# MANNI LAL v. SHRI PARMAI LAL & ORS

- **Citation:** [1971] 1 S.C.R. 798
- **Court:** Supreme Court of India
- **Decided:** 1970-08-13
- **Case number:** Civil Appeal No. 2632 of 1969
- **Bench:** J. C. Shah, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manni-lal-v-shri-parmai-lal-ors-5286
- **Pages:** 6

## Headnote

Representation of the People Act, 1951, s. 8(2)-Disqualification--
Candidate stood convicted on dar. of his election but acuittal in appealEfject of--Conduct of Election Rules, 1961 .r. 56(2) (b )-Rejection of
ballot paper~A1ark made l1:ith otherwise than the seal supplied,
The appellant challenged the election of the first respondent to the
State Legislative Assembly on the grounds : (1) the respondent was disqualified under s. 8(2) of the Representation of the People Act, because, on the date of his election he stood convicted for offences under
.the Penal Code,
though later, he was acqutted 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 '1allot papers
were made otherwise than with the instrument supplied for the pmposc
and that those ballot papers were therefore liable to rejection
under
r.56(2) 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 c1 iminal case. acq_uittal in appeal docs not take effect nr..:rdy
from the date of the appellate order s~tting aside the conviction, it has
the effect of retrospectively \viping out th!.! coriviction and sentence 3\\'ard-
.ecl 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 judgmenl 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 Fl
(2) For rejection under r. 56(2) (d) 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 Hijlh Court was right in not upsetting the order of Returning
Officer for reiectin~ 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 ~f the pleadings in the election petition. !he respondent bacl still a
majority of valid votes. [803 Al
CML APPELLATE Jmrsmcnr.-, : Civil Appeal No. 2632 of
1969.
Appeal u,nder s. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated October 27,
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MANNI LAL v. PARMA! LAL (Bharga.va, J.)
799
A
1969 of the Allahabad High Court in Election Petition No. I of
1969.
B
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D
E
F
G
H
G. N. Kikshit, for the appellant.
K. C. Sharma, M. S. Gupta and S. K. Dhingra, for respondent No. 1.

## Text

798
MANNI LAL
v.
SHRI PARMAI LAL & ORS.
August 13, 1970
[J. C. SHAH AND V. BHARGAVA, JJ.]
Representation of the People Act, 1951, s. 8(2)-Disqualification--
Candidate stood convicted on dar. of his election but acuittal in appealEfject of--Conduct of Election Rules, 1961 .r. 56(2) (b )-Rejection of
ballot paper~A1ark made l1:ith otherwise than the seal supplied,
The appellant challenged the election of the first respondent to the
State Legislative Assembly on the grounds : (1) the respondent was disqualified under s. 8(2) of the Representation of the People Act, because, on the date of his election he stood convicted for offences under
.the Penal Code,
though later, he was acqutted 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 '1allot papers
were made otherwise than with the instrument supplied for the pmposc
and that those ballot papers were therefore liable to rejection
under
r.56(2) 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 c1 iminal case. acq_uittal in appeal docs not take effect nr..:rdy
from the date of the appellate order s~tting aside the conviction, it has
the effect of retrospectively \viping out th!.! coriviction and sentence 3\\'ard-
.ecl 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 judgmenl 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 Fl
(2) For rejection under r. 56(2) (d) 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 Hijlh Court was right in not upsetting the order of Returning
Officer for reiectin~ 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 ~f the pleadings in the election petition. !he respondent bacl still a
majority of valid votes. [803 Al
CML APPELLATE Jmrsmcnr.-, : Civil Appeal No. 2632 of
1969.
Appeal u,nder s. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated October 27,
A
8
c
D
E
F
G
H
MANNI LAL v. PARMA! LAL (Bharga.va, J.)
799
A
1969 of the Allahabad High Court in Election Petition No. I of
1969.
B
c
D
E
F
G
H
G. N. Kikshit, for the appellant.
K. C. Sharma, M. S. Gupta and S. K. Dhingra, for respondent No. 1.
The Judgment of the Court was delivered by
Bhargava, J.
This is an appeal by Manni Lal who was one
of the candidates for election to the U.P. 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. 1 was disqualified under section
8 (2) 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 offences 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 appelant, that some ballot papers were
wrongly counted for respondent No. 1 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 statement.
respondent No. 1 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. l, 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. 1 would have a net loss of 24 votes.
It appears
that respondent No. 1 had received 13,508 votes, while the appellant had received 13,271 votes.
After taking into account the
finding, the valid votes received \Jy the appellant would total to
13,277, while respondent No. 1 '\YOU!d still have 13,484 valid
votes, so that the election of respondent No. I could not be declar-
800
SUPREME COURT REPORTS
[1971) 1 S.C.R.
.ed 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. 1 was not disqualified
under s. 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 1I6A 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 'lnd respondent No. 1 was convicted two days later on 11th January, 1969 and sentenced, i "r alia,
to ten years' rigorous imprisonment under section 304, I.P"'· 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 l'{o. 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 ar.d 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 I 02 (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 .. 1
was not disqualified at the time of filing of nomination, he was, m
fact. disqualified on 9th February. 1969. the date of polling, as
well as on 1 Ith 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
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.MANNI 'AL v. PARMA! LAL (Bhargava, J.)
801
appeal did not have the effect of wiping out this conviction.
In
tnese circumstances, it was urged that his election was void and
should have been set aside on the ground of this disqualification.
This argumept overlooks the fact that an appellate orJer of
acquittal taKes elfect retrospectively and the conviction and :;cntence are deemed to be set aside with elfect 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 II th
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 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 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 election 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 repe~l s. 8(2) of the Act retrospectively with effect from
11th January, 1969.
Learned counsel conceded that, if a law
had been passed repealing s. 8(2) of the Act and the law had been
deemed to come into effect from 11.th January, 1969, he could
not have possibly urged thereafter, when the point came up before
the High Court, that respondent No. l was disqualified on 9th or
I !th 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. l 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 sta:_ment
which challenged the correctness of the acceptance or rejection of
ballot papers without any recrimination being filed by respondent
L 169 Sup.CI (P)/71--7
.
So2
SUPREME COURT REPORTS
tl97lj l s.c.R..
No. l under section 97 of the Act.
Counsel wanted to argue this
question of law in detail, but we consider that, in the present case,
u 1s not necessary to go into this point at all.
Even 1f the three
issues framed on the basis of pleaamgs in the written statement are
ignored, and account is taken only of findings r~corded on the
tnree issues framed on the basis of pleadings in the election petition, it would be found that respondent No. l still had a majority
of valid votes, and the appellant could not claim that the election
of respondent No. l be set aside and the appellant be declared as
the successful candidate.
The findings of ract recorded by the
Judge are that, under Issue No. 5, 18 ballot papers mentioned in
Schedules III and lV should be counted as- valid votes for the
appellant, while 24 ballot papers were wrongly counted in favour
of re,spcndent No. 1.
Under Issue No. 3, the finding is that the
appellant is entitled to add 111 valid votes in his favour and .. under
ls,ue No. 4, the finding is that 74 votes would be lost by respondent No. J.
If these hgures are accepted and taken into account,
the appellant would receive 13,400 valid votes, being the total of
13,271 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 .lcligh Court; and, on deducting these votes from
13,508 received by him, respondent No. 1 is left with 13,410 votes,
Respondent No. 1, thus, has a majority of 10 votes, so that his
election is valid.
Counsel, however, challenged one finding recorded
by
me
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.
Thc.se ballot papers have not been produced before
us.
The learned Judge held that t'.1ey were invalid votes because
"thy bear no recognisable 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 56(2)(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
·'·>r the purpose."
The argum~nt urged is that, according to the Judge, the impression.s 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
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MANNI LAL v. PARMA! LAL (Jihargava, J.)
803
rejection under rule 56(2)(b), there must be a definite finding
that they Jore marks made otherwise than with the seal supplied
for the purpose.
In this case, the Returning Officer rejected the
ballot papers holding that the marks made on these ballot papers
were made otherwise than with the instrument supplied for
the
purpose.
The appellant challenged that decision of the Return•
ing 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 yotes 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 appellant's case fails,
for the majority of votes still remains in favour of respondent
No. I.
The appeal, therefore, fails and is dismissed with costs.
Y.P.
Appeal dismissed.