MATHUR, J. - (1.) IN this Special Appeal directed against the judgment of the learned Single Judge dated 21. 08. 2001, a short but interesting question of law of public importance which arises for consideration is- " Whether a Sarpanch elected by a valid democratic process can be ousted from the office on the ground that he was disqualified to contest the election as on the date of nomination, viz; he was undergoing a trial before the competent court which had taken cognizance of the offence and framed a charge against him of the offence punishable with imprisonment for five years or more inviting applicability of Clause (gg) of Section 19 of the Rajasthan Panchayati Raj Act, 1994 inspite of the fact that on the date of Tribunal upset the election, he stood acquitted of the charges levelled against him?"
(2.) THE question arises in the backdrop of the facts that the appellant - writ petitioner, hereinafter referred-to as `the petitioner' filed nomination paper to contest the election of Sarpanch, village Denda on 3. 2. 2002. THE nomination was scrutinized and accepted on the same day. THEre were five candidates in the fray. THE appellant secured the highest votes i. e. 525, whereas the nearest rival viz; Shri Beenja secured 283 votes. Thus, he was declared elected. THE said election was challenged by way of an Election Petition filed by the respondent No. 5 viz; Pukhraj under Section 43 of the Rajasthan Panchayat Raj Act, 1994' read with Rule 8 of the Rajasthan Panchayati Raj Rules, 1996, hereinafter referred to as `the Rules of 1996' on the ground that the petitioner's nomination was wrongly accepted, inasmuch as he was disqualified in terms of Section 19 (gg) of the act of 1994 as he was facing a criminal trial in the court of the Additional Chief Judicial Magistrate (Environment), Pali. In reply, the petitioner averred that a compromise had taken place between the parties on 27. 1. 2000 i. e. a week prior to filing of the nomination but due to strike of the employees, the compromise could not be verified. It was verified on 5. 8. 2000. It was also averred that the defeated candidate challenging the election viz; Pukhraj was also a convict for the offence under Section 420 IPC. He was sentenced to imprisonment for a period of six months and to pay a fine of Rs. 500/ -. He was also convicted for the offence u/sec. 447 IPC and sentenced to imprisonment for a period of 45 days and to pay a fine of Rs. 200/ -. Thus, it was contended that an Election Petition at the instance of such a person is not maintainable. However, the Election Tribunal allowed the Election Petition filed by respondent No. 5 on the ground that the petitioner was disqualified to contest the election of Sarpanch and the acceptance of his nomination form by the Returning Officer, has vitiated the process of election in view of disqualification provided under clause (gg) of Section 19 of the Act of 1994. Accordingly, the learned District Judge, Pali by judgment dated 7. 8. 2001 set aside the election of the petitioner. In the opinion of the learned Single Judge, clause (gg) of Section 19, which provides a disqualification for contesting the election on the post of Sarpanch on mere pendency of the trial for an offence punishable with imprisonment for five years or more, makes a person ineligible to be elected as a member of the Panchayati Raj Institution and, as such, the result of the trial becomes irrelevant for the purpose of finding the qualification of the person to be elected. The learned Single Judge further expressed that a fact of conviction for an offence and fact of undergoing punishment of imprisonment, both may be deemed wiped out on acquittal, but a fact of undergoing a trial when the elections are held, cannot be wiped out, even after trial results in acquittal. It is contended by Mr. P. P. Chaudhary, learned counsel for the petitioner that the learned Single Judge has committed error in distinguishing the two binding decisions of the Hon'ble Supreme Court viz; Manilal vs. Parmai Lal (1) and Vidhya Charan Shukla vs. Purshottam Lal Kaushik (2), on unsustainable grounds. On the other hand, it is submitted by Mr. Vijay Bishnoi learned counsel for the respondent, election petitioner, that both the decisions of the Apex Court have been rendered under the scheme of Representation of People Act, whereunder a disqualification was attached from the date of conviction and not on the basis of mere pendency of trial. It is asserted by the learned counsel that the learned Single Judge has rightly observed that the intention of the legislature in introducing the clause (gg) in Section 19 of the Act of 1994 was to deal with the qualification of a candidate at the time of nomination. We have given a thoughtful and anxious consideration to the rival contentions. The amendment in Section 19of the Act of 1984 was introduced as follows: " 5. Amendment of Section 19, Rajasthan Act No. 13 of 1994. In Section 19 of the Principal Act. " (i) xxxxxxxxx (ii) xxxxxxxx (iii) for the existing clause (g), the following shall be substituted, namely: " (g) has been convicted of any offence by a competent court and sentenced to imprisonment for six months or more, such sentence not having been subsequently reversed or remitted or the offender pardoned. " (iv) After clause (g) and before clause (h), the following new clause shall be inserted, namely : " (gg) is under trial in the competent court which has been taken cognizance of the offence and framed the charges against him of any offence punishable with imprisonment for five years or more. " (v) xxxxxxxxxxx (vi) for the existing proviso (ii), the following shall be substituted, namely; " (ii) for the purpose of clause 9c), (g and (k), any person shall become eligible for election after a lapse of six years from the date of his dismissal or the date of conviction, as the case may be. " Thus, by amendment, a disqualification is provided for contesting the election on the post of Panch or Sarpanch to a person, who has been sentenced to impri- sonment for six months or more by a competent court or a person against whom, a competent court has taken cognizance of an offence and framed the charges of an offence punishable with imprisonment for five years or more. The proviso (ii) of Sec. 19 liberates a person from disqualification under clause (c), (g) & (k) after a lapse of six years from the date of dismissal or the date of conviction as the case may be.
(3.) THE constitutional validity of the said provision has been upheld by the judgment of the Division Bench of this Court in Shiv Ram vs. State of Rajasthan While considering the validity of the provision, this Court has taken into consideration the political scenario in the Country i. e. criminalisation in politics. This Court while rejecting the contention that there is a violation of the fundamental rights of a person in not permitting him to contest the election, held that to contest the election is not a fundamental right. It was also observed that as far as the violation of statutory right is concerned, a reasonable restriction can be imposed in the public interest. It appears that the Court was also conscious of the fact that while there is an increase in the criminalisation in the country, there is also growing tendency of false implication to achieve political, business or private motives. THE Division Bench also held that the object of the amendment was to keep the persons under cloud, away from the election fray in the larger public interest. THE Division Bench in detail examined the provisions of the Code of Criminal Procedure with respect to framing of charge, discharge of the accused person at the stage of charge and quashing of the proceedings. Thus, it appears that the object of the amended provisions of clause (gg) in Section 19 is to keep away persons against whom on a judicial scrutiny, a prima facie substance is found in the allegations constituting any criminal offence levelled against them, to appear that purity is maintained in election. To say that the intention of the legislature was to completely delink the qualification of the candidate with the result of the trial, is going too far destroying the basics of criminal jurisprudence, so much so even if a person is declared innocent by a competent court, he will carry the stigma once levied by a jealous political opponent, forming a category of "deemed convict" without trial. It is now well settled that the acquittal of an accused has the effect of wiping out the conviction with retrospective effect, as if he had never been convicted and sentenced. In Dilip Kumar Sharma vs. State of Madhya Pradesh (4), the Court observed as follows: " 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. As Kelson puts it, "it is a true annulment, 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 which had died at birth. " The Apex Court applied this principle to the question of disqualification of a candidate for being chosen to fill a seat in the Legislative Assembly in Mani Lal's case (supra ). The Apex Court while examining the effect of acquittal in appeal of a returned candidate before the decision of an election-petition on his conviction and sentence in the said case, held that in a criminal case, acquittal in appeal does not take effect merely from the date of the appellate order setting aside the conviction but it will have the effect of retrospectively wiping out the conviction and the sentence awarded by the lower Court. The Court further observed that once the conviction is set aside, it will have the effect as if it never existed at all. ;