ASOPA, J. - (1.) THAT by the instant writ petition the petitioner has challenged the order dated 15. 10. 2005 passed by the Election Tribunal Civil Judge (Sr. Div.), Karauli, whereby the election filed by the petitioner against the respondent No. 2 Smt. Chandra Kala has been rejected.
(2.) THE case of the petitioner before the Election Tribunal was that the respondent No. 1 Smt. Chandra Kala was disqualified under Section 19 (gg) and (m) of the Rajasthan Panchayati Raj Act, 1994 (for short, "the Act") to contest the election of Gram Panchayat Naroli Dang on the date of filing the nomination paper for the same on 30. 1. 2005 on account of pendency of criminal case for offence under Section 419, 467, 468, 471 and 120-B IPC, wherein the cognizance was taken on 19. 1. 2002 and charge has been framed for offence under Sections 467 & 120-B IPC on 13. 10. 2004. The respondent No. 2 the returned candidate has filed reply to the writ petition and submitted therein that in view of subsequent acquittal/dropping of criminal proceedings wipe out retrospectively as held by Supreme court in Vidya Charan Shukla vs. Purshottam Lal Kaushik (1981 (2) SCC 84) which was rightly followed by Election Tribunal. On the basis of the pleadings of the parties, the following issues have been framed:- *** Out of the aforesaid five issues, the Issue No. 1 and 3 are relating to disqualification. The evidence was led by the parties and after hearing both the parties the Election Tribunal decided the Issue No. 1 in favour of the present petitioner. But while discussing the Issue No. 3 of disqualification, the Election Tribunal relied on the judgment of Hon'ble Supreme Court report in Vidya Charan Shukla (supra), wherein it has been held that in a case of R. P. Act the disqualification of conviction on the date of nomination is wiped out on subsequent acquittal which will operate retrospectively. The relevant portion of the finding on Issue Nos. 1 and 3 is as under:- *** The learned counsel for the petitioner has submitted that the Election Tribunal has committed serious illegality in not considering Full Bench Judgment of this Court in Narayan Lal vs. State of Rajasthan & Ors. Reference in D. B. Civil Special Appeal (Writ) No. 715/2001, decided on 25. 2. 2003), on the similar issue in Rajasthan Panchayat ct was considered and the aforesaid judgment of the Hon'ble Supreme Court which is under the Representation of Peoples Act wherein conviction on the date of nomination was the disqualification was distinguished on the ground that under the Panchayat Act, trial of a cognizable offence in which the charges have been framed and punishable with imprisonment with five years is the disqualification.
(3.) THE submission of the counsel for the respondents is that the Respondent No. 1 has been acquitted on account of compromise which will relate back to the date of nomination. He further placed reliance on judgment of Vidya Charan Shukla (supra ). I have gone through the contents of the writ petition and documents annexed therewith and further considered the rival submissions of the parties. The judgment of Vidya Charan shukla has been considered by the Constitutional Bench of Supreme Court in K. Prabhakaran vs. P. Jayarajan (2005 (1) Supreme Court Cases 754, decided on 11. 1. 2005) and the same has been over ruled in Para Nos. 35 and 40 of the judgment on the ground that an election petition is not a continuation of election proceedings, therefore, the nomination paper is to be tasted by deciding qualification or disqualification of the candidate on the date of scrutiny and not by a reference to any subsequent event thereto. The other relevant paragraphs including aforesaid two paragraphs i. e. , Para Nos. 33, 35, 37, 39 and 40 of the aforesaid judgment read as under:- ``33. We may just illustrate what anamolies and absurdities would result if the view of the law taken in Mani Lal's case 1970 (2) SCC 462 and Vidya Charan Shukla case (1981 (2) SCC 84), were to hold the field. One such situation is to be found noted in Para 39 of Vidya Charan shukla case. A candidate's nomination may be rejected on account of his having been convicted and sentenced to imprisonment for a term exceeding two years prior to the date of scrutiny of nomination. During the hearing of election petition, if such candidate is exonerated in appeal and earns acquittal, his nomination would be deemed to have been improperly rejected and the election would be liable to be set aside without regard to the fact whether the result of the election was materially affected or not. Take another case. Two out of the several candidates in the election fray may have been convicted before the date of nomination. By the time the election petition comes to be decided, one may have been acquitted in appeal and the conviction of the other may have been upheld any by the time an appeal under Section 116-A of RPA preferred in this court comes to be decided, the conviction of one may have been set aside and, at the same time the acquittal of the other may also have been set aside. Then the decision of the High Court in election petition would be liable to be reversed not because it was incorrect, but because something has happened thereafter. Thus, the result of the election would be liable to be avoided or upheld not because a particular candidate was qualified or disqualified on the date of scrutiny of nominations or on the date of his election, but because of acquittal or conviction much after those dates. Such could not have been the intendment of the law. 35. In Vidya Charan Shukla case, Dilip Kumar Sharma case (1976 (1) SCC 560; 1976 SCC (Cri) 85) has been relied upon which, in our opinion, cannot be applied to a case of election and election petition. 37. Four factors are relevant. Firstly the sentence of death was passed in judicial proceedings and the appeal against the judgment of the trial Court being a continuation of those judicial proceedings, the court was not powerless to take note of subsequent events. The sentence of death was passed based on an event which had ceased to exist during the pendency of the appeal. The Court was, not only, not powerless but was rather obliged to take note of such subsequent event, failing which a grave injustice would have been done to the accused. Secondly, the Court interpreted Section 303 IPC which speaks of a person ``under sentence of imprisonment for life'' as meaning a person under an operative, executable sentence of imprisonment for life. A sentence once imposed but later set aside is not executable and, therefore, ceases to be relevant for the purpose of Section 303 IPC. Thirdly, the focal point was the date of conviction when the Court is called upon to pronounce the sentence. Fourthly, it is pertinent to note that the well-established proposition, which the Court pressed into service was the (Dilip Kumar Sharma Case, SCC Page 565 Para 10) a Court seized of a proceeding must take note of events subsequent to the inception of that proceeding, which position, the Court held, is applicable to civil as well as criminal proceedings with appropriate modifications. The emphasis is on the events happening subsequent to the inception of that proceeding. In the cases at hand, the principle laid down in Dilip Kumar Sharma Case will have no application inasmuch as the validity of nomination paper is to be tested by deciding qualification or disqualification of the candidate on the date of scrutiny and not be reference to any event subsequent thereto. 39. That an appellate judgment in a criminal case, exonerating the accused-appellant, has the effect of wiping out the conviction as recorded by the trial court and the sentence passed thereon is a legal fiction. While pressing into service a legal fiction it should not be forgotten that legal fictions are created only for some definite purpose and the fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field. A legal fiction presupposes the existence of the state of facts which may not exist and then works out the consequences which flow from that state of facts. Such consequences have got to be worked out only to their logical extent having due regard to the purpose for which the legal fiction has been created. Stretching the consequences beyond that logically flows amounts to an illegitimate extension of the purpose of the legal fiction (see the majority opinion in Bengal Immunity Co. Ltd. vs. State of Bihar (1955 (2) SCR 603; AIR 1955 SC 661 ). P. N. Bhagwati J. as His Lordship then was, in his separate opinion concurring with the majority and dealing with the legal fiction contained in the Explanation to Article 286 (1) (a) of the Constitution (as it stood prior to the Sixth Amendment) observed: (SCR PP. 720-21) ``due regard must be had in this behalf of the purpose for which the legal fiction has been created. If the purpose of this legal fiction contained in the Explanation to Article 286 (1) (a) is solely for the purpose of sub-clause (a) as expressly stated it would not be legitimate to travel beyond the scope of that purpose and read into the provision any other purpose howsoever attractive it may be. The legal fiction which was created here was only for the purpose of determining whether a particular sale was an outside sale or one which could be deemed to have taken place inside the State and that was the only scope of the provision. It would be an illegitimate extension of the purpose of the legal fiction to say that it was also created for the purpose of converting the inter-State character of the transaction into an intra-State one''. His Lordship opined that this type of conversion would be contrary to the express purpose for which the legal fiction was created. These observations are useful for the purpose of dealing with the issue in our hands. Fictionally, an appellate acquittal wipes out the trial Court conviction; yet, to hold on the strength of such legal fiction that a candidate though convicted and sentenced to imprisonment for two years or more was not disqualified on the date of scrutiny of the nomination, consequent upon his acquittal on a much later date, would be an illegitimate extension of the purpose of the legal fiction. However, we hasten to add that in the present case the issue is not so much as to the applicability of the legal fiction; the issue concerns more about the power of the Designated Election Judge to take note of subsequent event and apply it to an event which had happened much before the commencement of that proceeding in which the subsequent event is brought to the notice of the Court. An election petition is not a continuation of election proceedings. 40. We are clearly of the opinion that Manni Lal case and Vidya Charan Shukla case do not lay down the correct law. Both the decisions are, therefore, overruled. ;