Decided on August 06,2012

Bishan Singh Chupal Respondents


- (1.) Present Election Petition has been filed for following reliefs: "I. Declare the election of the respondent no.1 from 43 Didihat legislative Assembly constituency void. II. Direct for the fresh election in 43 Didihat legislative Assembly constituency. III. Pass appropriate order against Returning Officer who intentionally and deliberately rejected the nomination/candidature of the petitioner. IV. Grant any other and further relief which this Hon'ble Court may deem fit and proper in the circumstances of the case. V. Award the cost of the petition to the Election Petitioner."
(2.) Election of third Legislative Assembly of State of Uttarakhand was notified by the Election Commission for seventy constituencies. In pursuance of the said notification, the petitioner filed his nomination form for 43-Didihat Legislative Assembly Constituency on 11.01.2012. The Returning Officer of 43-Didihat Legislative Assembly Constituency rejected the nomination paper of the petitioner by declaring him disqualified under Section 8(3) of Representation of Peoples Act, 1951 (hereinafter referred to as the Act). The Returning Officer observed in his order that the petitioner in his affidavit filed in support of nomination paper has admitted that he has been convicted for three years and six months. The Returning Officer also observed that the papers annexed by the petitioner relating to pending appeal in the High Court do not suggest that conviction order has been suspended by the High Court.
(3.) Learned counsel for the petitioner submitted that in his affidavit filed alongwith nomination paper the petitioner fairly stated that he has been convicted by the judgment and order dated 31.05.2011 passed by District Judge, Pithoragarh in session trial no.03 of 2010 under Section 34, 332, 506 and 427 of I.P.C. against which appeal no.119 of 2011 has been filed by the petitioner before the High Court. The said appeal has been admitted and petitioner has been enlarged on bail. Copy of judgment dated 31.05.2011 and bail order were also placed before the Returning Officer. They argued that the Returning Officer misconstrued the provision of law as appeal against the said conviction is admitted for hearing by the appellate court and the petitioner has been enlarged on bail, therefore, there would be no conviction from the date when the appeal is admitted. The conviction is yet to be confirmed by the appellate court and, therefore, the principle of innocence of the accused/convict should be presumed until it attains finality. They further submitted that order of conviction is not executable. It cannot be suspended or stayed as there is no provision for suspension of conviction by the appellate court and the appellate court cannot go beyond the provision of section 386 of Cr.P.C. They submitted that in view of these facts the Returning Officer should not have rejected the nomination paper of the petitioner and election of respondent no.1 from 43-Didihat Legislative Assembly constituency should be declared void and direction should be issued for holding fresh election. In support of their submission, the learned counsel for the petitioner relied upon the judgment of Bombay High Court Ramesh Narang vs Rama Narang and others, 1995 CrLJ 1685.;

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