending in the High Court W'ds transferred
to the Supreme Court under the Special Courts Act, 1979. This
Court by its judgment dated April 11, 1980, allowed the appeal, set _ ~.
c aside the conviction and sentence of the appellant and acquitted '.him
of the charg~s against him.
Subsequently, by its impugned judgment, dated September 5, 1980,
the High Court of Madya Pradesh, allowed with costs, the election
petition filed by the respondent, and declared the appellant's election to
D be void on the ground contained in Section 100(1) (d) (i) of the
Act. Hence this appeal.
The contentions canvassed by Shri Asoke Sen, learned counsel for
the appellant may be summarised as follows : •
( 1) The conviction and sentence of the appellant had been quas·
E hed by the Supreme Court in appeal. The acquittal of the appellant
had the effect of wiping out the conviction with retrospective effect as
if he had never been convicted and sentenced. In support of this
proposition, reliance has been placed on Manni Lal v. Shri Parmai
Lal & Ors.('). Reference has also been made to Dilip Kumar
Sharma & Ors. v.' State of Madhya Pradesh( 2 ).
F
(2) Conviction and sentence in Section 8(2) must mean t)ie final
and ultimate conviction and sentence. Reference has been made to ;
Union of India v. R. Akbar-Sheriff(•); and Di/bag Rai Jarry ~
Divisional Superintendent(•).
( 3) Invalidity of the appellant's election, in the instant case, was
G
to be tested under clause (a) and not under clause (d) (i) of Section
100 (!) of the Act, because-
•
( a) (i) "Election" within the meaning of Section 100 (1) (a)
connotes the entire process of election commencing with the filing of

H (I) r1971] t S.C.R. 798 at pp 800.801. •
(2) [l976j 2 S.C.R. 289 = A.LR. 1976 S.C. 133.
(3) A.1.R. 1961 Mad. 486
(4) A.LR. 1959 Pb. 401.
v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, J.) 643

nominations and ending with the declaration of the result of the poll. A
111e stage of the scrutiny of the nominations and their acceptance or
rejection was an important step of the election process and, as such,
' was an integral part of the 'election'. Reliance on this point has been
placed on the decisions of this Court in N. P. Ponnuswami v. Retur-
ning Officer, Namaklal Constituency(,!); and M. S. Gill v. Chief
Election Commissioner('). B
(ii) The tenn "disqualified" iu clause (a) of Section 100 (1), as.
defmed in Section 7 (b) means "disqualified for being chosen as, and
for being, a member of either House of Parliament, etc.", and the ex-
pression "being chosen". (which is the language of Article 102 of the
Constitution also) has been interpreted by this Court in Chatturbhuj C
Vithaldas .Jasani v. Moreshwar Parashram & Ors.( 3 ), as embracing
"a series of steps starting with the nomination and ending with the
announcement of the election''.
(b) In substance and reality, the election of the appellant has been
challenged on the ground that both at the date of the scrutiny and
D
acceptance of his nomination and at the subsequent stages of the
election including the dates of poll and declaration of the election re-
sult, the appellant was disqualified for being chosen on account of his
having been convicted and sentenced to imprisonment exceeding two
years. This ground finds specific mention in clause (a) and not ini
clause (d) (i) which is a general and residuary clause and its appli- E
cation to the instant case will be excluded on the principle that the
special excludes the general.
(c) The phrase "any candidate" in sub-clause (i) of clause (d)
of Section 100 (1) does not include the returned candidate. (This
point was not seriously pressed).
F
(4) (a) Even if it is assumed that clause (d) (i) or (d) (iv) is
applicable, then also, the instant case cannot be taken out of the, ratio
of Manni Lal's case (ibid), because the effect of the quashing of the
appellant's conviction and sentence by the appellate court, during the
pendency of the Election Petition before the High Court was, that
the convictioh and sentence were retrospectively wiped out, and th~ G
High Court could not at the date of deciding the Election Petition hold
that in spite of the acquittal by the Appellate Court, the disqualification
• of the appellant "for being chosen" ever existed-even at the date of the
acceptance of his nomination paper by the Returning Officer. The
proposition enunciated by this Court in Manni Lal's case must be taken
(!) [1952] S,C.R. 218. H
(2) [1978] 2 S.C.R. 272.
(3) [1954] S.C.R. 817.
644 SUPREMI: COORT REPORTS (1981] 2 S.C.R.

A to its logical "nd and the imagination must not be allowed to bogg1" .,
down.
(b) Clause (a) and clause (d) (i) of Section 100 (l) of the
Act should be construed harmoniously. If these clauses are const111ed
differently, there will be serious contradiction, and inconsistencies.
Under Section 100 (1) (a), the candidaic \\hose conviction and
B
sentence are quashed, is qualified to be chesen and elected on the
principle of retrospective wiping out of conviction and sentence. and
yet he remains disqualifi~d for his nomination. Such an anomalou'
result should he avoided.
( 5) The effect of wspcnsiotl of the sentrncc made by the trial
~.
c court and thereafter by tho High Court pending the appeal. would
be that the disqualification automatically stcicJ eclipsed. (This point
was also not pressed).
On the other hand Shri S. N. Kacker, kcmicd counsel for the
n;spondent, made these submissions:
D (I) Article 102 ( l ) ( e) of the Constitution provides that "a person
shall be disqualified for being chosen as, and for being, a member of
either House of Parliament - - - " "if he is so disqualified by or
under any law made by Parliamenl." Under Section 8 (2) of the Repre-
sentation of People Act, 1951.-whieh is a law made by Parliament
the appellant on account of his conviction and sentence exceeding
E
two years. was disqualified at th'c date of scrutiny of nominations
and the Returning Officer was bom1d i·n view of Section 36(2) (a). of
the Act. to take into account only such facts a> they stood on the date
of the scrutiny, which is an integral step in the process of election
i.e._. process of '"being chosen". (Reference has been made in this
connection to Chaturblwj's case (ibid) and C/w111l!ln Lal v. Ram Dass
F
and Another(').
(2) The phrase "dah: of such conviction" occurring in sub-section
(2) of Section 8 of the Act means the date of the initial conviction and
not the date of the final conviction. If this phrase was constm:d
to nican the date of the final and ultimate cc;1viction on termination
G of the entire judicial precess in the hierarchy c,r courto, sub-section(3l
wonlcl k rcdnndant. Sub-section (3) applies to a special category of
persons n1entioncd therein, and its language n1akL:-1 it clear that in their •
case, conviction will not operate as disqualifice1tion unless it becomes
final in the course of judicial process.
H (3) The present case is governed by clause (d) (i) and not by
,
clause (a) of Section 100(1). Jn the election-petition, both the
----- ------
(!) 41 E.L.R. 214 (SC).
v. c. SHUKLA I". P. L. KAUSHIK (Sarkaria. !.) 645

• grounds u"ndcr Section JOO(!) (d) (i) and und•cr Section 100(1) A
(a) were taken, because -
(i) the appellant was disqualified on the date of scrutiny-a
ground under Section 100(1) (d) (i); and

(ii) the disqualification also existed on the dauc of declaration of
election rc,•.11t.-c:Jfordin!'. ground under Section 100(1) (a). B

Since the aµpellant was subsequently acquitted during the pcnd·cncy
of ckct'on-pctition, the ground under Section I 00( I) (a) become non-
cxist·. nt in view of the princip:c laid down by this Court in Manni Lal's
case rihid). but the Ground under Section 100(1) (d) (i) still sub-
sisted. Co11seq11c11tly, at the stage of argument.< before the High C
Court. the ground under Section I 00 ( I ) (a) was given up
and the petition was pressed only on the ground undtr Section 100( 1)
(d) (i).

I+) Section I (10( I) ( d ! (i) " applicahlc tp a returned candidate as
we]].
0
(SJ The basic distinction between clauses (a) and (d) (i) of Sec-
tion 100 (I ) is that under the former clause the existence or non-exis-
tence of disqualification of the returned candidate is to be determined
as "on the date of his election", which date in view of Section 67A,
mecn' the dnte on which he was declared elected under Section 53 or
Section 66 o[ the Act; whereas under clause ( d) (i), the en- E
quiry is restricted ic judgin~ the propriety or otherwise of the
actic,n of the Returning Officer in accepting his nomination on the
date of scrufrny; that is to say, for purposes of the latter c:ausoo
all 'hat has to be enquired into is whether the disqualification cxis
t•.:d :._111 the date of scrutiny.
p
(6) Th-.: pro~1usition laid down in A1ru1ni Lal's case (ibid) to the
efTect that subsequent acquittal hy the appellate court in a criminal
,,-1-..,,natter has the effect of wiping out the conviction from the date of its
very inception is not applicable to the case in hand because : -
(a) Manni Lars case was one under Section 100(1) (a): while
the p:cscnt case is under Section 100(1) (d) (i); G
(b) in Mn1111i l.11l"s case the returned candidate was not disqualified
• dn the date of the scrutiny; whereas in the instant case the clis-
qualification of the appellant did. in fact exist on the date of the
scrutin:y, althou~h th~ Saine may have ceased to exist in point of law
due to his subsequent acquittal; and R
'
le) Section 36(2) (a) fixes a date for judging the qualification of
a candidate, and if the legal fiction of retrospective repeal is applied
646 SUPREME COURT REPORTS (1981] 2 S.C.R.

A to the case of subsequent acquittal wiping out the disqualification •
which ill fact existed on the date of scrutiny, Section 36(2) (a) could
be rendered nugatory and several inconsistent situations could arise.
(7) In sum, the instant case being one under Section 100(1) (d)
(i) falls within the ratio of this Court's decision in Amritlal Ambalal
,B Patel v. Himatbhai Gumanbhai Patel & Anr. (') and Manni Lafs
case is not in point.
Shri Chitale, appearing for the intervener, has elaborated conten-
tions ( 5) and 6 ( c) of Slui Kacker and stressed !hat the facts consti-
tuting the disqualification, as obtaining on the date of scrutiny, are
under Section 36 the decisive factor.
Before dealing with the contentions canvassed on both sides, it
will be necessary to have a look at the relevant constitutional and
statutory provisions.
Article 102 of the Constitution, so far as material, reads thus :
n " (1) A person shall be disqualified for being chosen
as, and for being, a member of either House of Parliament-
( a) to (d) ..... .
( e) if he is so disqualified by or under any Jaw made
by Parliament."
The words "for being chosen as, and for being, a member of either •
House of Parliament" have been lifted from Article I 02 and incor-
porated in the definition of "disqualified" given in Section 7 (b) of
the Act. According to this definition, "disqualified" means "disquali-
fied for b~ing chosen as, and for being, a member of either House of
Parliament or of the Legislative Assembly or Legislative Council of a
State.'.'
Section 8 of the Act provides for disqualification on conviction >
for certain offences. Under sub-section (1), a person convicted or---l....._
ally of the offences specified in that sub-section shall be disqualified
for a period of six years from the date of such conviction. The material
·G part of sub-sections (2) and (3) reads as under:
"(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
•
a·nct shall continue to be disqualified for a further period of
1H five years since his release
Provided ..... .
(I) (1969] I S.C.R. 277.
v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, J.) 647

(3) Notwithstanding anything in sub-section (1) and A
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 i'n respect of the conviction or the B
sentence, until that appeal or application is dispooed of by
the court."

Then there is an Explanation appended to this Section, which is nut
material for our purpose.
c
Chapter I of Part V includes Sections 30 to 39 under the main
beading "Nomination of Candidates". Section 30 requires the Elec-
tion Commission to appoint dates for making nominations, scrutiny
of nominations, withdrawal by candidates, for poll and also to specify
the date before which the election shall be completed. The provision
in clause (b) requires that the date for the scrutiny of nomination~ D
shall be the date immediately following the last date for making nomi-
nations or, if that day is a public holiday, the next succeeding day
which is not a public holiday. Section 32 lays down 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
E
Constitution and this Act, or under the provisions of the Government
of Union Territories Act, 1963 (20 of 1963), as the case may be.

Section 36 deals with scrutiny of nominations. Sub-section (2) (a)
.of the Section is material. It reads thus :
"(2) The returning officer shall then examine the nomi- F
nation 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 : -
G
(a) that on the date fixed for the scrutiny of noru.inations
the candidate either is not qualified or is disqualified
• for being chosen to fill the seat under any of the
following prov1s10ns that may be applicable,
namely:-
• H
Articles 84, 102, 173 a'nd 191,
Part II of this Act and ...... "
648 SUPREME COURT REPORTS [1981] 2 S.C.R.

A Under sub-section (7) , for the purposes of this Section, a certified
copy of an entry in the electoral roll for the time being in force of a
constituency shall be conclusive evidence of the fact that the person
referred to in that entry is an elector for that constituency, unless it
is proved that lie is subject to a disqualification mentioned in Section
B
16 of the Representation of the. People Act, 1950.
Before the amendment of 1956, clauses (a) and (b) of sub-sec
tion (2) of Section 36 read as under :
"The returning officer shall then examine the nomina-
tion papers and . . . . . . refuse any nomination on any of the
following grounds : •
c
(a) that the candidate is not qualified to be chosen to fill
the seat under the Ccmstitution or this Act; or
(b) that the candidate is disqualified for being chosen
t o fill the seat under the Constitution or this Act . "

D The Amendment Act 27 of 1956 recast clauses (a) to (e) of ihe
old Section. It also combined clauses (al and (b) and the recast
clause read as follows :

" (a) that the candidate is not qualified or is disqualified
for being chosen to fill the seat under any of the following
E provisions that may be applicable, '.namely: . . . . . . "

The Amendment Act 40 of 1961 substituted in Sub-section (2 ) (a ) , +
for the words "that the candidate" the words "that on the date fixed
for the scrutiny of nominations the candidate" . The same Amend-
ment Act snbstituted in sub-section (5) the proviso for the words
F "an objection is made" the words "an objection is raised by th� return-
ing officer or is made by any other person''. Thus, the amendmeRt
in sub-section 2(a) was only of a clarificatory character. It made
it clear that the date of Bcrutiny of the nominations is a crucial
date.

Next, we come to Section I 00. The Section enumerates the
G
grounds oh which an election ca_n be declared to be void. Before the
.•
Amendment of 1956, Section 100, so far as material, was as follows :
-l
" ( 1 ) If the Tribunal is of opinion -
(a) •

H (b)
(c) that the result of the election has been materially
affocted by the improper acceptance or rejection of
v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, J.) 649

any nomination, the Tribunal shall declare the elec- A
lion to be wholly void.
Explanation. . . . . . . . . . . . .
( 2) Subject to the provisions of sub-section ( 1 ) if the
Tribunal is of opinion -
(a) B

(b)
( c) that the result of the election has been materially
affected by the improper receptio'n or refusal of a vote .
or by the reception of any vote which is void or by
any non-compliance with the provisions of the Consti c
;. .
tution or of this Act or of any rules or orders made
under this Act or of any other Act or rul.,.; relating
to the electio'n, or by any mistake in the use of any
prescribed form,
the Tribunal shall declare the election of the returned candi D
date to be void".
In Durga Shanker Mehta v. Thakur Raghuraj . Singh & Ors. (•')
nominations were filed for a double member Legislative Assembly
<:onstituency in Madhya Pradesh. No objection was taken before the
returning officer, that one of the candidates, Vasa'nt Rao, was less
E
than 25 years of age at the date of the nomination and, as such, was
not qualified under Article 173 to be chosen to fill the seat. The
Returning Officer accepted his nomination.
+
Tn the Election Petitio'n, the election of the returned candidate,
V asant Rao, was challenged on the ground that his nomination had
been improperly accepted by the Returning Officer within the contem F
plation of Section 100 ( 1 ) ( c) of the Act, as then in force, because he
was llot qualified to be chosen in view of Section 173 of the Consti
{ tution. The Tribunal held that the act of the Returning Officer in
accepting the nomination of Vasant Rao, who was disqualified to be
elected a member of the State Legislature under the Constitution,
.amounted to an improper acceptance of nomination withi'n the meaning G
of Section JOO ( 1 ) (c) of the Act, and as the result of the election
was materially affected thereby, the whole election must be pro
nounced to be void.

The controversy centered round the question, whether on the facts
proved and admitted the ca� was one u'nder sub-section ( I ) ( c) or B
Section 2(c) of the then extant Section 100. This Court held that
(1) [1955J I S.C.R. 267
650 SUPREME COURT REPORTS (1981] 2 S.C.R.

A
•
the acceptance of the nomination paper of Vasant Rao by the Return-
ing Officer could not be said to be improper acceptance "within the
contemplation of Section 100 ( 1) ( c) of the Act, and that the case
was of a description which came under sub-section (2) (c) of Section
100 and not under sub-section (1) ( c) of the Section, as it really
amounted to holding an election without complying with the pro-
B visions of the Constitution. The expression "non-compliance with
the provisions of the Constitution" in clause (c) of sub-section (2)
was held to be sufficiently wide to cover such cases where the question
was not one of improper acceptance or rejection of the nomination
by the Returning Officer, but there was a fundamental disability in the
candidate to stand for election at all. There was no material difference
c between "non-compliance" and "non-observanre" or ''breach" and
this item in clause ( c) of sub-section (2) might be taken as a resi-
duary provision contemplating cases where there had ken infraction
of the provisions of the Constitution or of the Act but which had not
been specifically enumerated in the other portions of th•c clause.
D
After the decision in Durga Shanker Mehta's case (ibid), Parlia-
ment in 1956 amended So~ction 100 along with Sections 36, 123, 124
and 125 of the Act. By this Amendment, the various c:auses of sub-
sections ( 1) and (2) were rearranged and recast and simplified in
accordance with the recommendations of the Select Co;nmittee of
E Parliament, "that sub-sections (1) and (2) of existing Section 100
should be suitably combined retaining the substance of the existing
Jaw and at the same time making the Jaw simple and easily intelli-
gible". "'l
Now, Section 100, as amended, by the Amending Act of 1956 and
F subsequent Amendment Acts, .reads as under :
"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 a returned candidate
G
was not qualified, or was disqualifud, 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) that any corrupt practice has been committed by a
H returned candidate or his election agent or by any
'
other person with the consent of a returned candi-
date or his election agent; or
v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, !.) 651

.. (c) that any nomination has been improperly rejected; A
or
( d) )hat the resnlt of the election, ih so far as it con-
cerns a returned candidate, has been materially affec-
ted-
(i) by the improper acceptance of any nomination, B
or
(ii) by any corrupt practice committed in the
interests of the returned candidate by an agent
• other than his election agent, or
(iii) by the improper reception, refusal or rejection c
of any vote or the reception of any vote which

i is void, or
(iv) by any non-compliance with the provisions of
the Constitution or of this Act or of any rules
or orders made under this Act,
D
the High Court shall declare the election of the returned
candidate to be void.
(2) If in the opinion of the High Court, a returi>'d
candidate has been guilty by an agent, other than his election
agent, of any corrupt practice but the High Court is satis- E
fied-
( a) that no such corrupt practice was committed at the
election by the candidate or his election agent, and
every such corrupt practice was committed contrary
to the orders, and without the consent, of the candi-
date or his election agent; F
(b)
(c) that the candidate and his election agent took all
reasonable means for preventing the commission of
corrupt practices at the election; and
(d) that in all other respects the election was free from
G
any corrupt practice on the part of the candidate or
any of his agents,

then the High Court may decide that the election of the
returned candidate is not void".
n
A plain reading of Section 100 (1) of the Act shows that it can
be conveniently divided into two parts. Clauses (a), (b) and (c)
652 SUPREME COURT REPORTS [1981] 2 S.C.R,
'

A of the sub-section fall in the first part and clause ( d) along with its
sub-clauses falls in the second part. The disti'nction bdween clauses
(a), (b) and (c) in the first part and clause (d) in the second part
lies in the fact that whereas on proof of any of the groqnds mentioned
in clauses (a) , (b) and ( c ) , the election has to be declared voia
without any further requirement, in a case falling under clause (d)
fl
the eiection cannot be declared void merely on proof of any of the
grounds me'ntioned in its sub-clauses, unless it is further proved "that
the result of the election in so far as it concerns the returned candidate
has bee'n materially affected". The expression "any nomination"
occurring in sub-clause (i) of clause (d) in the second part may
include nomination of a returned candidate as well, but in the case of a
c
returned candidate whose nomination has been improperly accepted,
i .
the effect on the result of the election so far as it concerns him, is
obvious. However, if the election is challenged on the ground that
the nomination of a candidate, other than the returned candidate has
been improperly accepted, the petitioner in order to succeed will be
D required to prove· under clause (d) ( i ) , iu addition to improper accep
tance the further fact that thereby the result of the election so far as
it concerns the returned candidate has been materially affected.

Clause (a) of sub-section ( 1 ) appears to require that the dis
qualification or lack of qualification of the returned candidate is to he
judged with peference to "the date of his election", which date, accord
E
ing to Section 67A, is "the date on which a candidate is declared
by the returning officer under the provisions of Section 53 or Section
66, to be elected to a House of Parliament or of the Legislature of a
State". But, the word "disqualified" used in clause (a) is cfipable
of an expansive construction also, which may extend the scope of the
inquiry under this clau�e to all the earlier steps in the election pro
F
cess. As already noticed, Section 7 (b) defines "disqualified" to
mean "disqualified for being chosen as, and for being, a member of
either Houre of Parliament etc." The words "for being chosen" in
that definition have been interpreted by this Court in Chatturbhui's
ca� (ibid) to include the whole "series of steps starting with the
nomination and ending with the announcement of the election. It
G
follows that if a disqualification attaches to a candidate at any one of
these stages he cannot be chosen". But this definition of "disquali
fied" is in terms of Section 7 (b) meant for Chapter III, in Part II of
the Act; while S·�ction 100 falls in Chapter III of Part VI. If the
expression "for being chosen" which is a central limb of the definition
of "disqualified", is give'n such an extensive interpretation which wi!l
H
bring in its train the whole �ries of steps and earlier stages in the
1\\1\etilln ])I\\ee�� commencing with the filing of the nominations. it will
v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, I.) 653

be repugnant to the context and inconsistent with "the date of his
election". Such a construction which will introduce disharmony and
I inconsistency between the various limbs of clause (a) has to be
eschewed. In the context of clanse (a), therefore, the ambit of the
words "for being chosen" in the definition of "disqualified" has to be
restricted to "the date of his election" i.e. declaration of the result of
the election under Section 53 or Section 66, and such date is to be
the focal point of time in an inquiry under this clause.
In contrast with clause (a), in a case falling under clause (d) (i)
of Section I 00, if an objection is taken before the Returning Officer
against the nomination of any candidate on the ground of his being not
qualified, or being disqualified for being chosen the crucial date as per c
Section 36 (2) {a) with reference to which the existence. or non-
existence of such disqualification is to be enquired into is the date of
scrutiny of the nomination of the candidate.
The first question is whether on facts admitted or proved on record,
thecasefallsunderSection 100(1) (a) or Section 100(1) (d),orboth?
The burden of Shri Kacker's arguments is that the case falls under D
clause (d) (i) and not under clause (a) of Section 100(1). Learned
oounsel has conceded that if clause (a) were applicable, the case
would have been within the ratio of Ma1mi Lal's case and that was
why at the stage of arguments before the High Court, the challenge
under clause (a) of the sub-Section was given up. We will therefore,
E
assume that technically, the election-petitioner's case !hat survives is one
nuder clause (d) (i), and not under caluse (a) of Section· 100(1).
Even so, the fact remains that, in substance, the election of the
appellant is being challenged on the ground that on account of his con-
viction and sentence exceeding two years, the appellant was under
Article 102 (I) ( e) of the Constitution read with Sections 8 ( 2) and F
36 (2) (a) of the Act, disqualified for being chosen to fill the seat
, concerned. Such being the real ground of challenge, apart from sub-
- • clause (i) sub-clause (iv) of clause (d) of Section 100 (1) will also
be attracted. This is so, because the phrase, non-compliance with the
provisions of the Constitution or of this Act etc.", according to the
decision of this Court in Durga Shanker Mehta's case (ibid), is wide G
enough to cover a case where the improper acceptance of rejection of
)
the nomination is challenged on the ground of the candidate being dis-
qualified for being chosen.
The controversy thus narrows down into the issue: Whether on facts
• undisputed or proved on record, the present case falls within the ratio
of Manni Lal v. Shri Parmai Lal & Ors., even if the challenge is con- R
sidered to be one under clause (d) (i) and (iv) of Section 100(1).
9-152 SCI/81
1l 5 4 SUPREME COURT REPORTS j 1981] 2 S.C.I(.

A Before examining the facts and ratio of Manni Lat's case, it will be •
worthwhile to notice here a general principle of criminal law bearing on
this issne. This principle as reiterated by this Court in Di/ip Kumar
S/zarma's case, ibid, (at page 289), is as follows : '
An order of acquittal particularly one passed on merits wipes off
B the conviction and sentence for all purposes, and as effectively as if it
had never been passed. An order of acquittal an nu Iii ng or voiding a
conviction operates from nativity. As Kelson puts it, '"it is a true annul-
ment an annulment with retroactive force". So when the conviction
(for the offence) was quashed by the High Court (in appeal) .. .'it killed
the conviction not then, but performed the formal obsequies of the order
c which had died at birth.'
In Manni Lal v. Parmai Lal (ibid), this Court applied this princi-
ple to the question of the disqualificaton iof a candidate for being chosen
to fill a seat in State Legislative Assembly. In that case, the last date
for filing nominations from the U.P. Legislative Assembly Constituency,
D Hardoi was January 9, 1969. The returned candidate was convicted
two days later on January 11, 1969 and sentenced. inter alia, to 10
years' rigorous imprisonment under Section 304, Indian Penal Code.
On January 16, 1969, he filed an appeal against l1is conviction in the
High Court. Polling took place on February 9, 1969 and the result
of the election was declared on February 11, 1969, and he was suc-
E
cessful in the election. His election was challenged by an election-peti-
tion primarily on the ground that he was disqualified under Section
8 (2) of the Represer 'on of the People Act, because on the date of
his election he stood convicted for an offence of imprisonment exceed-
ing two years. Before the election-petition was decided, the returned
F candidate's appeal was allowed on September 30, 1969 by the High
Court and his conviction and sentence were set aside.
The question for decision before the Court was : What was the
effect of the acquittal in appeal of the returned candidate before the
decision of the election-petition, on his conviction and sentence, which
was the main ground on which he was alleged to be disqualified for
G
being chosen? The bench presided over by J.C. Shah, J. (as he then
was) answered this question thus :
" ... it is clear that, though the conviction of respondent t
No. 1 was recorded by the trial court on 1 lth January, 1969,
he was acquitted o'n 30th September, 1969 in appeal which
II acquittal had the effect of completely wiping out the convic- .
tion. The appeal having once been allowed, it has to be held
that the conviction and sentence were vacated with effect
v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, !.) 655

• from the date on which the conviction was recorded and the A.
sentence awarJod. Jn a criminal case, acquittal in appeal
, does not toke effect merely from the date of the appellate
order setting aside the conviction; it has the effect of retros-
pectively wiping out the conviction and the sentence awarded
by the lower court. The disqualification relied upon by the
appellant was laid under s. 8(2) of the Act read with Article B
102 ( l) ( 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 for a further period of five years
since his release. The argument on behalf of the appel-
lant was that, though respondent No. 1 was not disqualified at
c
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 ..... .

TI1e argument overlooks the fact that an appellate order of
acquittal takes effect retrospectively and the conviction and D
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 nn
the 9th or 1 lth February, 1969 as a fact, was wiped out when
E
the conviction recorded on 11th January, 1969 was set aside
and that acquittal took effect from that very date. ft is signi-
ficant that the High Court, under Section 100(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 not qualified, or was F
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 suc-
cessful 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 election petition. ln this G
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
1 lth January, 1969. It was therefore, impossible for the
• High Court to arrive at the opinion that on 19th or 11th Feb-
ruary 1969, respondent No. 1 was disqualified. The con- H
viction and sentence had been restrospectively wiped out, so
that the opinion required to be formed by the High Court to
656 SUPREME COURT REPORTS [1981] 2 S.C.R.

A declare the election void could not be formed. The situation •
is similar to the one that could have come into existence if
Parliament itself had chosen to repeal s.8(2) of the Act re-
trospectively with effect from 11th January, 1979."
(emphasis added)

• The essence of the decision is in !he sentences which have been
underlined by us in the above extract. In sum, what was laid down in
Manni Lal's case was that if the disqualification of the returned cancli-
date, viz., his conviction and sootence exceeding two year's imprison-
ment which existed as a fact at the date of the election, is subsequently
c set aside by the Appellate Court, then a challenge to his election on the
ground under Section 100(1) (a) of the Act, in an election-petition
pending in the High Court at the date of such acquittal, must fail
because the acquittal has the effect of retrospectively wiping out the
disqualification as completely and effectively as if it never had existed.

In other words, the ratio decidendi logically deducible from the
D
above esxtract, is that if the successful candidate is <lisqualified for being
chosen, at the date of his election or at any earlier stage of any step
in the election process on account of his conviction and sentence ex-
.:eeding two years' imprisonment, but his conviction and sentence are
set aside and he is acquitted on appeal before the pronouncement of
judgment in the election-petition pending against him, his disqualifica-
E
tion is annulled and rendered non est with retroac.tive force from its
very inception, and the challenge to his election on the ground that he
was so disqualified is no longer sustainable.

Learned counsel for the respondent has tried to distinguish Manni
F Lal's case from the one before us on three grounds. First, that in
Manni Lal's case, the election was challenged under clause (a) of
Section 100 (1); whereas in the instant case, the challenge is only on
the ground under clause (d) (i) of the Section, since the plea in the
election-petition on the ground under said clause (a) of Section 100(1)
was given at the time of arguments in the High Court. Second, in
G Manni Lal's case, the disqualification on account of conviction and
sentence of the candidate concerned did not exist on the date of the
scrutiny of the nomination papers, but was incurred subsequently to the
acceptance of his nomination, whereas in the present case, such disquali-
fication existed as a fact even at the date of the scrntiny of the nomi-
nation papers. Thlrd, in vi.ew of the mand~te in Section 36(2) (a),
II for the purpose of an enquiry under Section 100(1) (d) (i), the •
existence or non·existence of the clisqualification is to be judged as
on the date of the scrutiny of the nominations, whereas in Manni Lal,
v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, J.) 657

• 'the legislative mandate of Section 36(2) (a) was inapplicable, the A
challenge to the election being one under Section 100(1) (a) only.
; 1t appears to us that this three-fold feature pointed out by th<l
learned counsel amounts no more than to a distinction without a diffe-
rence. The basic ground of challenge and material factual constituents
thereof are common in both these cases. In both these case~ what has
been challenged is the election of the successful candidate. Although B
at the time of arguments in the High Court the ground under clause

- (a) of Section 100(1) was not pressed and no arguments were
addressed with reference to that caluse, it had been pleaded and proved
by the election-pct1tioner that both at the date of the scrutiny of nomi-
nations and at the date of the election, the appellant's disqualificatio11
existed as a facl. Another undisputed fuct apparent on the record is
c
that the appellant was acquitted by the appellate court before the deci-
sion of election-petition in the High Court. As here, in Manni
Lal also, such disqualification of the successful candidate exist--
ed not only at the date of his 'election' as defined in Sec-
tion 67A, but also at the date of the poll, which was an earlier D
step in the process of "being chosen". As here, there also, such
disqualificati011 had been wiped out with retroactive force on account of
his acquittal after the elections but before the decision of the election·
petition by the High Court. Similar to the third point raised here, in
Manni Lill also, it was contended that under section 100(1) (a), the
question whether the successful candidate was disqualified o.~ the date E
of his election was to be determined with reference to the situation
obtaining on that date only. This contention was repelled with the obser-
vation that such opinion had to be formed by the High Court at the
time it proceeds to pronounce the judgment in the election-petition and
High Court had at that time before it the order of acquittal which had
taken effect retrospectively from the date on which the conviction had F
been recorded by the trial court. Although the Court did not specifi·
•-- cally say so, this reasoning employed by the Court in negative the
e-0ntention of the election-petitioner in that case, appears to h~ve been
spelled out from a construction of the phrase "if the High Court is of
opinion" used hy the Legislature in the opening part of Section 100(1 ).
This phrase, be it noted, qualifies not only clause (a), but also clause G
( d) of the sub-section. Thus, the ratio of Manni Lal squarely and fully
• applies to the present case. On the application of that rule, the acquit-
tal of the appellant herein by the appellate court, during the pendency
of the election-petition must be held to have completely and effectively
•
wiped out the disqualification of the appellant with retrospective effect
from the date of the conviction, so that in the eye of law it existed H
neither at the date of scrutiny of nominations, nor at the date of the
'election' or at any other stage of the process of "being chosen".
658 SUPREME COURT REPORTS Ll981] 2 S.C.R.

A In short, the acquittal of the appellant before the decision of the •
election-petition pending in the High Court, had with retrospective
effect, made his disqualification non-existent, even at the date of the
scrutiny of nominations. This being the position, the High Court could
not at the time of deciding the election-petition form an opinion as to
the 'existence' of a non-existent ground and sustain the challenge to the
B appellant's election under Section 100(1) (d) (i).

It is true that in order to adjudicate upon the validity of the

c
challenge to the appellant's election under clause ( d) (i) of Section
100(1), what was required to be detertnined by the High Court was
whether the nomination of the appellant was properly or improperly
-
accepted by the Returning Officer. But, in order to determine this
question, it was necessary for the High Court to decide, as a preli-
minary step, whether the appellant was disqualified at the date of
scrutiny of the nomination papers, for if he was disqualified, his
nomination could not be said to have been properly accepted by the
D Returning Officer and if, on the other hand, he was not disqualified,
his nomination would have to be regarded as properly accepted by
the Returning Officer. The primary question before the High Court,
therefore, was whether or not the appellant was disqualified at the
date of scrutiny of the nomination papers and it is difficult to see
how the determination of this question could be made on any
E principle other than that governing the determination of a similar
question under clause (a) of Section 100(1). If, as laid down in
Manni Lal's case, the returned candidate cannot be said to be di>-
qualified at the date of the election, if before or during the pendency
of the election petition in the High Court his conviction is set aside
and he is acquitted by the appellate court, it must be held. on the
F
application of the same principle, that, in like circumstances, the
returned candidate cannot be said to be disqualified at the date of the
scrutiny of the nomination papers. On this view, the appellant _ .(
could not be said to be disqualified at the dale of scrutiny of the
nomination paper since his conviction was set aside in appeal by
G this Court and if that be so, the conclusion must inevitably follow
that the nomination of the appellant was properly accepted by the
Returning Officer. The position is analogous to that arising where
a case is decided by a Tribunal on the basi~ of the law then prevail- •
ing and subsequently the Jaw is amended with retrospective effect
and it is then held by the High Court in. the exercise of its writ
H jurisdiction that the order of the Tribunal discloses an error of law •
apparent on the face of the record, even though having regard to
the Jaw as it then existed, the Tribunal was quite corre<:t in deciding
v. c. SHUKLA v. P. L. KAUSHIK (Sarkaria, J.) 659

• the case in the manner it did, vide V mlwtachalam v. Bombay Dye- A
ing & Ma1111/act11ring Company Limited(').

Amritlal Ambalal Patel (ibid) cited by Shri Kacker is not a
parallel case. It is clearly distinguishable. The facts therein were
materially different from Manni Lal' s case or the one before us. In
that case, the election of Amritlal Ambalal Patel to Gujarat Legis- B
lative Assembly was challenged ou the ground that he was on the
date of scrutiny of nominations less than 25 years of age-which
was the minimum age prescribed under Article 173 (b) of the Con-
stitution and, as such, not being qualified for being chosen, his nomi-
nation was wrongly accepted. The candidate attained the age of
25 years on the date of election. Notwithstanding this subsequent c
fact, it was held by the Court that the nomination of the candidate
had been "improperly accepted" within the meaning of Section 100
(1 )(d). The rationale of the decision was that the attairunent of
the prescribed age by the candidate after the date of scrutiny of
nominations did not operate retrospectively to remove his disquali- D
fication for being chosen, with effect from the date of the scrutiny
of the nominations. The disqualification on the date of the scrutiny
remained unaffected. That was not a case like the present one
where the disqualification of the candidate existing as a fact at the
date of the nominations, due to his conviction and sentence exceed-
ing two years, was retrospectively wiped out owing to his subsequent E
acquittal by the appelJate court, during the pendency of the elections
petition in the High Court.
It is possible that, difficult and anomalous situations may arise if
the rule in Manni Lal v. Parmai Lal is applied to a converse hypo-
thetical case wherein the candidate whose nomination is rejected on F
account of his disqualification, viz., conviction and. sentence exceed-
ing two years' imprisonment existing as a fact on the date of scrutiny
...i-. of nominations, brings an election-peti1ion to challenge the election
of the returned candidate on the ground that his nomination was
improperly rejected. as his disqualification had been, as a result of
his subsequent acquittal by an appellate court, annulled and ob!ite- G
rated with retroactive force.
But we do not think it necessary to indulge in this hypothetical
and academic exercise. Firstly, the instant case is not one where
the election is being challenged under Section lOO(l)(c) on the
• ground that the election-petitioner's nomination was improperly re- Bl
jected. Secondly, it has not been urged before us by the learned
(1) 34ITR 143.
660 SUPREME COURT REPORTS [1981] 2 S.C.R.

A counsel for the respondent, that Manni Lal's case was wrongly
•
decided and that its ratio needs reconsideration by a l[trger Bench.
All efforts of the learned counsel have been directed to show that
the principle enunciated in Manni Lal's case is ;napplicable to the
present case because on facts, between these two cases, there is a
difference and a distinction, where, in reality, none that matters, really
exists. In this situation therefore, we would abide by the principle
of stare decisis and follow the ratio of Manni Lal's case, and m the
result, hold that the acqnittal of the appellant in appeal prior to the
pronouncement of the judgment by the High Court in the election-
petition had the resnlt of wiping out his disqualification as complete-
•C ly and effectively as if it did not exist at any time including the date
of th•c scrutiny of the nomination papers and that his nomination
paper was properly accepted by the Returning Officer. The chal-
lenge to. the election of the appellant on the ground under clause
100(1) (d) (i) rirnst, therefore, fail.
For all the foregoing reasons, we allow this appeal, set aside the
iD judgment of the High Court and dismiss the election-petition of the
respondent. In view of the Jaw point involved, we will leave the
parties to pay and bear their own coiils throughout.

V.D.K. Appeal allowed.

•