Appeal No 2632 of 1969
Appeal under section 116 A of the Representation of the People Act 1951 from the judgment and order dated October 27 799 1969 of the Allahabad High Court in Election Petition No I of 1969
G N Kikshit for the appellant
K C Sharma M section Gupta and section K Dhingra for respondent No 1
The Judgment of the Court was delivered by Bhargava J
This is an appeal by Manti Lal who was one of the candidates for election to the UP Legislative Assembly from Ahirori Scheduled Caste Constituency of Hardoi District and who was defeated at that election by respondent No 1 Parmai Lal
The election was challenged on two principal grounds
One ground was that respondent No I was disqualified under section 82 of the Representation of the People Act 1951 hereinafter referred to as the Act for being chosen as a member of the Legislative Assembly because he was convicted for offenses under sections 148 and 304 of the Indian Penal Code on 11th January 1969 and was sentenced to imprisonment exceeding two years
The other ground was that a number of ballot papers cast in favour of the appellant had been wrongly rejected instead of being counted in favour of the appellant that some ballot papers were wrongly counted for respondent No I instead of being rejected and that some ballot papers were wrongly counted in favour of respondent No 1 instead of being counted in favour of the appellant or other candidates
The High Court of Allahabad framed three different issues in respect of this claim of wrong rejection or wrong counting of the ballot papers In the written statementrespondent No I pleaded that a number of ballot papers were wrongly counted in favour of the appellant instead of being counted in favour of the other candidates that a number of ballot papers were wrongly rejected instead of being counted in favour of respondent No 1 and further that a number of ballot papers were wrongly counted in favour of the appellant instead of being rejected
The learned Judge who tried the election petition framed three issues in respect of these pleadings also which were put forward in the written statement and not by way of a petition of recrimination
On the basis of examination of the ballot papers and the evidence before him a finding was recorded that after correcting the errors made in counting the net result would  be that the appellant will have a net gain of only 6 votes while respondent No I would have a net loss of 24 votes
It appears that respondent No I had received 13508 votes while the appellant had received 13271 votes
After taking into account the finding the valid votes received by the appellant would total to 13277 while respondent No I would still have 13484 valid  votes so that the election of respondent No 1 could not be declared 800 void
The appellant had claimed that on a proper counting  it would be found that he had a majority of votes and had prayed for a declaration that he is the successful candidate
On the finding recorded both the prayers of the appellant failed
The High Court further held that respondent No
I was not disqualified under section 8 2 of the Act and consequently his election was valid
The petition having been dismissed by the High Court the appellant has now come up in this appeal under section II 6A of the Act
On the issue relating to disqualification the facts that need be noticed are that 9th January 1969 was the last date for filing nominations in this constituency and respondent No 1 was convicted two days later on 11th January 1969 and sentenced inter alia to ten years  rigorous imprisonment under section 304 IPC
On 16th January 1969 he filed an appeal against this conviction in the High Court
Polling took place on 9th February 1969 and the result was declared on 11th February 1969
Respondent No 1 was declared as the successful candidate having secured the largest majority of votes
On 30th September 1969 his appeal was allowed by the High Court and his conviction and sentence were set aside
At this time the election petition was still pending
In fact the judgment in the election petition was delivered on 27th October 1969
On these facts it is clear that though the conviction of respondent No 1 was recorded by the trial Court on 11th January  1969 he was acquitted on 30th September 1969 in appeal which acquittal had the effect of completely wiping out the conviction
The appeal having once been allowed it has to be held that the conviction and sentence were vacated with effect from the date on which the conviction was recorded and the sentence awarded
In a criminal case acquittal in appeal does not take effect merely from the date of the appellate order setting aside the conviction it has the effect of retrospectively wiping out the conviction and the sentence awarded by the lower Court
The disqualification relied upon by the appellant wag laid under section 8 2 of the Act read with Article 102 1  e of the Constitution
The provision is that a person convicted by a court in India for any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of five years since his release
The argument on behalf of the appellant was that though respondent No I was not disqualified at the time of filing of nomination he was in fact disqualified on 9th February 1969 the date of polling as well as on 11th February 1969 when the result was declared because his conviction had been recorded and he had been sentenced to ten years  rigorous imprisonment on 11th January 1969
It was further urged that though the appeal had been filed that 801 appeal did not have the effect of Wiping out this conviction
In these circumstances it was urged that his election was void and should have been set aside on the ground of this disqualification
This argument overlooks the fact that an appellate order of acquittal takes effect retrospectively and the conviction and sentence are deemed to be set aside with effect from the date they were recorded
Once an order of acquittal has been made it has to be held that the conviction has been wiped out and did not exist at all
The disqualification which existed on the 9th or 11th February 1969 as a fact was wiped out when the conviction recorded on 11th January 1969 was set aside and that acquittal took effect from that very date
It is significant that the High Court under section 106  1 a of the Act is to declare the election of a returned candidate to be void if the High Court is of opinion that on the date of his election a returned candidate was dot qualified or was disqualified to be chosen to fill the seat under the Constitution or the Act
It is true that the opinion has to be formed as to whether the successful candidate was disqualified on the date of his election but this opinion is to be formed by the High Court at the time of pronouncing the judgment in the elec tion petition
In this
case the High Court proceeded to pronounce the judgment on 27th October 1969
The High Court had before it the order of acquittal which had taken effect retrospectively from 11th January 1969
It was therefore impossible for the High Court to arrive at the opinion that on 9th or 11th February 1969 respondent No 1 was disqualified
The conviction and sentence had been retrospectively wiped out so that the opinion required to be formed by the High Court to declare the election void could not be formed
The situation is similar to one that could have come into existence if Parliament itself had chosen to repeal section 8 2 of the Act retrospectively with effect from 11th January 1969
Learned counsel conceded that if a law had been passed repealing section 8 2 of the Act and the law had been deemed to come into effect from 11th January 1969 he could not have possibly urged thereafter when the point came up before the High Court that respondent No 1 was disqualified on 9th or 11th February 1969
The setting aside of the conviction and sentence in appeal has a similar effect of wiping out retrospectively the disqualification
The High Court was therefore right in holding that respondent No 1 was not disqualified and that his election was not void on that ground
On the second point the main argument of counsel for the appellant was that the High Court committed the error of framing three issues on the basis of pleadings in the written statement which challenged the correctness of the acceptance or rejection of ballot papers without any recrimination being filed by respondent L 169 Sup
C I P71 7 802 No 1 under section 97 of the Act
Counsel wanted to argue this question of law in detail but we consider that in the present case 10 is not necessary to go into this point at all
Even if the three issues framed on the basis of pleadings in the written statement are ignored and account is taken only of findings recorded on the three issues framed on the basis of pleadings in the election petition it would be found that respondent No 1 still had a majority of valid votes and the appellant could not claim that the election of respondent No 1 be set aside and the appellant be declared as the successful candidate
The findings of fact recorded by the Judge are that under Issue No 5 18 ballot papers mentioned in Schedules III and IV should be counted as valid votes for the appellant while 24 ballot papers were wrongly counted in favour of respondent No 1
Under Issue No 3 the finding is that the appellant is entitled to add 111 valid votes in his favour and under Issue No 4 the finding is that 74 votes would be lost by respondent No 1
If these figures are accepted and taken into account the appellant would receive 13400 valid votes being the total of 13271 votes found in his favour at the time of declaration of the result and 129 votes which the appellant is entitled to add as a result of the findings on the three issues
So far as respondent No 1 is concerned he loses 98 votes as a result of the findings recorded by the High Court and on deducting these votes from 13508 received by him respondent No 1 is left with 13410 votes
Respondent No 1 thus has a majority of 10 votes so that his election is valid  Counsel however challenged one finding recorded by the High Court in respect of 64 ballot papers which the appellant had claimed had been wrongly rejected and should have been counted in his favour
These ballot papers have not been produced before us
The learned Judge held that they were invalid votes because thy bear no recognizable seal impression that might be said to have been made with the instrument supplied for marking the vote
 The argument of counsel for the appellant is that even on this finding recorded by the High Court these votes should have been counted in his favour because they cannot be held liable to rejection under rule 562 b of the Conduct of Elections Rules 1961
That sub rule runs as follows  The returning officer shall reject a ballot paper if to indicate the vote it bears no mark at all or bears a mark made otherwise than with the instrument supplied for the purpose
 The argument urged is that according to the Judge the impressions on these 64 ballot papers could not be identified with the seal supplied for marking the votes which only leads to the inference that they may bear marks with that seal or may not
For 803 rejection under rule 562b there must be a definite finding that they bore marks made otherwise than with the seal supplied for the purpose
In this case the Returning Officer rejected the ballot pairs holding that the marks made on these ballot papers were mad otherwise than with the instrument supplied for the purpose
The appellant challenged that decision of the Returning Officer in this election petition
The burden lay on him to establish that the Returning Officer had wrongly rejected these ballot papers
He could only succeed if he had proved that the marks made were with the instrument supplied for the purpose
This the appellant failed to do
In fact the finding recorded by the learned Judge of the High Court amounts to holding that the marks made cannot be identified with the seal which was supplied for marking the votes and consequently an inference follows that they must have been made by some other means
On this finding the learned Judge was quite correct in not upsetting the order of the Returning Officer rejecting these votes
If these 64 votes are not counted in favour of the appellant the appellants case fails for the majority of votes still remains in favour of respondent No 1
The appeal therefore fails and is dismissed with costs
YP Appeal dismissed


Summary:
The appellant challenged the election of the first respondent to the State Legislative Assembly on the grounds  1 the respondent was disqualified under section 82 of the Representation of the People Act because on the date of his election he stood convicted for offenses under the Penal Code though later he was acquitted by the High Court and ii the Returning Officer rejected some  ballot papers cast in the appellant s favour holding that the marks made on those ballot papers were made otherwise than with the instrument supplied for the purpose and that those ballot papers were therefore liable to rejection under r562 of the Conduct of Election Rules 1961
The High Court dismissed the petition
In appeal to this Court HELD Dismissing the appeal 1 In a criminal case acquittal in appeal does not take effect merely from the date of the appellate order setting aside the conviction it has the effect of retrospectively wiping out the conviction and sentence awarded by the lower court
The opinion whether a successful candidate was disqualified on the date of his election is to be formed by the High Court at the time of pronouncing judgment in the election petition
When the High Court had before it the order of acquittal which had taken effect retrospectively it was impossible for the court to arrive at the opinion that on the date of election the respondent was disqualified
The High Court was therefore right in holding that the respondent was not disqualified and that his election was not void on the ground
800 F 2 For rejection under r 562d there must be a definite finding that the ballot papers bore marks made otherwise than with the seal supplied for the purpose
In the present case the finding recorded by the High Court amounted to holding that the marks made could not be identified with the seal which was supplied for marking the votes
On this finding the High court was right in not upsetting the order of Returning Officer for rejecting these votes and consequently an inference follows that they must have been made by some other means
If these votes were not to be counted in favour of the appellant the appellant s case had to fail because on the evidence recorded and the issues framed on the basis of the pleadings in the election petition the respondent had still a majority of valid votes
803 A