Bhupendra Kumar Mehta vs The State Of Bihar
2023 Latest Caselaw 5001 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.8497 of 2023
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Bhupendra Kumar Mehta Son of Ramdev Mehta, Resident of village - Bishunpur Daulat, P.S.- Raghopur, District - Supaul.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna.

2. The State Election Commission through its Commissioner, Sone Bhawan, Birchand Patel Path, Patna.

3. The Secretary, State Election Commission, Sone Bhawan, Veer Chand Patel Marg, Patna.

4. The Officer on Special Duty, State Election Commission, Bihar, Sone Bhawan, Veer Chand Patel Marg, Patna.

5. The District Magistrate-cum-District Election Officer (Panchayat), Supaul.

6. The Block Development Officer, Raghopur, Supaul.

7. Smt. Amita Devi, Son of Wife of Srii Mahanand Chaudhari, Resident of Village- Daulatpur, Ward No.04, Vishunpur, District - Madhepura.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s   :      Mr. Amit Shrivastava, Sr. Advocate with
                                   Mr. Shyam Kishore and
                                   Mr. Rishi Sinha, Advocates
     For the State          :      Mr. Kumar Alok, SC 7 with
                                   Mr. Satyeshwar Prasad, AC to SC 7
     For the SEC            :      Mr. Sanjeev Nikesh, Advocate

======================================================= CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT Date : 03-10-2023

Heard Mr. Amit Shrivastava, learned senior counsel,

duly assisted by Mr. Shyam Kishore, learned counsel for the

petitioner and Mr. Sanjeev Nikesh, learned counsel for the State

Election Commissioner. Mr. Satyeshwar Prasad, learned counsel

for the Sate is also present.

2. The petitioner, who was the elected Mukhiya of Patna High Court CWJC No.8497 of 2023 dt.03-10-2023

Gram Panchayat, Bishunpur Daulat of Raghopur Block under

Supaul district, preferred the present writ application seeking

quashing of the order dated 08.05.2023 passed in Case No. 49 of

2021, whereby and whereunder the Commissioner, State

Election Commission, Bihar has disqualified the petitioner

under Sections 136(1)(g) and 136(2) of the Bihar Panchayat Raj

Act, 2006 (hereinafter referred to as the 'Act') and further

directed the District Magistrate, Supaul to take action under

Section 125(1)(A) of the Act. The petitioner also sought a

direction commanding upon the respondent authorities,

especially the District Magistrate, Supaul not to take action

against the petitioner under Section 125(1)(A) of the Act, in

view of the facts enumerated hereinabove.

3. The brief facts of the case, leading to the filing of the

present writ petition, are that the election for the post of

Mukhiya of the Gram Panchayat Raj, Bishunpur Daulat, was

held on 20.10.2021 and the result was declared on 22.10.2021.

The petitioner was successfully declared elected by a margin of

936 votes. On 02.11.2021, a complaint was filed by respondent

no. 7, alleging non compliance of Section 125A of the Act. On

the basis thereof, Case No. 49 of 2021 was registered against the

petitioner. It is the case of the petitioner that only on the basis of Patna High Court CWJC No.8497 of 2023 dt.03-10-2023

the complaint, he came to know that Cr. Appeal No. 13 of 2021

came to be dismissed on 16.07.2018 by the learned Additional

Sessions Judge 2nd, Supaul, by affirming the conviction and

sentence awarded by the Chief Judicial Magistrate, Supaul on

13.06.2012 in G.R No. 1535 of 2008/Trial No. 397 of 2012,

arising out of Bhaptiya P.S. Case No. 69 of 2008, under sections

25(1-B)(a)/35 of the Arms Act for a period of rigorous

imprisonment of one year and fine of Rs.1000/-. The petitioner

has also been convicted under Sections 26/35 of the Arms Act

and sentenced to undergo rigorous imprisonment for six months

and fine of Rs. 5000/-.

4. It is the case of the petitioner that the date on which

the nomination was filed, the petitioner was acquainted with the

fact that while disposing the Cr. Appeal No. 13 of 2012, he has

already been acquitted from the charges, as has been gathered

from the status report obtained through the e-website. In support

of the aforesaid submission, photocopy of the status report,

containing ordersheet has been brought on record by way of

annexure-P/3.

5. Learned senior counsel appearing on behalf of the

petitioner submitted that had the petitioner been knowing this

fact, that his conviction has been affirmed by the appellate Patna High Court CWJC No.8497 of 2023 dt.03-10-2023

court, he would have certainly disclosed the fact in the

nomination paper but knowing very well that he has already

been acquitted as was reflected from the status report, there was

no reason or occasion to furnish such information. He further

submitted that it is also the admitted fact that at the time of

nomination, none of the candidates has made any objection as

the others were also knowing that the petitioner has already

been acquitted as per the status report. The petitioner also came

to know about dismissal of his appeal, first time when the

complaint was made. Thus, he applied for the certified copy of

the judgment and get acquainted that the judgment of conviction

has been affirmed by the appellate court vide order/judgment

dated 16.07.2018.

6. It is next submitted that the moment the petitioner

came to know that the order of conviction has been affirmed by

the appellate court, he preferred Criminal Revision No. 86 of

2022 before the Hon'ble High Court at Patna along with the

limitation petition for condonation of delay. The Hon'ble Court

vide order dated 31.03.2022 while granting bail to the petitioner

suspended the sentence imposed against the petitioner.

7. The petitioner heavily relied upon the judgment

rendered by the Hon'ble Supreme Court in the case of Navjot Patna High Court CWJC No.8497 of 2023 dt.03-10-2023

Singh Sindhu vs. the State of Punjab and others since reported

in 2007(2) SCC 574. Further attention of this Court has also

drawn to annexure P/6, an order/judgment passed by this Court

in case of Hira Lal Sah Vs. State Election Commission (CWJC

No. 15215 of 2009). While concluding the submission, learned

senior counsel, at the cost of repetition, again submitted that the

date on which the nomination was filed neither there was any

material to show that the conviction of the petitioner was

affirmed by the appellate court nor any objection was made and

as such the petitioner could not mention the aforesaid fact in the

nomination paper. He further submits that while passing the

impugned order the State Election Commissioner, Bihar, Patna

has not considered the submissions made on behalf of the

petitioner, though the entire order sheet has been produced

before this Court annexing the status report suggesting that the

petitioner was acquitted.

8. Per contra, learned counsel for the State Election

Commission submits that it is the admitted fact that the date on

which the nomination was filed, the petitioner was convicted

and as such in any view of the matter, the petitioner has rightly

been disqualified under Section 136(1)(g) of the Act, that apart

the impugned order has taken note of the submission made on Patna High Court CWJC No.8497 of 2023 dt.03-10-2023

behalf of the petitioner and furthermore while disposing of the

Case No. 49 of 2021, the State Election Commissioner has

relied upon the judgment rendered by this Court in the case of

Binod Kumar vs. Sate Election Commissioner& Ors. (CWJC

No. 12889 of 2008) decided on 11.04.2012, which covers the

present case.

9. Learned counsel for the State also reiterates the

submission made on behalf of the State Election Commission

and further submits that the case of the petitioner is not covered

by the judgment rendered by the Hon'ble Supreme Court, as the

case of Navjot Singh Sindhu(supra) as well as the judgment

rendered by the learned coordinate Bench of this Court, are not

identical to the present matter as in both the cases cited

hereinabove, the disqualification occurred subsequent to the

nomination, while in their tenure.

10. Heard the parties and perused the materials

available on record.

11. Before parting with the final outcome, it would be

apt to quote section 125A(1)(i)and (ii) of the Act, 2006, which

reads as follows:

"125A. Furnishing of certain information essential for candidates. - (1) A candidate shall, apart from any information which he is required to furnish in his nomination papers delivered under the Act or the Patna High Court CWJC No.8497 of 2023 dt.03-10-2023

Rules made thereunder, also furnish information on affidavit on the following aspects in relation to his/her candidature-

(i) Whether he is convicted/acquitted/discharged of any criminal offence in the past-if any, whether he is punished with imprisonment or fine;

(ii) Prior to six months of filing of nominations, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for more than six months, and in which a charge has been framed or cognizance has been taken by a competent court of law. If so, the details thereof."

(emphasis supplied)

12. Further, section 136 of the Act, 2006 deals with

disqualification of candidate; and section 136(1)(g) reads as

follows:

"136.Disqualification for Membership.-(1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as Mukhiya, member of the Gram Panchayat, Sarpanch, Panchol the Gram Katchahri, member of the Panchayat Samiti and member of Zila Parishad if such person-

(g) has been sentenced by a criminal court whether within or out of 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 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;"

13. From the conjoint reading of the provisions

enumerated hereinabove, there is no conundrum, that a Patna High Court CWJC No.8497 of 2023 dt.03-10-2023

candidate is statutorily under obligation to furnish information

on affidavit to his conviction, acquittal, discharge of any

criminal offence in the past, failing which the nomination of a

candidate would be liable to be rejected. In case the candidate is

convicted and has been sentenced by a criminal court for an

offence, other than a political offence for a term exceeding six

months or has been ordered to furnish good behaviour under

Sections 109 and 110 of the Code of Civil Procedure and such

sentence or order not having subsequently been reversed, the

candidate shall be disqualified for contesting an election under

the Act, 2006.

14. While considering the claim of the petitioner, the

State Election Commission has rightly relied upon the

judgments rendered in the case of Binod Kumar More Vs.

State Election Commission, (2012) 4 PLJR 599 and Bhagwan

Singh Vs. State of Bihar, AIR 2005 Pat, 109 wherein this

Court has succinctly held that the date relevant for considering

the disqualification in matters of election is the date of filing

nomination paper and its scrutiny and if a candidate(s) have

suppressed their conviction and sentence by playing fraud in

getting their nomination papers accepted as valid and were

elected to the election, the action will entail disqualification as Patna High Court CWJC No.8497 of 2023 dt.03-10-2023

mandated under Section 136(1)(g) of the Act, 2006. The

subsequent acquittal or suspension of sentence is not relevant to

remove the disqualification as on the date of scrutiny. The

Hon'ble Court further held that the acquittal would only wipe

off the stigma and restore the benefits to which one has accrued

on account of rigors of the law.

15. Further the submission put forth by the petitioner

that once the judgment and order of sentence stands suspended

by the Hon'ble Court it would have the effect of wiping out

disqualification from the back date of scrutiny of nomination

has been elaborately discussed and answered by the Constitution

Bench, in the case of K. Prabhakaran Vs. P. Jayarajan, (2005)

1 SCC 754, the relevant paragraphs are quoted hereinbelow:

"29. It is trite that the right to contest an election is a statutory right. In order to be eligible for exercising such right the person should be qualified in the terms of the statute. He should also not be subject to any disqualification as may be imposed by the statute making provision for the elective office. Thus, the legislature creating the office is well within its power to prescribe qualifications and disqualifications subject to which the eligibility of any candidate for contesting for or holding the office shall be determined........................................

xxxx

41. 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 Patna High Court CWJC No.8497 of 2023 dt.03-10-2023

nominations under Section 36(2)(a) shall be liable to be rejected as invalid and such decision of the returning 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 RPA consequent upon a decision of a subsequent date in a criminal appeal or revision.

xxxx

44. We are, therefore, of the opinion that an appellate judgment of a date subsequent to the date of nomination or election (as the case may be) and having a bearing on conviction of a candidate or sentence of imprisonment passed on him would not have the effect of wiping out disqualification from a back date if a person consequent upon his conviction for any offence and sentenced to imprisonment for not less than two years was actually and as a fact disqualified from filing nomination and contesting the election on the date of nomination or election (as the case may be)."

16. In the case in hand, admittedly the date on which

the petitioner filed his nomination paper, he was already

convicted in connection with G.R. No. 1535 of 2008/Tr. No. 397

of 2012 arising out Bhaptiya P.S. Case No. 69 of 2008 whereby

he was convicted under Sections 25(1-B)(a)/35 of the Arms Act

and sentenced to undergo rigorous imprisonment of one year

and fine of Rs. 1000/- and further has been convicted under

Sections 26/35 of the Arms Act and sentenced to undergo

rigorous imprisonment of six months and fine of Rs. 5000/- with

a further direction that both the sentences shall run concurrently. Patna High Court CWJC No.8497 of 2023 dt.03-10-2023

Thus, in any view of the matter, the petitioner was disqualified

in contesting an election in view of Section 136(1)(g) of the Act,

2006. It is worth noting here that any order of acquittal or

suspension of sentence cannot relate back to the date of

nomination as the same can only be applied prospectively.

17. It would be thus, obvious that Section 125A of the

Bihar Panchayat Raj Act, 2006 has no ambiguity that a

candidate is required to furnish information on affidavit in

relation to his conviction, acquittal, discharge of any criminal

offence in past or whether he is punished with imprisonment or

fine. Thus in the opinion of this Court non disclosure by the

petitioner of his conviction by the learned CJM, Supaul vide

order dated 13.06.2012 on any of the grounds, including the

grounds taken in the present application cannot be accepted or

given credit to.

18. It is settled proposition of law that where an

applicant gets an order/office by making misrepresentation or

playing fraud upon the competent authority, such order cannot

be sustained in the eyes of law. The ratio laid down by the

Supreme Court in various cases is that dishonesty should not be

permitted to bear the fruit and benefit to the persons who played

fraud or misrepresentation (vide: S.P. Chengalvaraya Naidu Vs. Patna High Court CWJC No.8497 of 2023 dt.03-10-2023

Jagannath AIR 1994 SC 893; Union of India vs. M.

Bhaskaran 1995 suppl. 4 SCC 100).

19. Considering the aforesaid facts, circumstances and

the position settled in law, this Court does not find any error in

the impugned order dated 08.05.2023 passed by the

Commissioner, State Election Commission, Bihar. Accordingly,

the present writ application stands dismissed.

20. There shall be no order as to cost.

(Harish Kumar, J) Anjani/-

AFR/NAFR                N.A.
CAV DATE                N.A.
Uploading Date            10.10.2023
Transmission Date       N.A.