ORDER Heard learned counsel appearing on behalf of the petitioner, the learned counsel appearing on behalf of the private respondent as well as the learned counsel for the State. 2. The petitioner is aggrieved by order dated 10.8.2007 passed by the State Election Commissioner in Case No.12 of 2007 declining to declare respondent no.5 disqualified to contest election on the date of filing nomination though at the relevant time he was under order of sentence of conviction of more than six months. The State Election Commissioner held that the disqualification on account of conviction of respondent no.5 which had gone unnoticed at the time of scrutiny of nomination papers, is wiped off if the elected candidate is subsequently acquitted. 3. Before I consider the issues involved in the instant case, it will be appropriate to bring the facts of the case in brief on the record. 4. The election of Municipal Wards of Supaul District including that of Ward No.4 was announced sometime in April, 2007. The date of filing of nomination paper was 5.5.2007. Both petitioner and respondent no.5 filed their nominations for Ward No.4. The date of scrutiny of nomination paper is not mentioned in the petition. The result of election of Ward No.4 was announced on 28.5.2007. The respondent no.5, Kishori Sah was elected as the Councilor from Ward No.4 having secured the highest votes. On 18.6.2007, the petitioner made a complaint to the State Election Commissioner that respondent no.5 was not eligible to contest the said election under section 18(1)(g) of the Bihar Municipal Act, 2007 (hereinafter referred to as ’the Act, 2007’) as on the date of filing of nomination and scrutiny of papers, he was under order of sentence of conviction for more than 6 months in a criminal case which is a disqualification under section 18(1)(g) of the Act, 2007. 5. The State Election Commissioner, vide its order dated 10.8.2007, rejected the complaint on the ground that respondent no.5 was subsequently acquitted of the criminal charges, and as such the disqualification incurring on the date of filing of nomination stood wiped off. The petitioner being aggrieved by the order of the Commissioner has filed the instant writ petition. 6. It is not in dispute that at the time of filing of his nomination paper, respondent no.5 had disclosed that he was convicted under sections 324. The petitioner being aggrieved by the order of the Commissioner has filed the instant writ petition. 6. It is not in dispute that at the time of filing of his nomination paper, respondent no.5 had disclosed that he was convicted under sections 324. 323 and 149 of the Indian Penal Code vide Sessions Trial No.55 of 1985 arising out of Nirmali P.S. Case No.70 of 2003 under sections 147, 148, 149, 324, 307 and 379 of the Indian Penal Code and has been sentenced to two years imprisonment under section 324/149 of the Indian Penal Code for six months. The sentence of conviction was recorded on 27.1.2007. However, in appeal, the respondent no.5 was acquitted on 6.6.2007. The petitioner made a complaint on 18.6.2007 before the State Election Commission. (I) The issue is whether respondentno.5 was ineligible to contest election as he was under order of conviction and sentence exceeding six months by a criminal court on the date of filing of nomination and scrutiny of nomination paper, in view of disqualification clause under section 18(1)(g) of the Act. (II) Whether subsequent acquittal would wipe off initial disqualification which has gone unnoticed. 7. The contention of respondent no.5 is that though he was under sentence of conviction exceeding six month on the date of filing and scrutiny of nomination papers, the same was accepted and was eventually elected as Ward Councilor. He was subsequently acquitted in appeal on 6.6.2007 and as such, it would be deemed that he did not suffer from any disqualification under section 18(1)(g) of the Act, 2007. Thus the State Election Commissioner rightly held that subsequent acquittal would wipe off initial disqualification to contest election that may have subsisted on the date of filing of nomination in election. 8. To answer the issue, it would be necessary to notice some of the provisions of Municipal Act, 2007 Section 18 of the Bihar Municipal Act, 2007 deals with disqualifications. We are concerned with the disqualifications under Section 18(1)(g) of the Act, which is quoted here in below: - “18. 8. To answer the issue, it would be necessary to notice some of the provisions of Municipal Act, 2007 Section 18 of the Bihar Municipal Act, 2007 deals with disqualifications. We are concerned with the disqualifications under Section 18(1)(g) of the Act, which is quoted here in below: - “18. Disqualification.- (1) notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as member of the Municipality if such person- (g) has been sentenced by a criminal Court, whether within or without India, to imprisonment for an offence, other than a political offence, for a term exceeding six months or has been ordered to furnish security for keeping good behaviour under section 109 or section 110 of the Code of Criminal Procedure, 1973 (Act 2, 1974) and such sentence or order not having subsequently been reversed; or absconding being an accused in a criminal case for more than six months.” 9. It appears that the officials who had scrutinised the nomination papers failed to notice that conviction of six months and more is one of the disqualifications for contesting election or having been elected, for holding post as member of Municipality under section 18(1) (g) of the Act and wrongly accepted the nomination papers of respondent no.5. No fault can be put on respondent no.5 as he had not suppressed or withheld the information that he was sentenced to more than six months. He had in fact disclosed at the time of nomination that he was under order of conviction of sentence for more than six months. It was only after his acquittal on 6.6.2007 that the petitioner made a complaint that respondent no.5 was not eligible to contest election. The Election Commissioner was of the view that as the respondent no.5 has been subsequently acquitted, the same would wipe of a disqualification which was there at the time of filing nomination and scrutiny of the nominate paper. 10. I am afraid the view of the Election Commissioner is not sustainable in law. The date relevant for considering the disqualification in matters of election in absence of any rule is the date of filing nomination paper and its scrutiny. The Hon’ble Apex Court in the case of K. Prabhakaran Vs. P. Jayarajan reported in 2005 (1) Supreme Court Cases-754 and in the case of Ravi Kant S. Pahal Vs. The date relevant for considering the disqualification in matters of election in absence of any rule is the date of filing nomination paper and its scrutiny. The Hon’ble Apex Court in the case of K. Prabhakaran Vs. P. Jayarajan reported in 2005 (1) Supreme Court Cases-754 and in the case of Ravi Kant S. Pahal Vs. Sarvabhauma S. Bagali reported in 2007 (1) PLJR-85 (SC) held that the relevant date for judging the eligibility or disqualification of a person contesting election would be determined with reference to the date fixed for filing of nomination and its scrutiny and subsequent acquittal is not relevant to remove the disqualification as on date of scrutiny. 11. Furthermore, in case of Prabhakaran Vs. P. Jayarajan one of the question examined by the Constitution Bench was as follows:- “whether an appellate judgment of a date subsequent to the date of election and having a bearing on conviction of a candidate and sentence of imprisonment passed on him would have the effect of wiping out disqualification from a back date if a person consequent upon his conviction of any offence and sentenced to imprisonment for not less than 2 years was disqualified from filing nomination and contesting the election on the dates of nomination and election?” 12. While examining the issue whether acquittal would relate back to the date of scrutiny of nomination, so far as election laws were concerned was examined by Apex Court and held as follows :- “The correct position of law is that nomination of a person disqualified within the meaning of sub-section (3) of Section 8 of RPA on the date of scrutiny of nominations under section 36(2)(a) shall be liable to be rejected as invalid and such decision of the retuning officer cannot be held to be illegal or ignored merely because the conviction is set aside or so altered as to go out of the ambit of Section 8((3) of RP Act consequent upon a decision of subsequent date in a criminal appeal or revision.” 13. I do not thus find myself agreeable with the inference drawn by the State Election Commissioner that the subsequent acquittal would wipe off initial disqualification so as to make him eligible to contest election. I do not thus find myself agreeable with the inference drawn by the State Election Commissioner that the subsequent acquittal would wipe off initial disqualification so as to make him eligible to contest election. The learned Commissioner is apparently in error in upholding the nomination paper and election on the ground that disqualification on account of conviction and sentence exceeding 6 months would wipe off initial disqualification under section 18(1)(g) of the Act, 2007 consequent to subsequent acquittal. 14. Let us examine this aspect with an illustration. Suppose a non citizen files nomination and contest election and wins. The law is clear that a non citizen can not contest election. Can election of such person which is void ab initio can be validated on the ground that subsequently the person has been granted Indian citizenship. The answer would be in negative. The acquittal would only wipe off stigma and restore benefits to which one was legally entitled and deprived off, but would not render him eligible if otherwise he was not qualified to file nomination and contest election, 15. Now the issue is what relief can be granted to the petitioner in the facts and circumstances of the case. As per the counsel of State Election Commission, the tenure of respondent no.5 has virtually come to an end and the notification for fresh election would begin on 16th of April, 2012 itself after a few days. Respondent no.5 was declared elected on 28.5.2007 as Councilor of Ward No.4 for a period of five years and steps for holding fresh election of the Councilors of the Nagar Panchayat is scheduled to be announced on 16th of April 2012. Respondent no.5 has continued on the post for almost five years and the tenure is on verge of completion. Respondent no.5 has also been acquitted in the criminal trial. Whether all these circumstances would save the respondent no.5 from being disqualified to contest election and consequential order unseating him? I am afraid that the law would take its own and the answer once again has to be in negative. Respondent no.5 would be held to be disqualified for office, as he was disqualified on the date of filing nomination paper and its scrutiny and he would stand so. The order of acquittal has come only after election process was over. Respondent no.5 would be held to be disqualified for office, as he was disqualified on the date of filing nomination paper and its scrutiny and he would stand so. The order of acquittal has come only after election process was over. The inference would be that respondent no.5 was ineligible to contest the election and his election is thus invalid. The consequential fall out is that respondent no.5 would stand unseated though for the period whatever it may be. 16. Thus I hold that respondent no.5 suffered from disqualification under section 18(1)(g) of the Act, 2007 and as such was not eligible to contest the election. The subsequent acquittal would not wipe off initial disqualification from which Respondent no.5 suffered on the date of nomination and its scrutiny. 17. The officials of the State Election Commission would be more vigilant in processing the nominations papers etc. As the respondent no.5 has been subsequently acquitted, he would be entitled to contest forthcoming election. 18. In the result, this writ petition is allowed. The order dated 10.8.2007 passed by the State Election Commissioner in Case No.12 of 2007 is set aside to the extent indicated above.