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2002 DIGILAW 578 (PAT)

Narad Paswan v. Ranjan Tewary @ Ranjan

2002-05-07

M.L.VISA

body2002
Judgment M.L.Visa, J. 1. This an order on an application filed by sole respondent u/s. 86(1) of the Representation of People Act, 1951 (in short, 1951 Act) read with Order VII, Rule 11 of the Code of Civil Procedure challenging the maintainability of election petition for non-compliance of mandatory provisions of Secs. 81 and 83 of 1951 Act and reply to this petition filed by petitioner. 2. The brief facts of the matter are that respondent was one of the contesting candidates in the election held in the year 2000 for Govindganj Assembly constituency, in the State of Bihar (in short, the election in question) and he was declared elected. The petitioner has challenged the election of respondent on the grounds that respondent was not qualified to be chosen to fill the seat of Bihar Legislative Assembly under the law and in fact, his nomination papers were improperly accepted. The case of petitioner is that the respondent is in reality a resident of Uttar Pradesh and he is also an elector so, recorded from one of the constituencies of Uttar Pradesh and he is not a resident of State of Bihar and as such, he cannot be an elector from any constituency of State of Bihar and therefore, he was not qualified under 1951 Act and the constitution of India to fill the seat of Elihar Legislative Assembly in the election in question. According to the petitioner, respondent is an elector duly registered from 182 Kauriam Assembly constituency in Uttar Pradesh which falls under 37, Bansgaon Parliamentary constituency of Uttar Pradesh and the name of respondent is recorded at serial No. 543 in part No. 268 in the aforesaid 182, Kauriram Assembly constituency and he has been issued a photo identity card against the entry of his name in the list of voters vide No. 0801354. Further case of petitioner is that apprehending fraudulent action which might be perpetrated at the instance of respondent for getting his name illegally included in the elector roll of Nautan Assembly constituency for contesting election from the State of Bihar, candidates of some recognized political parties had apprised the Election Commission as well as the Local Registration-confliction Officer of the district of East Champaran and also the SDO, Areraj and Motihari (Annexure 2 of election petition). During the course of process of election after election programme was announced fixing date for filing nomination papers, several protest petitions appear to have been filed by the candidates of other political parties to the SDO, Areraj and Returning Officer wherein details regarding the sole respondent being a resident of Uttar Pradesh and his name being recorded in the list of voters of 182, Kauriam Assembly constituency in the year 1999 were given (Annexure 2/1 of election petition). Even during the scrutiny objection had been raised before the Returning Officer regarding the respondent being not qualified and to be chosen as member of Bihar Legialtive Assembly because he was never a resident of State of Bihar and as such, he was not in fact an elector for any constituency in the State of Bihar and so he was not qualified to contest the Assembly Election in the State of Bihar but quite illegally the Returning Officer ignored the objection and improperly and illegally accepted his nomination. According to the petitioner, the sole respondent under the law does not acquire the right of ordinarily resident of any constituency in Bihar without actually residing at any place in Bihar and inclusion of his name from any constituency of Bihar in inclusion of ordinarily resident of that place would be without jurisdiction and the electoral registration officer inherently lacks jurisdiction to include the name of respondent in other list of voters in a constituency of this State when apparently and on admitted facts respondent did not reside for a single day in the village from where his name was illegally enrolled as an elector and therefore, the order of electoral registration officer entering the name of sole respondent as an elector by way of correction of electoral roll in the year 2000 that too when election was notified was void ab initio besides being illegal, arbitrary and without jurisdiction. It is also the case of petitioner that so-called recording of the name of respondent by way of correction of electoral roll in the year 2000 of Khadha constituency in the district of West Champaran in Bihar is also void on the sole ground that opportunity to file an objection regarding said entry was not provided to the voters concerned and every thing was done secretly in a cavalier manner and it was done overnight as if it was a secret affair between the registration officer and the sole respondent. The further case of petitioner is that respondent is a well known personality of the underworld in Uttar Pradesh and in fact, he was in the Beur Central Jail, Patna, in the State of Bihar since February 1999 in connection with several cases and there was no occasion for him to ordinarily reside in any part of State of Bihar much less in the district of West champaran because he was rotting in Central Jail, Beur since February 1999 and prior to imprisonment, his name was running in the revised voters list in the year 1999 and he was voter of a constituency of Uttar Pradesh and this list was valid for the 1999 Parliamentary Election and hence the question of respondent being resident of any constituency in the State of Bihar did not arise. According to the petitioner, the improper acceptance of candidate of respondent has materially affected the result of election in question and as such, the election in question is fit to be declared void in view of sec. 100(1 )(a) and (d)(i) of 1951 Act. 3. The respondent by filing application under consideration has challenged the maintainability of election petition stating that there is no valid cause of action mandated by mandatory provisions of sec. 81 of the 1951 Act. According to the respondents, his name was included by way of correction in the year 2000 in the electoral roll of Nautan Assembly constituency in the district of West Champaran of Bihar and he had applied for inclusion of his name in the electoral roll of the district of West Champaran before the electoral registration officer under sec. According to the respondents, his name was included by way of correction in the year 2000 in the electoral roll of Nautan Assembly constituency in the district of West Champaran of Bihar and he had applied for inclusion of his name in the electoral roll of the district of West Champaran before the electoral registration officer under sec. 23 of the Representation of People Act, 1950 (in short, 1950 Act) and electoral registration officer after following the prescribed procedure as enumerated in Rule 26 of the Representation of People (Preparation of Electoral Rolls) Rules, 1956 included his name in the revised electoral roll of Nautan constituency. (Annexure A of written statement) much before the last date of making nominations for election in question which was 3.2.2000. Further case of respondent is that u/s. 30 of 1950 Act, no Civil Court or Tribunal which considers the validity of any election shall have jurisdiction to question the legality of any action taken by or under the authority of the electoral registration officer and action of electoral registration officer in including the name of the respondent before the last date for making nominations, in the revised electoral roll, cannot be questioned in an election petition and it could have been objected in the manner prescribed by law i.e. by preferring an appeal u/s. 24 of 1950 Act, because no such appeal was preferred the order of electoral registration officer including the name of respondent in the electoral roll of Nautan Assembly constituency is final and binding. It has also been stated that 1951 Act confers special jurisdiction to High Court to decide the election of returned candidate to be void on the grounds mentioned in Sec. 100 of 1951 Act, and relevant provisions which have been raised in the election petition of petitioner are provisions of Secs. 100(1)(a) and 100 (1)(d)(i) of 1951 Act and it cannot be said that on the date of election the respondent was disqualified to be chosen to fill the seat under the Constitution of India or under 1951 Act and in terms of sec. 100(1)(a) and 100 (1)(d)(i) of 1951 Act and it cannot be said that on the date of election the respondent was disqualified to be chosen to fill the seat under the Constitution of India or under 1951 Act and in terms of sec. 36(7) of 1951 Act, it cannot be said that there is any improper acceptance of the nomination of the respondent because he was not disqualified and there is no provision in 1951 Act which enables the High Court to declare the election of a returned candidate as void if the name of the returned candidate is in the electoral roll. Because the election petition being preferred under the 1951 Act, the violation of non-observance or non compliance of any provision of the 1950 Act cannot be raised before this Court. Further case of respondent is that election petition does not disclose any violation or disregard of the statute, including the Rules made thereunder in accepting nomination papers in gross regard to the mandatory provisions of sec. 83 of 1951 Act. Respondent has prayed for deciding the preliminary objection raised by him before proceeding further and dismissing the election petition summarily as being not maintainable because according to him further proceeding in the matter would be an abuse of the process of the Court. 4. 83 of 1951 Act. Respondent has prayed for deciding the preliminary objection raised by him before proceeding further and dismissing the election petition summarily as being not maintainable because according to him further proceeding in the matter would be an abuse of the process of the Court. 4. The petitioner by filing reply to the petition of respondent challenging the maintainability of election petition has almost taken the same stand as taken in the election petition and has stated that the respondent is having criminal antecedent and he remained in jail from February 1999 till today at Beur and other jail and there was no question of respondent being residing within the territorial jurisdiction of Nautan Assembly constituency and he did not acquire the basic residential qualification as provided u/s. 20 of the 1950 Act and inclusion of his name in the electoral roll of Nautan Assembly constituency from village Baikunthwa was contrary to law and the electoral registration officer had no jurisdiction to enroll his name in the relevant electoral roll particularly in view of the fact that respondent was an elector from Kauriram Assembly constituency in Gorakhpur district of Uttar Pradesh and it is a settled principle of law that an elector from any place in a State is not entitled to be enrolled from any place in other State unless his name is deleted from the existing list of voters of the State concerned. According to the petitioner enrolment of name of respondent in the list of voters of Baikunthwa village was made at the eleventh hour and no adequate opportunity was provided to the people of area concerned to raise objection against the illegal enrolment of the respondent and electoral roil of Nautan Assembly constituency is illegal and non est so far as it concerns the name of respondent in this list. Further case of petitioner is that a void order need not be challenged and it can be challenged collaterally or impliedly because void order is non est and it is dead throughout and does not acquire any validity even if it is not challenged. The petitioner has prayed for dismissing the petition of respondent challenging the maintainability of election petition. 5. The petitioner has prayed for dismissing the petition of respondent challenging the maintainability of election petition. 5. The case of petitioner is that respondent is a resident of Uttar Pradesh and his name has been recorded in the electoral roll of one of the constituencies in Uttar Pradesh and he was never a resident of State of Bihar and therefore, inclusion of his name in the electoral roll of Nautan Assembly constituency in the State of Bihar is illegal and void and acceptance of his nomination paper for election in question was improper. On the other hand, the case of respondent is that under the provisions of sec. 23 of 1950 Act, he applied for inclusion of his name in the electoral roll of Nautan Assembly constituency in the State of Bihar before electoral registration officer who after following prescribed procedure as laid down in Rule 26 of the Representation of People (Preparation of Electoral Rolls) Rules, 1956 included his name in the revised electoral roll of Nautan Assembly constituency much before the last date for making nomination for election in question which was 3.2.2000. The fact that name of respondent has been included in the electoral roll of Nautan Assembly constituency by the electoral registration officer is not in dispute. According to the respondent, revised electoral roll showing inclusion of his name in the electoral roll of Nautan Assembly constituency from village Baikunthwa was issued on 24.1.2000. Respondent has annexed copy of this revised electoral roll as Annexure A of his written statement. Although Annexure A does not show any (date of its issuance but respondent in his written statement on oath has stated that it was issued on 24.1.2000 and in his objection petition also he has given the same date of issuance of this electoral roll. The petitioner in his election petition has stated that the last date for filing nomination papers for election in question was 3.2.2000 and it has been admitted by respondent in his written statement as well as in the petition under consideration. So, there is no dispute on this point. 6. The petitioner in his election petition has stated that the last date for filing nomination papers for election in question was 3.2.2000 and it has been admitted by respondent in his written statement as well as in the petition under consideration. So, there is no dispute on this point. 6. Learned Counsel for the respondent has argued that since the name of respondent has been included in the electoral roll of Nautan Assembly constituency u/s. 23 of 1950 Act, by electoral registration officer this Court has got no jurisdiction to examine the validity of such order passed by the electoral registration officer because sec. 30 of 1950 Act bars jurisdiction of Civil Courts to entertain or adjudicate upon any question whether any person is or is not entitled to, be registered in an electoral roll for a constituency; or to question the legality of any action taken by or under the authority of an electoral registration officer, or of any decision given by any authority appointed under this Act for the revision of any such roll. According to him, against the order of electoral registration officer passed under sec. 23 of-1950 Act the remedy is an appeal before a competent authority as laid down under H sec. 24 of 1950 Act, He has relied upon a decision of the apex Court in the case of Shri Shreewant Kumar Choudhary V/s. Shri Baidyanath Panjiar -. Para 7 of this judgment, is relevant for the purpose of deciding the question under consideration which is as follows: 7. We also think that the question whether the Minister committed any illegality in the matter of the appointment of the Commissioners could not have been considered by the High Court in this proceeding. In a petition to set aside an election, it is not open to the High Court to go into the question whether the names entered into the electoral roll were entered therein illegally. The allegation of the appellant at best amounts only to this: that the inclusion of the names of the 31 Commissioners of the Notified Area Committee in the electoral roll was illegal as they were not validly appointed as Commissioners of the Area Committee in question. The allegation of the appellant at best amounts only to this: that the inclusion of the names of the 31 Commissioners of the Notified Area Committee in the electoral roll was illegal as they were not validly appointed as Commissioners of the Area Committee in question. Even assuming that they were not validly appointed as Commissions of the Area Committee and therefore, the entry of their names in the electoral roll was illegal, could the High Court have gone into the question? We think not. 7. In the case of B.M. Ramaswamy V/s. B.M. Krishnamurthy -, it was held that "Under sec. 30 of the Representation of the People Act, 1950, no Civil Court shall have jurisdiction to question the legality of any action taken by or under the authority of, the electoral registration officer. The terms of the section are clear and the action of the electoral registration officer in including the name of the appellant in the electoral roll, though illegal, cannot be questioned in a Civil Court but it could be rectified only in the manner prescribed by law i.e. by preferring an appeal under Rule 24 of the Rules or by resorting to any other appropriate remedy. But, it was contended before the High Court that the action of the electoral registration officer was a nullity inasmuch as he made the order without giving notice as required by the Rules. We find it difficult to say that the action of the electoral registration officer is a nullity. He has admittedly jurisdiction to entertain the application for inclusion of the appellants name in the electoral roll and take such action as he deems fit. The non-compliance with the procedure prescribed does not affect his jurisdiction, though it may render his action illegal. Such non-compliance cannot make the officers act non est though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy. 8. Learned Counsel appearing on behalf of the petitioner relying upon a decision of the Apex Court in the case of Baidyanath Panjiar V/s. Sita Ram Mahto - , has submitted that inclusion of names of voters in electoral roll in contravention of sec. 23(3) of 1950 Act will be a sufficient ground for invalidating the election u/s. 100(1) of 1951 Act. 23(3) of 1950 Act will be a sufficient ground for invalidating the election u/s. 100(1) of 1951 Act. The facts of that case were quite different from the facts of the present case because in that case the question under consideration was correction of an electoral roll of a constituency in contravention of sec. 23(3) of 1950 Act which bars amendment, transposition or making deletion of any entry u/s. 22 after last date for making nominations for election for that constituency. It is not the case of petitioner that name of respondent was included in the electoral roll of Nautan Assembly constituency after the last date for filing nominations. According to the respondent, his name was included much prior to last date for making nomination which was 3.2.2000 and the amended electoral roll was issued no 24.1.2000. Learned Counsel of petitioner has argued that Annexure A of written statement of respondent which is correction slip of electoral roll of Nautan Assembly constituency cannot be looked into and it requires strict proof of respondent but then this annexure does not show the date of issue and the written statement and petition under consideration both are supported by affidavits in which it is stated that corrected electoral roll showing inclusion of name of respondent was issued on 24.1.2000. When the fact of inclusion of name of respondent in the electoral roll of Nautan Assembly constituency by electoral registration officer is an admitted one, the question of taking into consideration Annexure A of written statement of respondent at this stage does not carry much importance. It is not the case of the petitioner that name of respondent was included in the electoral roll of Nautan Assembly constituency after last date for making nomination. In election petition the only grievance of petitioner is that respondent is a resident of Uttar Pradesh and he never lived even for a single day in the State of Bihar and right from February, 1999 till today he is confined in Beur Central Jail, Patna and the question of his being resident of any constituency in the State of Bihar did not arise ever and inclusion of his name in the electoral roll of Nautan Assembly constituency by electoral registration officer was without any jurisdiction, illegal and void. In reply of the petition under consideration the same stand has been taken by the petitioner and even at the time of making submissions, it was never stated at any stage by the petitioner that inclusion of name of respondent in the electoral roll of Nautan Assembly constituency was made after the expiry of last date for making nomination. 9. So far as the question of challenging the validity of the order of electoral registration officer including the name of respondent in electoral roll of Nautan Assembly constituency before this Court is concerned, this matter is squarely covered by a decision of apex Court in the case of Han Prasad Mulshanker Trivedi V/s. V.B. Raju -, in which on identical facts the election of Respondent Nos. 4 and 5 was challenged on the ground that they were not ordinarily residents in any of the Parliamentary constituencies of Gujarat. It would like to quote below some paragraphs of this decision which are not only helpful in deciding the matter at hand but completely answer the rival contentions of the contesting parties of this case. 26. The only question is whether the ground taken in the election petition that since these respondents were not ordinarily resident in any of the Parliamentary constituencies of Gujarat, they had not fulfilled one of the conditions necessary to be satisfied for registration in the electoral roll, can be gone into by the High Court in trying an election petition. 27. We think that neither the decision of this Court in -, which took the view that violation of sec. 23(3) of the 1950 Act in entering or deleting the names of persons in the electoral rolls after the last date for making nomination relates to lack of power, nor the decision in -, which also suggests that where there was lack of power the question can be gone into by the Court trying an election petition can by analogy, be extended to an entry in the electoral roll on the basis of a wrong adjudication of the question of ordinary residence. Though the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in the Anisminic Case (1967) 3 WLR 382, we do not think that the distinction between the two has been completely wiped out. Though the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in the Anisminic Case (1967) 3 WLR 382, we do not think that the distinction between the two has been completely wiped out. We are aware of the difficulty in formulating an exhaustive rule to tell when there is lack of power and when there is an erroneous exercise of it. The difficulty has arisen because the word "jurisdiction" is an expression which is used in a variety of sense and takes its colour from its context, (see Per Dioplock, J. at p. 394 in the Anisminic case). Whereas the pure theory of jurisdiction would reduce jurisdictional control to a vanishing point the adoption of a narrower meaning might result in a more useful legal concept even though that formal structure of law may lose something of its logical symmetry. "At bottom the problem of defining the concept of jurisdiction for purpose of judicial review has been one of public policy rather than one of logic". And viewed from the aspect of public policy as reflected in the provisions of the 1950 and 1951 Acts. We do not think that a wrong decision on a question of ordinary residence for the purpose of entering a persons name in the electoral roll should be treated as a jurisdictional error which can be judicially reviewed either in a Civil Court or before an election tribunal. 28. And concerned as we are in this case only with the question whether the High Court trying an election petition has jurisdiction to try and decide whether these respondents were ordinarily resident in the respective Parliamentary constituency in Gujarat, we should think the matter is concluded by the decision of this Court in Jattis case -. In the referred Jattis case which is Pampakavi Rayappa Belagali V/s. B.D. Jatti and Ors. -, the Apex Court has held that sec. 19 gives the conditions of registration in the electoral roll. It provides that every person who is not less than 21 years of age on the qualifying date and is ordinarily resident in a constituency shall be entitled to be registered in the electoral roll for the constituency. sec. 20 deals with the meaning of "ordinarily resident". The preparation and. 19 gives the conditions of registration in the electoral roll. It provides that every person who is not less than 21 years of age on the qualifying date and is ordinarily resident in a constituency shall be entitled to be registered in the electoral roll for the constituency. sec. 20 deals with the meaning of "ordinarily resident". The preparation and. revision of electoral roll has to be made in accordance with sec. 21 and the correction of entries is provided by sec. 22. sec. 24 contains a provision for an appeal which can be filed to the Chief Electoral Officer from any order of the Electoral Registration Officer u/s. 22 or sec. 23. u/s. 30, no Civil Court shall jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled for registration in an electoral roll for a constituency. There are elaborate rules which have been promulgated for perpetration and revision of the Electoral Rolls, namely, Electors Rules, 1960. It may be noted that the conditions about being ordinarily resident in a constituency for the purpose of registration are meant for that purpose alone and have nothing to do with the disqualifications for registration which are prescribed by sec. 16 of the Act 1950 which alone are relevant to the definition of an "electo" as given in sec. 2(1)(e) of the Act. The entire scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an electoral roll of a constituency can only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless some question of violation of the provisions of the Constitution is involved. 10. The learned Counsel of petitioner has argued that in para 24 of Hari Prasad Mulshanker Trivedis case (supra), the Apex Court has held that "the question whether a person whose name is entered into the electoral roll is qualified under the Constitution and whether he suffers from any of the disqualifications specified in sec. 16 can always be gone into by the Court trying an election petition." I find that after making these observations the Apex Court further observed that in the case before it there was no case for Respondent No. 1 that Respondent Nos. 16 can always be gone into by the Court trying an election petition." I find that after making these observations the Apex Court further observed that in the case before it there was no case for Respondent No. 1 that Respondent Nos. 4 and 5 suffered from any of the disqualifications mentioned in Sec. 16 nor was there any ground taken in the election petition that they had not positive qualifications as required by the Constitution or the Acts. The Apex Court after considering the fact that only question whether the ground taken in the election petition that since these respondents were not ordinarily residents in any of the Parliamentary constituencies of Gujarat they had not fulfilled one of the conditions necessary to be satified for registration in the electoral roll, can be gone into by the High Court in trying an election petition answered this question in negative as referred above. 11. In the present case also, the inclusion of the name of respondent in the electoral roll of Nautan Assembly constituency has been challenged on the ground that he is not a resident of this State and he belongs to a village in Uttar Pradesh and his name is recorded in the electoral roll of Kauriram Assebly constituency in the State of Uttar Pradesh. sec. 16 of 1950 Act states disqualifications for registration in an electoral roll and these disqualifications are that a person is not a citizen of India or he is of unsound mind and stands so declared by a competent Court or he is for the time being disqualified from voting under the provisions of any relating to corrupt practices and other offences in connection with elections. Art. 326 of Constitution of India also lays down that "the elections to the House of People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election." The election petitioner has not alleged any of the disqualifications mentioned in Art. 326 of Constitution of India or Section 16 of 1950 Act. Had it been so, the matter would have been different and could have been examined in this case challenging the election of respondent. 12. The next point argued by the learned Counsel for the petitioner is that respondent is a criminal and since February, 1999 he is lying in Beur Central Jail, Patna, in the State of Bihar and according to sec. 62(5) of 1951 Act, he was not entitled to vote at election in question and was not an elector within the meaning of sec. 2(e) of 1951 Act and his nomination has been improperly accepted by the Returning Officer which has materially affected the result of election and it comes under the purview of sec. 100(1)(d)(i) of 1951 Act and therefore, it is ground for declaring the election of respondent to be void. sec. 2(e) of 1951 Act which defines an elector states that "elector" in relation to constituency means a person whose name is entered into the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in sec. 16 of the Representation of People Act, 1950. 13. As already discussed above, the petitioner has not been able to point out that the respondent at the time of registration of his name in the electoral roll of Nautan Assembly constituency was suffering from any of disqualifications mentioned in sec. 16 of 1950 Act. 16 of the Representation of People Act, 1950. 13. As already discussed above, the petitioner has not been able to point out that the respondent at the time of registration of his name in the electoral roll of Nautan Assembly constituency was suffering from any of disqualifications mentioned in sec. 16 of 1950 Act. It is not the case of petitioner that respondent is not a citizen of India or he is of unsound mind and stands so declared by a competent Court and he for the time being was disqualified from voting under the provision of any law relating to corrupt practice and other offences in connection with elections. These are only disqualifications enumerated in sec. 16 of 1950 Act. Learned Counsel for the petitioner relying upon a judgment of the Apex Court in the case of Anukul Chandra Pradhan V/s. Union of India -, has said that the Apex Court has held that denial of right to vote persons confined in prisons or in police custody has not been held violative of Articles 14 and 21 of Constitution of India. In this case, the main question under consideration was classification of persons confined in prison while serving sentence of imprisonment on their conviction for any offence or under lawful confinement in a prison or in a police custody for any reason and persons subjected to preventive detention under any law for time being in force. The Apex Court justified this classification on a number of grounds including that for the conduct of fair, free and orderly elections, there is need to deploy considerable police force and permitting every person in a prison to vote would require deployment of a much larger police force and much greater security arrangements in the conduct of elections. Learned Counsel appearing on behalf of the petitioner has not been able to show any provision of any law which debars a person who is in prison on account of some case or cases filed against him which are still at the investigation stage to contest an election. No doubt, Section 16(c) of 1950 Act disqualifies a person for registration in an electoral roll if he is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. Secs. No doubt, Section 16(c) of 1950 Act disqualifies a person for registration in an electoral roll if he is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. Secs. 8 and 8(a) of 1951 Act give details of disqualification on conviction for certain offences and on grounds of corrupt practices. Respondent was not disqualified from voting in election in question for any of disqualifications stated in sec. 16 of 1950 Act. Because he was in jail custody on account of h is being an accused and not conflict in some criminal cases he was not permitted to vote at election in question and this restriction put on him was temporary and it does not mean that he had been permanently debarred from casting his vote. Only for a temporary period his right to cast vote was eclipsed. Art. 173(a) of Constitution of India lays down that a person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he is a citizen of India, and makes and subscribes before some persons authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule. Part VII A of Third Schedule is the form which has been set out for the aforesaid purpose and the Election Commission of India by its Notification No. SO 1111 dated 18th March, 1968 published in Gazette of India, Extraordinary 1968, Part II, sec. 3(ii) page 361 authorized Superintendent of the prison as the person before whom a candidate who is confined in his prison may make and subscribe the oath or affirmation as mentioned in Art. 173(a) of the Constitution of India. The petitioner with his election petition has annexed a letter of one Bhupendra Nath Dubey, Member, Bihar Legislative Assebly, addressed to Chief Election Commissioner, Election Commission of India, New Delhi in which list of some cases filed against respondent is given. The petitioner with his election petition has annexed a letter of one Bhupendra Nath Dubey, Member, Bihar Legislative Assebly, addressed to Chief Election Commissioner, Election Commission of India, New Delhi in which list of some cases filed against respondent is given. This letter is Annexure 2 of election petition but then I find that nowhere in this letter it has been stated that respondent has ever been convicted for any of the cases mentioned in the letter and in this letter prayer was made for not including the name of respondent in the electoral roll of any constituency in Bihar. I, therefore, find that in absence of any case either in the election petition or in the reply to petition under consideration that the respondent has been convicted in any case referred in sec. 16(c) of 1950 Act which amounted to disqualification within the meaning of Secs. 8 and 8(a) of 1951 Act only his remaining in prison at the time of filing his nomination papers for some cases instituted against him which were pending disposal cannot be considered to be a ground which amounts to disqualification for registration of respondent is electoral roll. 14. Considering the entire materials on record, I find that if the allegation as made out in the election petition are taken on their face value without requiring the petitioner to prove it by adducing evidence even then no case is made out against the respondent for declaring the election of respondent void. It will be abuse of process of the Court to proceed further in the matter. 15. In the result, the application of respondent questioning the maintainability of election petition of petitioner is allowed. The election petition is dismissed. In the facts and circumstances of the case, parties to bear their own cost.