Orissa High Court

Manoj Kumar Panda .... Election vs K. Anil Kumar on 24 September, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                              I.A. No. 112 of 2025

                   (ARISING OUT OF ELPET No.19 of 2024)

        (An application under Rule 27-A Chapter-VI of the Orissa High Court
        Rules for appropriate orders.)

        Manoj Kumar Panda                 ....         Election Petitioner

                                     -Versus-

        K. Anil Kumar                     ....         Respondent

        Advocate(s) appeared in this case:-
        _______________________________________________________________
        For Election Petitioner     : M/s. Gopal Kumar Agarwal,
                                      Sr. Advocate

                                      M/s. D.P. Nanda, Sr. Advocate


        For Respondent              : M/s. Samvit Mohanty, P.S. Nayak,
                                A. Satpathy, S.S. Tripathy, G. Patra
                             R. Behera, P. Pradhan, P.P. Das,
        S. Priyadarsini, Advocates
        _______________________________________________________________
        CORAM:
             JUSTICE SASHIKANTA MISHRA

                                   JUDGMENT

24th September, 2025

SASHIKANTA MISHRA, J.

This is an application filed by the respondent in

the midst of the cross-examination of the election petitioner

(P.W.-1) with the following prayer:

"That, in the aforementioned facts and circumstances, it is humbly prayed that the Hon'ble Court may graciously be pleased to decide the issues as given in the schedule below as preliminary issues.

And pass any other order that it may deem fit/necessary in the interest of justice, equity and good conscience."

2. It is stated that the averments made in

paragraphs-8(C), 8(D), 8(E), 8(H) and 8(I) of the election

petition as well as the evidence affidavit filed by the election

petitioner contain allegations which are in the nature of

'corrupt practice' within the meaning of Section 123 of the

Representation of the People Act, 1951 (in short, "the RP

Act"). As such, an affidavit in Form-25 is mandatorily

required to be filed. The present election petition is not

accompanied by such affidavit, for which, specific issues as

per schedule be framed and the question whether the

election petition can be treated as valid and complete may

be addressed as preliminary issue.

3. Objection has been filed by the election petitioner,

inter alia, stating that in the earlier application filed by the

respondent being I.A. No. 161 of 2024 under Section 86 of

the RP Act read with Order-VI Rule -16, Order-VII Rule -11

and Section 151 of CPC he had alleged that the pleadings in

the election petition amount to corrupt practice for which

affidavit in Form-25 should have been filed as per Rule-94-A

of the Conduct of Election Rules, 1961. This Court, after

hearing both parties by order dated 21.02.2025, held that

the election petition does not contain any allegation of

corrupt practice and so the question of filing any affidavit in

Form-25 does not arise. Said order of this Court was

challenged by the respondent before the Supreme Court in

SLP No. 10189 of 2025 but when the Supreme Court was

not inclined to interfere in the matter, the respondent

withdrew the SLP on 21.04.2025. As such, the order passed

by this Court has attained finality and therefore, the matter

cannot be reagitated at this belated stage.

4. Heard Mr. S. Mohanty, learned counsel for the

respondent and Mr. G.K. Agarwal, learned Senior Counsel

with Ms. S. Srivastava, learned counsel for the election

petitioner.

5. Mr. Mohanty would argue that in the order dated

21.02.2025, this Court specifically dealt with the averments

made in paragraph-8(B) vis-à-vis Section 123(7) of the Act in

so far as the same relates to the allegations made against

the Returning Officer. After examining the pleadings, this

Court was of the view that there was no allegation as such

against the returning officer for which the same would not

qualify as corrupt practice within the meaning of Section

123(7) of the Act. According to Mr. Mohanty, this finding of

the Court does not take away the effect of allegations made

by the election petitioner in other paragraphs relating to

non-disclosure of assets and liabilities, deposits etc. Mr.

Mohanty relies upon the judgment of the Supreme Court in

the case of Lok Prahari vs. Union of India1, wherein it was

held that non-disclosure of assets and sources of income of

the candidates would constitute corrupt practice falling

under the heading "undue influence" as per Section 123 (2)

of the RP Act. Mr. Mohanty further cites the judgment of

Tankadhar Tripathy v. Dipali Das2, wherein the Supreme

Court held that whether the election petition accompanied

by the affidavit in Form-25 is an issue which needs to be

addressed as a preliminary issue if the election petition

discloses an allegation of corrupt practice. Mr. Mohanty has

(2018) 4 SCC 699

2025 SCC OnLine SC 1793

also drawn attention of this Court to the Rules under

Chapter-XXXIII of the Orissa High Court Rules to argue that

it is the duty of the Registry to first examine the nature of

the election petition and in case any allegation of corrupt

practice is made therein it is his duty to indicate the same

before the matter is placed before the Election Judge. On

the above basis, Mr. Mohanty would argue that unless

additional issues relating to effect of non-filing of affidavit in

Form-25 are framed and decided as preliminary issues, it

would seriously prejudice the respondent, who, being a duly

elected public representative would have to unnecessarily

undergo the hardship of facing trial in the election petition.

6. Per contra, Mr. Gopal Kumar Agarwal would

argue that the contention raised by the respondent is no

longer available to be taken by him in view of the order

dated 21.02.2025 passed by this Court in the earlier I.A.

filed by him. The question of allegation of corrupt practice

has been adequately dealt with by this Court in the said

order which has attained finality in view of the withdrawal of

the SLP filed by the respondent in the Supreme Court. Mr.

Agarwal further argues that the observations made in

Tankadhar Tripathy (Supra) are not general observations

intended to be applied in all cases. Even otherwise, the

respondent never took this plea for which he cannot be

permitted to patch up the lacuna in his defence at this

belated stage when the trial has already begun. According to

Mr. Agarwal, the prayer of the respondent in the I.A. is

nothing but a ploy to protract the proceeding unduly.

7. I have given my careful consideration to the

contentions raised by both parties. As already stated, the

instant petition has been filed in the midst of cross-

examination of the election petitioner (P.W.-1). Neither in the

written statement nor in the earlier application (I.A. No. 161

of 2024) the respondent has raised this issue. As regards

the allegation of corrupt practice, it was only contended that

the Returning Officer had illegally accepted the nomination

paper of the respondent, which amounts to a corrupt

practice. This Court, after examining the allegation found

that the same cannot qualify as corrupt practice so as to fall

within the mischief of sub-Section (7) of Section 123 and

therefore, the question of filing any affidavit in Form-25 does

not arise. The respondent filed SLP against such order but

the same was withdrawn. The order of this Court has

therefore, attained finality. As such, the issue cannot be

reopened at this stage.

8. As regards the contention that the allegations

made in other paragraphs amount to corrupt practice, such

plea not having been taken in the earlier application also

cannot be permitted to be raised at this stage. Of course,

this Court is conscious of the fact that regardless of an issue

being raised specifically by the parties, the Court can still

form its own opinion regarding allegation of corrupt practice

basing on the pleadings of the parties but then, the

respondent having filed an application earlier (I.A. No. 161

of 2024) obviously had the scope to raise the issue, which

he did not. Accordingly, the issues were settled and the

election petition has gone to trial. It is evident that the

respondent wants to take mileage from the following

observations made by the Supreme Court in the case of

Tankadhar Tripathy (supra).

"24. In light of the above discussion, the matter stands remitted to the High Court with the following directions and conclusions:

a. The High Court is requested to identify and enumerate the defects in the Form 25 affidavit and

assess whether such defects, if any, were curable. To this end, the High Court may consider the following as preliminary issues:

i. Whether the affidavit in the instant case, alleging 'corrupt practices,' is defective and does not satisfy the requirement under Form 25?

ii. If defective, does it substantially satisfy the requirements of Form 25, and can it be so construed in accordance with the decisions of this Court cited in paragraphs 15 to 17 above?

iii. If the defect in the Form 25 affidavit could be cured, would it be mandatory to file a supplementary affidavit within the period of limitation?

iv. Whether the High Court-cum-Election Tribunal possesses the power to condone the delay and permit the Election Petitioner to file the affidavit, in the prescribed format of Form 25, beyond the period of limitation?

b. Additionally, we allow the proposals submitted by the parties and request the High Court to strike out the portions of the pleadings that they have mutually agreed to expunge from the record.

c. Upon striking out of such pleadings, the High Court shall afford the parties reasonable time to carry out the consequential amendments to the Election Petition and the Written Statement(s). Thereafter, the High Court may proceed to frame issues on the merits of the matter.