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2001 DIGILAW 332 (PAT)

Surendra Singh v. State Of Bihar

2001-04-11

AFTAB ALAM

body2001
Judgment 1. Heard Mr. Ram Balak Mahto, learned counsel appearing for the petitioner and Mr. Nath, learned counsel apparing on behalf of the State Election Commission. 2. The petitioner filed nomination for contesting election for the office of Mukhiya of Aifni Gram Panchayat in the district of Sheikhpura. On 19.2.2000, the date of scrutiny, the returning officer rejected his nomination on the ground that he was convicted and sentenced to undergo rigorous imprisonment for a period exceeding six months. 3. This ,writ petition has been filed challenging the order passed by the returning officer, rejecting the nomination filed by the petitioner. It was submitted that the returning officer was in error in rejecting the petitioners nomination as the petitioners appeal being Cr. Appeal No. 164 of 1993 filed before the High Court against the judgment and order passed by the trial court was admitted for hearing on 16.4.1993 and by the order passed on that date, the petitioner was also released on bail during the pendency of the appeal. 4. In a number of cases, it has been held by this Court that the pendency of the appeal and the grant of bail in appeal will not do away the disqualification imposed by section 139(3) of the Bihar Panchayat Raj Act, 1993. As long as the order of conviction passed by the trial court stands the concerned person would not be able to contest an election under the Act. Later on, if the appellate court sets aside the judgment and order of conviction, the concerned person may be able to contest any future elections held under the Act.. 5. It was then submitted that disallowing the petitioner to contest the election was discriminatory because another candidate, namely, Naresh Kumar was allowed to contest the election in the same gram panchayat although he too like the petitioner was convicted and sentenced to undergo imprisonment for a period exceeding six months. 6. In my view, the question of discrimination could arise only if the fact that the other candidate too was convicted by the trial court was brought to the notice of the Returning Officer on the date of the scrutiny and the returning officer had applied double standard, in rejecting the nomination of the petitioner but accepting the nomination of the other candidate. 7. The Returning Officer cannot be expected to know the antecedents of all persons filing nomination. 7. The Returning Officer cannot be expected to know the antecedents of all persons filing nomination. And he can only act if facts concerning the candidates are brought to his notice. For illustration three persons, A, B and C might have filed nomination. Now, on the date of scrutiny, it is brought to the notice of the Returning Officer that A is a convict and reliable materials are produced to show that he is a convict. The Returning Officer will be obliged to reject the nomination of A. It may be that C also is a convict but no objection is raised against C and no materials showing him to be a convict is brought to the notice of the Returning Officer. In that event the Returning Officer wiil be obliged to accept the nomination of C and reject the nomination of A. 8. Later, in case it is brought to the notice of the writ court that C too is a convict, a question would arise whether this court should assume the role of the Returning Officer and direct that the nomination of the other candidate should also be rejected, even without affording him an opportunity of hearing. 9. I would rather restrain myself from interfering in such a matter; moreso in view of the fact that the Act provides an efficacious remedy under section 140 of the Act to challenge the election by filing an election petition. 10. In this case, it was pointedly asked whether or not it was brought to the notice of the returning officer, on the date of scrutiny, that Naresh Prasad was convicted by the trial court. There is no averment in the writ petition in this regard and Mr. Mahto was also unable to give a satisfactory reply to this question. 11. Mr. Mahto, however, stated that in some cases, where nomination of a candidate was rejected by the Returning Officer on the ground that he was convicted by the trial court, either the District Election Officer or the State Election Commission had interfered and gave direction for restoration of the nomination of such rejected candidates. This statement is made on the basis of some newspaper reports which are at Annexures 7 and 8. Newspaper reports are not always cent per cent reliable and, therefore, I am not inclined to ask the Election Commission to answer the charge being made against them. This statement is made on the basis of some newspaper reports which are at Annexures 7 and 8. Newspaper reports are not always cent per cent reliable and, therefore, I am not inclined to ask the Election Commission to answer the charge being made against them. Moreover under the scheme of the Act and the rules, it is only the Returning Officer, who is given power to either accept or reject the nomination. No such power is vested either in the District Election Officer or the State Election Commission. Therefore, even if in some cases, the State Election Commission or the District Election Officer has passed an order exceeding its jurisdiction that will not make a ground to allow the petitioner to contest the election. 12. For all these reasons, no relief can be granted to the petitioner by this writ Court. This writ petition is, accordingly, dismissed. The dismissal of this writ petition will not stand in the way of the petitioner, if he chooses to raise his objections, after the election is concluded by filing an election petition under section 140 of the Bihar Panchayat Raj Act.