[Cites 85, Cited by 0]
Madhya Pradesh High Court
Ramniwas Rawat vs Mukesh Malhotra on 9 March, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC
2026:MPHC-GWL:8025
1 EP. No. 24 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ELECTION PETITION No. 24 of 2024
RAMNIWAS RAWAT
Versus
MUKESH MALHOTRA AND OTHERS
Appearance:
Shri M.P.S.Raghuvanshi, Senior Advocate with Shri Sanjay Dwivedi, Shri
Sankalp Sharma, Shri Nipun Saxena, Shri Dharmendra Dwivedi, Ms.Sonam
Mittal, Mohd. Amir Khan, Shri Manish Singh Gurjar, Ms.Deepali Dabas,
Ms.Aadya Pandey, Ms. Tanya Agrawal, Shri Dev Nagar, Ms.Namrata Tomar,
Shri Joyjeet Kumar Das, Shri Harshit Raghuvanshi - Advocates for petitioners.
Shri Vivek K. Tankha, Senior Advocate with Shri PratipVisoriya, Shri
Siddhant Gupta, Shri Inder Dev Singh, Shri Abhishek Singh Chauhan, Shri
Vishesh Dwivedi
edi and Ms.Ayushi Sharma - Advocates for respondent No.1.
Shri Ravindra Sharma - Advocate for respondents No.2,3, 5 to 9.
Shri Navnidhi Parharya - Advocate for respondent No.4.
Shri Priyanshu Yadav - Advocate for respondent No.10.
__________________________________________________________________
Reserved on : 26.02.2026
Pronounced on : 09.03.2026
__________________________________________________________________
Signature Not Verified
Signed by: AMAN TIWARI
Signing time: 09-03-2026
03:15:38 PM
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2 EP. No. 24 of 2024
JUDGMENT
1. This Election Petition under Section 80/81 of Representation of the
People Act has been filed seeking the following reliefs:
It is, therefore, humbly prayed that this Hon'ble Court may kindly be
pleased to allow this petition and may further be pleased to grant
following relief to the petitioner :
(i) The Hon'ble Court may kindly be pleased to declare the
election of respondent no.1 from Assembly Constituency 02 Vijaypur
vide election certificate dated 23-11-2024
23 2024 (Annexure P/11) is void;
(ii) The Hon'ble Court may further declare that the petitioner is
duly elected
cted from Assembly Constituency 02 Vijaypur;
(iii) Any other suitable direction which this Hon'ble Court deems
fit in the fact and circumstances of the case may kindly be passed ;
(iv) Cost of petition may kindly be awarded.
2. The facts necessary for disposal of present election petition in short are
that Election Petitioner was the Member of Legislative Assembly (in short
MLA) for the terms of 1990-93,
1990 1993-1998, 2003-2008, 2008-2013
2013 and 2013
2013-
2018. Election Commission of India (in short ECI) issued Press Note dated
da 9-
10-2023
2023 thereby notifying and declaring the General Election of Legislative
Assemblies of Madhya Pradesh. The Election Petitioner contested the said
election on the ticket of Indian National Congress and was declared elected for
the 16th Assembly of the State of M.P. from Assembly Constituency 02
Vijaypur, Distt. Sheopur. Thereafter, the Election Petitioner submitted his
resignation and joined Bhartiya Janta Party, as a result the seat of MLA
Assembly Constituency 02 Vijaypur, Distt. Sheopur fell vvacant.
ant. Accordingly,
ECI vide its Press Note dated 15-10-2024
15 declared bye-election
election for the said seat.
The date of Polling was 12--11-2024 and date of Counting was 23-11
11-2024. The
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Election Petitioner filed his nomination for Assembly Constituency 02 Vijay
Vijaypur,
Distt. Sheopur on the ticket of BJP, whereas the respondent no.1/Mukesh
Malhotra also submitted his nomination paper on the ticket of Indian National
Congress. The other respondents also submitted their nomination papers. The
respondent no.1/Mukesh Malhotra was declared elected and certificate of
election was issued to him.
3. The present Election Petition has been filed mainly on the ground that in
the affidavit which is to be filled in as per form 26, was not completely filled up
by the respondent no.1/Mukesh Malhotra and vital informations were
suppressed. Total 6 criminal cases were registered against the respondent
no.1/Mukesh Malhotra but he disclosed incomplete information about two cases
only.
ly. The Election Petitioner has bifurcated the information
rmation given by
respondent no.1/Mukesh Malhotra in respect of his criminal cases in two
categories which are as under :
Group 1 : Cases which are disclosed but without giving full details about
them :
(i) Case registered
gistered in Police Station Karahal at crime no. 2/2022
for crime under Section 323,294,506,and 34 of IPC. The case is
pending in the Court of JMFC, Sheopur in RCT No. 972/2022;
(ii) Case registered in Police Station Karahal at crime no. 93/2023
for crime No. 341,323,294,506 and 34 of IPC and is pending before
be
JMFC, Sheopur in RCT No. 1051/2023.
(a) It is the case of the Election Petitioner that the respondent no.1/Mukesh
Malhotra did not disclose in his affidavit that charges in RCT No. 972/2022
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were already framed on 14-12
12-2022 and gave a false information that
hat no charges
have been framed.
(b) Similarly in respect of crime no. 93/2023
93/2023/RCT
/RCT No. 1051 of 2023,
2023 a false
information was given that no charges have been framed whereas charges were
already framed on 17-10-2023.
2023.
Group 2 : Criminal cases which were not disclosed at all
(i) Forest Crime No. 32773/2014 was registered against the
respondentt no.1/Mukesh Malhotra for crime under Sections
26(1)(a)(g),66(i) of Indian Forest Act. In this case, the respondent
no.1/Mukesh Malhotra was convicted vide judgment dated 28 28--2-2020
passed by CJM, Sheopur in case no. 601022/2014 and was punished
with fine of Rs. 7,000/-- with default imprisonment of onee month.
(ii) Crime No. 32/2011 was registered against the respondent
no.1/Mukesh Malhotra in Police Station Karahal for offence under
Sections 323,294,332,252, and 186 of IPC and vide judgment dated
30-6-2015
2015 passed by JMFC, Sheopur in RCT No. 1407 of 2011, 201 he
was convicted under Sections 332 and 294 of IPC and was sentenced
for 6 month's RI and fine of Rs. 500/-
500/ with default imprisonment of 15
days.
(iii) Crime no. 2/2013 was registered at Police Station Karahal, for
offence under Sections 323,294 of IPC and by judgment dated 3030-11-
2013, the said case was disposed of by JMFC, Sheopur in RCT No.
157/2013, but that fact was not disclosed.
(iv) Crime No. 2/2020 was registered at Police Station Karahal, for
offence under Section 505(2) of IPC. The respondent no.1/Mukesh
Malhotra was acquitted
ed by Judgment dated 11
11-3-2023.
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4. Thus, it is the case of the Election Petitioner, that the respondent
no.1/Mukesh Malhotra did not disclose his criminal antecedents in clause 6 and
did not disclose complete information in clause 5 of his affidavit filed under
form 26, and thus withheld vital informations from electorate which amounts to
corrupt practice in terms
erms of provisions of Section 100(1)(b)
100 and 123(2) of
Representation of the People
eople Act.
5. It is also the case of the Election Petitioner that he got 46.95% of total
votes whereas the respondent no.1/Mukesh Malhotra got 50.66% of total votes
and the remaining contesting candidates got 2.39% of total votes (each of the
respondents no.
o. 2 to 10 got even less than 1% of total votes).
6. The respondent no.1/Mukesh Malhotra filed an application under Order
7 Rule 11 CPC which was dismissed by this Court by order dated 23-4-2025
which reads as under :
"Heard
Heard on I.A. No.2228/2025 and IA.No.
IA.No.2527/2025.
IA. No.2527/2025:
2. It is submitted by counsel for petitioner that the copy which
was sent along with the notice is not in conformity with the provisions
of Section 81(3) of Representation of People Act, 1951. The petition
does not contain the impression of seal, name, affirm affirmation
ation and
endorsement by the notary. To buttress his submission, learned
counsel has relied upon judgment passed by Supreme Court in the case
of Dr. (Smt.) Shipra etc. Vs. Shanti LalKhoiwal etc. reported in
AIR 1996 SC 1691.. It is further submitted that Su Supreme
preme Court by
judgment passed in the case of Anil R. Deshmukh Vs. Onkar N.
Wagh and others reported in AIR 1999 SC 732 has held that if notice
did not contain endorsement of attestation and stamp of seal of the
attesting officer and if true copies of affidavit
affidavit containing endorsement
of verification etc. is supplied at a later stage i.e. long before stage of
argument, then defect in non-supply
non supply of true copy is curable. It is
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further submitted that thereafter both the judgments were considered
by Constitutional
nal Bench of Supreme Court in the case of T.M. Jacob
Vs. C. Poulose and others reported in AIR 1999 SC 1359 and held
that both the judgments are correct under the facts and circumstances
of the respective cases. Thus, it is submitted that the copy of notice
notic
which was sent does not contain any impression of notarial act,
therefore, the only consequence is the dismissal of Election Petition
under Section 86 of Representation of People Act. Furthermore, it is
submitted that later on, on 24.03.2025, the electio
electionn petitioner has
supplied a copy of election petition which was downloaded from the
official website of the High Court "ERP". This notice also contains the
endorsement made by the Judicial Registrar as well as the presenting
officer which clearly means that
that the copy which was supplied on
24.03.2025 was not the true copy of the election petition which was
presented on 30.12.2024 and accordingly, the said copy cannot cure
the defect. It is further submitted that even otherwise, the corrected
copy was supplied to the returned candidate only and no copy was
supplied to any of the other contesting respondents. It is submitted that
since the election petitioner has also sought that he be declared as
successful candidate therefore all the contesting candidates are
necessary party and are entitled to true copy of election petition,
accordingly, relied upon the judgments of Supreme Court in the case
of Smt. SahodrabaiRai Vs. Ram Singh Aharwar and others
reported in AIR 1968 SC 1079, M. Karunanidhi Vs. H.V. Handa
and others reported in AIR 1983 SC 558 and Mulayam Singh
Yadav Vs. Dharampal Yadav and others reported in AIR 2001 SC
2565.
I.A. No.2228/2025:
3. It is submitted by counsel for respondent No.1 that no cause of
action has arisen and accordingly the election peti
petition
tion is liable to be
dismissed under Order VII Rule 11 CPC. Election Petition has been
filed on solitary ground of suppression of criminal antecedents. It is
submitted by counsel for respondent No.1 that Section 33 A of
Representation of People Act require
requiress that only those cases i.e. (i)
where the trial is pending and charges have been framed (ii) where a
person has been convicted for more than one year's RI are mandatorily
required to be disclosed. However, in two cases the returned candidate
was punished for less than one year, therefore, in the light of Section
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33 A of Representation of People Act, non-disclosure
non disclosure would not invite
the corrupt practice. So far as other two cases which are pending
against the returned candidate are concerned, the same were ddisclosed
isclosed
in the affidavit. It is submitted that although in front of description of
those two criminal cases, returned candidate had mentioned "ykxw ugha
gksrk" but that declaration by itself would not mean that the respondent
had suppressed the pendency of of two criminal cases. It is further
submitted that there is no averment in the election petition that non-non
disclosure or incorrect disclosure of criminal cases has materially
affected the result of election. Furthermore the affidavit filed in
support of corruptrupt practice is not in accordance with Form 25
prescribed under the Representation of People Act and the election
petitioner has also not disclosed the source of information in his
affidavit. To buttress his contention, counsel for returned candidate
has relied upon the judgments passed by the Supreme Court in the
case of C.P. John Vs. Babu M. Palissery and Others reported in
AIR 2015 SC 16, Kanimozhi Karunanidhi Vs. A. Santhana Kumar
& Others reported in [2023] 4 S.C.R. 798, Karikho Kri Vs. Nuney
Tayang and another reported in [2024] 4 S.C.R. 394, Karim Uddin
Barbhuiya Vs. Aminul Haque Laskar & Others reported in [2024]
4 S.C.R. 523, Ravi Namboothiri Vs. K.A. Baiju and others reported
in AIROnline 2022 SC 883 and L.R. Shivaramagowda etc. Vs.
T.M. Chandrashekar hekar etc. reported in AIR 1999 SC 252.. It is further
submitted that material facts have not been pleaded and relied upon
the judgments passed by the Supreme Court in the case of (2001) 8
SCC 233, Anil Vasudev Salgaonkar Vs. Naresh Kushali
Shigaonkar reported ted in 2009 AIR SCW 6812 and Ravinder Singh
Vs. Janmeja Singh and others reported in AIR 2000 SC 3026 3026.
4. Per contra, both the applications are vehemently opposed by
counsel for election petitioner.
5. So far as the compliance/non
compliance/non-compliance
compliance of provisions of
Section 81(3) of Representation of People Act is concerned, it is
submitted by counsel for election petitioner that the Supreme Court in
the case of T. Phungzathang Vs. Hangkhanlian and others reported
in (2001) 8 SCC 358 has held that even if the copy supplied to
respondent does not bear the endorsement of affirmation or seal or
name of the notary, would not be fatal requiring dismissal of election
petition as long as the original affidavit is in accordance with law. So
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far as the contention raised by counsel
counsel for respondent No.1 as regards
the lack of material fact is concerned, it is submitted by counsel for the
election petitioner that suppression of criminal antecedents by itself is
sufficient to hold that the returned candidate was guilty of corrupt
practices. Furthermore, the election petitioner has specifically pleaded
in the election petition that immediately after the result was declared,
when the general public came to know about pendency of criminal
cases, then they were shocked and the margin ooff votes received by the
election petitioner and the returned candidate was only 7,000/
7,000/- and the
corrupt practice played by returned candidate has materially affected
the election result. It is submitted that merely because words
"materially affected" have not been used in the election petition would
not mean that the pleadings made in respect of the effect of
suppression of criminal antecedents can be ignored. It is submitted that
only facts are to be pleaded and not the law. Furthermore, it is
submitted thatat it is for the High Court to decide as to whether the
material available on record has materially affected the election or not
as required under Section 100(1) of Representation of People Act.
6. Heard learned counsel for the parties.
7. The Supreme Court
Cour in the case of T. Phungzathang (supra)
has held as under:
17. In the above-declared
declared legal position, if we examine the case
in hand, we notice that the only lacuna pointed out by the
contesting respondent in his application in Civil Miscellaneous
Election Case No. 3 of 2000 is that the copy supplied to him did
not contain the verification or affirmation made by the Oath
Commissioner or the prescribed authority as required in Form 25
and Rule 94-A A of the Conduct of Elections Rules, 1961. It is not
the case of Respondent 1 that the original affidavit filed along
with the election petition in Form 25 did not contain such
verification or affirmation. On the contrary, it is an admitted fact
that such affirmation or verification was made in the original
affidavit filed before the High Court. Therefore, the question
arising in this appeal is: would this omission as pointed out by the
respondent in his petition, ipso facto entail dismissal of the
election petition under Section 86(1) of the Act? In view of the
law laid
aid down in Jacob case [(1999) 4 SCC 274] the answer then
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should be "no" because by such omission the copy supplied will
not cease to be a "true copy" and there is no possibility of any
prudent person being in any manner misled in defending himself
or being
g prejudiced in the defence of his case. Further, such
omissions are only curable irregularities.
18. In this appeal, it is also to be noted that on coming to know
of the omission pointed out by the respondent, the appellant had,
on 6-6-2000,
2000, a few days before
before the starting of the arguments
supplied fresh copies of the affidavit containing the verification
as found in the original affidavit in its entirety, hence, as was laid
down in the case of Deshmukh [(1999) 2 SCC 205] it should be
held that the defects pointed out in the petition being curable,
have been cured.
19. Having come to the conclusion that the facts of the present
appeal are fully covered by the Constitution Bench judgments of
this Court in Jacob case [(1999) 4 SCC 274] and Deshmukh case
[(1999)) 2 SCC 205] we will now discuss the applicability of
Harcharan Singh Josh case [(1997) 10 SCC 294] to the facts of
this case bearing in mind that the High Court has relied on this
case also to dismiss the election petition. It is true that in Josh
case [(1997)
1997) 10 SCC 294] this Court extended the principle laid
down in DrShipra case [(1996) 5 SCC 181] but then this Court in
Jacob case [(1999) 4 SCC 274] in clear terms held that the
application of the principle found in DrShipra case [(1996) 5
SCC 181] is confined
nfined only to the facts of that case; meaning
thereby that it is applicable only in cases where the original
affidavit filed before the High Court contained the omissions and
not to copies of the affidavit supplied to the respondents.
Therefore, it is clear
clear that the application of the principle in
DrShipra case [(1996) 5 SCC 181] to the facts of Josh case
[(1997) 10 SCC 294] is clearly impermissible. In that view of the
matter, the decision in Josh case [(1997) 10 SCC 294] being
contrary to Jacob case [(1999)
[(1999) 4 SCC 274] the same cannot be
construed as a good law any more. Therefore, the High Court in
the instant case could not have relied on Josh case [(1997) 10
SCC 294] to dismiss the election petition.
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20. Before we conclude, we must note that the appellant had in
support of his argument raised an additional contention to the
effect that assuming that irregularities pointed out by the
respondent in the copy of the affidavit supplied to him is an
incurable defect,
fect, even then the election petition could not have
been dismissed in its entirety because it had raised other
substantial grounds questioning the declaration of result in favour
of Respondent 1. In our opinion, it is not necessary for us to
express any opinion
pinion on this issue because of the view expressed
on the main contention argued in this appeal.
21. For the reasons stated above, this appeal succeeds and the
same is allowed. The impugned judgment and order is set aside
and the matter is remanded to the High Court for disposal of the
election petition on merits. No costs.
R.C. LAHOTI, J. (concurring)--
(concurring) I am in respectful agreement
with the order proposed by my learned Brother N. SantoshHegde,
J. and place on record my concurrence with the reasoning and
conclusion
clusion arrived at by him. However, I propose to assign
additional reasons in support of the view taken by my learned
Brother.
23. The relevant facts have been succinctly stated and relevant
provisions of law quoted by my learned Brother, yet a quick
recap of the facts and relevant statutory provisions, as a prologue
to this opinion of mine, would be in order. It is undisputed that
thee election petition filed by the appellant, putting in issue the
election of Respondent 1, alleges commission of corrupt practice
by Respondent 1 and also pleads grounds other than commission
of corrupt practice, in support of the relief for declaring the
election of the returned candidate to be void. The election petition
is signed and verified by the petitioner in the manner laid down in
the Code of Civil Procedure for the verification of pleadings. The
petition is accompanied by an affidavit in Form 25 aass required by
proviso to sub-section
section (1) of Section 83 of the Representation of
the People Act, 1951 (hereinafter "the Act") and Rule 94-A
94 A of the
Conduct of Elections Rules, 1961 (hereinafter "the Rules"). The
affidavit so filed has been sworn before a Com
Commissioner
missioner of Oaths
and bears, to that effect, an endorsement, signature and rubber
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stamp of the Oath Commissioner administering oath to the
deponent in the manner and form contemplated by Form 25. It is
also not disputed that the set of the copies which ac
accompanied
companied the
election petition at the time of filing and which was delivered to
Respondent 1 along with the writ of summons was complete in
all respects excepting that the endorsement made by the Oath
Commissioner attesting the affidavit to have been swor swornn by the
deponent before him, his signature and rubber stamp do not
appear on the copy of the affidavit delivered along with the copy
of election petition to Respondent 1. On 2222-5-2000
2000 an application
was filed by Respondent 1 before the learned Designated Election
Judge under Sections 83 and 86 of the Act calling for dismissal of
the election petition on the ground that the verification on the
election petition was defective and material facts and particulars
as to the alleged corrupt practice were not give
givenn but therein no
grievance was raised that the copy delivered to Respondent 1 was
not in conformity with the original and, therefore, Respondent 1
was prejudiced in his defence. On 55-6-20002000 another application
was filed by Respondent 1 wherein such an objection
objection was taken.
Soon on receipt of the copy of the application, served on the
petitioner out of the court, the counsel for the election petitioner
delivered another set of copies of election petition with affidavit
which had the endorsement and rubber stamp stamp of the Oath
Commissioner as it was on the original and this was done before
the application came up for hearing before the learned Designated
Election Judge. However, the learned Judge felt that there was
non-compliance
compliance with Section 83(1)(c) proviso rea readd with Section
81(3) and hence the petition was liable to be dismissed under
Section 86(1) of the Act.
24. Section 83(1) of the Act requires an election petition to
plead material facts setting forth full particulars of alleged corrupt
practice and to be signed
signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908 for the
verification of pleadings. The proviso enacted to sub sub-section
section (1)
requires that where the petitioner alleges any corrupt practice, the
petition shall also be accompanied by an affidavit in the
prescribed form in support of the allegation of such corrupt
practice and the particulars thereof. Rule 9494-AA (introduced by an
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amendment in the Rules w.e.f. 27 27-2-1962)
1962) requires that an
affidavit referred to in the proviso to sub-section
section (1) of Section 83
shall be sworn before a Magistrate of the First Class or a Notary
or a Commissioner of Oaths and shall be in Form 25. Form 25
appended to the Rules requires the election petitioner to verify on
solemn affirmation or or oath the statements about the commission
of corrupt practice and the particulars of such corrupt practice
distinctly stating to what extent they are true to his knowledge
and to what extent they are true to his information. The form also
prescribes the following
ollowing endorsement to appear below the
signature of the deponent on affidavit:
"Solemnly affirmed/sworn by Shri/Shrimati ... at ... this ... day
of ..., 19....
Before me,
Magistrate of the First Class/Notary
/Commissioner
Commissioner of Oaths."
The requirement of Section 83(1) proviso is of an "affidavit in
prescribed form". An endorsement by the specified officer before
whom the affidavit is sworn is not the requirement mentioned in
the section. Rule 94-A
94 A can be dissected into two parts: (i) the
affidavit shall be in Form 25, and (ii) it shall be sworn before a
Magistrate of the First Class or a Notary or a Commissioner of
Oaths. What is prescribed is the form of affidavit. Swearing in
before one of the three officers is the mode and manner of
swearing in the affidavit. The latter requirement does not relate to
the form of affidavit; it prescribes the persons recognised by the
Act and the Rules as competen
competentt to administer oath to the
deponent of the affidavit for the purposes of Section 83(1) read
with Rule 94-A A and suggests, for the sake of convenience and
consistency, the manner of endorsement to be made by the
Magistrate, Notary or Commissioner of Oaths aadministering
dministering oath
to the deponent. Such endorsement made by the officer
administering oath to the deponent is not an integral part of the
affidavit. Preparing, signing and swearing an affidavit are acts of
the deponent; administering oath and making an endorsement
endorsement in
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proof thereof on the affidavit are acts of the officer administering
the oath.
25. In T.M. Jacob v. C. Poulose [(1999) 4 SCC 274] the
Constitution Bench has reaffirmed the law as stated earlier by
two Constitution Benches in MurarkaRadheyShyam Ram Kumar
v. Roop Singh Rathore [AIR 1964 SC 1545 : (1964) 3 SCR 573]
and Ch. Subbarao v. Member, Election Tribunal [AIR 1964 SC
1027 : (1964) 6 SCR 213] and has also explained and expanded
the principles laid down by the two earlier Constitution Benches.
In T.M. Jacob case [(1999) 4 SCC 274] copy of the election
petition delivered to the contesting respondent did not show that
the verification of the Notary Public required as per Rule 94
94-A
and Form 25 was contained in the original and, therefore, the
copy was objected to as being defective and amounting to non-
non
compliance with the requirements of Section 81(3) of the Act.
The case was placed before the Constitution Bench specifically
for reconsidering the three
three-Judge
Judge Bench decision in DrShipra v.
Shanti LalKhoiwal
hoiwal [(1996) 5 SCC 181] and while doing so the
Constitution Bench also noticed another later three
three-Judge
Judge Bench
decision of the Court in Anil R. Deshmukh v. Onkar N. [(1999) 2
SCC 205] The law laid down by the Constitution Bench may be
summed up as under:
(i) The object of serving a "true copy" of an election petition and
the affidavit filed in support of the allegations of corrupt practice
of the respondent in the election petition is to enable the
respondent to understand the charge against him so that hhee can
effectively meet the same in the written statement and prepare his
defence. The requirement is of substance and not of form. (SCC
p. 290, para 35)
(ii) The test to determine whether a copy was a true one or not
was to find out whether any variation ffrom rom the original was
calculated to mislead a reasonable person. (SCC p. 288, para 33)
(iii) The word "copy" does not mean an absolutely exact copy. It
means a copy so true that nobody can by any possibility
misunderstand it. (SCC p. 289, para 34)
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(iv) Substantial
tantial compliance with Section 81(3) was sufficient and
the petition could not be dismissed, in limine, under Section
86(1) where there had been substantial compliance with the
requirements of Section 81(3) of the Act. (SCC p. 289, para 34)
(v) There is a distinction between non non-compliance
compliance with the
requirement of Section 81(3) and Section 83. A substantial
compliance with the requirements of Section 81(3) read with the
proviso to Section 83(1) of the Act is enough. Defects in the
supply of true copy under Section 81 of the Act may be
considered to be fatal, where the party has been misled by the
copy on account of variation of a material nature in the original
and the copy supplied to the respondent. The prejudice caused to
the respondent in such cases woul
would d attract the provisions of
Section 81(3) read with Section 86(1) of the Act. The same
consequence would not follow from nonnon-compliance
compliance with Section
83 of the Act. (SCC p. 291, para 37)
(vi) The argument that since proceedings in election petitions are
purely
ely statutory proceedings and not civil proceedings as
commonly understood, there is no room for invoking and
importing the doctrine of substantial compliance into Section
86(1) read with Section 81(3) of the Act, cannot be accepted and
has to be repelled. (SCC p. 291, para 38)
(vii) It is only the violation of Section 81 of the Act which can
attract the application of the doctrine of substantial compliance as
expounded in MurarkaRadheyShyam [AIR 1964 SC 1545 :
(1964) 3 SCR 573] and Ch. Subbarao [AIR 1964 S SCC 1027 :
(1964) 6 SCR 213] cases. The defect of the type provided in
Section 83 of the Act, on the other hand, can be dealt with under
the doctrine of curability, on the principles contained in the Code
of Civil Procedure. This clearly emerges from the sch scheme
eme of
Sections 83(1) and 86(5) of the Act. (SCC p. 291, para 38)
(viii) A certain amount of flexibility is envisaged. While an
impermissible deviation from the original may entail the
dismissal of an election petition under Section 86(1) of the Act,
an insignificant
significant variation in the true copy cannot be construed as
a fatal defect. It is, however, neither desirable nor possible to
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catalogue the defects which may be classified as of a vital nature
or those which are not so. It would depend upon the facts and
circumstances of each case and no hard and fast formula can be
prescribed. The tests suggested in MurarkaRadheyShyam case
[AIR 1964 SC 1545 : (1964) 3 SCR 573] are sound tests and are
now well settled. (SCC p. 292, para 40)
26. Dr. Shipra case [(1996) 5 SCC SCC 181] was referred to,
doubted and distinguished in Anil R. Deshmukh [(1999) 2 SCC
205] which also is a threethree-Judge
Judge Bench decision. Both these
decisions were placed before the Constitution Bench in T.M.
Jacob case [(1999) 4 SCC 274] . In DrShipra case [(1996)
[(1996) 5 SCC
181] the Constitution Bench decisions in Ch. Subbarao [AIR
1964 SC 1027 : (1964) 6 SCR 213] and MurarkaRadheyShyam
[AIR 1964 SC 1545 : (1964) 3 SCR 573] have been just referred
to, vide para 10, but not dealt with. In T.M. Jacob case [(1999) 4
SCC 274] the Constitution Bench has clearly held that the view
taken in DrShipra case [(1996) 5 SCC 181] must be confined to
the fact situation of that case and cannot be considered to be of
general application. The statement of law in Anil R. Deshmukh
casee [(1999) 2 SCC 205] has been approved wherein the copy of
the affidavit delivered to the respondent did not bear the
endorsement of attestation or the seal or stamp of the attesting
officer found on the original. But for the absence of the notarial
endorsement,
ement, it was a true copy of the original as it was a xerox
copy and was attested as "true copy" under the signature of the
election petitioner. A copy along with notarial endorsement was
later on furnished to the respondent. Applying the theories of
substantial
antial compliance and of curability this Court held that the
election petition was not liable to be dismissed in limine. In
Harcharan Singh Josh v. HariKishan [(1997) 10 SCC 294] the
defect in the copy of the affidavit supplied to the respondent was
the same
me as is in the present case and a three-Judge
three Judge Bench of this
Court, solely by relying on DrShipra case [(1996) 5 SCC 181]
held that the election petition was liable to be dismissed in
limine. In DrShipra [(1996) 5 SCC 181] and Harcharan Singh
Josh [(1997) 10 SCC 294] -- both three-Judge Judge Bench decisions,
this Court has held the defect to be not curable and the concept of
substantial compliance having no application in such a case. In
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MurarkaRadheyShyam case [AIR 1964 SC 1545 : (1964) 3 SCR
573] and T.M. Jacob case [(1999) 4 SCC 274] the Constitution
Benches have held such a defect to be curable and the test of
substantial compliance to be applicable. The very premise on
which the decisions in DrShipra [(1996) 5 SCC 181] and
Harcharan Singh Josh [(1997) 10 SCC 294] proceed, thus, runs
counter to the view taken by the Constitution Bench. In view of
the Constitution Bench decisions, DrShipra case [(1996) 5 SCC
181] and Harcharan Singh Josh case [(1997) 10 SCC 294] cease
to be good law.
8. Thus, it is clear that if the copy of election petition which was
supplied to respondents did not contain the impression of seal, name,
endorsement and affirmation by the notary, then that by itself would
not invite dismissal of election petition under Section 86 of
Representation of People Act. Furthermore, the election petitioner had
already supplied the true copy of the election petition on 24.03.2025.
On 24.03.2025, the following order was passed:
"Shri Dwivedi counsel for election petitioner prays for and is
granted one week's's time to file reply to I.A. Nos.2233/2025,
2228/2025 and 2229/2025.
At this stage, it is submitted by Shri Dwivedi that he is ready
to supply fresh attested copy of election petition to the counsel for
respondent No.1 and accordingly, a copy of same is supplied to Shri
PratipVisoriya. The fact of belated supply of attested copy of election
petition is kept open and shall be considered on the next date of
hearing. Specifically when no copy of attested election petition to any
other respondent(s) has been supplied.
Now, the petitioners are not permitted to supply the additional
set of attested copies of election petition to any other respondents.
List this case on 01.04.2025."
9. Thus, it is clear that so far as the returned candidate is
concerned, the true copy of the election petition was supplied. So far
as non-supply
supply of the true copies to the other respondents is concerned,
it is true that in the light of relief sought by election petitioner, each &
every candidate is a necessary party, but in view of the fact that defect
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is curable, therefore, the election petitioner is directed to supply a
complete set of true copy of the election petition by next date of
hearing.
10. Under these circumstances, this Court is of considered opinion
that election petition
tion cannot be dismissed on the ground that the copy
of notice which was served on the respondents did not contain the
impression of seal, name of notary or endorsement of affirmation by
the notary.
11. Accordingly, IA. No.2527/2025 is hereby rejected.
12. So far as question of non-disclosure
non disclosure of cause of action is
concerned, counsel for respondent/returned candidate was directed to
address this Court with regard to intention of returned candidate in
mentioning words "ykxw ugha gksrk" in front of two criminal
inal cases which
were disclosed by him in the affidavit. Except submitting that it was
an inadvertent mistake on the part of returned candidate, no
explanation could be submitted by counsel for returned candidate as to
why the words "ykxw ugha gksrk" were mentioned in front of details of
criminal cases which were pending against returned candidate. Since
the interpretation and meaning of words "ykxw ugha gksrk" require
appreciation of evidence, thus, it is clear that for the purposes of
application filed under
nder Order VII Rule 11 CPC, election petitioner has
made out a case thereby disclosing cause of action which makes the
election petition triable.
13. So far as the lack of material facts is concerned, it is clear that
election petitioner in paragraph 16 to 21 of election petition has
pleaded the material facts. Merely because the words "materially
affected" have not been mentioned in the election petition, it cannot be
said that the material facts have not been disclosed because it is suffice
to mention heree that only facts are to be pleaded and not the law.
Section 100(1) of Representation of People Act makes it mandatory
for the High Court to give a finding as to whether corrupt practice has
materially affected the result or not. Thus, it is for the High Court
C to
decide that suppression had any material effect on the result/outcome
of the election or not. In the considered opinion of this Court, the
election petitioner has pleaded all the material facts which are
necessary for trial of election petition. Fu Furthermore,
rthermore, the Supreme
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Court in the case of Brajesh Singh Vs. Sunil Arora and others
reported in (2021) 10 SCC 241 241, Union of India Vs. Association for
Democratic Reforms and another reported in (2002) 5 SCC 294 294,
Public Interest Foundation and others Vs. Union of India and
another reported in (2019) 3 SCC 224 and People's Union For Civil
Liberties And Another Vs. Union of India and Another reported in
(2013) 10 SCC 1 has repeatedly held that it is for the political parties
as well as contesting candidates to disclose their criminal antecedents
because it is the right of the voter to know about the criminal
antecedents of the contesting candidate. Furthermore, on 18.03.2024
even the Election Commission has also issued guidelines requiring
political parties ass well as their candidates to disclose the criminal
antecedents of contesting candidates. Thus, the judgments which were
relied upon by respondent to show that the suppression of fact with
regard to complete income or number of vehicles of the returned
candidate
didate stand on a different footing but it is the mandatory
requirement for every contesting candidate to honestly disclose the
pendency of all the criminal cases. Under these circumstances, this
Court is of considered opinion that not only the election petition
p
contains material facts for trial of election petition but also discloses
cause of action.
14. Accordingly, I.A. No.2228/2025 is also hereby rejected.
rejected
15. At this stage, it is submitted by Shri Sarvesh Sharma,
Advocate, that he has also filed an ob
objection with regard to non--supply
of the additional true copy of the election petition.
16. Since this Court has already come to a conclusion that the
copy of notices which were supplied to the respondents on the earlier
occasion is the sufficient compliance
compliance of Section 81(3) of
Representation of People Act, accordingly, the objection filed by Shri
Sarvesh Sharma, Advocate, is hereby rejected.
17. Respondents are granted two weeks' time to file their written
statement."
7. The respondent no.1/Mukesh Malhotra filed SLP (c) No. 19112-
19113/2025 which was dismissed by Supreme Court by order dated 22-7-
2025.
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8. Thereafter, the respondent no.1/Mukesh Malhotra filed his written
statement and admitted that all the six criminal cases were registered
against him. In respect of criminal cases mentioned as Group 1 cases, it
was stated by respondent no.1/Mukesh Malhotra as under :
"That,
hat, so far as Group 1 case is concerned under Section 33A
Representation
presentation of people Act right to information has been given,
Section 33A(1)(i) mandates that the candidates shall disclose this
pending case where imprisonment for 1 years or more than 1 yearshas
been prescribed and charges have been framed. Answering respondent
espondent
in his nomination form has mentioned these two cases and also
mentioned the name of the Court where these cases are pending and
also made description of the offence but has not mentioned other
details, because of not mentioning of other details neither
either the statute
has been violated nor voters right to know criminal antecedent have
been affected. Answering respondent has disclosed these cases in the
nomination form, mistake occurred in the manner and method
prescribed in the form which is directory in nature and does not affect
the right of voters or anyone and it is the procedural lapse.
lapse."
9. So far as cases mentioned in Group 2 is concerned, it was the stand of the
respondent no.1/Mukesh Malhotra that in forest offence he was convicted by
Trial Court, however,
ver, in the light of Section 33
33-A of Representation of the
People Act, it was not required to be disclosed in affidavit under form 26 as the
conviction was less than 1 year. So far as the conviction of respondent
no.1/Mukesh Malhotra in RCT No. 1047/2011 is concerned,, it was set aside in
appeal and ultimately the respondent no.1/Mukesh Malhotra was acquitted. In
the remaining two cases, he was acquitted therefore, in the light of Section 33-A
of Representation of the People Act, he was not under obligation to disclose the
same in his affidavit filed in form 26. It is further submitted that the bonafide
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mistake has occurred on account of illiteracy and lack of legal awareness
aw and
pleaded as under :
That, in replyy as to para
para-9 of the petition, it issubmitted that so far as
Group 2 cases are concerned,answering respondent is not required to
disclose thesecases. It is specifically denied that answeringrespondent
has made any ny suppression in order to getany benefits. Some
procedural lapses occurredbecause of lack of legal awareness or
improper advice.It is not out of place to mention here that
answeringrespondent belongs to Sahariya tribe who are still farand far
away from civilization
vilization and literacy rate is verylow but there was no
intention to conceal the facts ofcriminal record, the lapses are purely
proceduralwithout any malafide intention. Answering respondentis not
at all benefited by the aforesaid lapse.
10. The other respondents also filed their written statement, thereby indirectly
supporting the respondent no.1/Mukesh Malhotra.
11. The Election Petitioner examined following witnesses in his support :
S.No. Name of Witness Witness No.
1. Ram Niwas Rawat P.W.1
2. Bhupendra Singh P.W.2
The
he respondent no.1/Mukesh Malhotra examined following witnesses in his
support :
S.No. Name of Witness Witness No.
1. Mukesh Malhotra D.W.1
2. BachhanBihari D.W.2
3. Harish Dubey D.W.3
4. Sanat Kumar Jain D.W.4
5. Chander Singh Sisodia D.W.5
The respondent no. 4,, Smt. ManjuAdivasi, examined herself as a witness :
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S.No. Name of Witness Witness No.
1. Manju Adivasi D.W.6
The respondent no. 10 Ram Singh Jatav examined himself as a witness :
S.No. Name of Witness Witness No.
1. Ram Singh Jatav D.W.7
12. The following documents were proved and exhibited by Election
Petitioner :
S.No. Ex. Document Proved by
P.
1 1 Press Note dated 99-10-2023 issued by Admitted by
Election Commission of India both parties
2 2 Press Note dated15
dated15-10-2024 issued by Admitted by
Election Commission of India both parties
3 3 Nomination Paper of Mukesh Malhotra Admitted by
both parties
4 4 Judgment dated 28
28-2-2020 passed by C.J.M., Admitted by
Sheopur in RCT No. 1022/2014 both parties
5 5 Judgment dated 30
30-6-2015 passed by Admitted by
J.M.F.C., Sheopur in RCT No. 1407/2011 both parties
6 6 FIR in crime No. 2/13 registered at Police Admitted by
Station Karahal, Distt. Sheopur both parties
7 7 Result Admitted by
both parties
8 8 Election Certificate Admitted by
both parties
9 9 FIR in crime No. 2/2022 registered at Police Admitted by
Station Karahal, Distt. Sheopur both parties
10 10 Denial of charges in RCT No. 972/2022 Admitted by
both parties
11 10A FIR in crime No. 93/2023 registered at Police Admitted by
Station Karahal, Distt. Sheopur both parties
12 11 Charges in RCT No. 972/2022 Admitted by
both parties
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13 12 Charges in RCT No. 1051/2023 Admitted by
both parties
14 13 FIR in crime No. 2/2020 registered at Police D.W.1
Station Karahal, Distt. Sheopur
15 14 News Paper Aacharan dated 8-11-2024
8 D.W.1
16 15 News Paper Aacharan dated 6-11-2024
6 D.W.2
17 16 News Paper Aacharan dated 7-11-2024
7 D.W.2
18 17 News Paper Aacharan dated 8-11-2024
8 D.W.2
19 18 News Paper Circulation Sheet dated 6-11- D.W.3
2024 of Nav Bharat
20 19 News Paper Circulation Sheet dated 77-11- D.W.3
2024 of Nav Bharat
21 20 News Paper Circulation Sheet dated 88-11- D.W.3
2024 of Nav Bharat
22 21 News Paper Nav Bharat dated 7-11-2024
7 D.W.3
23 22 News Paper Nav Bharat dated 8-11-2024
8 D.W.3
24 23 News Paper Nav Bharat dated 6-11-2024
6 D.W.3
13. The Following documents were proved and exhibited by respondent No.1
/Mukesh Malhotra :
S.No. Ex. D Document Proved by
1 1 Notice to admit documents P.W.1
2 2 Reply to Notice to Admit Documents P.W.1
3 3 Affidavit in form 26 P.W.1
4 4 Judgement dated 1717-6-2016 passed by 2nd P.W.1
A.S.J., Sheopur in Cr.A. No. 400051/20
5 5 Register of criminal cases P.W.1
6 6 Judgment dated 1111-3-2023 passed by P.W.1
J.M.F.C., Sheopur in RCT No. 546 of 21
7 7 News Paper Nav Bharat dated 7-11-2024
7 P.W.1
8 8 News Paper Aacharan dated 66-11-2024 P.W.1
9 9 News Paper Aacharan dated 77-11-2024 P.W.1
10 10 News Paper Nav Bharat dated 8-11-2024
8 P.W.1
11 11 News Paper Nav Bharat dated 6-11-2024 P.W.1
12 12 Compact Disc P.W.1
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13 13 News Paper Pradesh Watch dated 77-11- P.W.1
14 14 News Paper Pradesh Watch dated 99-11- P.W.1
15 15 News Paper Pradesh Watch dated 11 11-11- P.W.1
16 16 News Paper Express News dated 27-10- P.W.1
17 17 News Paper Express News dated 77-11-2024 P.W.1
18 18 News Paper Express News dated 99-11-2024 P.W.1
19 19 News Paper Express News dated 11 11-11- P.W.1
20 20 Photograph P.W.2
21 21 Photograph P.W.2
22 22 Letter dated 7-3-2024 issued by Chief Admitted by
Electoral Officer, Delhi both parties
23 23 Letter dated 77-3-2024 issued by Chief Admitted by
Electoral Officer, Delhi both parties
24 24 Letter dated 66-3-2024 issued by Election Admitted by
Commission of India both parties
25 25 Order dated 13
13-9-2025 passed by National D.W.1
Lok Adalat
26 26 F.I.R. in crime No. 93 of 2023 registered at D.W.1
Police Station Karahal, Distt. Sheopur
27 27 Circulation Sheet of News Paper Aacharan D.W. 2
28 28 Circulation Sheet of Pradesh Watch of 11- D.W.5
11-2024
29 29 Circulation Sheet of Pradesh Watch of 7-7 D.W.5
11-2024
30 30 Bank Account of Pradesh Watch D.W.5
31 31 News Paper Pradesh Watch dated 11 11-11- D.W.5
32 32 News Paper Pradesh Watch dated 77-11- D.W.5
14. As already pointed out, the controversy in the present case lies in a very
compass i.e., whether incomplete disclosure of criminal cases mentioned in
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Group 1 cases and non disclosure of criminal cases mentioned in Group II
cases amount
unt to corrupt practice or not ?
15. Challenging the Election of the respondent no.1/Mukesh Malhotra, it is
submitted by Counsel for Election Petitioner, that it is the fundamental right of
every electorate to know about the criminal antecedents of the candidate. Even
otherwise, an incorrect information was given in affidavit that only Verbal
altercation (eqagokn) had taken place.The
place.The respondent no.1/Mukesh Malhotra
deliberately did not disclose that Charges in two cases have been framed and
deliberately mentioned "not applicable". Not only important information was
suppressed by the respondent no.1/Mukesh Malhotra, but information was got
published in those news papers which had either no circulation or very poor
circulation in Assembly Constituency 02 Vijaypur. Thus, every effort was made
to keep the electorate in dark. Further more, the respondent no.1/Mukesh
Malhotra himself had admitted in his cross-examination
cross examination that trees are worshiped
by the residents of Vijaypur Assembly Constituency and the respondent
no.1/Mukesh
1/Mukesh Malhotra was convicted for illegally cutting 210 trees. Non
Non-
disclosure of fact that he was convicted for the said offence cannot be said to be
a bonafide mistake and the offence in question involved moral turpitude.
Further the respondent no.1/M
no.1/Mukesh Malhotra was also being tried for
assaulting women also and said fact was also suppressed. The provisions of
Section 33A of Representation of the People Act is a mandatory provision. It
was further submitted that Section 33B of Representation of the People Act was
struck down in Judgment passed in the case of PUCL Vs. Union of India
reported in (2003) 4 SCC 399.
399 Thus, it is submitted that the respondent
no.1/Mukesh Malhotra is guilty of corrupt practice and also relied upon the
judgments passed by Supreme Court in the case of Union of India Vs.
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Association for Democratic Reforms reported in (2002) 5 SCC 294,
Krishnamoorthy Vs. Siva Kumar reported in (2015) 3 SC 467, Public
Interest Foundation and others Vs. Union of India and another reported in
(2019) 3 SCC 224, Satish Ukey Vs. Devendra Gangadharrao Fadnavis and
another reported in (2019) 9 SCC 1, Poonam Vs. Dule Singh and others
reported in 2025 INSC 1284, Ajmera Shyam Vs Kova Laxmi and others
reported in 2025 SCC OnLine 1723 (SC), Sushil Kumar Singhal Vs.
Regional Manager, Punjab National Bank reported in (2010) 8 SCC 573,
State Bank of India and others Vs. P. Soupramaniane reported in (2019) 18
SC 135, Mangali Vs. Chakki Lal reported in AIR 1963 All 527,
527 Arjun
Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others reported
in (2020) 7 SCC1, and Lok Prahari Vs. Union of India reported in (2018) 4
SCC 699.
16. Per contra, it is submitted by Counsel for respondent no.1/Mukesh
Malhotra, that provision of Section 33A of Representation of the People Act
was substantially complied with. The respondent no.1/Mukesh Malhotra had
explained in his cross examination that the mistake has occurred because the
person who was filling up the nomination paper and the affidavit as per form 26
did not think it proper to do so. So far as non-disclosure
disclosure of criminal cases as
mentioned in Group II cases is concerned, the conviction ooff the respondent
no.1/Mukesh
/Mukesh Malhotra was less than 1 year, therefore, in the light of Section 33-
A of Representation of the People Act, it was not necessary for the respondent
no.1/Mukesh Malhotra to disclose the same. So far as incomplete disclosure of
criminal cases as mentioned in Group I is concerned, the Court must find out its
impact on the society and unless and until the suppression is so monumental, the
hard fought election of the respondent no.1/Mukesh Malhotra, should not be set
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aside. It is submitted
ubmitted that the lapses on the part of the respondent no.1/Mukesh
Malhotra are of trivial in nature and should not be given undue importance as
claimed by the Election Petitioner, and relied upon the judgments passed by
Supreme Court in the case of Ajmer Shyam Vs. Kova Laxmi and others
reported in 2025 SCC OnLine SC 1723, Vashist Narain Sharma Vs. Dev
Chandra and others reported in (1954) 2 SCC 32, Shiv Charan Singh Vs.
ChndraBhan Singh reported in (1988) 2 SCC 12, Thakur Sen Negi Vs. Dev
Raj Negi and another reported in 1993 Supp (3) SCC 645 and Judgment
passed by Madhya Pradesh High Court in the case of Ram gareb and other Vs.
Ajay Arjun Singh passed in EP No. 6/2024 decided on 22-8-2024
2024 as well as
Judgment passed by Patna High Court in the case of Bhamshanker Choudhary
Vs. Bhudeo Chaudhary and others decided on 27-2-2025 in E.P. No.
17/2000.It
It is not out of place to mention here that although respondent
no.1/Mukesh Malhotra has given a compilation containing other judgments also,
but they were not cited.
17. Although the Counsel for the other respondents were present at the time
of arguments, but none of them argued the case.
18. Heard the learned Counsel for the Election Petitioner and respondent
no.1/Mukesh Malhotra.
19. First of all, this Court wo
would like to consider the evidence of Smt. Manju
Adivasi (D.W.6). Smt. Manju Adivasi (D.W.6) is respondent no. 4. In an
affidavit filed in support of her written statement, she had disclosed the name of
her husband as Narayan Adivasi, but at the time of recording of her evidence,
She disclosed the name of her husband as Raju. When She was asked to clarify
then She stated She was asked by Counsel to sign a pre-prepared
pre prepared written
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statement and neither it was read out to her nor She was allowed to read it is out.
Thus, it is clear that whatever written statement was filed by Smt. Manju
Adivasi, was not her version, but She was merely asked by her counsel to sign
the pre-prepared
prepared written statement and neither She was allowed to read out the
same nor the said written
ritten statement was read out to her. This conduct of her
Counsel cannot be appreciated. The written statement is the version of the
litigating party and the Counsel should not file a written statement which was
prepared by him without any instructions oorr information from the litigating
party. Thus, the conduct of the Counsel for the respondent no. 4, Smt. Manju
Adivasi is hereby deprecated.
20. Ram Singh Jatav (D.W.7) is the respondent no. 10. In examination in
chief, he merely mentioned that he had received the notice of the Election
Petition and had filed his written statement through his Counsel. In cross
examination he stated that he is M.A. (Social Science), but thereafter he started
feeling giddiness and was also not in a position to stand and accordingly, he was
given up by his Counsel.
21. Thus, the respondents no. 4 and 10 who appeared as a witness were not
able to throw any light in the matter and it appears that they were forcibly made
to contest the election petition. Be that whatever it may be.
Discussion on merits
Group 1 cases
22. To decide the controversy in hand, it is necessary to reproduce the
declaration made by respondent no.1/Mukesh Malhotra in clause 5 of Part Aof
his Affidavit filed in form 26
26, Ex. D.3, which reads as under :
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¼ i½ eSa ;g ?kks"k.kk djrk gwW fd esjs fo:) dksbZ vkijkf/kd ekeyk yafcr ugha gSA ¼;fn vH;FkhZ ds
fo:) dksbZ vkijkf/kd ekeyk yfEcr ugha gS- rks bl fodYi dks fpUgkafdr djs vkSj uhps fodYi ¼i½ ds
lkeus **ykxw ugha** gksuk fy[ks½
;k
¼ii½ esjs fo:) fuEufyf[kr vkijkf/kd ekeys yafcr gS
¼;fn vH;FkhZ ds fo:) vkijkf/kd ekeys yafcr gS rks bl fodYi fpUgkafdr dks vkSj mijksDr
fodYi ¼i½ dks dkV ns vkSj uhps lkj.kh esa lHkh yafcr ekeyksa dk C;kSjs nsa½
lkj.kh
¼d½ lac) iqfyl Fkkus ds uke vkSj irs ds Iqfyl Fkkuk Iqfyl Fkkuk Ykkxw
Yk ugha gksrk
lkFk izFke bfRryk fjiksVZ la- djkgy vijk/k djkgy vijk/k
dza- 02@2022 dz-a 93@2023
¼[k½ U;k;ky; ds uke ds lkFk ekeyk la- ts-,e-,Q-lh- ts-,e-,Q-lh- Ykkxw
xw ugha gksrk
U;kf;d U;kf;d eftLVªsV
eftLVªsVizFke izFke Js.kh ';ksiqj
Js.kh ';ksiqj ds ds iz-d- vkjlhVh
iz-d- vkjlhVh 1051@2023
972@2022
¼x½ varoZfyi laca/k vf/kfu;eksa@lafgrkvksa /kkjk,sa 323] 294] /kkjk,sa 294] 323] Ykkxw
xw ugha gksrk
dh /kkjk,a ¼/kkjk dh la- nsa] vFkkZr 506] 34 vkbZ-ih- 341] 506] 34
Hkkjrh; naM lafgrk] vkfn dh /kkjk----
/kkjk lh- vkbZ-ih-lh-
½
¼N½ D;k dk;Zokfg;ksa ds fo:) dksbZ ykxw ugha gksrk ykxw ugha gksrk ykxw ugha gksrk
vihy@iqujh{k.k ds fy, vkosnu
QkbZy fd;k x;k gS ¼gkW ;k ugha dk
mYys[k djsa½
23. From clause 5 of part A of affidavit
affidavit, it is clear that in sub-clause
clause (d) the
summary description of crime no. 2/2022 has been mentioned as verbal
altercation (eqagokn) and in sub-clause
sub clause (e) in which it was to be declared as to
whether charges have been framed or not, it has been mentioned by respondent
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no.1/Mukesh Malhotra as "No
No". Even in sub-clause
clause (f) in which the respondent
no.1/Mukesh Malhotra was required to disclose the date of framing of charge, it
has been mentioned as "not ap
applicable".
plicable". Thus, it is clear that in respect of crime
no. 2/2022, the respondent no.1/Mukesh Malhotra had declared that charges
have not been framed and accordingly, the date of framing of charge was also
not given. Even in summary of allegations, it was mentioned as Verbal
altercation (eqagokn). However, it is clear from order (Ex. P.11),, charges under
Sections 294,323,506 Part 2 of IPC were framed in RCT No. 972/2022 arising
out of crime no. 2/2022.
24. Similarly, it is clear from order dated 17-10-2023
17 2023 (Ex. P.12), charges
under Sections 294,323/34 (three counts), 506 Part 2 of IPC were framed in
RCT NO. 1051/2022 arising out of crime no. 93/2023. It is clear from the order
framing charges, the allegations
allegations were that the respondent no.1/Mukesh
Malhotra, had caused hurt to Balwant, Ms.Bhagwanti and Ms. Meena.
However, in Part A clause 5 of affidavit, the respondent no.1/Mukesh Malhotra
had disclosed the summary of allegations as Verbal altercation (eqagokn) and
mentioned "No" against the sub-clause
sub clause requiring declaration as to whether
charges have been framed or not and mentioned "not applicable" against sub-
sub
clause requiring disclosure of date of framing charges.
25. In the written statement, the respondent no.1/Mukesh Malhotra had
claimed that it was bonafide mistake but in his evidence, he tried to shift the
burden on to the shoulder of person filling up the nomination paper and affidavit
and submitted that although he had disclosed all the necessary details
detail to Shri
J.P. Dhanopia, the person who was filling up the nomination papers and
affidavit but in fact, Shri J.P.Dhanopia on his own mentioned the words "No"
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and "not applicable" and even Verbal altercation (eqagokn) in affidavit Ex. D.3.
D.3
The aforesaid explanation
planation given by respondent no.1/Mukesh Malhotra (D.W.1)
in his evidence is not supported by pleadings in written statement. The
explanation given by respondent no.1/Mukesh Malhotra (P.W.1) in his evidence
cannot be accepted because firstly, in absence of pleadings, such an evidence
cannot be accepted and secondly, the respondent no.1/Mukesh Malhotra
Malh has not
examined Shri J.P. Dhanopia who had allegedly filled up the nomination paper
as well as the affidavit,, Ex. D.3 on behalf of respondent no.1/Mukesh M
Malhotra.
Further more, the nomination paper and the affidavit (Ex. D.3) contains a
declaration by the respondent no.1/Mukesh Malhotra that all the informations
given in the said document are true to his personal knowledge and belief.
Under these circumstances,
nces, it is clear that it was the respondent
no.1/Mukesh Malhotra, who had deliberately and consciously given false
information in his affidavit, Ex. D.3. Although the respondent no.1/Mukesh
Malhotra in his written statement had taken a stand that bonafide mistake has
taken place on account of lack of legal knowledge but the respondent
no.1/Mukesh Malhotra (D.W.1) in his evidence has admitted that he has done
M.A. (Social Science), and LL.B. Further more, this educational qualification is
also mentioned in affidavit, Ex. D.3. Thus, it is clear that respondent
no.1/Mukesh Malhotra is a law graduate and therefore, his defence that bonafide
mistake had occurred on account of lack of legal knowledge is false even to the
knowledge of respondent no.1/Mukesh Malhotra.
Malho
26. Shri Vivek Tankha, Senior Advocate submitted that since, the respondent
no.1/Mukesh Malhotra had substantially complied with the provisions of
Section 33A of Representation of the People Act and non-disclosure
disclosure that
"whether
whether charges have been frame
framed or not" or "non-disclosure
disclosure of date of
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framing of charges" or "incorrect
incorrect summary of allegations"
allegations is not suppression
but it is merely an omission which does
do not go to the root of the controversy and
cannot be said to be monumental amounting to corrupt prac
practice
tice under Section
123(2) of Representation of the People Act, 1951.
27. Considered the aforesaid submissions made by Counsel for respondent
no.1/Mukesh Malhotra.
28. There is a specific provision in affidavit to the effect that "whether
charges have been framed or not"
not and "if
if yes then the date of framing of
charges". The moot question for consideration is that what is the purpose
behind declaration that "whether
whether charges have been framed or not
not"?
29. After the cognizance is taken, the next step in the trial
trial is to "either read
out the substance of accusation or framing of charge
charge". "Framing
Framing of Charge"
Charge is
not a mere formality. It is an application of judicial mind to the facts of the case
to find out as to whether the material collected by the investigating agency is
sufficient to point out grave suspicion that the accused might have committed
the offence or not?
30. The Supreme Court in the case of Satishchandra Ratanlal Shah v. State
of Gujarat, reported in (2019) 9 SCC 148 has held as under :
9. Before we analyse this case, it is to be noted that the criminal
application preferred by the accused before the High Court was
against the order of the trial court at the stage of framing of charges,
wherein it is the duty of the court to apply its judic
judicial
ial mind to the
material placed before it and to come to a clear conclusion that a
prima facie case has been made out against the accused. An order for
framing of charges is of serious concern to the accused as it affects his
liberty substantially. Courts must therefore be cautious that their
decision at this stage causes no irreparable harm to the accused.
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10. Coming to the aspect of quashing of the charges, it is well settled
that such exercise needs to be undertaken by the High Court in
exceptional cases. It is also well settled that the framing of charges
being initial stages in the trial process, the court therein cannot base
the decision of quashing the charge on the basis of the quality or
quantity of evidence rather the enquiry must be limited to a prima
facie examination. (Refer to State of Bihar v. Ramesh Singh.)
31. The Supreme Court in the case of Ram Prakash Chadha v. State of
U.P., reported in (2024) 10 SCC 651 has held as under :
23. In para 13 in P. Vijayan case
case,, this Court took note of the principles
enunciated earlier by this Court in Union of India v. Prafulla Kumar
Samal which reads thus: (Prafulla
( Kumar Samal case,, SCC p. 9, para
10)
"10.. ... (1) That the Judge while considering the question of framing
the charges under Section 227 of the Code has the undoubted power to
sift and weigh the evidence for the limited purpose of finding out
whetherr or not a prima facie case against the accused has been made
out.
(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly explained
the Court will be fully justified in framing a charge and proceeding
with the trial.
(3) The test to determine a prima facie case would naturally depend
upon the facts of each case and it is difficult to lay down a rule of
universal application. By and large however if two views are equally
possible and the Judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave suspicion
against the accused, he will be fully within his right to discharge the
accused.
(4) That in exercising his jurisdiction under Section 227 of the the Code
the Judge which under the present Code is a senior and experienced
court cannot act merely as a post office or a mouthpiece of the
prosecution, but has to consider the broad probabilities of the case, the
total effect of the evidence and the documents
documents produced before the
Court, any basic infirmities appearing in the case and so on. This
however does not mean that the Judge should make a roving enquiry
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into the pros and cons of the matter and weigh the evidence as if he
was conducting a trial."
24. In the light of the decisions referred supra, it is thus obvious that it
will be within the jurisdiction of the Court concerned to sift and weigh
the evidence for the limited purpose of finding out whether or not a
prima facie case against the accused concerned
concerned has been made out.
We are of the considered view that a caution has to be sounded for the
reason that the chances of going beyond the permissible jurisdiction
under Section 227 CrPC, and entering into the scope of power under
Section 232 CrPC, cannot bbee ruled out as such instances are aplenty.
In this context, it is relevant to refer to a decision of this Court in Om
Parkash Sharma v. CBI CBI.. Taking note of the language of Section 227
CrPC, is in negative terminology and that the language in Section 232
CrPC,
PC, is in the positive terminology and considering this distinction
between the two, this Court held that it would not be open to the Court
while considering an application under Section 227 CrPC, to weigh
the pros and cons of the evidence alleged improbab improbability
ility and then
proceed to discharge the accused holding that the statements existing
in the case therein are unreliable. It is held that doing so would be
practically acting under Section 232 CrPC, even though the said stage
has not reached. In short, though
though it is permissible to sift and weigh the
materials for the limited purpose of finding out whether or not a prima
facie case is made out against the accused, on appreciation of the
admissibility and the evidentiary value such materials brought on
record by y the prosecution is impermissible as it would amount to
denial of opportunity to the prosecution to prove them appropriately at
the appropriate stage besides amounting to exercise of the power
coupled with obligation under Section 232 CrPC, available only after
taking the evidence for the prosecution and examining the accused.
25. Even after referring to the aforesaid decisions, we think it
absolutely appropriate to refer to a decision of the Madhya Pradesh
High Court in Kaushalya Devi v. State of M.P. It was held in the said
case that if there is no legal evidence, then framing of charge would be
groundless and compelling the accused to face the trial is contrary to
the procedure offending Article 21 of the Constitution of India. While
agreeing with the view, ew, we make it clear that the expression "legal
evidence" has to be construed only as evidence disclosing prima facie
case, "the
the record of the case and the documents submitted therewith
therewith".
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26. The stage of Section 227 CrPC, is equally crucial and
determinative
ive to both the prosecution and the accused, we will dilate
the issue further. In this context, certain other aspects also require
consideration. It cannot be said that Section 227 CrPC, is couched in
negative terminology without a purpose. Charge
Charge-sheet is a misnomer
for the final report filed under Section 173(2) CrPC, which is not a
negative report and one that carries an accusation against the accused
concerned of having committed the offence(s) mentioned therein.
32. Thus, it is clear that stage of framing charge is not a mere formality but in
fact it is stage where a judicial mind is applied to find out as to whether the
material collected against the accused prima facie raises a grave suspicion that
the accused might have committed offence requiring his trial or not and for that
purpose, the court has power to sift and weigh the evidence. An order for
framing of charges is of serious concern to the accused as it affects his liberty
substantially. Courts must therefor
thereforee be cautious that their decision at this stage
causes no irreparable harm to the accused.
33. Thus, a specific declaration in this regard by the candidate is necessary to
give an information to the electorate that after application of judicial mind, it
has been found that there is a sufficient material against the candidate
warranting his trial. Therefore, non-disclosure
non disclosure of the fact that charges have been
framed, cannot be said to be a mere omission therefore, it is held that specific
declaration in Clause 5 of part A of the affidavit that charges have not been
framed, was with a clear intention to mislead the electorate.
34. Further more, a candidate is also required to give summary of allegations,
so that the electorate must know the nature of allegation
allegationss made against the
candidate. In the present case, in Crime No. 2/2022, the allegations were that
the respondent no.1/Mukesh Malhotra had used abusive language in the name of
mother of the complainant and also assaulted the complainant Bhola by fists and
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blows and also extended a threat to his life. The aforesaid fact is clear from the
order framing charge, Ex. P.11. Similarly in Crime No. 93/2023, the allegations
were that the respondent no.1/Mukesh Malhotra had used abusive language
against Balwant, Bhagwati
agwati and Meena in the name of mother and sister and also
assaulted Balwant, Bhagwati and Meena and also extended a threat to their life.
This fact is evident from order framing charge, Ex. P.12. Thus, the contention
of the Election Petitioner, that the allegations made against the respondent
no.1/Mukesh Malhotra also indicated that he has no respect for the women also
appears to be correct. However, it is made clear that there is no pleading in this
regard in the Election Petition, although specific que
questions
stions were put to
respondent no.1/Mukesh Malhotra (D.W.1) in his evidence in this regard.
However, the Counsel for the respondent no.1/Mukesh Malhotra, did not raise
any objection that in absence of specific plea, the question of wrong disclosure
of allegations
gations should not be considered and did not plead any prejudice.
35. It is true, that pleadings should be specific and clear and any evidence in
absence of pleading cannot be considered but at the same time, it is also well
established principle of law th
that
at where the parties have gone to the Trial
knowing fully well the issues involved in the case, then in absence of prejudice,
the Court should also find out as to whether the issues involved in the trial were
well within their knowledge or not and should try
ry to find out the substance.
substance The
pleadings should receive a liberal construction and no pedantic approach should
be adopted to defeat justice or hair-spitting
hair spitting technicalities as held by Supreme
Court in the case of Ram Sarup Gupta v. BishunNarain Inter College
Co
reported in (1987) 2 SCC 555.
555 The relevant paragraph is as under :
6. The question which falls for consideration is whether the
respondents in their written statement have raised the necessary
pleading that the licence was irrevocable as contemplated by Section
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60(b)) of the Act and, if so, is there any evidence on record to support
that plea. It is well settled that in the absence of pleading, evidence, if
any, produced by the parties cannot be considered. It is also equally
settled that no party should be permitted to travel beyond its pleading
and that all necessary and material
material facts should be pleaded by the
party in support of the case set up by it. The object and purpose of
pleading is to enable the adversary party to know the case it has to
meet. In order to have a fair trial it is imperative that the party should
settlee the essential material facts so that other party may not be taken
by surprise. The pleadings however should receive a liberal
construction; no pedantic approach should be adopted to defeat justice
on hair-splitting
splitting technicalities. Some times, pleadings aare
re expressed in
words which may not expressly make out a case in accordance with
strict interpretation of law. In such a case it is the duty of the court to
ascertain the substance of the pleadings to determine the question. It is
not desirable to place undue
undue emphasis on form, instead the substance
of the pleadings should be considered. Whenever the question about
lack of pleading is raised the enquiry should not be so much about the
form of the pleadings; instead the court must find out whether in
substancee the parties knew the case and the issues upon which they
went to trial. Once it is found that in spite of deficiency in the
pleadings parties knew the case and they proceeded to trial on those
issues by producing evidence in that event it would not be open to a
party to raise the question of absence of pleadings in appeal. In
Bhagwati Prasad v. Chandramaul a Constitution Bench of this Court
considering this question observed:
"If a plea is not specifically made and yet it is covered by an
issue by implication,
tion, and the parties knew that the said plea was
involved in the trial, then the mere fact that the plea was not
expressly taken in the pleadings would not necessarily disentitle
a party from relying upon it if it is satisfactorily proved by
evidence. The general rule no doubt is that the relief should be
founded on pleadings made by the parties. But where the
substantial matters relating to the title of both parties to the suit
are touched, though indirectly or even obscurely in the issues,
and evidence has as been led about them, then the argument that a
particular matter was not expressly taken in the pleadings would
be purely formal and technical and cannot succeed in every case.
What the court has to consider in dealing with such an objection
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is: did the parties know that the matter in question was involved
in the trial, and did they lead evidence about it? If it appears that
the parties did not know that the matter was in issue at the trial
and one of them has had no opportunity to lead evidence in
respectt of it, that undoubtedly would be a different matter. To
allow one party to rely upon a matter in respect of which the
other party did not lead evidence and has had no opportunity to
lead evidence, would introduce considerations of prejudice, and
in doing justice to one party, the court cannot do injustice to
another."
36. As already pointed out, Shri Vivek Tankha, Senior Advocate, Counsel for
respondent no.1/Mukesh Malhotra, did not plead any prejudice on account of
absence of specific plea in election petition regarding incorrect disclosure of
allegations, therefore, it is held that the respondent no.1/Mukesh Malhotra also
gave false declaration about the nature of allegations levelled against him in two
pending cases mentioned in Group I cases. Therefore,
ore, it is held that respondent
no.1/Mukesh Malhotra, mislead the electorate by giving false information in his
affidavit filed in form 26.
Group II cases
37. In order to appreciate the non
non-disclosure
disclosure of cases in which decision was
already rendered prior to
o filing of affidavit in form 26, it would be appropriate
to consider the declaration given by the respondent no.1/Mukesh Malhotra,
which reads as under :
¼ i½ eSa ;g ?kks"k.kk djrk gwW fd eq>s fdlh vkijkf/kd ekeys esa nks"kfl) ugha fd;k x;k gSA
¼;fn vH;FkhZ nks"kfl) ugha fd;k x;k gS rks bl fodYi dks fpUgkafdr djs vkSj uhps fodYi ¼ii½
ds lkeus ykxw ugha gksrk gS fy[ks½
;k
¼ii½ eq>s uhps of.kZr vijk/kksa ds fy, fl)nks"kfd;kx;kgSA
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¼;fn vH;FkhZ nks"kfl) fd;k x;k gS rks bl fodYi dks fpUgkafdr djs vkSj mijksDr fodYi ¼i½
dks dkV nsa] vkSj uhps nh xbZ lkj.kh essa C;kSjs nsa½
¼6d½ eSus] Åij iSjk ¼5½ vkSj ¼6½ esa fn, x, vuqlkj esjs fo:) lHkh yafcr vkijkf/kd ekeyksa dh vksj
nks"kflf) ds lHkh ekeyksa ds ckjs esa vius jktuhfrd ny dks iwjh vkSj vn~;ru lwpuk ns nh gSA
¼,sls vH;fFkZ;ksa dks] ftUgs ;g en ykxw ugha gksrh gS] mijksDr iSjk 5¼i½½ vkSj ijk 6¼i½ esa dh izfof"V;kW dks
ns[krs gq,] Li"V :i ls ykxw ugha gksrk gS] fy[kuk pkfg,½
fVIi.kh %
1- C;kSjs Li"V :i ls vkSj lqikB; :i ls cMs v{kjksa esa izfo"V fd;s tkus pkfg,A
2- izR;sd en ds ekeys fofHkUu LraHkksa ds v/khu izR;sd ekeys ds fy, C;kSjs iFkd :i ls fn, tk,A
3- C;kSjs foykse dkykuqdze esa fn, tkus pkfg,] vFkkZr uohure ekeyksa dks igys of.kZr fd;k tk, vkSj vU;
ekeyksa ds fy, rkjh[kksa ds dze esa ihNs dh vksj of.kZr fd;k tk,A
4- ;fn visf{kr gks rks i`Fkd 'khV tksMh tk ldrh gSA
5- vH;FkhZ 2011 dh fjV ;kfpdk ¼flfoy½ la- 536 esaekuuh; mPp U;k;ky; ds fu.kZ; ds vuqikyu esa lHkh
lwpuk,a nsus dk mRrjnk;h gksxkA
38. The undisputed fact is that the respondent no. 1/Mukesh Malhotra was
convicted in Forest Crime No. 32773/2014 for offence under Sections
26(1)(a)(g) and 66(i) of Indian Forest Act. It is clear from Judgment dated 28
28-2-
2020 passed by C.J.M., Sheopur in RCT No. 1022/2014, Ex. P. 4 tha
that the
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respondent no.1/Mukesh Malhotra was tried on the allegations that on 44-2-2014,
he was found in possession of 210 freshly cut trees from reserved beat no. 351
and 352 of beat Rasen. After receiving an information, when the Forest officials
went to thee spot, that it was found that respondent no.1/Mukesh Malhotra with
25 other persons had already cut 210 green trees from the above mentioned
Reserved Forest Area and the freshly cut trees were also recovered. The
respondent no.1/Mukesh Malhotra, admitted his guilt and accordingly he was
punished with a sentence of "till rising of Court" and a fine of Rs. 7000/-
7000/ with
default imprisonment of 1 month. The respondent no.1/Mukesh Malhotra
(D.W.1) has admitted in para 8 of his cross examination that he had not filed
any appeal against his conviction. Further in para 10 of his cross
examination, respondent no.1/Mukesh Malhotra (D.W.1) has admitted that
the Vijaypur Assembly Constituency is dominated by Adivasis and Adivasis
worship the trees like a God
God. However, he denied the suggestion that under an
apprehension that disclosure of his conviction for forest offence where he was
convicted for cutting 210 trees would have adverse effect on the electorate, he
did not disclose the same. It is the stand of the resp
respondent
ondent no.1/Mukesh
Malhotra that since, his conviction was of less than 1 year, therefore, he did not
disclose his conviction under Forest Offence. In para 13 of his cross
cross-
examination, the respondent no.1/Mukesh Malhotra (D.W.1) had admitted that
society hates crime and therefore, it was necessary to give details of all the
informations sought in affidavit in form 26. Further, the respondent
no.1/Mukesh Malhotra (D.W.1) also admitted that FIR in crime no. 2/2020 was
lodged against him for offence under Section
Section 505(2) of IPC Ex. P.13, however,
it was submitted by him that since, he was acquitted in the said offence,
therefore, he did not disclose
close the same. In FIR in crime no. 2/2020 Ex. P.13, it
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was alleged that respondent no.1/Mukesh Malhotra had tried to spread hatred
against one particular community and had also demanded the ouster of the said
community from Karahal area.
39. Section 33A of Representation of the People Act read as under :
33A. Presentation of nomination paper and requirements for a
valid nomination.--(1)(1) A candidate shall, apart from any information
which he is required to furnish, under this Act or the rules made
thereunder, in his nomination paper delivered under subsub-section
section (1) of
section 33, also furnish the information as to whe
whether--
(i) he is accused of any offence punishable with imprisonment for two
years or more in a pending case in which a charge has been framed by
the court of competent jurisdiction;
(ii) he has been convicted of an offence [other than any offence
referred to in sub-section
section (1) or sub
sub-section
section (2), or covered in sub-
sub
section (3), of section 8] and sentenced to imprisonment for one year
or more.
(2) The candidate or his proposer, as the case may be, shall, at the
time of delivering to the returning officer the nomination paper under
sub-section
section (1) of section 33, also deliver to him an affidavit sworn by
the candidate in a prescribed form verifying the information specified
in sub-section (1).
(3) The returning officer shall, as soon as may be after the furnishing
furnish
of information to him under sub sub-section
section (1), display the aforesaid
information by affixing a copy of the affidavit, delivered under sub-
sub
section (2), at a conspicuous place at his office for the information of
the electors relating to a constituency for which the nomination paper
is delivered.
40. Shri VivekTankha, Senior Advocate relied upon the judgment passed by
Supreme Court in the case of C.P. John (Supra) and referred to Para 6 and 46
which reads as under :
6. With regard to the allegations based on criminal convictions, it was
contended that of the two criminal cases which were referred to by the
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appellant in the election petition, in one case the first respondent was
acquitted by the Sessions Court in Criminal
Criminal Appeal No. 248 of 2000
and that in CC No. 167 of 1995, the sentence awarded was less than a
year and, therefore, there was no violation of Section 3333-AA of the Act.
The first respondent, therefore, prayed for the dismissal of the election
petition as the same was not in conformity with Section 83 of the Act.
* * * *
46. The only other ground which was raised in the election petition
related to violation of Section 33 33-A
A of the Act wherein, the first
respondent stated to have suppressed his conviction in two criminal
cases. As far as those two criminal cases are concerned, Mr Shishodia,
learned Senior Counsel appearing for the first respondent brought to
our notice that the contention of the appellant based on those two
criminal cases was factually incorrect. In the impugned judgment it
has been noted that the first respond
respondent
ent was convicted for the offence
in Sessions Case No. 4 of 1975 but, however, the said conviction was
set aside in Criminal Appeal No. 248 of 2000 which was not in
dispute. Similarly, with reference to the conviction in CC No. 167 of
1995 the High Court has as noted that the certified copy of the judgment
in the said case was produced which disclosed that the sentence
imposed in the said case was less than a year. Under Section 33- 33
A(1)(ii)) of the Act, the requirement of the candidate is to furnish the
information
tion in the nomination as regards his/her conviction for any
offence referred to in sub-sections
sub sections (1), (2) and (3) of Section 8 and if
he/she is sentenced to imprisonment for a period of one year or more,
only then should it be disclosed in the nomination. As it has been
found in the present case that the conviction in CC No. 167 of 1995
and the sentence imposed was less than a year, there was no
compulsion for the first respondent to disclose the said conviction in
his nomination. Therefore, on this ground when the High Court
declined to interfere with the election of the first respondent, no fault
can be found with the said conclusion.
41. Shri Vivek Tankha, Senior Advocate also relied upon the judgment
passed by Supreme Court in the case of Satish Ukey (Supra) referred to para
23 which reads as under :
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23. The position is made further clear by the letters written by the
Election Commission of India to the Chief Electoral Officer of all the
States and the Union Territories. A reading of the said letters
letters would
go to show that a contesting candidate is mandated to furnish
information concerning the cases in which a competent court has
taken cognizance along with the cases in which charges have been
framed. The said letters also make it clear that the affidavit
affidavit mentioned
in Section 33-A(2)
A(2) of the 1951 Act is prescribed in Form 26 and that
any false declaration or concealment of information in the said
affidavit will attract the provisions of Section 125
125-AA of the 1951 Act.
The letters in this regard are dated
d 24-8-2012, 26-9-2012
2012 and 26-4-
2014, relevant portions of which are extracted below:
23.1.Letter dated 24-8--2012:
"1. Sub.: Affidavit to be filed by candidates with their nomination
paper-modification
modification of format
format-regarding.
The candidates at elections to Parliament and the State Legislatures
hitherto were required to file two affidavits: one, in Form 26 appended
to Conduct of Elections Rules, 1961 and the other, in the Form
prescribed by the Commission, vide its Order No. 3/ER/2003 dated
27-3-2003, as subsequently
sequently modified by the letter of even number
dated 25-2-2011.
2011. In the affidavits, the candidates are required to
declare information about their criminal background, if any, assets,
liabilities and educational qualifications.
2. On a proposal moved by th thee Commission for amalgamating the two
affidavits into one format, the Government has amended Form 26 so
as to include in it all the information that was sought in the two
separate affidavits. The Ministry of Law and Justice have notified the
revised Form 266 in the Gazette of India on 1-8-2012.
1 2012. A copy of the
said notification dated 11-8-2012 is enclosed herewith.
3. In view of the amendment to Form 26, all candidates shall,
hereafter, file only one affidavit in the revised Form 26 notified on 1-1
8-2012 (at elections
ctions to Parliament and State Legislatures). The
requirements to be followed while filing the affidavit have been
mentioned in the notes given at the end of the format....
* * *
5. You are requested to furnish a copy of this letter along with the
copy of the enclosed notification to every political party (including
registered unrecognised parties) having headquarters in your State/UT,
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including the State units of recognised National and State political
parties."
(emphasis supplied)
23.2.Letter dated 26-9--2012:
"Sub.: Affidavit to be filed by the candidates with their nomination
paper-regarding:
* * *
2. Item 5 of Part A and Part B of the revised Form 26 relates to
information regarding criminal antecedents to be furnished by the
candidates. It is clarified that in Item (5)(ii)) of the said Part A and Part
B of Form 26, the details of all pending cases in which cognizance has
been taken by the Court, irrespective of the quantum of punishment or
framing of charges will have to be disclosed by the candidate.
candidate This
may be brought to the notice of all candidates when they file their
nomination at all future general/bye
general/bye-elections in the State..."
23.3.Letter dated 26-4--2014:
"Sub.: Filing of false affidavit in Form 26.reg.
Sir/Madam,
You are aware that the format of affidavit
affidavit in Form 26 appended to the
Conduct of Elections Rules, 1961, was amended with effect from 1-8- 1
2012. Now the candidates are required to make declarations about
assets and liabilities including that of spouse and dependants,
candidate's criminal ant
antecedents
ecedents and educational qualifications, in the
affidavit in Form 26. The concealing of information in the affidavit in
Form 26 will attract the provisions of Section 125-A. 125 Under Section
125-A,
A, furnishing of any false information or concealing of
information
ion in the affidavit in Form 26 is an electoral offence
punishable with imprisonment up to six months, or with fine or both.
2. Prior to amendment to Form 26 in August 2012, the affidavit
regarding declaration about assets, liabilities, criminal antecedents
antecedent and
educational qualification was given in the format prescribed by the
Commission. In the case of complaints about false statement in the
said affidavit, the Commission, vide its Circular Letter No.
3/ER/2004, dated 2-6-2004,
2004, had clarified that if compl
complaints
aints were filed
before the Returning Officer raising the issue of false declaration in
the affidavit and if the RO was prima facie satisfied about the merits
of the complaint, then the RO was to file a complaint before the
competent court under Section 177 177 IPC read with Section 195 CrPC.
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3. Now that the affidavit is in Form 26 under Section 3333-AA of the RP
Act, 1951, making false declaration/concealing of information in the
affidavit would be covered under Section 125 125-AA of the Act. Under
Section 125-A, theree is no stipulation that complaints under the
section have to be made by the public servant concerned (in this case
the RO). Therefore, it would be open to any aggrieved person to move
petition before the appropriate court of competent jurisdiction with
petition
tition for action under Section 125-A
125 A in the case of any false
declaration or concealing of information in the affidavit in Form 26."
(emphasis supplied)
42. Shri Vivek Tankha, Senior Advocate also relied upon judgment passed by
Madhya Pradesh High Court in the case of Umang Singhar Vs. Chhattar
Singh and others decided on 2-1-2006 in E.P. No. 13 of 2004 in which it was
held that "From a bare perusal of provisions contained in this Section, it is clear
that a prospective candidate is not required to disclose particulars of the criminal
case in which he has been acquitted or discharged." Shri Vivek Tankha, Senior
Advocate also relied upon another judgment passed by co
co-ordinate
ordinate bench of this
Court in the case of Rasal Singh Vs. The Election Commission of India
decided on 4-9-2014 in E.P. No. 10/2014 in which it was held that "it is clear
that a candidate is not required to disclose (a) the cases in which he is acquitted
or discharged of criminal offences;".
43. It was submitted by Shri Vivek Tankha, Senior Advocate that since, the
respondent no.1/Mukesh Malhotra was sentenced to imprisonment till rising of
Court
urt and a fine of Rs. 7000/
7000/- with default imprisonment of one month
month"" in
Forest Crime No. 32773/2014, therefore,
there he was not under obligation to disclose
the same. Similarly, it was submitted that although the respondent no.
1/Mukesh Malhotra was also conv
convicted
icted in crime No. 32/2011 by the Trial Court,
but since he was acquitted by the Appellate Court, therefore, it was also not
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necessary for him to disclose the same in the light of Section 33-A
33 of
Representation of the People Act.
44. However, it was submit
submitted by Counsel for
or Election Petitioner, that
disclosure of all the details of criminal antecedents is necessary in the light of
evolution of law regarding right to information of electorate. The Counsel for
the Election Petitioner relied upon the judgment passed by Supreme Court in the
case of Assn. for Democratic
cratic Reforms (Supra) and referred to the following
paragraphs:
21. Further, it is to be stated that: (a)
( ) one of the basic structures of our
Constitution is "republican and democratic form of government"; ((b)
the election to the House of People and the Legislative Assembly is on
the basis of adult suffrage, that is to say, every person who is a citizen
of India and who is not less than 18 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 the Constitution or
any law on the ground of non non-residence,
residence, unsoundness of mind, crime
or corrupt or illegal practice, shall be entitled to be registered as a
voter at any such election (Article 326); ((c)) holding of any asset
(immovable or movable) or any educational qualification is not the
eligibility criteria to contest election; and ((d)) under Article 324, the
superintendence, direction and control of the "co "conduct
nduct of all elections"
to Parliament and to the legislature of every State vests in the Election
Commission. The phrase "conduct of elections" is held to be of wide
amplitude which would include power to make all necessary
provisions for conducting free aand fair elections.
Question 1
Whether the Election Commission is empowered to issue directions
as ordered by the High Court
22. For health of democracy and fair election, whether the disclosure
of assets by a candidate, his/her qualification and particular
particularss regarding
involvement in criminal cases are necessary for informing voters,
maybe illiterate, so that they can decide intelligently, whom to vote
for. In our opinion, the decision of even an illiterate voter, if properly
educated and informed about the contesting
contesting candidate, would be based
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on his own relevant criteria of selecting a candidate. In democracy,
periodical elections are conducted for having efficient governance for
the country and for the benefit of citizens -- voters. In a democratic
form of government,
vernment, voters are of utmost importance. They have right
to elect or re-elect
elect on the basis of the antecedents and past
performance of the candidate. The voter has the choice of deciding
whether holding of educational qualification or holding of property is
relevant for electing or re-electing
re electing a person to be his representative.
Voter has to decide whether he should cast vote in favour of a
candidate who is involved in a criminal case. For maintaining purity
of elections and a healthy democracy, voters are required to be
educated and well informed about the contesting candidates. Such
information would include assets held by the candidate, his
qualification including educational qualification and antecedents of
his life including whether he was involved in a criminal case and if the
case is decided -- its result, if pending -- whether charge is framed or
cognizance is taken by the court. There is no necessity of suppressing
the relevant facts from the voters.
* * *
46. To sum up the legal and constitutional position
position which emerges
from the aforesaid discussion, it can be stated that:
1. The jurisdiction of the Election Commission is wide enough to
include all powers necessary for smooth conduct of elections and the
word "elections" is used in a wide sense to in include
clude the entire process
of election which consists of several stages and embraces many steps.
2. The limitation on plenary character of power is when Parliament or
State Legislature has made a valid law relating to or in connection
with elections, the Com
Commission
mission is required to act in conformity with
the said provisions. In case where law is silent, Article 324 is a
reservoir of power to act for the avowed purpose of having free and
fair election. The Constitution has taken care of leaving scope for
exercisee of residuary power by the Commission in its own right as a
creature of the Constitution in the infinite variety of situations that
may emerge from time to time in a large democracy, as every
contingency could not be foreseen or anticipated by the enacted laws
or the rules. By issuing necessary directions, the Commission can fill
the vacuum till there is legislation on the subject. In KanhiyaLal Omar
case the Court construed the expression "superintendence, direction
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and control" in Article 324(1) and held that a direction may mean an
order issued to a particular individual or a precept which many may
have to follow and it may be a specific or a general order and such
phrase should be construed liberally empowering the Election
Commission to issue such orders.
orde
3. The word "elections" includes the entire process of election which
consists of several stages and it embraces many steps, some of which
may have an important bearing on the process of choosing a
candidate. Fair election contemplates disclosure by th thee candidate of
his past including the assets held by him so as to give a proper choice
to the candidate according to his thinking and opinion. As stated
earlier, in Common Cause case the Court dealt with a contention that
elections in the country are fough
foughtt with the help of money power
which is gathered from black sources and once elected to power, it
becomes easy to collect tons of black money, which is used for
retaining power and for re-election.
re election. If on an affidavit a candidate is
required to disclose the assets held by him at the time of election, the
voter can decide whether he could be re re-elected
elected even in case where he
has collected tons of money.
Presuming, as contended by the learned Senior Counsel Mr Ashwani
Kumar, that this condition may not be much effective for breaking a
vicious circle which has polluted the basic democracy in the country
as the amount would be unaccounted. Maybe true, still this would
have its own effect as a step-in-aid
step aid and voters may not elect law- law
breakers as law-makers
makers and some flowers of democracy may blossom.
4. To maintain the purity of elections and in particular to bring
transparency in the process of election, the Commission can ask the
candidates about the expenditure incurred by the political parties and
this transparency y in the process of election would include
transparency of a candidate who seeks election or re re-election.
election. In a
democracy, the electoral process has a strategic role. The little man of
this country would have basic elementary right to know full
particulars of a candidate who is to represent him in Parliament where
laws to bind his liberty and property may be enacted.
5. The right to get information in democracy is recognised all
throughout and it is a natural right flowing from the concept of
democracy. At thishis stage, we would refer to Article 19(1) and (2) of
the International Covenant on Civil and Political Rights, which is as
under:
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"(1)) Everyone shall have the right to hold opinions without
interference.
(2)) Everyone shall have the right to freedom of exp expression; this right
shall include freedom to seek, receive and impart information and
ideas of all kinds,, regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of his choice."
6. On cumulative reading of a plethora of decisions of this Court as
referred to, it is clear that if the field meant for legislature and
executive is left unoccupied detrimental to the public interest, this
Court would have ample jurisdiction under Articl Articlee 32 read with
Articles 141 and 142 of the Constitution to issue necessary directions
to the executive to subserve public interest.
7. Under our Constitution, Article 19(1)(19(1)(a)) provides for freedom of
speech and expression. Voter's speech or expression in ccase of
election would include casting of votes, that is to say, voter speaks
out or expresses by casting vote vote.. For this purpose, information about
the candidate to be selected is a must. Voter's (little man -- citizen's)
right to know antecedents including criminal past of his candidate
contesting election for MP or MLA is much more fundamental and
basic for survival of democracy. The little man may think over
before making his choice of electing law law-breakers as law-makers
makers.
* * *
48. The Election Commission
Commission is directed to call for information on
affidavit by issuing necessary order in exercise of its power under
Article 324 of the Constitution of India from each candidate seeking
election to Parliament or a State Legislature as a necessary part of his
nomination
ation paper, furnishing therein, information on the following
aspects in relation to his/her candidature:
(1)) Whether the candidate is convicted/acquitted/discharged of any
criminal offence in the past -- if any, whether he is punished with
imprisonment or fine.
(2)) Prior to six months of filing of nomination, whether the candidate
is accused in any pending case, of any offence punishable with
imprisonment for two years or more, and in which charge is framed or
cognizance is taken by the court of law. If so, the details thereof.
(3)) The assets (immovable, movable, bank balance, etc.) of a
candidate and of his/her spouse and that of dependants.
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(4)) Liabilities, if any, particularly whether there are any overdues of
any public financial institution or governmen
government dues.
(5)) The educational qualifications of the candidate.
45. The Counsel for the Election Petitioner also relied upon the judgment
passed in the case of People's Union for Civil Liberties (PUCL) (Supra) and
referred to the following paragraphs :
III. Section 33-BB is unconstitutional
III. (1) The right to information cannot be frozen and stagnated
110.InIn my view, the constitutional validity of Section 33
33-BB has to
be judged from the above angle and perspective. Considered in that
light, I agree with the conclusion of M.B. Shah, J. that Section 33 33-B
does not pass the test of constitutionality. The reasons are more than
one. Firstly, when the right to secure information about a contesting
candidate is recognized as an integral part of fundamental right as it i
ought to be, it follows that its ambit, amplitude and parameters cannot
be chained and circumscribed for all times to come by declaring that
no information, other than that specifically laid down in the Act,
should be required to be given. When the legis legislation
lation delimiting the
areas of disclosure was enacted, it may be that Parliament felt that the
disclosure on other aspects was not necessary for the time being.
Assuming that the guarantee of right to information is not violated by
making a departure from the paradigms set by the Court, it is not open
to Parliament to stop all further disclosures concerning the candidate
in future. In other words, a blanket ban on dissemination of
information other than that spelt out in the enactment, irrespective of
the need
eed of the hour and the future exigencies and expedients is, in my
view, impermissible. It must be remembered that the concept of
freedom of speech and expression does not remain static. The felt
necessities of the times coupled with experiences drawn from the past
may give rise to the need to insist on additional information on the
aspects not provided for by law. New situations and the march of
events may demand the flow of additional facets of information. The
right to information should be allowed to gr grow
ow rather than being
frozen and stagnated; but the mandate of Section 33 33-BB prefaced by the
non obstante clause impedes the flow of such information conducive
to the freedom of expression. In the face of the prohibition under
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Section 33-B, B, the Election Comm
Commission
ission which is entrusted with the
function of monitoring and supervising the election process will have
to sit back with a sense of helplessness in spite of the pressing need
for insisting on additional information. Even the Court may at times
feel handicapped
apped in taking necessary remedial steps to enforce the
right to information. In my view, the legislative injunction curtailing
the nature of information to be furnished by the contesting candidates
only to the specific matters provided for by the legislat
legislation
ion and nothing
more would emasculate the fundamental right to freedom of
expression of which the right to information is a part. The very
objective of recognizing the right to information as part of the
fundamental right under Article 19(1)(
19(1)(a) in order to ensure free and
fair elections would be frustrated if the ban prescribed by Section 33- 33
B is taken to its logical effect.
III. (2) Impugned legislation fails to effectuate right to information
on certain vital aspects
111. The second reason why Section 33 33-B
B should be condemned is
that by blocking the ambit of disclosures only to what has been
specifically provided for by the amendment, Parliament failed to give
effect to one of the vital aspects of information viz. disclosure of
assets and liabilities and tthus
hus failed in substantial measure to give
effect to the right to information as a part of the freedom of
expression. The right to information which is now provided for by the
legislature no doubt relates to one of the essential points but in
ignoring the other
ther essential aspect relating to assets and liabilities as
discussed hereinafter, Parliament has unduly restricted the ambit of
information which the citizens should have and thereby impinged on
the guarantee enshrined in Article 19(1)(a).
19(1)(
III. (3) How farr the principle that the legislature cannot encroach
upon the judicial sphere applies
112. It is a settled principle of constitutional jurisprudence that the
only way to render a judicial decision ineffective is to enact a valid
law by way of amendment or otherwise fundamentally altering the
basis of the judgment either prospectively or retrospectively. The
legislature cannot overrule or supersede a judgment of the Court
without lawfully removing the defect or infirmity pointed out by the
Court because it iss obvious that the legislature cannot trench on the
judicial power vested in the courts. Relying on this principle, it is
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contended that the decision of the Apex Constitutional Court cannot
be set at naught in the manner in which it has been done by the
impugned
pugned legislation. As a sequel, it is further contended that the
question of altering the basis of judgment or curing the defect does not
arise in the instant case as Parliament cannot pass a law in curtailment
of fundamental right recognized, amplified aand nd enforced by this
Court.
113. The contention that the fundamental basis of the decision in
Assn. for Democratic Reforms case1 has not at all been altered by
Parliament, does not appeal to me. I have discussed at length the real
scope and ratio of the jud judgment
gment and the nature and character of
directives given by this Court to the Election Commission. As
observed earlier, those directions are pro tempore in nature when there
was a vacuum in the field. When once Parliament stepped in and
passed the legislation n providing for right of information, maybe on
certain limited aspects, the void must be deemed to have been filled
up and the judgment works itself out, though the proposition laid
down and observations made in the context of Article 19(1)( 19(1)(a)) on the
need to secure information to the citizens will hold good. Now the
new legislation has to be tested on the touchstone of Article 19(1)(a).
19(1)(
Of course, in doing so, the decision of this Court should be given due
weight and there cannot be a marked departure from the items of
information considered essential by this Court to effectuate the
fundamental right to information. Viewed in this light, it must be held
that Parliament did not by law provide for disclosure of information
on certain crucial points such as assets
assets and liabilities and at the same
time, placed an embargo on calling for further informations by
enacting Section 33-B. B. That is where Section 33 33-BB of the impugned
Amendment Act does not pass the muster of Article 19(1)(a), 19(1)( as
interpreted by this Court.
IV.
V. Right to information with reference to specific aspects
114. I shall now discuss the specifics of the problem. With a view
to promote the right to information, this Court gave certain directives
to the Election Commission which, as I have already clarif
clarified,
ied, were ad
hoc in nature. The Election Commission was directed to call for
details from the contesting candidates broadly on three points, namely,
(i) criminal record, (iiii) assets and liabilities, and (iii)) educational
qualification. The Third Amendment to the RP Act which was
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preceded by an ordinance provided for disclosure of information. How
far the Third Amendment to the Representation of the People Act,
2002 safeguards the right of information which is a part of the
guaranteed right under Article 19( 19(1)(a),
), is the question to be
considered now with specific reference to each of the three points
spelt out in the judgment of this Court in Assn. for Democratic
Reforms case1.
IV. (1) Criminal background and pending criminal cases against
candidates -- Section on 33-A
33 A of the RP (Third Amendment) Act
115. As regards the first aspect, namely, criminal record, the
directives in Assn. for Democratic Reforms case1 are twofold: (SCC
p. 322, para 48)
"(1)) Whether the candidate is convicted/acquitted/discharged of
any criminal
riminal offence in the past -- if any, whether he is punished with
imprisonment or fine.
(2)) Prior to six months of filing of nomination, whether the
candidate is an accused in any pending case, of any offence
punishable with imprisonment for two years or m more,
ore, and in which
charge is framed or cognizance is taken by the court of law."
As regards the second directive, Parliament has substantially
proceeded on the same lines and made it obligatory for the candidate
to furnish information as to whether he is accused
accused of any offence
punishable with imprisonment for two years or more in a pending case
in which a charge has been framed by the competent court. However,
the case in which cognizance has been taken but charge has not been
framed is not covered by clause (i) of Section 33-A(I). A(I). Parliament
having taken the right step of compelling disclosure of the pendency
of cases relating to major offences, there is no good reason why it
failed to provide for the disclosure of the cases of the same nature of
which cognizance
zance has been taken by the Court. It is common
knowledge that on account of a variety of reasons such as the delaying
tactics of one or the other accused and inadequacies of the prosecuting
machinery, framing of formal charges gets delayed considerably,
especially
specially in serious cases where committal procedure has to be gone
through. On that account, the voter/citizen shall not be denied
information regarding cognizance taken by the Court of an offence
punishable with imprisonment for two years or more. The citizen's
ci
right to information, when once it is recognized to be part of the
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fundamental right under Article 19(1)(a),
19(1)( ), cannot be truncated in the
manner in which it has been done. Clause ((i)) of Section 33-A(I) 33
therefore falls short of the avowed goal to effe effectuate
ctuate the right of
information on a vital aspect. Cases in which cognizance has been
taken should therefore be comprehended within the area of
information accessible to the voters/citizens, in addition to what is
provided for in clause ((i) of Section 33-A.
116. Coming to clause ((ii) of Section 33-A(I),
A(I), Parliament broadly
followed the pattern shown by the Court itself. This Court thought it
fit to draw a line between major/serious offences and minor/non-
minor/non
serious offences while giving Direction 2 (vide pa para
ra 48). If so, the
legislative thinking that this distinction should also hold good in
regard to past cases cannot be faulted on the ground that the said
clause fails to provide adequate information about the candidate. If
Parliament felt that the convictions
convictions and sentences of the long past
relating to petty/non-serious
serious offences need not be made available to
the electorate, it cannot be definitely said that the valuable right to
information becomes a casualty. Very often, such offences by and
large may not involve
nvolve moral turpitude. It is not uncommon, as one of
the learned Senior Counsel pointed out that the political personalities
are prosecuted for politically related activities such as holding
demonstrations and visited with the punishment of fine or short
imprisonment. Information regarding such instances may not be of
real importance to the electorate in judging the worth of the relative
merits of the candidates. At any rate, it is a matter of perception and
balancing of various factors, as observed supra. The legislative
judgment cannot be faulted merely for the reason that the pro tempore
directions of this Court have not been scrupulously followed. As
regards acquittals, it is reasonable to take the view that such
information will not be of much relevanc
relevancee inasmuch as acquittal prima
facie implies that the accused is not connected with the crime or the
prosecution has no legs to stand. It is not reasonable to expect that
from the factum of prosecution resulting in acquittal, the
voters/citizens would be ableable to judge the candidate better. On the
other hand, such information in general has the potential to send
misleading signals about the honesty and integrity of the candidate.
117. I am therefore of the view that as regards past criminal record,
what Parliament
ament has provided for is fairly adequate.
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118. One more aspect which needs a brief comment is the
exclusion of offences referred to in sub-sections
sub sections (1) and (2) of Section
8 of the RP Act, 1951. Section 8 deals with disqualification on
conviction for certain
in offences. Those offences are of serious nature
from the point of view of national and societal interest. Even the
existing provisions viz. Rule 44-A
A inserted by the Conduct of Elections
(Amendment) Rules, 2002 makes a provision for disclosure of such
offences
ences in the nomination form. Hence, such offences have been
excluded from the ambit of clause ((ii) of Section 33-A.
46. The Supreme Court in the case of Public Interest Foundation (Supra)
has held as under :
116. Keeping the aforesaid in view, we think it appropriate to issue the
following directions which are in accord with the decisions of this
Court:
116.1. Each contesting candidate shall fill up the form as provided by
the Election Commission and the form must contain all the particulars
as required therein.
116.2. It shall state, in bold letters, with regard to the criminal cases
pending against the candid
candidate.
116.3. If a candidate is contesting an election on the ticket of a
particular party, he/she is required to inform the party about the
criminal cases pending against him/her.
116.4. The political party concerned shall be obligated to put up on its
website
ite the aforesaid information pertaining to candidates having
criminal antecedents.
116.5. The candidate as well as the political party concerned shall
issue a declaration in the widely circulated newspapers in the locality
about the antecedents of the candidate
candidate and also give wide publicity in
the electronic media. When we say wide publicity, we mean that the
same shall be done at least thrice after filing of the nomination papers.
117. These directions ought to be implemented in true spirit and right
earnestness
stness in a bid to strengthen the democratic set
set-up.
up. There may be
certain gaps or lacunae in a law or legislative enactment which can
definitely be addressed by the legislature if it is backed by the proper
intent, strong resolve and determined will of right-thinking
rig thinking minds to
ameliorate the situation. It must also be borne in mind that the law
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cannot always be found fault with for the lack of its stringent
implementation by the authorities concerned. Therefore, it is the
solemn responsibility of all concern
concerned
ed to enforce the law as well as the
directions laid down by this Court from time to time in order to infuse
the culture of purity in politics and in democracy and foster and
nurture an informed citizenry, for ultimately it is the citizenry which
decides the
he fate and course of politics in a nation and thereby ensures
that "we shall be governed no better than we deserve", and thus,
complete information about the criminal antecedents of the candidates
forms the bedrock of wise decision
decision-making
making and informed choice
cho by
the citizenry. Be it clearly stated that informed choice is the
cornerstone to have a pure and strong democracy.
47. The Supreme Court in the case of Krishnamoorthy (Supra) has held as
under :
86. From the aforesaid, it is luculent that free exercise
exercise of any electoral
right is paramount. If there is any direct or indirect interference or
attempt to interfere on the part of the candidate, it amounts to undue
influence. Free exercise of the electoral right after the recent
pronouncements of this Court and the amendment of the provisions
are to be perceived regard being had to the purity of election and
probity in public life which have their hallowedness. A voter is
entitled to have an informed choice. A voter who is not satisfied with
any of the candidates,
ates, as has been held in People's Union for Civil
Liberties,, can opt not to vote for any candidate. The requirement of a
disclosure, especially the criminal antecedents, enables a voter to have
an informed and instructed choice. If a voter is denied of the
acquaintance to the information and deprived of the conditcondition
ion to be
apprised of the entire gamut of criminal antecedents relating to
heinous or serious offences or offence of corruption or moral
turpitude, the exercise of electoral right would not be an advised one.
He will be exercising his franchisee with the m misinformed
isinformed mind. That
apart, his fundamental right to know also gets nullified. The attempt
has to be perceived as creating an impediment in the mind of a voter,
who is expected to vote to make a free, informed and advised choice.
The same is sought to be scuttled at the very commencement. It is well
settled in law that election covers the entire process from the issuance
of the notification till the declaration of the result. This position has
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been clearly settled in Hari Vishnu Kamath v. Ahmad Ishaque Ishaque,
Election
ection Commission of India v. Shivaji and V.S. Achuthanandan v.
P.J. Francis.. We have also culled out the principle that corrupt
practice can take place prior to voting. The factum of non non-disclosure
disclosure
of the requisite information as regards the criminal ante
antecedents,
cedents, as has
been stated hereinabove is a stage prior to voting.
87. At this juncture, it will be appropriate to refer to certain
instructions issued from time to time by the Election Commission of
India. On 2-7-2012,
2012, the Election Commission of India ha hass issued the
following instructions:
"To,
The Chief Electoral Officer of all
States and UTs.
Sub.:: Affidavit filed by candidates along with their nomination
papers--dissemination
dissemination thereof.
Sir/Madam,
Please refer to the Commission's instructions regarding dissemination
of information in the affidavits filed by the candidates along with the
nomination papers. The Commission has, inter alia, directed that
copies of affidavits should be displayed on the noticeboard of
RO/ARO, and in cases where offices of RO and and ARO are outside the
boundary of the constituency concerned, copies of affidavits should be
displayed in the premises of a prominent public office within the
limits of the constituency. Further, affidavits of all contesting
candidates are required to be uploaded on the website of the CEO.
2. There are complaints at times that in the absence of adequate
publicity/awareness mechanism, the general public is not sensitized
about the availability of the affidavits filed by the candidates with the
result that the
he affidavits do not fully serve the intended purpose of
enabling the electors to know the background of the candidates so as
to enable them to make an informed choice of their representative.
3. The Commission has directed that, at every election, press releaser
should be issued at the State and district level stating that affidavits of
the candidates are available for the electors to see and clearly
mentioning in the press release of the DEO place(s) at which copies of
the affidavits have been displayed. T The
he press release should also make
it clear that the affidavits can also be viewed on the website, and the
path to locate them on the website should also be mentioned.
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4. Please bring these instructions to the notice of all DEOs, ROs and
other authorities concerned
oncerned for compliance in future elections.
Yours faithfully,
(K.F. Wilfred)
Principal Secretary"
91. The purpose of referring to the instructions of the Election
Commission is that the affidavit sworn by the candidate has to be put
in public domain so thatat the electorate can know. If they know the half
truth, as submits Mr Salve, it is more dangerous, for the electorate is
denied of the information which is within the special knowledge of the
candidate. When something within special knowledge is not discl disclosed,
it tantamounts to fraud, as has been held in S.P. Chengalvaraya Naidu
v. Jagannath.. While filing the nomination form, if the requisite
information, as has been highlighted by us, relating to criminal
antecedents, is not given, indubitably, there is aann attempt to suppress,
effort to misguide and keep the people in dark. This attempt
undeniably and undisputedly is undue influence and, therefore,
amounts to corrupt practice. It is necessary to clarify here that if a
candidate gives all the particulars anand
d despite that he secures the votes
that will be an informed, advised and free exercise of right by the
electorate. That is why there is a distinction between a disqualification
and the corrupt practice. In an election petition, the election petitioner
is required to assert about the cases in which the successful candidate
is involved as per the rules and how there has been non non-disclosure
disclosure in
the affidavit. Once that is established, it would amount to corrupt
practice. We repeat at the cost of repetition, it has to be determined in
an election petition by the Election Tribunal.
94. In view of the above, we would like to sum up our conclusions:
94.1. Disclosure of criminal antecedents of a candidate, especially,
pertaining to heinous or serious offence or offe offences
nces relating to
corruption or moral turpitude at the time of filing of nomination paper
as mandated by law is a categorical imperative.
94.2. When there is nonnon-disclosure
disclosure of the offences pertaining to the
areas mentioned in the preceding clause, it create
createss an impediment in
the free exercise of electoral right.
94.3. Concealment or suppression of this nature deprives the voters to
make an informed and advised choice as a consequence of which it
would come within the compartment of direct or indirect interference
interfe
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or attempt to interfere with the free exercise of the right to vote by the
electorate, on the part of the candidate.
94.4. As the candidate has the special knowledge of the pending cases
where cognizance has been taken or charges have been framed and
there is a non-disclosure
disclosure on his part, it would amount to undue
influence and, therefore, the election is to be declared null and void by
the Election Tribunal under Section 100(1)(b)
100(1)( of the 1951 Act.
94.5. The question whether it materially affects the eelection
lection or not will
not arise in a case of this nature.
95. Before parting with the case, we must put on record our
unreserved appreciation for the valuable assistance rendered by Mr
Harish N. Salve, learned Senior Counsel and Mr Maninder Singh,
learned Additional
ditional Solicitor General for the Union of India.
96. Ex consequenti, the appeal, being sans substance, stands dismissed
with costs, which are assessed at Rs 50,000.
48. The Supreme Court in the case of Ajmera Shyam (Supra) has held as
under :
11. CONCLUSION
11.1 Judicial intervention in election disputes concerning disclosure of
information, as discussed above, was prompted by the quest for
sanitising the electoral process by eliminating polluting elements by
making candidates' criminal antecedent
antecedentss public. Aiming to prevent
criminals from participating in elections to maintain purity of the
electoral process -- essential for the proper functioning of
parliamentary democracy -- the court was compelled to exercise its
extraordinary power to issue specispecific
fic directions. Consequently, not
only disclosure of criminal antecedents, but also related obligations to
disclose assets, liabilities, and educational qualifications of election
candidates became mandatory. The knowledge of the criminal
antecedents, assets
ts and educational qualifications of the candidates by
voters certainly invigorates the electoral process, which is ensured by
obligatory disclosure by the candidate. However, the Court has made a
subtle distinction between nonnon-disclosure of criminal antecedents
edents and
that of assets and educational qualifications. While disclosure of
criminal antecedents in the electoral process was the most critical
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element to maintain the purity of the electoral process which has to be
scrupulously adhered to, disclosure of assets and educational
qualifications were considered as attending supplementary
requirements to strengthen the electoral process, of which there will
be certain scope for consideration as to whether it is of substantial or
inconsequential nature.
In the light of the above, this disclosure requirement as far as assets
and educational qualification is concerned, should not be
unreasonably stretched to invalidate an otherwise validly declared
election over minor technical noncompliances that are not of
substantial
antial character, and should not be the basis for nullification of
the people's mandate.
11.2 In the light of the legal position exposited, on examination of the
facts in the peculiar background obtaining in the case, we hold that the
non-disclosure of income
ome in the income tax return for four financial
years by Respondent No. 1, is not a defect of substantial character.
Therefore, the nomination could not have been rejected under
Section 36(2) of the Representation of the People Act, 1951 as
contended by thee Appellant and hence, no illegality was committed by
the Returning Officer in accepting the nomination of the Respondent
No. 1. Resultantly, the penal clause cannot be invoked to invalidate
Respondent No. 1's election under Section 100(1)(d)(i) of the Act on
the ground that the nomination of Respondent No. 1 was improperly
accepted.
11.3 As we have held that the defect of non-disclosure
non disclosure mentioned is
not of a substantial nature, for the same reason the Respondent No. 1
cannot be considered to have indulged in a corrupt practice within the
meaning of Section 123 (2) of the Act, and thus, the election of
Respondent No. 1 cannot be rendered void under Section 100(1)(b) of
the Act.
11.4 Consequently, on the same consideration, it cannot be also said
that the Respondent
spondent No. 1 did not comply with the relevant provisions
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of the Act or any rule or order made under the Act, to attract the
provisions of Section 100(1)(d)(iv) of the Act.
11.5 Furthermore, we also hold that the allegation that the Respondent
No. 1 did not
ot disclose the income from honorarium she received as the
Chairperson of ZillaParishad, or that she did not disclose receiving ex-
ex
MLA pension--cannot cannot be considered to have been proved or
established, nor these are of any material consequences.
49. The Supreme
reme Court in the case of Lok Prahari (Supra) has held as under
:
79. We shall now deal with Prayer 2 which seeks a declaration that
non-disclosure
disclosure of assets and sources of income would amount to
"undue influence" -- a corrupt practice under Section 123(2) of the
1951 RP Act. In this behalf, heavy reliance is placed by the ppetitioner
etitioner
on a judgment of this Court in Krishnamoorthy v. Sivakumar.. It was a
case arising under the Tamil Nadu Panchayats Act, 1994. A
notification was issued by the State Election Commission stipulating
that every candidate at an election to any panchay
panchayatat is required to
disclose information, inter alia, whether the candidate was accused in
any pending criminal case of any offence punishable with
imprisonment for two years or more and in which charges have been
framed or cognizance has been taken by a cou court
rt of law. In an election
petition, it was alleged that there were certain criminal cases pending
falling in the abovementioned categories but the said information was
not disclosed by the returned candidate at the time of filing his
nomination. One of the questions before this Court was whether such
non-disclosure
disclosure amounted to "undue influence" -- a corrupt practice
under the Panchayats Act. It may be mentioned that the Panchayats
Act simply adopted the definition of a corrupt practice as contained in
Sectionn 123 of the 1951 RP Act.
80. On an elaborate consideration of various aspects of the matter, this
Court in Krishnamoorthy case held as follows: (SCC p. 522, para 91)
"91.. ... While filing the nomination form, if the requisite information,
as has been highlighted
ghted by us, relating to criminal antecedents, is not
given, indubitably, there is an attempt to suppress, effort to misguide
and keep the people in dark. This attempt undeniably and
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undisputedly is undue influence and, therefore, amounts to corrupt
practice. ..."
81. For the very same logic as adopted by this Court in
Krishnamoorthy,, we are also of the opinion that the non
non-disclosure
disclosure of
assets and sources of income of the candidates and their associates
would constitute a corrupt practice falling under headi
heading
ng "undue
influence" as defined under Section 123(2) of the 1951 RP Act. We,
therefore, allow Prayer 2
50. The Supreme Court in the case of Poonam (Supra) has held as under :
19. It is now necessary to deal with the contention raised on behalf of
the petitioner that notwithstanding her conviction, the same was not
for committing a serious offence or one touching upon moral
turpitude. The conviction being under Section 138 of the Act of 1881,
the petitioner was not liable to be unseated for her convicti
conviction
on for a
minor offence.
We are unable to accept this contention which seeks to dilute the fact
of non-disclosure
disclosure of the petitioner's conviction in the nomination
form. Rule 24A-(1) (1) requires a candidate to disclose any order of
conviction suffered by him by filing an affidavit along with the
relevant information before the Returning Officer. The format of the
affidavit prescribed under the Rules of 1994 requires a disclosure as
regards conviction and sentence of imprisonment for a duration of one
year and more.re. The validity of Rule 24
24-A(1)
A(1) of the Rules of 1994 has
not been subjected to any challenge. It would therefore have to be
treated as valid. Its compliance has been made mandatory as failure to
furnish such information along with an affidavit as prescrib
prescribed
ed visits a
candidate with the consequence of non non-compliance
compliance of the provisions
of the Rules of 1994. This in turn is a ground to challenge the election
of the returned candidate. In absence of any provision in the Rules of
1994 that would enable the Court to condone such non-compliance
compliance or
exempt its compliance on the ground that the conviction was for a
non-serious
serious offence or one not involving moral turpitude, adopting
such course as urged would do violence to the Act of 1961 and the
Rules of 1994.
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20. At this stage, we may refer to the decision of this Court
in Krishnamoorthy (supra) wherein this Court considered the effect of
non-disclosure
disclosure of criminal cases in respect of serious offences
including those involving moral turpitude. After noting that the right
ri
to contest an election was neither a fundamental right nor a common
law right, it was observed as under:
"The controversy which has emanated in this case is whether non non-
furnishing of the information while filing an affidavit pertaining to
criminal cases,
s, especially cases involving heinous or serious crimes or
relating to corruption or moral turpitude would tantamount to corrupt
practice, regard being had to the concept of undue influence".
It was thereafter concluded in paragraph 86 as under:
"In view off the above, we would like to sum up our conclusions:
(a) Disclosure of criminal antecedents of a candidate, especially,
pertaining to heinous or serious offence or offences relating to
corruption or moral turpitude at the time of filing of nomination paper
pape
as mandated by law is a categorical imperative.
(b) When there is non non-disclosure
disclosure of the offences pertaining to the
areas mentioned in the preceding clause, it creates an impediment in
the free exercise of electoral right.
(c) Concealment or suppression ooff this nature deprives the voters to
make an informed and advised choice as a consequence of which it
would come within the compartment of direct or indirect interference
or attempt to interfere with the free exercise of the right to vote by the
electorate,, on the part of the candidate.
(d) As the candidate has the special knowledge of the pending cases
where cognizance has been taken or charges have been framed and
there is a non-disclosure
disclosure on his part, it would amount to undue
influence and, therefore, the
the election is to be declared null and void by
the Election Tribunal under Section 100(1)(b) of the 1951 Act.
(e) The question whether it materially affects the election or not will
not arise in a case of this nature."
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This Court was concerned with the suppression
suppression of various cases of
embezzlement by the concerned candidate in his nomination form.
The reference to heinous or serious offences or offences relating to
corruption or moral turpitude would have to be seen in that factual
backdrop. This Court was nonott dealing with an offence that was not
heinous or not involving moral turpitude. It is therefore not the ratio
of Krishnamoorthy (supra) that disclosure only of serious and heinous
offences is mandated and that failure to disclose conviction for a
minor or non-serious
serious offence could be condoned, as a principle.
We may however clarify that ultimately it is a matter of exercise of
judicial discretion in the given facts of the case, as was exercised
in Ravi Namboothiri (supra), as to whether such non-disclosure
non is fatal
or not. Hence, the decision in Krishnamoorthy (supra) cannot be the
basis to hold that non
non-disclosure
disclosure of conviction in case of a minor
offence was always intended to be condoned and not viewed
seriously.
21. The plea raised by the petitioner that her election could not be set
aside in the absence of it being proved that the result of the election
had been materially affected on account of the improper acceptance of
her nomination form need not detain us. Once it is found that there has
been non-disclosure
sclosure of a previous conviction by a candidate, it creates
an impediment in the free exercise of electoral right by a voter. A
voter is thus deprived of making an informed and advised choice. It
would be a case of suppression/non
suppression/non-disclosure
disclosure by such candidate,
candi
which renders the election void.
22. In this regard, we may refer to the decision in Kisan Shankar
Kathore v. Arun DattatraySawant.
DattatraySawant. Therein the election of the returned
candidate to the Legislative Assembly was challenged by a voter from
the constituency
ency on the ground that the nomination form of the
returned candidate had been improperly accepted by the Returning
Officer and that the election was void due to non
non-compliance
compliance of the
provisions of the Representation of the People Act, 1951. There were
in all five candidates in the fray. In the election petition, the High
Court held that the returned candidate failed to make material
disclosures in the affidavit filed along with the nomination form and
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hence the nomination form was improperly accepted by the the Returning
Officer. It further held that the result of the election was materially
affected due to non-disclosure
disclosure of relevant information. Accordingly,
the election of the returned candidate was set aside. While considering
the challenge to the said judgm
judgment,
ent, this Court noted that the aspect of
non-disclosure
disclosure of material information was an admitted fact. Referring
to the decisions in Association for Democratic Reforms (supra)
and People's Union for Civil Liberties (PUCL) v. Union of India, India it
was held that if the required information as per the guidelines of the
Election Commission was not given, the same would amount to
suppression/non-disclosure
disclosure of relevant information. On the aspect of
the result of the election being materially affected due to non non-
disclosure
osure of such information, it was observed in paragraph 28 as
under:--
"Issue No. 8 pertains to the question as to whether the election result
was materially affected because of non non-disclosure
disclosure of the aforesaid
information. The High Court took note of provis
provisions
ions of Section 100
(1)(d)(i) and (iv) and discussed the same. Thereafter, some judgments
cited by the appellant were distinguished and deciding this issue
against the appellant, the High Court concluded as under:
"137. In my opinion, it is not necessary tto o elaborate on this matter
beyond a point, except to observe that when it is a case of improper
acceptance of nomination on account of invalid affidavit or no
affidavit filed therewith, which affidavit is necessarily an integral part
of the nomination formform;; and when that challenge concerns the
returned candidate and if upheld, it is not necessary for the Petitioner
to further plead or prove that the result of the returned candidate has
been materially affected by such improper acceptance.
138. The avowed purpose of filing the affidavit is to make truthful
disclosure of all the relevant matters regarding assets (movable and
immovable) and liabilities as well as criminal actions (registered,
pending or in respect of which cognizance has been taken by the Court
of competent jurisdiction or in relation to conviction in respect of
specified offences). Those are matters which are fundamental to the
accomplishment of free and fair election. It is the fundamental right of
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the voters to be informed aabout
bout all matters in relation to such details
for electing candidate of their choice. Filing of complete information
and to make truthful disclosure in respect of such matters is the duty
of the candidate who offers himself or who is nominated for election
to represent the voters from that Constituency. As the candidate has to
disclose this information on affidavit, the solemnity of affidavit cannot
be allowed to be ridiculed by the candidates by offering incomplete
information or suppressing material inform information,
ation, resulting in
disinformation and misinformation to the voters. The sanctity of
disclosure to be made by the candidate flows from the constitutional
obligation."
Affirming the said finding, it was held in paragraph 38 as under:--
under:
"...Once it is found tha
thatt it was a case of improper acceptance, as there
was misinformation or suppression of material information, one can
state that question of rejection in such a case was only deferred to a
later date. When the Court gives such a finding, which would have
resulted
ulted in rejection, the effect would be same, namely, such a
candidate was not entitled to contest and the election is void..."
23. In Sri MairembamPrithviraj @ Prithviraj Singh v. Shri
PukhremSharatchandra Singh8, two candidates were in the election
fray. The
he returned candidate failed to submit any documents as
regards his educational qualification alongwith the nomination form.
The acceptance of his nomination form was accordingly challenged.
The High Court held that the declaration made by the returned
candidate
didate as regards his educational qualification was false. The said
finding was upheld by this Court. On the question as to whether the
election of the returned candidate was materially affected due to such
improper acceptance of the nomination form, reference
reference was made to
the decision in Kisan Shankar Kathore (supra). It was thereafter held
in paragraph 23 as under:
under:--
"23. Mere finding that there has been an improper acceptance of the
nomination is not sufficient for a declaration that the election is void
under
nder Section 100(1)(d). There has to be further pleading and proof
that the result of the election of the returned candidate was materially
affected. But, there would be no necessity of any proof in the event of
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the nomination of a returned candidate being declared as having been
improperly accepted, especially in a case where there are only two
candidates in the fray. If the returned candidate's nomination is
declared to have been improperly accepted it would mean that he
could not have contested the elect
election
ion and that the result of the election
of the returned candidate was materially affected need not be proved
further. We do not find substance in the submission of Mr.Giri that the
judgment in DuraiMuthuswami (supra) is not applicable to the facts of
this case."
Though in the aforesaid case there were only two candidates who
contested the elections, the principle that failure to disclose relevant
information in the affidavit filed along with the nomination form
amounted to non-disclosure
disclosure of material information
information was accepted.
That such wrongful acceptance of the nomination form of the returned
candidate would result in the election being materially affected
rendering it void was recognised as a consequence.
24. Even otherwise, it is clear from the decision
in Krishnamoorthy (supra) that nonnon-furnishing
furnishing information pertaining
to criminal antecedents has the effect of causing undue influence
which creates an impediment in the free exercise of electoral right by
a voter. When there is such non non-disclosure of criminalal antecedents,
this Court held in paragraph 86(e) that the question whether the
election is materially affected or not would not arise in such a case.
It is thus clear that by failing to disclose her conviction under Section
138 of the Act of 1881, the petitioner
petitioner suppressed material information
and thus failed to comply with the mandatory requirements of Rule
24-A(1)
A(1) of the Rules of 1994. The acceptance of her nomination form
has therefore been rightly held to be improper. She being the returned
candidate, her election was rendered void. It is thus obvious that on
account of such wrongful acceptance of her nomination form, the
election was materially affected. This contention of the petitioner also
fails.
25. We may now indicate why discretion under Article 136 of
the Constitution of India does not deserve to be exercised in the
present case. The Constitution Bench in Pritam Singh v. State while
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explaining the scope and powers of the Court under Article 136 has
held that:
"Generally speaking, this Court will not grant special leave, unless it
is shown that exceptional and special circumstances exist, that
substantial and grave injustice has been done and that the case in
question presents features of sufficient gravity to warrant a review of
the decision appealed
aled against."
Having considered the entire matter, we are not persuaded to hold that
the petitioner has made out an exceptional case for this Court to hold
that notwithstanding the failure on the part of the petitioner to disclose
her conviction leading tto
o the sentence of imprisonment of one year,
such lapse should be condoned. The information furnished in her
affidavit filed under Rule 24
24-A(1)
A(1) of the Rules of 1994 has been found
to be incorrect and false. The petitioner rests on her subsequent
acquittal in
n appeal, which event occurred after her election. She did
not step into the witness box to explain her inadvertence, which is
now sought to be put forward. The plain reading of Rule 24 24-A(1)
A(1) and
its requirement does not admit of any doubt whatsoever. Moreover,
Moreo
both the Courts have concurrently found that the petitioner failed to
disclose her conviction without any justifiable reason. In these facts
therefore, no special or exceptional case has been made out by the
petitioner for this Court to exercise jurisdiction
jurisdiction under Article 136 of
the Constitution of India. In the passing, we may observe that the
petitioner had contested the bye election that had occasioned by her
removal and she lost the same.
26. For all the above reasons, the Special Leave Petition stands
st
dismissed.
51. Although the Counsel for the Election Petitioner, by taking clue from
judgment passed by Supreme Court in the case of Poonam (Supra) submitted
that non-disclosure
disclosure of criminal case in which conviction for a period of less than
1 year was recorded would also amount to corrupt practice, but this Court is
unable to accept the said contention. In the case of Poonam (Supra)
(Supra), the
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returned candidate had suppressed that She was convicted for one year for
offence under Section 138 of Negotiab
Negotiable
le Instruments Act and as per the relevant
rule, the candidate was under obligation to disclose all criminal cases, in which
they have been convicted for one year or more. Since, the returned candidate
was convicted for one year, therefore, it was held th
that non-disclosure
disclosure of criminal
case amounted to corrupt practice.
52. However, the Counsel for Election Petitioner is right in relying upon the
judgment passed in the case of Poonam (Supra) that where the suppression is
found proved then whether the nature
nature of offence was trivial or whether it did not
materially effect the election
tion result becomes secondary as Court cannot condone
such non-compliance
compliance or exempt its compliance on the ground that the
conviction was for a non-serious
serious offence or one not involving moral turpitude.
Conclusion
53. The Supreme Court in the case of Poonam (Supra) has elaborately dealt
with the evolution of law pertaining to disclosure of criminal antecedents.
Therefore, it is suffice to mention here that non
non-disclosure
disclosure of complete
information
ormation regarding the stage of pending cases, by itself would amount to
suppression of material fact,, resulting in corrupt practice.
practice
54. This Court has already held that the disclosure of fact that "whether
charges have been framed or not"
not is not a mere formality but that provision has
been made purposely in order to make the electorate aware that even the Trial
Court has prima facie found that the material collected against the candidate is
sufficient
icient to raise grave suspicion that he might have committed the offence
warranting his trial. This Court has also held that the respondent no.1/Mukesh
Malhotra has also failed to prove that wrong declaration regarding non framing
of charge was his bonafide mistake because in the written statement, he did not
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allege against Shri J.P. Dhanopia who according to respondent no.1/Mukesh
Malhotra had filled up the affidavit in form 26 but also did not examine the said
person in support of his contention. For the purposes of clarity, it is mentioned
that there
ere is no pleading in written statement, that the respondent no.1/Mukesh
Malhotra had disclosed all the necessary facts to Shri J.P. Dhanopia, but it was
he who did not disclose the same in the affidavit, Ex. D.3. Therefore, it is held
that the affidavit in
n form 26 was filled up by the respondent no.1/Mukesh
Malhotra by himself, he had deliberately gave a false declaration that "no
charges have been framed"" in the pending criminal cases. As already pointed
out, the respondent no.1/Mukesh Malhotra is a law ggraduate
raduate and post graduate
in Social Science, therefore, he was aware of the importance of order framing
charges. Even, the respondent no. 1/Mukesh Malhotra also gave false
information with regard to nature of allegations made in the pending cases by
mentioning
oning that the allegations are only of verbal altercation. In fact in Crime
No. 93/2023, the allegations were of assaulting and abusing three victims
including two women. The respondent no.1/Mukesh Malhotra was aware of the
fact that society may not acce
accept
pt his conduct of assaulting women. In cross-
cross
examination, respondent no.1/Mukesh Malhotra had also admitted that since, he
had also lodged a cross case, therefore, the complainants had entered into
compromise and during the pendency of this election petit
petition,
ion, he has been
acquitted. Acquittal of respondent no.1/Mukesh Malhotra in crime no. 93/2023,
during the pendency of this election petition has no relevance for the purposes
of adjudicating the controversy in hand. Therefore, the respondent no.1/Mukesh
Malhotra gave false information regarding the nature of allegations levelled
against him in crime no. 2/2022 and 93/2023.
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55. So far as non-disclosure
disclosure of two cases in which the respondent
no.1/Mukesh Malhotra was convicted by the Trial Court is concerned, it is
suffice to mention here that in none of those two cases, he was convicted for
more than 1 year.. However, the respondent no.1/Mukesh Malhotra, himself has
admitted in his cross examination that Vijaypur Assembly Constituency is
dominated by Adivasi population
opulation and Adviasis worship trees and he was
convicted for imprisonment "till
till rising of Court and a fine of Rs. 7000/-
7000/ with
default imprisonment of one month
month" in Forest Crime No. 32773/2014 for
offence under Sections 26(1)(a)(g) and 66(i) of Indian Forest
Forest Act, and the
allegations were of cutting 210 trees. Looking to the very purpose of disclosure
of criminal antecedents of the candidate and the right of the electorate to know
about the background of the candidate, it was desirable on the part of the
respondent
spondent no.1/Mukesh Malhotra to disclose the said case also. So far as
Crime No. 32/11,, in which the respondent no.1/Mukesh Malhotra was convicted
by the Trial Court for assaulting the complainant Kuldeep Joshi by shoe and for
using abusive language, but he was later on acquitted by the Appellate Court by
judgment dated 17-6-2016,
2016, Ex. D.4 is concerned,, but it was also desirable on the
part of the respondent no.1/Mukesh Malhotra to have disclosed the said case.
Further more, the respondent no.1/Mukesh Malhotra
Malhotra was also tried for offence
under Section 505(2) of IPC in crime no. 2/2020 for spreading hatred against a
particular community and also for raising demand to oust the members of the
said particular community, but by judgment dated 11-3-2023
11 2023 Ex. D.6, he was
acquitted mainly on the ground that the complainant had turned hostile. It was
also desirable on the part of the respondent no. 1/Mukesh Malhotra to disclose
the said case also, but that was not done. However, in view of Section 33
33-A of
Representation of the People Act, it is made clear that non-disclosure
non disclosure of
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aforesaid cases may not amount to corrupt practice warranting setting aside of
his election.
56. Further more, it is clear from the evidence of the representatives of News
Papers, the information regarding criminal antecedents was not published in
News Papers having wide circulation in Assembly Constituency 02 Vijaypur.
57. Under these circumstances,
cumstances, it is held that respondent no.1/Mukesh
Malhotra by deliberately and knowingly suppressing
ng material information
regarding framing of charges in two pending criminal cases,has
,has misled the
electorate,therefore,
therefore, it is held that ssuch
uch suppression has materially created an
impediment in the free exercise of electoral rights, and has deprived the vot
voters
to make an informed and advised choice and therefore, this act of suppression
has resulted in direct or indirect interference with free exercise of right to vote
by the electorate and since, it was within the knowledge of the respondent
no.1/Mukesh Malhotra
hotra about the pending cases and whether charges have been
framed or not, therefore, this act of respondent no.1/Mukesh Malhotra amounts
to undue influence, necessitating the declaration of his result as null and void. It
is made clear that it is not nec
necessary
essary for this Court to consider as to whether
suppression on the part of the respondent no.1/Mukesh Malhotra has materially
effected the election result or not because it has to be presumed and such
question does not arise. Thus, responde
respondent no. 1/Mukesh Malhotra is held guilty
of corrupt practice.
58. For the reasons mentioned above, the election of respondent no.1/Mukesh
Malhotra as M.L.A. from Assembly Constituency 02 Vijaypur in bye-elections
bye
held in the year 2024 is hhereby declared as null and void andd all adverse
consequences as provided in Representation of the People Act, 1951 would
follow.
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59. Since, the Election Pet
Petitioner had also sought a declaration that he be
declared as elected as he was the candidate who had secured second highest
votes, therefore, the Election Petitioner Ram Niwas Rawat is declared elected as
M.LA. from Assembly Constituency 02 Vijaypur, Distt. Sheopur in the bye
bye-
elections which were held in the year 2024. The Election Commission as well
as Returning Officer are directed to complete the formalities in this regard.
60. Accordingly, the Election Petition is allowed with no order as to costs.
The parties shall bear their respective expenses.
(G.S.
G.S. Ahluwalia)
Ahluwalia
Judge
Aman
