Patna High Court
Bamshankar Chaudhary vs Bhudeo Chaudhary on 27 February, 2025
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
ELECTION PETITION No.17 of 2020
======================================================
Bamshankar Chaudhary Son of Sri Manmohan Chaudhary Resident of
Village- Uprama, Uprawan, Post- Uprama, Police Station- Rajaun, District-
Banka, Pin- 813107.
... ... Petitioner
Versus
1. Bhudeo Chaudhary S/o Sri Banarsi Chaudhary Resident of Village- Tagepur,
P.O. and P.S.- Jagdishpur, District- Bhagalpur.
2. Ashok Das Son of Anirudh Das Resident of Village- Kharmanchak 26,
Akbari Godam, Bhimrao Ambedkar Nagar, D.N. Singh Road, Post-
Kharmanchak, Police Station- Jogsar (Kotwali), District- Bhagalpur.
3. Dipak Kumar Paswan Son of Sri Jagdish Paswan Resident of Village-
Baratikar, Post- Lilatari, P.S.- Barahat, District- Banka.
4. Shiv Shankar Son of Late Sital Das Resident of Village- Tilakpur, Post-
Bamdeo, P.S.- Rajaun, District- Banka.
5. Amod Harijan Son of Basudeo Harijan Resident of Village- Hasan Chak,
Post- Dariyapur, P.S.- Sajaour, District- Bhagalpur.
6. Prof. Bilkshan Ravidas Son of Bihari Ravi Das Resident of Village-
Rakabganjsarai, Post- Bhagalpur, P.S.- Tatarpur, District- Bhagalpur.
7. Mritunjay Kumar Ray Son of Sri Bashudeo Ray Resident of Village-
Makeshar, Post- Sripathar, P.S.- Dhauraiya, District- Banka.
8. Puja Devi Wife of Sri Ranjit Sharma Resident of Village/Mohalla-
Brijmohan Thakur Lane, Barari, Post- Barari, Police Station- Barari,
District- Bhagalpur.
9. Ranjeet Sharma Son of Sri Jagdish Sharma Resident of Village- Bhatuachak,
Post- Makaita, P.S.- Dhankund, District- Banka.
10. Sadanand Tanti Son of Sri Shiv Narayan Tanti Resident of Village- Uprama,
Post- Uprama, Police S.- Rajaun, District- Banka.
11. Manish Kumar Son of Sri Chotelal Mandal Resident of Village/Mohalla-
RBI Colony, Bhootnath Road, Post- Lohianagar, Police Station- Agamkuan,
District- Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner : Mr. S.B.K. Mangalam, Advocate
Mr. Ajit Kumar, Advocate
Mr. Krishna Chandra, Advocate
Mr. Nalin Vilochan Tiwary, Advocate
For the Respondent No.1: Mr. P.K. Verma, Sr. Advocate
Mr. Sanjay Kumar Ghosarvey, Advocate
Ms. Divya Verma, A.C. to AAG-3
For Respondent No.3 : Mr. Sadanand Paswan, Advocate
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
2/81
For Respondent No.11 ; Mr. Avinash Kumar, Advocate
Mr. Siddhartha Prasad, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
CAV JUDGMENT
Date : 27-02-2025
The present election petition is filed under sections
80, 80A and 81 read with section 100 of the Representation of
People Act, 1951 at the instance of one Bamshankar Chaudhary,
who asserts himself to be a bona fide voter from 160 Dhauraiya
(SC), Bihar Legislative Assembly Constituency in the District of
Banka. The petitioner has prayed for declaring the election of
the respondent no.01, Bhudeo Chaudhary (Returned Candidate),
to the Bihar Legislative Assembly, as null and void on account
of suppression of criminal antecedents, which according to the
election petitioner, violated the fundamental right to know the
full particulars of a contesting candidate and materially
obstructed the complete exposure to the public scrutiny by the
electors of the said 160 Dhauraiya (SC), Bihar Legislative
Assembly Constituency.
2. The Election Commission of India vide
notification under section 30 of the Representation of People
Act, 1951 (for short "the R.P. Act, 1951") announced the
programme for holding the elections to the Bihar Legislative
Assembly. The schedule of the Bihar Legislative Assembly
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
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Elections and important dates for the present purpose, as culled
out from the records, were as follows :-
Date of issue of Gazette Notification : 01.10.2020
Date of filing the nomination by the 07.10.2020
Returned Candidate namely Shri
Bhudeo Chaudhary:
Last date of filing Nomination Papers 08.10.2020
Scrutiny of Nomination papers: 09.10.2020
Last date for withdrawal of nomination 12.10.2020
papers:
Date of Polling: 28.10.2020
Counting of votes cast : 10.11.2020
Results Declared : 10.11.2020
3. In the aforesaid election from 160 Dhoriaya,
Bihar Assembly Constituency, altogether 11 candidates were
found validly nominated to contest the said election. The
respondent no.01 contested on the ticket from the Rastriya
Janta Dal (RJD) and secured 78,646 votes and was declared to
have been duly elected as the Member of the Bihar Legislative
Assembly from the aforesaid Constituency.
4. It is submitted that the contesting candidates
had to furnish details regarding their criminal antecedents while
filing their nomination papers. In the instant election petition, it
is alleged that the Returned Candidate-respondent no.01 has
materially suppressed the fact that two criminal cases are
pending against him, which he has failed to declare in his
nomination papers. According to the petitioner, two criminal
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
4/81
cases which are pending against the respondent no. 01 and have
been suppressed by him are as follows :-
(i) Rajaun P.S. Case No.121 of 2009 dated 31.08.2009
(G.R. No. 1371/2009) registered under sections
188, 171-F and section 34 of the Indian Penal Code
pending before the Court of ACJM, Banka, wherein
charge sheet being No. 42/2010 dated 30.05.2010
has been submitted.
(ii) Complaint Case No.468/2015 filed in Mojahidpur
P.S. Case No.12 of 2014 pending before CJM,
Bhagalpur, wherein cognizance under sections 323,
324, 379, 452 and 120-B of the Indian Penal Code
has been taken by the learned Court below.
5. The election petitioner submits that the
aforesaid cases are pending against the respondent no. 01 since
the year 2009 and 2014 respectively and the offences are in the
nature where the punishment is more than two years of
imprisonment. The election petitioner in order to illustrate the
gravity of the two aforesaid criminal cases submits that from the
perusal of the FIR in Rajaun P.S. Case No. 121 of 2009, there is
an allegation of violation of directions issued by public officials
during the election period and violation of model code of
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
5/81
conduct by allegedly holding a meeting in the vicinity of a
temple without taking due permission. The election petitioner
emphasises that this act is unbecoming for a law-maker. With
respect to the other case, i.e., complaint case no. 468 of 2015
filed in Mojahidpur P.S. Case No. 12 of 2014, the thrust of the
allegation is regarding forceful dispossession and demolition of
the house standing on the property described in the complaint
petition. The election petitioner further alleges that by exerting
pressure and influence the respondent no.01 was able to
manipulate the police and a closure report/final form was
submitted. It was only upon protest petition that the cognizance
of the offences were taken by the Court and summon was
issued. The election petitioner further alleges that the
respondent no.01 had been adopting dilatory tactics in order to
stretch and delay the proceedings in the aforesaid complaint
case.
6. The petitioner has emphasised that the
respondent no. 01 was fully aware of the pendency of the
aforesaid two criminal cases, evidently, since charge sheet dated
30.05.2010
has already been filed in Rajaon P.S. Case 121 of
2009 whereas, in the other case, i.e., Complaint Case No.
468/2015, the respondent no.01 has preferred to file an
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
anticipatory bail application before the ADJ-1, Bhagalpur,
which was rejected vide order dated 10.12.2015 passed in ABP
No. 1823/2015 and subsequently the respondent no.01 even
preferred a Criminal Misc. petition titled Bhudeo Choudhary vs.
The State of Bihar and Anr. (Cr. Misc. No. 3499 of 2016) before
this Court and this Court had granted anticipatory bail to the
respondent no.1 vide order dated 21.01.2016. Furthermore, it is
submitted that the wife of the respondent no.01 had also
approached this Court in the case titled Indrani Choudhary vs.
The State of Bihar & Anr. (Cr. Misc. No. 727 of 2016) seeking
anticipatory bail in the very same case, which also came to be
allowed.
7. It it is further submitted that before
contesting for the Bihar Legislative Assembly General Elections
in 2020, the respondent no. 01 had contested the Lok Sabha
General Elections, 2019 from the Jamuai Parliamentary
Constituency and from the nomination papers, which is on
record and annexed as Annexure-08 to this petition, it appears
that the respondent no. 01 had disclosed the particulars of the
Bhagalpur Complaint Case No. 468 of 2015 pending before the
CJM, Bhagalpur however, it is alleged that for some oblique
reasons and in order to infringe the rights of the voters of the
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
Dhoraiya (SC) Assembly Constituency, the respondent no. 01
had consciously and deliberately suppressed the same, which is
in violation of the constitutional rights of the voters.
8. The petitioner submits that in terms of Rule
4A of the Conduct of Election Rules, 1961, a candidate is
mandated to submit an affidavit with the detailed particulars as
provided in the Form-26 appended to the said Rules. Paragraph
5 of the aforesaid Form 26, requires furnishing information
about the details of the pending criminal cases against the
candidate. It is emphasised by petitioner that the respondent no.
01 has failed to disclose the material information as required
under sections 33 and 33A of the R.P. Act, 1951 in his
nomination papers and therefore, a false affidavit regarding
pending criminal cases against the respondent no. 01 has been
filed.
9. The election petitioner submits that being a
bona fide voter, the instant petitioner has constitutional right,
enshrined under Article 19(1)(a) of the Constitution of India, to
know about the social status and criminal antecedents of the
contesting candidates, more-so, for a candidate who has been
duly elected and therefore, it is mandatory for the candidates to
disclose all such information in the nomination paper in order to
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
provide necessary information to the voters of the constituency
for making an informed choice. The election petitioner, to
support this contention, draws attention of this Court to the
decision of the Hon'ble Supreme Court in the case titled
Resurgence India vs. Election Commission of India and Anr.
reported as AIR 2014 SC 344 = (2013) 9 SCR 260.
10. The election petitioner adverting to section
36(2) of the R.P. Act, 1951 has further contended that the
Returning Officer ought to have rejected the nomination of the
respondent no.01 under section 36(2) of the R.P. Act, 1951 since
the respondent no. 01 has intentionally omitted the important
information in the affidavit in Form-26 filed by him and
consequently, the said affidavit in Form-26 suffers from defects
of substantial character. It is the contention of the petitioner that
because of the non-rejection of the nomination papers, the
respondent no.01 was allowed to contest the election and
secured 78,646 votes and was consequently declared as the
returned candidate and thus, the result of the aforesaid election
insofar as it concerns the respondent no. 01 has been materially
affected. Since the respondent no. 01 intentionally concealed the
criminal cases pending against him, such failure to disclose
would be contrary to provisions contained in section 33 and 33A
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
of the R.P. Act, 1951.
11. The election petitioner has relied upon the
decision delivered by the Hon'ble Supreme Court in Union of
India vs. Association of Democratic Reforms & Anr. reported
in (2002) 5 SCC 294 to draw strength for the contention that it
is fundamental to receive complete information regarding the
criminal activities of a candidate contesting for the election in
order to make an effective and meaningful choice.
12. In light of the aforesaid, the election
petitioner also points towards sections 33A and 33B which were
inserted vide Representation of People (Third Amendment) Act,
2002 and Rule 4A of the Conduct of Election Rules, 1961. The
election petitioner has reiterated and emphasised that Rule 4A
mandates that a candidate has to submit detailed particulars as
provided under Form-26 and paragraph 5 of the said Form-26
requires furnishing information about the details of pending
criminal cases against the candidate.
13. The election petitioner has also relied upon
the decision of the Hon'ble Supreme Court in Lok Prahari,
through its General Secretary S.N. Shukla vs. Union of India
& Ors. reported as (2018) 4 SCC 699 = [2018] 2 S.C.R. 892, to
submit that right to know the full particulars of a candidate
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
which includes the right to know if the candidate 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, is a vital part of Article
19(1)(a) of the Constitution of India and the deliberate non-
disclosure of the information that the candidate is accused of
any offence punishable with imprisonment for 2 years or more
would amount to an undue influence and corrupt practice under
Section 123 (2) of the R.P. Act, 1951 and consequently it is
submitted that the election of the respondent no.01 would be
null and void under section 100 of the R.P. Act, 1951.
14. It is contended by the election petitioner that
once it has been established that the election of the respondent
no.01 was materially affected then no other ground is required
to set aside the election. The election petitioner has also
contended that once it is established that there is failure on the
part of the respondent no.01 to furnish the vital information as
contemplated under section 33A of the R.P. Act, 1951, the
question whether the result of the returned candidate was
materially affected or not is not a relevant factor to set aside the
election.
15. The election petitioner has relied upon the
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
judgment of Manipur High Court at Imphal in the case titled
Mayanglambam Rameshwar Singh vs. Yengkhom Surchandra
Singh and Another reported as 2020 SCC OnLine Mani 312 =
MANU/MN/0113/2020 wherein vide order dated 05.11.2020 the
High Court had set aside the election of the returned candidate
therein on the ground that returned candidate has failed to
disclose/provide vital information as mandated under section
33A of the R.P. Act, 1951. Relevant paragraphs of the aforesaid
decision reads as under:-
"112. Thus, in order to get an election declared as
void under the said provision, the petitioner
must aver that on account of non-compliance
with the provisions of the Constitution of India
or of RP Act or of any rules or orders made
under the Act, the result of the election, insofar
as it concerned the returned candidate, was
materially affected. As per the principle
enunciated supra, in the instant case, in view of
the foregoing discussions held, the petitioner
has established that the result of the election,
insofar as it concerned the returned candidate,
was materially affected in order to set aside the
same. As stated supra, if the petitioner
establishes failure on the part of the returned
candidate to furnish the vital information as
contemplated under Section 33A of the RP Act,
the question whether the result of the returned
candidate was materially affected or not is not a
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
relevant factor to set aside the election of the
returned candidate. Hence, the submission made
by the learned counsel for the first respondent
has no legs to stand.
113. It is reiterated that the right of the voters to
know of the relevant particulars of the
candidates is very important, as ultimately it is
the voters who decide the fate of the candidates
who will periodically exercise the political
power. A citizen of this country has a
fundamental right to receive information
regarding the assets and liabilities of a
candidate of the Parliament or the Lok Sabha or
the Legislative Assemblies so as to make his
choice effective and meaningful."
16. It is the submission of the election petitioner
that submitting false affidavit by the respondent no.01 has
resulted in expression of unconsidered and uninformed choice
of the voters of 160 Dhauriaya (SC) Constituency and as a
result, the votes cast had become meaningless. Furthermore, it is
submitted that the aforesaid cases originated in Banka and
Bhagalpur districts and it is very likely that the voters of the
aforesaid constituency might have been prejudiced and
therefore, the respondent no.01 deliberately supressed the
information, which was only half-heartedly disclosed by the
respondent no.01 while filing the nomination for the Lok Sabha
General Elections at the time of contesting elections from the
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
Jamui Parliamentary constituency since the respondent no.01
might have been of the opinion that these cases might not hold
importance for the Parliamentary General Elections.
17. The written statement has been filed on
behalf of the respondent no.01, in reply to the instant election
petition, raising various issues of non-maintainability
necessitating summary dismissal of the election petition under
section 86 of the R.P. Act, 1951 read with Order VII Rule-11 of
the Code of Civil Procedure, for non-compliance of sections 81,
82 and 117 of the R.P. Act, 1951 as has been statutorily
mandated under section 86 of the aforesaid Act. The respondent
no.01 states that election petition did not accompany as many
true copies as there are respondents arrayed in this petition.
Moreover, it is stated that the copy accompanying the election
petition which has been served on respondent no.1 is not the
true copy of the election petition since several pages of the
petition were different from the original one. The election
petition also does not contain any proper attestation by the
election petitioner as is required under section 83 of the R.P.
Act, 1951 and therefore, non-compliance of the aforesaid
provisions of the R.P. Act, 1951 has prejudiced the defence of
the respondent no.1. It has also been stated that no affidavit in
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
Form-25 as required under proviso to section 83(1)(c) of the
R.P. Act, 1951 in case of alleging corrupt practices was filed in
the election petition. Hence, this election petition is fit to be
dismissed under section 86 of the R.P. Act.
18. The respondent no.01, further stated that the
election petition is not maintainable and is fit to be dismissed on
the ground of non-compliance of section 83(1)(a) of the R.P.
Act, 1951 since it is devoid of concise statement of the material
facts so as to make any triable issue as contemplated under
section 100(1) and 101 of the R.P. Act, 1951.
19. In response to the allegation made in the
election petition regarding the non-disclosure of two criminal
cases in Form-26 filed along with the nomination papers and the
same having been improperly accepted, it has been stated in the
written statement that section 100 (1) (d) (i) of the R.P. Act
speaks of improper acceptance of nomination paper but the
same is subject to the condition that the election of the returned
candidate must have been materially affected. According to the
respondent no. 01, there is no pleading to the effect as to which
clause of Section 36 of the R.P. Act, 1951 was breached so as to
contend that the nomination of the respondent no.1 was wrongly
accepted and there is nothing in the pleadings to establish as to
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
how the result of the election was materially affected due to
non-disclosure of the alleged cases in the nomination paper.
Thus, the election petition is based on vague and unsustainable
averments without disclosing the material facts as required
under section 83(1)(a) of the R.P. Act, 1951.
20. It has further been stated in the written
statement that that the election petition has been filed on the
sole ground of non-disclosure of the criminal cases in Form-26
filed along with nomination papers by the respondent no.1 and
alleging corrupt practice of undue influence but without
complying the mandatory requirements as envisaged under
Section 83(1)(b) of the R.P. Act, 1951 which stipulates setting
forth full particulars of the corrupt practices with full
statements, names of the party, date and the place of
commission etc. Further, proviso of sub-clause (c) of section 83
of the Act stipulates that the election petition alleging such
corrupt practices shall also be accompanied with an affidavit in
the prescribed form which has been incorporated under the
Conduct of Election Rules, 1961 as Form-25. Neither any full
particulars nor a full statement as required has been stated nor
affidavit under Form-25 has been sworn. Thus, the election
petition is directly in violation of Section 83(1) (b) and (c) read
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
with Section 81(3) of the Act and hence, is fit to be dismissed.
21. Further, it is stated that upon perusal of
Form-26 submitted by the respondent no.1 along with the
nomination paper, it would be evident from para-5(ii) that the
detailed reference of criminal cases pending against the
respondent no.01 had been duly disclosed. Though the
respondent no.1 is not an accused in Rajaun P.S. Case no.128 of
2009 but the aforesaid case has also been mentioned by the
respondent no.1 in Form 26. Furthermore, it has been stated
with considerable emphasis that the respondent no.01 had no
reason for not disclosing any criminal cases pending against
him.
22. It has further been stated in the written
statement that due to clerical/typographical error instead of
Rajaun P.S. Case No. 121 of 2009, Rajaun P.S. Case No. 128 of
2009 has been mentioned in Form 26, which cannot be
construed as non-disclosure, however, it is stated that in Rajaun
P.S. Case no.128 of 2009, respondent no.1 is not arrayed as an
accused. In order to further strengthen this stand, it is submitted
by the respondent no.1 that the aforesaid facts also stand
corroborated from the Form-26 filed by the respondent no.01 in
the year 2019 while contesting Parliamentary Election from 40,
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
Jamui (SC) Parliamentary Constituency wherein the said correct
case i.e. P.S. Case No.121/2009 had been clearly disclosed.
Thus, it clearly emerges that the error in disclosing the FIR
number was neither deliberate nor intentional but only because
of a clerical/typographical mistake. The respondent no.01 has
vehemently denied that the offence alleged under section 188
and 171F IPC relate to meeting of workers during election
without seeking prior permission during election campaign
violating the model code of conduct. It is emphasised that the
offences carry a maximum punishment of one year
imprisonment.
23. It is also stated in the written statement that
the error apparently occurred as both the aforesaid cases bearing
nos.121/2009 and 128/2009 were registered at the same police
station i.e. Rajoun Police Station and were of the same year.
Further even the offences alleged were also more or less under
the same sections. In Rajoun P.S. Case No. 121/2009, in which
the respondent no.1 was made an accused was lodged under
section 188/171(F) and 34 of Indian Penal Code whereas in
Rajoun P.S. Case No.128 of 2009, in which respondent no.11,
Sri Manish Kumar was an accused was lodged under Sections
188/171(F)/504/506 and 34 of the Indian Penal Code and
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
Section 130 and 131 of the R.P. Act, 1951. Even otherwise there
was no occasion to suppress or not to disclose the FIR bearing
Rajoun P.S. Case No. 121/2009 because the allegation referred
therein basically related to election offences and carry a
maximum imprisonment of one month or one year or fine or
both. It is emphasised by the respondent no.01 that the
contention of the petitioner that the punishment prescribed in
the Rajaun P.S. Case 121/2009 registered under the aforesaid
sections is more than 2 years of imprisonment is wholly
incorrect and misconceived.
24. It has also been stated in the written
statement that the complaint case bearing no.45 of 2014 was
filed by one Permanand Sharma on 31.01.2015 with respect to a
land purchased by way of a registered deed in the year 2006 by
the wife of respondent no.1. Subsequently the complaint was
referred to Mojahidpur Police station under section 156(3) of
Code of Criminal Procedure. In pursuance thereof, Mojahidpur
P.S. Case No.12/2014 was registered and after due investigation
Final Form was submitted on 31.01.2015 by the police finding
the allegations to be untrue. Thereafter, upon protest of the
complainant, a separate complaint case bearing no.468/2015
was instituted by the learned CJM, Bhagalpur. The summons
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
was issued to the accused persons including respondent no.1.
After appearance of all the accused persons, the Court below
placed the matter for evidence before charge on 11.04.2017.
After part evidence of only one witness, the case was fixed for
23.05.2017 for cross examination. It is stated by the respondent
no.01 that the complainant defaulted in bringing the witness and
so next date was fixed on 22.06.2017. Even on that date, no
witness was produced and continuously several dates were fixed
for examination of the rest of the witnesses and even an order
for personal appearance of the complainant was passed and last
chance was given to adduce the evidence but the complainant
kept on defaulting and virtually abandoned the case, which
would be evident from the order sheet of the said case. Lastly,
the evidence was closed by the order of the learned Court
below on 03.07.2019.
25. It is stated that under these circumstances
there was nothing left in the case and it virtually came to an end
and therefore the details of the aforesaid complaint case was not
given in Form-26 filed along with the nomination paper. It has
further been submitted that while contesting the parliamentary
elections the respondent no.01 had filed the nomination paper
on 25.03.2019 from 40 Jamui (SC) parliamentary constituency
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
and in Form-26 the aforesaid compliant case no.468 of 2015
was duly disclosed since the same was pending and evidence
was not closed till the filing of the nomination and the evidence
was closed vide order dated 03.07.2019.
26. It has also been stated in the written
statement that this was a civil dispute on account of previous
land dispute and the same is pending before the D.C.L.R,
Bhagalpur, in which an order was passed for removal of the
encroachment. In retaliation, Mojahidpur P.S. Case no.12/2014
was instituted against several persons including the respondent
no.1.
27. It is stated on behalf of the respondent no.01
that his nomination paper was valid in all respect and no error
has been pointed out by the election petitioner in the present
election petition. Even, the affidavit in Form-26 which has been
separately filed accompanying with the nomination paper,
disclosed the required facts including the pending criminal cases
except for a typographical/clerical error of mentioning the P.S.
Case No.128/2009 instead of 121/2009. Any such clerical error
cannot be construed as an intentional omission. Further it is
submitted that Section 36 (2) of the R.P. Act does not mandate
rejection of nomination paper for any unintentional clerical
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
error hence there was no occasion for the Returning Officer to
have rejected the nomination paper of the respondent no.01.
Furthermore, it has been submitted that during the course of
scrutiny of nomination papers held on 09.10.2020 there was no
objection raised.
28. The respondent no.01 adverting to section
125A of the R.P. Act, 1951 submits that even as per the
averments of the election petitioner the present petition under
section 81(1) of the R.P. Act is not maintainable. It is
emphasised that the remedy for the allegations made in the
instant election petition would lie under section 125A of the R.P.
Act, 1951 and not by way of the present election petition.
29. Next, it is submitted by the respondent no.01
that no wrongful gain would occur by erroneously mentioning
the criminal case bearing Rajaun P.S. Case 128 of 2009 in
paragraph-5 of the said affidavit when admittedly the
respondent was not an accused in that case and more so when
the allegations made in this case was more grave than the case,
i.e. Rajaun P.S. Case 121 of 2009 which ought to have been
mentioned.
30. The respondent no.01 had preferred to move
an Interlocutory Application No.03 of 2022 invoking section 86
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
of the R.P. Act, 1951 read with Order VII Rule 11 of the Code of
Civil Procedure for summary dismissal of the instant election
petition wherein vide order dated 15.05.2023 the coordinate
bench while rejecting the aforesaid application held that the trial
in the present case has already progressed inasmuch as written
statement has been filed and original documents for evidence
have been received and issues had already been framed.
31. The election petitioner has filed a
supplementary affidavit bringing on record the FIR dated
31.08.2009, the order sheet of Rajaun P.S. Case 121 of 2009
(G.R. No. 1371 of 2009) and the charge sheet bearing no. 42 of
2010 dated 30.05.2010.
32. Upon hearing both the parties, this Court
vide order dated 11.04.2022 had framed nine issues for
adjudicating the present election petition, which are as follows:-
(i) Whether, concealment of criminal
antecedents in affidavit filed in Form-26 by
the Respondent no.1 was a defect of
substantial character for which the election
of the respondent no.1 is fit to be declared
void?
(ii) Whether, if blank paragraph of an affidavit
filed by a candidate in Form-26 before the
Returning Officer along with his
nomination paper was also a ground for
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
rejection of nomination as contemplated
under paragraph no.6.10.1(x) of the Hand
Book for Returning Officer, the nomination
of respondent no. 1 was fit to be rejected by
the Returning Officer, filed in Form-26
along with his nomination paper were
blank ?
(iii) Whether, the Returning Officer had
improperly accepted the nomination paper
of the Respondent no.1 with blank
paragraphs of the affidavit filed by him if
Form-26 along with the nomination paper
and on that ground, the election of
Respondent no. 1 is fit to be declared
void ?
(iv) Whether, the election petition is not
maintainable and fit to be dismissed under
Section 86 of the Representation of Peoples
Act, 1951 for non compliance of Section
81, 82 and 117 of the Representation of
Peoples Act, 1951?
(v) Whether the election petition is de-void of
concise statement of material facts not
disclosing a cause of action or a complete
cause of action and hence is fit to be
dismissed under Order 7 Rule 11 of Code
of Civil Procedure ?
(vi) Whether the election petition is in
noncompliance of section 81(1) read with
Section 83(1)(a) of the Representation of
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
Peoples Act, 1951 as it fails to make out a
triable case under Section 100(1) and 101
of the Act, 1951?
(vii) Whether, the election petition is not
maintainable in absence of pleadings as to
how the result of election is materially
affected due to alleged non disclosure of
any case in Form-26 filed along with
nomination paper so as to make out a
triable case under Section 100(1)(d)(iii)
and (iv) of the Representation of People
Act, 1951?
(viii) Whether the election petition is also not
maintainable as appropriate remedy for the
allegation of error or alleged concealment
of information is covered by Section 125A
of Representation of People Act, 1951?
(ix) Whether the election petition is fit to be
dismissed for non compliance of Section
83(1)(c) proviso of the Act for not filing
affidavit in the prescribed Form-25 under
the Conduct of Election Rules, 1961
despite alleging corrupt practice ?
33. The following documents have been
exhibited on behalf of the election petitioner :-
Exhibit-1 Original nomination form of respondent no.1
Bhudeo Choudhary filed before the Returning
Officer (Marked on 04.07.2023)
Exhibit-1(i) Affidavit in Form 26 along with Nomination
Form filed by respondent no.1 Bhudeo Choudhary
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
before the Returning Officer (Marked on
04.07.2023)
Exhibit-2 Certified copy of F.I.R. of Rajoun P.S. Case
No.121 of 2009 dated 21.08.2009 with objection
(Marked on 04.07.2023)
Exhibit-3 Certified copy of the F.I.R. of Mojahidpur P.S.
Case No.12 of 2014 dated 22.01.2014 with
objection (Marked on 04.07.2023)
Exhibit-4 Certified copy of entire ordersheet of Complaint
Case no.468 of 2015 dated 23.01.2014 to
17.12.2022 (Marked on 04.07.2023)
Exhibit-5 Order-sheet of Criminal Miscellaneous No.7238
of 2016 (Indrani Choudhary and Ors. vs. State of
Bihar and Anr.) dated 01.11.2018 of the Hon'ble
Patna High Court (Marked on 09.09.2024)
34. The following documents have been
exhibited on behalf of the respondent no.1 :-
Exhibit A- Certified Copy of the Order-sheet dated
03.07.2019 passed in Complaint Case
No.468/2015 (Marked on Date-14.05.2024)
Identification X Photocopy of entire order-sheet of Mojahidpur
P.S. Case No. 12/2014 in which Final Form was
submitted (Page No.134 to 137) which are
produced as Annexure R-1/E by way of
documents filed by Respondent no.1 (Marked on
14.05.2024)
Identification X Photocopy of entire order-sheet passed by the
DCLR, Bhagalpur in Land Dispute Case no.
91/2013-14 (Page no.122 to 133) which are
produced as Annexure-2-1/D by way of
documents filed by Respondent no.-1(Marked on
14.05.2024)
Exhibit B- Checklist given to Sri Bhudeo Choudhary which
bears Signature of the Returning officer (Marked
on 02.09.2024)
Exhibit C- Photocopy of order-sheet dated 07.12.2013 passed
by the DCLR, Bhagalpur in Land Dispute Case
No.91/2013-14 (Page no.-126 to 127) which is
filed by way of documents filed by Respondent
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
no.1 (Marked on 02.09.2024)
Exhibit D- Certified Copy of F.I.R. of Rajoun P.S. Case
no.128/2009 dated 15.09.2009. (Marked on
05.09.2024)
Exhibit E- Photocopy of entire order-sheet passed by the
C.J.M., Bhagalpur in Rajoun P.S. Case
no.128/2009 (Page no.-76 to 121) which are
produced as Annexure-R-1/C by way of
documents filed by Respondent no.-1. (Marked on
05.09.2024)
Exhibit F- Annexure 4 of Election Petition (Page no.-77 to
82) of Rajoun P.S. Case no.121/2009 (Page no.76
to 121). (Marked on 05.09.2024)
Exhibit G- Annexure-8 of Election Petition (Page no.-166 to
205) Form-26 of Bhudeo Chaudhary. (Marked on
05.09.2024)
Exhibit H- The Sale deed of Smt. Indrani Choudhary. W/O
Bhudeo Chaudhary as detailed in Para-8-of
Examination-in-Chief of Sri Bhudeo Choudhary.
(Marked on 09.09.2024)
Exhibit-I The ordersheet of Mojahidpur RS. Case
no.12/2014 (Page no.134 to 137) which was
earlier marked as X for identification and the
Complaint Case no.468/2015 (Page no.-138 to
222), the entire order-sheet of both the cases (Page
nos 134 to 222), which are produced by way of
documents filed by Respondent no.1 (Marked on
09.09.2024).
Exhibit- J The order-sheet dated 30.08.2022 which is the
order by which the Evidence closure order dated
03.07.2019 was recalled by A.C.J.M.-1st
Bhagalpur (Page no.-192 to 193) which are
produced by way of documents led by Respondent
no.-1 (Marked on 09.09.2024)
35. In this case, election petitioner has been
examined as P.W.1, Bam Shankar Chaudhary. This witness has
deposed that he had filed the instant election petition
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
challenging the election of respondent no.01 from 160
Dhauraiya Assembly Constituency on the ground that in his
affidavit in Form-26, the respondent no.01 had disclosed his
criminal antecedents under the aforesaid form and had
mentioned about four criminal cases pending against him.
However, the respondent no.01 had left the paragraph no. 5 of
the aforesaid affidavit as blank. The witness deposed that there
are six criminal cases pending against the Respondent no.01,
however only four have been disclosed by him. The witness
further deposed that Rajaun P.S. Case No.121 of 2009 dated
31.08.2009 for offences under sections 188, 171F and 34 of the
Indian Penal Code pending in the Court of ACJM, Banka and
the Complaint Case No. 468 of 2015 pending in the Court of
learned CJM, Bhagalpur have not been disclosed. It has further
been deposed by this witness that two columns/paragraphs of
the affidavit in Form-26 namely paragraph nos. 5 and 6 are
blank and no declaration has been mentioned by the respondent
no.01. The witness has further deposed that since two
paragraphs of the affidavit in Form-26 filed by the respondent
no.01 along with his nomination paper are blank, it was a defect
of a substantial nature and the nomination of the respondent
no.01 was liable to be rejected by the Returning Officer. Lastly,
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
this witness has deposed that in Rajaun P.S. Case No.121 of
2009 dated 31.08.2009 the police, after investigation, has
already submitted charge sheet against the respondent no.01
vide Charge Sheet No.42 of 2010 dated 30.05.2010 and the
respondent no.01 was released on bail after furnishing bail
bonds. Therefore, the respondent no.01 had full knowledge
about the criminal cases pending against him which was
deliberately suppressed in the aforesaid affidavit.
36. In the cross examination of P.W.-1, Bam
Shankar Chaudhary, has deposed that he was not a candidate
from any party in the Bihar Legislative Assembly Election from
160 Dhoraiya assembly constituency held in October 2020 and
further that he had neither contested any election nor stood or
signed as a proposer to any candidate and further he has not
even acted as an election agent for any candidate in any election
or visited the office of the Returning Officer to represent any
candidate. P.W.-1 has further deposed that he has knowledge
regarding the submission of nomination paper during election,
however he does not have any knowledge about the rules,
guidelines, instructions or statutory provisions in respect of
filing of nomination papers in an election. He has also deposed
that he does not know the provision under the R.P. Act under
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
which a nomination paper submitted by a candidate can be
accepted or rejected. P.W.-1 has further deposed that the defect
in the nomination paper filed by the respondent no.01 were
stated in the instant election petition and that he has no
knowledge about any other defects in the said nomination paper.
In the examination-in-chief, this witness has deposed that there
are no criminal cases pending against him. Lastly, the witness
deposed that Form-26 is a form of an affidavit which is attached
with the nomination paper.
37. The further cross-examination of P.W.-1 was
conducted on 29.08.2023 wherein this witness deposed that he
is not aware as to whether a defect in the nomination paper, if
found, is pointed out by the Returning Officer at the time of
filing of nomination paper through a check-list and he does not
have any knowledge as to whether a time is fixed for removal of
that defect by the concerned candidate.
38. The Respondent Witness no.01, Uma
Shankar Singh, has deposed that he had known the respondent
no.01 since 1990 and this witness has been the election agent
for respondent no.1 for almost all elections contested by
respondent no.1. The witness has deposed that the respondent
no.01 had contested multiple elections since the year 2000 from
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
same Dhoraiya Assembly Constituency. R.W.01 has further
deposed that he had assisted the respondent no.01 in filing the
nomination papers and Form-26. The witness has deposed that
the nomination paper and Form-26 was submitted by the
respondent no.01 on 07.10.2020, which was a day prior to the
last date for filing nomination. R.W.-01 along with respondent
no.01 and other party workers left from Patna on 06.10.2020,
after release of the party symbol and reached Banka late night.
R.W.-01 accompanied the respondent no.01 along with some
party workers and supporters on 07.10.2020 to the office of the
DCLR, Banka where nomination was to be filed. R.W.-01 has
further deposed that one Hira Lal Singh, an advocate from
Banka, also accompanied them for providing assistance in filing
the nomination papers. It is deposed by this witness that after
filing of the nomination papers, the same was checked by the
officials and a copy of the checklist was also given by the
Returning Officer. The next day an intimation was received
about a notice for submitting fresh Form-26 and therefore this
witness along with the respondent no.01 rushed to the office of
the returning officer where it was pointed out that in Column-4
the name of the candidate was also to be written along with
'Self' and hence a fresh affidavit in Form-26 was sworn and re-
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
filed after curing the defects. The witness has further deposed
that the scrutiny of the nomination papers submitted by all the
candidates was held on 09.10.2020. R.W.-01 had remained
present inside the office of DCLR-cum-Returning Officer,
Banka at the time of scrutiny on behalf of the respondent no.01.
Several other candidates and their representatives were also
present during the scrutiny. The nomination paper of each
candidate was shown by the Returning Officer and the Assitant
Returning Officer to the candidates and the persons present in
the scrutiny and objections were invited from the candidates or
their representatives. It was deposed that neither of the
candidates nor any person present had raised any objection to
the nomination papers or Form-26 of the respondent no.01.
There was no objection even from any of the officials present
there. Even subsequent to the scrutiny, there was no objection
raised by anyone. R.W.-01 has deposed in the examination-in-
chief that the allegations made in the present election petition
regarding non-mentioning of the two criminal cases in Form-26
with a deliberate intention on the part of the respondent no.01, is
not correct. He has further deposed that, while filling the said
nomination paper, R.W.-01 had taken the assistance of one Hira
Lal Singh, Advocate, who had been appearing in both of the
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
cases which had been registered as Rajoun P.S. Case
No.121/2009 and 128/2009. In Rajoun P.S. Case No.128/2009
the respondent no.01 is not an accused and in fact, it was Sri
Manish Kumar(respondent no.11) a contesting candidate, who
was an accused. On the other hand, in Rajoun P.S. Case
No.121/2009 both Sri Manish Kumar and the respondent no.01
had been made an accused. Therefore, it was deposed that
owing to the confusion in providing the correct case number by
the learned advocate, the incorrect case details i.e., Rajoun P.S.
Case No.128/2009 was mentioned in Form No.26 in which
pertinently the respondent no.01 was not even an accused. It
was deposed that this confusion might have arisen since both
the aforesaid cases relate to breach of model code of conduct
and was being defended by the very same advocate and the
nomination paper was being filled in haste. R.W.-01 has further
deposed that with respect of non-mentioning of the complaint
case no.468/2015, R.W.01, had inquired from Vijay Kumar
Singh, Advocate who had been defending the case on behalf of
the respondent no.01 in Bhagalpur Court, who had informed
R.W.-01 that the case had been closed sometime in July, 2019
itself and therefore the same was not filled in Form-26. It was
deposed by this witness that there was no question or any
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
intention of non-disclosure, as alleged, because earlier during
the parliamentary elections from 40 Jamui reserved
parliamentary constituency, the nomination paper was filed by
the respondent no.01, wherein the said complaint case number
468/2015 was mentioned since the said complaint case had not
closed at that point of time. The said complaint case is a
frivolous and fraudulent case arising from a false land dispute.
The witness has lastly deposed that he had helped the
respondent no.01 in filing the Form-26 in the present election
under consideration and as per the norms it is incorrect to say
that any of the paragraphs was left blank.
39. The R.W.-02, Kishori Prasad Sah, had
deposed that the respondent no.01 had constructed his house at
Kajichak, which was about 100 yards from the house of the
R.W.-02. It was deposed by this witness that the land on which
the house is constructed was of khatiyani riyat Sadho Mistry,
who passed away about 25 years ago leaving behind his wife
Tara Devi and she had been living alone in a hut which was over
the said land. Tara Devi was the only heir of Late Sadho Mistry.
It was further deposed that Tara Devi had sold the said land to
the wife of the respondent no.01 by way of a registered sale
deed sometime in the year 2006 and subsequently, a house was
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
constructed by the respondent no.01 over the said land. This
witness has also deposed that he knew Late Sadho Mistry very
well and that he used to regularly meet him in the house of one
Kallar Bhagat, who was a tantrik by profession and next-door
neighbour of late Sadho Mistry. Lastly, this witness has deposed
that he had on several occasions visited the house of late Sadho
Mistry and that both late Sadho Mistry and his wife Tara Devi
have died issueless and further that he had not seen any other
relatives living with them.
40. R.W.-03, Uttam Singh, has deposed that he
knows the respondent no.01 for the last two decades. The
witness has deposed that the respondent no.01 had been elected
as a Member of the Legislative Assembly from Dhauraiya
assembly constituency on three consecutive elections held in
2020, Feb-2005 and October-2005, thereafter the respondent
no.01 was elected as a Member of Parliament in the year 2009
from Jamui Parliamentary Constituency and again elected in
2020 as the member of the Legislative Assembly from the
Dhauraiya Assembly Constituency. The witness has deposed
that he had heard about a false complaint case to have been filed
against the respondent no.01 in the year 2015 relating to a land
dispute. The witness has lastly deposed in paragraph-5 of his
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
examination-in-chief that the respondent no.01 is well educated
and was practicing as an advocate in Bhagalpur Civil Court and
that the respondent no.01 comes from a humble family
background and has been a popular leader.
41. In his cross-examination, R.W.-03, Uttam
Singh, has deposed that his village is named 'Lanka' which is
20 kms. from the village of respondent no.01. This witness has
further deposed in his cross examination that he is not aware of
any pending criminal cases against any villager of village
Tajepur. He has not been a witness in the complaint case
pending against respondent no.01 and has not met the
complainant in the aforesaid complaint case. This witness has
further deposed that he had studied till matriculation and has a
little knowledge about English language. In the cross-
examination when specific question was posed to this witness
regarding his statements in paragraph-5 of the examination-in-
chief, the witness has answered that he does not understand
what is stated in paragraph-5 of the examination-in-chief.
42. R.W.-04, Sanjay Prasad Yadav, has deposed
that he knows the respondent no.01 from the year 1995 and has
deposed regarding the electoral victories of the respondent
no.01 since the year 2000. This witness has further deposed that
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
the voters of Dhauraiya constituency are fully aware about the
social service, sincere approach, helping nature as well as
impeccable character of respondent no.1 and therefore this
witness has deposed that despite the false criminal cases lodged
by unscrupulous persons, the respondent no.1 was duly elected.
43. R.W.-4, Sanjay Prasad Yadav in his cross
examination has deposed that there are about three lakh voters
in the assembly constituency. Upon a question on how many
persons did this witness ask regarding the case being filed the
witness responded that he had asked two persons namely one
Vijay Verma and Uma Shankar Singh.
44. The R.W.-05, Uday Kumar Singh and R.W.-
06, Anis Kumar Chavan in their examination-in-chief have also
deposed that they know the respondent no.01 since the year
2000 and 1995 respectively since the respondent no. 01 has
been a popular leader in the constituency. The witnesses then
deposed regarding the electoral victories of the respondent no.
01 from various elections. The witnesses have also deposed that
he had heard about the criminal case relating to a land dispute
being filed against the respondent no.01 which the witness
further deposed that according to him this case has never been
in the minds of the voters of the constituency. The witness also
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
deposed regarding the educational qualifications and the family
background of the respondent no. 01.
45. In the cross examination, R.W.-05, has stated
that he is not interested in politics and that the witness is not
acquainted with the criminal antecedents of the contestants of
the assembly elections of 2020 except the respondent no. 01.
46. R.W.-06, Anis Kumar Chavan, in his cross
examination has stated that he does not remember the cases that
were disclosed by the respondent no.01, however the witness is
aware that the present election petition has been preferred since
the respondent no.01 did not disclose cases during the assembly
elections which were disclosed by the respondent no.01 while
fighting the parliamentary elections from Jamui parliamentary
constituency.
47. Kunjbihari Kumar Yadav, R.W.-07 in his
examination-in-chief has stated that he earns his livelihood from
agriculture and has studied till high school from his village that
falls under 160 Dhoriaya assembly constituency. This witness
has deposed that he knows the respondent no. 01 for the past
twenty years. The witness then deposed regarding the electoral
victories of the respondent no.01 for various elections. This
witness lastly deposed that the respondent no.01 comes from
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
village Tagepur which is about 15 kms. away from the village of
the witness and that the respondent no.01 comes from a humble
family.
48. The R.W.-07, Kunjbihari Kumar Yadav in
his cross examination has stated that he is not aware of the
informant of the criminal case instituted against the respondent
no. 01. The witness further stated that the respondent no.01 is a
graduate and also has a degree in law however this witness has
never seen him practicing as an advocate. The witness lastly
states that he knows the family members of the respondent
no.01 however he is not aware of the qualifications of the son or
brother of the respondent no. 01.
49. R.W.-08, Krityanand Jha, in his examination-
in-chief has stated that he is a voter from Shyampur village that
comes under Rajoun Block under the Dhoraiya assembly
constituency and that the witness and his family members have
voted in the assembly elections of 2020 from the aforesaid
constituency, which were held in November, 2020. The witness
is engaged in agricultural activities. The witness has deposed
that the respondent no. 01 had contested the said elections from
Rashtriya Janta Dal and that there were several other candidates
who had contested the said elections. Further the witness has
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
deposed that the respondent no.01 is a well known and popular
leader of his area and the village of the witness is located just a
few kilometers away from the village of the respondent no. 01.
Thereafter the witness deposed regarding the electoral victories
of the respondent no. 01 and stated that the respondent no. 01
has always been active in his constituency and been
instrumental in executing several developmental and social
work. The witness further states that to the best of his
knowledge there are no pending criminal cases against
respondent no. 01 except certain cases arising out of breach of
model code of conduct and one complaint case relating to a land
dispute, which this witness deposed, was falsely instituted
against the respondent no. 01. The witness has also deposed that
he had travelled around the constituency during the subject
election period and he had found that the people had voted in
favour of the respondent no. 01, knowing about the false case of
land dispute and that this did not affect at all the voters of the
constituency. The witness lastly deposed that even if the said
case would have been mentioned in the nomination papers of
the respondent no.01 the same would not have affected the
result of the elections.
50. R.W.-08, Krityanand Jha, in his cross
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
examination has stated that the criminal cases pending against
the respondent no.01, which have not been disclosed in the
affidavit are not pending against the respondent no.01. The
witness further stated that the cases which have not been
disclosed relate to a land dispute and are not pending.
51. R.W.-09, Vijay Kumar Singh, in his
examination-in-chief has stated that he is a practicing advocate,
ordinarily practicing in Bhagalpur Civil Court and he joined the
Bhagalbur Bar in the year 1994 and has been practicing ever
since mainly on the criminal side. This witness has stated that
when he joined the Bar, the respondent no.01 was also
practicing as an advocate in the Bhagalpur Civil Court. The
witness has further stated that the respondent no.01 had engaged
him to defend the complaint case no. 468 of 2015. It was stated
by the witness that the matter relates to execution of an order
passed by the DCLR, Bhagalpur in the land dispute case
No.91/2013-14 which had been filed by the wife of the
respondent no.01 under the Bihar Land Dispute Resolution Act,
2009 for removal of encroachment in a portion of her registered
raiyati land and the encroacher was the complainant Permanand
Sharma. After due proceeding, the application of the wife of the
respondent no.01 was allowed and direction was passed for
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
removal of the encroachment which was duly executed after
following due process. The witness further stated that in
retaliation the complainant of the aforesaid complaint case filed
an FIR bearing Mojahidpur PS Case No. 12 of 2014, which after
investigation, was found false and the final report was
submitted. It is stated by this witness that thereafter the
complainant preferred to file a complaint which was registered
as complaint case 468 of 2015 wherein the DCLR, the Circle
Officer, the Circle Inspector, the respondent no. 01 and the wife
of the respondent no. 01 have been made accused. Further the
witness states that the complainant never challenged the order
passed by the DCLR, Bhagalpur before the appellate authority
under the BLDR, Act, 2009 or before any other authority or
Court of Law. It is stated that the complaint case was being
heard before the Court of Judicial Magistrate, Bhagalpur and the
complainant was directed to produce the evidence before charge
vide order dated 03.03.2017, wherein the complainant defaulted
for more than two years despite repeated orders by the said
Court, ultimately, it is stated, that on 03.07.2019 the evidence
was closed. The witness lastly states that the respondent no. 01
and his election agent had enquired from him regarding the
status of the complaint case for the purposes of filing the
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
nomination paper in the assembly elections of 2020 and that the
witness had duly informed that the complaint case was closed
on 03.07.2017 due to non-production of witnesses by the
complainant.
52. The witness R.W.-09, in his cross
examination has stated that after submission of the final form by
the police in connection with the Mojahidpur PS Case 12 of
2014, this witness was engaged as an advocate, and that the
witness was aware that a complaint-cum-protest petition was
filed by the informant in the aforesaid case. After submission of
the final form and filing of the complaint-protest petition by the
informant, the complaint case no. 468 of 2015 was registered. It
was deposed by the witness that inquiry witnesses were
examined in the said complaint case and on the basis of the
evidence cognizance was taken. Lastly, this witness stated that
he continues to appear on behalf of the respondent no.01 in the
said case and no final judgment has been delivered by the Trial
Court.
53. R.W.-10, Parshuram Harijan, has stated in
his examination-in-chief that he is a voter from village Kathaun
which falls in Rajoun Block under Banka district and his village
comes under Dhoraiya assembly constituency. The witness has
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
stated that he had cast his vote in the aforesaid elections in 2020
and there were around 10-11 candidates, who had contested the
elections. The respondent no. 01 was contesting on the ticket of
Rashtriya Janta Dal and respondent no.11, Manish Kumar had
contested on the ticket of Janta Dal (U). The witness has stated
that he knows the respondent no. 01 for the last two decades and
has stated about the electoral journey of the respondent no. 01.
The witness has also stated that the respondent no. 11, Manish
Kumar, had not contested the election in the year 2000 and
2005. The witness states that as far as he knows except a land
dispute case and model code of conduct violation case there are
no other criminal cases pending against the respondent no. 01.
The witness further states that he was elected as Mukhiya from
the Bhawanipur-Kathauana Panchayat in the year 2001 and as
such he is acquainted with the locality in the Dhoraiya
Assembly Constituency. This witness has also deposed that the
respondent no. 01 has been very active in his constituency and
was instrumental in executing several development works. This
witness has lastly deposed that he had travelled around during
the subject election period in the year 2020 and found that
people were in favour of the respondent no.01, and the false
complaint case would not have affected the outcome of the
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
elections because the electors voted in favour of the respondent
no. 01 for his good conduct, behaviour and the development
work carried in the constituency.
54. In the cross-examination R.W.-10 has stated
regarding the electoral victories and losses and the electoral
journey of the respondent no. 01. This witness has further stated
that he had not campaigned for the respondent no. 01 during the
subject election of 2020.
55. R.W.-11 in his examination-in-chief has
stated that he is a voter from the village Baliyas Kadma which is
under Sizzat Baliyas gram panchayat under Dhoraiya assembly
constituency. The witness states that he had contested the
panchayat elections and was elected as Sarpanch of Sizzat
Balias Gram Panchayat in 2011 and was re-elected in 2021.
Thereafter the witness has stated regarding the electoral journey
of the respondent no. 01. The witness has stated that as far as he
knows there are no criminal cases pending against the
respondent no. 01 except for the cases of model code of conduct
violation and one land dispute case, which has been falsely
instituted against the respondent no.01 and the officers of the
administration of Bhagalpur. The witness states that this was out
of some political instigation. The witness states that the false
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
case has not affected the voters of the constituency and the votes
cast in favour of the respondent no.01 were because of the
development work carried out by the respondent no. 01 during
his tenure as a Member of Legislative Assembly and Member of
the Parliament. The witness states that he had interacted with
the general public of his gram panchayat who were voters in the
subject elections and none of them were affected with the cases
filed against the respondent no. 01.
56. R.W.-11 in his cross examination has stated
that he was not present during when the respondent no. 1 had
filed his nomination papers and that the witness had not seen the
declarations made by the respondent no. 01. The witness states
that he came to know through the newspapers that only two
cases are registered against the respondent no. 01 i.e. one
complaint case that pertains to the land dispute and another one
relating to elections.
57. The R.W.-12, Manoj Kumar, the then Clerk,
posted in the office of the DCLR Sadar, Bhagalpur, in his
examination-in-chief has stated that he remembers the BLDR
Case No. 91 of 2013-14 filed by one Indrani Choudhary, which
was heard in the office of the DCLR Sadar, Bhagalpur. This
witness states that he remembers the case since he was working
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
with the Head Clerk in the said office while the aforesaid BLDR
case was heard for execution. This witness states that the order
was passed in the execution case during the period when he was
posted in the said office and the order-sheet reflects the final
order passed by the then DCLR, Bhagalpur. The witness has
also identified the signature and handwriting of the then DCLR,
Bhagalpur.
58. In the cross-examination of the R.W.-12, the
witness states that he does not remember the number of cases
disposed by the DCLR between 2013 and 2020. Further the
witness has stated that the dictation of the order dated
07.12.2013 was given by the then DCLR to the Head Clerk
while he was not present. Lastly, the witness has stated that he is
not aware of any criminal cases filed against the respondent
no.01 with regard to the dispute before DCLR, Bhagalpur.
59. The Official Witness-01, Parul Priya, the
then Returning Officer in her examination-in-chief has stated
that she was the Returning Officer of Dhoraiya Assembly
Constituency and the candidates who contested the elections
had presented their nomination papers before her. This witness
states that as the Returning Officer, she checked and supplied
the details of the defects in the nomination papers vide a
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
checklist to the contesting candidates. Further, this witness has
deposed that the scrutiny with regard to the nomination papers
of Dhoraiya Assembly Constituency were held in the year 2020
in her office. This witness also stated that on the date of the
scrutiny apart from the Returning Officer, the Assistant
Returning Officer, the Observer and the other staffs of the office
as well as the candidates whose nomination papers are to be
scrutinized were present and the nomination papers of all the
candidates were opened in front of them one by one and all the
nomination papers were scrutinized in their presence. During
the course of scrutiny, the candidates were allowed to raise
objection with regard to any defects in the nomination papers of
the candidates. This witness has further states that the scrutiny
was started at 11:00 A.M. and continued till 3:00 P.M. and no
objection was raised by any candidate with regard to any
nomination. Further, no objection was raised by any person on
the nomination papers submitted by Sri Bhudeo Choudhary, the
Returned Candidate. The witness lastly states that while
conducting scrutiny, she is not supposed to conduct any inquiry
with regard to any facts mentioned in the nomination papers.
60. The Official Witness-01, in her cross
examination has stated that once the nomination paper is
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
accepted there is no provision for receiving any objection with
regard to the nomination of any candidate. This witness has
identified the signature on the check-list. This witness states that
the scrutiny is a quasi judicial process and while performing
scrutiny she performed the duty of quasi judicial Officer. The
decision of the Returning Officer with regard to the acceptance
or rejection of the nomination paper is based on the materials
disclosed in the nomination paper and the affidavit appended
thereto. The Returning Officer has no role or authority to
examine of the correctness of the statements made in the
affidavit. If any candidate raises an objection with regard to any
statement made in the nomination paper of a candidate or with
regard to the statement made in the affidavit supported by the
materials then the Returning Officer shall hold the summary
proceeding and decide the objection, if any. This witness lastly
states that since no objection was filed at the time of the
scrutiny of nomination papers of the respondent no.1, she did
not hold any summary inquiry.
61. R.W.-13, Bhudeo Chaudhary, the Returned
candidate-respondent no.01 in his examination-in-chief has
stated that he had contested the election for the Legislative
Assembly from 10, Dhoraiya (S.C.) Assembly Constituency
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
wherein he was declared elected upon having secured highest
number of votes. The witness has stated the electoral journey
including his victories and losses from the year 2005. Thereafter
the witness has stated that in the present elections conducted in
2020 he had contested on the ticket of Rashtriya Janta Dal and
that he filed my nomination paper for the 2020 election on
07.10.2020 i.e. a day before the last day of nomination. This
witness thereafter narrates the process undertaken by him to file
the nomination papers. This witness has also stated that he had
received a check list upon submission of his nomination papers
wherein no defects were marked. However, on the next date, an
intimation was received from the office of the Returning Officer
to file fresh affidavit of Form-26 as in Para-4 Column-1 along
with "self" name of the candidate was also required to be
written. In pursuance of the same, a fresh Form 26 was filed
after removing the said defects. Thereafter this wintess states
that no objection was raised by any of the candidates or their
representatives or any of the officials on the date of scrutiny
which was held on 09.10.2020 and further the election agent Sri
Uma Shankar Singh had been present during the course of
scrutiny of nomination papers. Even subsequent to the scrutiny
and during the entire period of election no objection was made
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
by anyone with respect to acceptance of the nomination paper.
This witness also states that in Form-26 at Para-5 the details of
all the ongoing criminal cases against him were mentioned
however, due to clerical error the P.S. Case number of one of the
case had been mistakenly written as Rajoun P.S. Case No.
128/2009 instead of Rajoun PS Case No. 121/2009. Further, this
witness states that in Rajoun P.S. Case No.128/2009 Sri Manish
Kumar, respondent no.11, who was also a contesting candidate
in this election, 2020 was named as accused. This witness
further states that there was no occasion for him not to disclose
Rajoun P.S. Case No.121/2009 and instead disclose the other
case which was much grave in nature even though the
respondent no. 01 was not an accused in that case. Further, he
had disclosed the criminal antecedents while contesting the
parliamentary general elections from Jamui (SC) Constituency.
This witness has further states that inadvertent error evidently
was more disadvantageous to him instead of being
advantageous. As regards the Complaint case no. 468/2015, this
wintess has stated that the same originated from Complaint Case
no.45 of 2014 filed by one Parmanand Sharma with respect to a
land purchased by a registered sale deed in the year 2006 by the
wife of this witness. The said matter was referred to Mojahidpur
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
police station and accordingly, Mojahidpur P.S. Case
No.12/2014 was registered. After due investigation, the police
had submitted final form upon finding the allegation not true.
Subsequently, on protest by the complainant a separate
Complaint Case no.468/2015 was registered by the learned
CJM, Bhagalpur. After appearance, the court had posted the
matter for evidence before the charge in April, 2017. After part
evidence, the matter was fixed for cross examination in May,
2017. This wintess further states that upon perusal of the order-
sheet it appears that the complainant defaulted and even order of
personal appearance of complainant was passed giving him last
chance. The complainant kept on defaulting and virtually
abandoned the case and after more than two years the evidence
of the complainant was closed by the order of the learned court
below. This witness also stated that there was no question or any
intention of not disclosing the criminal antecedents because
earlier during the parliament election which was held in the
month April-May, 2019 he had filed his nomination paper from
40, Jamui (SC) Parliamentary constituency wherien he had
disclosed the aforesaid criminal antecedents.
62. R.W.-13, Bhudeo Choudhary, in his
examination-in-chief has stated that he knew that one of the
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
main grounds raised by the election petitioner was that the
respondent no.01 had suppressed two criminal antecedents. The
R.W.-13 upon perusal of the Exhibit-F, which is the FIR of
Rajoun P.S. Case No. 121 of 2009 stated that he is one of the
accused in the said FIR. Upon going through the Annexure-5
(Exhibit-3) of the election petition, the witness states that the
Mojahidpur PS Case No.12 of 2014 was registered against
himself and his wife along with other accused persons wherein
final form was submitted. The witness further states that after
submission of the final form, the protest petition was filed and
thereafter cognizance was taken wherein the witness himself is
named as an accused.
63. I have considered the rival contentions of the
parties as well as the oral and documentary evidence led by both
the parties.
64. The principal thrust and the nucleus of the
present election petition as asserted by the petitioner is that the
respondent no.01 has failed to disclose two pending criminal
cases against him while submitting his nomination in Form-26
in terms of Rule -4A of the Conduct of Election Rules, 1961, in
contravention of the constitutional rights of the voters, extant
statutory provisions and the rules made thereunder thereby
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
rendering the votes cast to be non-est for want of complete
exposure to the electors. The two criminal cases which
according to the election petitioner have not been disclosed are
as under :-
(i) Rajaun P.S. Case No. 121 of 2009 dated
31.08.2009 (G.R. No. 1371/2009) registered
under sections 188, 171-F and section 34 of
the Indian Penal Code pending before the
Court of ACJM, Banka, wherein charge
sheet being No. 42/2010 dated 30.05.2010
has been submitted.
(ii) Complaint Case No.468/2015 filed in
Mojahidpur P.S. Case 12 of 2014 pending
before CJM, Bhagalpur, wherein cognizance
under sections 323, 324, 379, 452 and 120B
of the Indian Penal Code has been taken by
the learned Court.
65. Upon perusal of the certified copy of the
F.I.R. in Rajoun P.S. Case No.121 of 2009 dated 31.08.2009
which is marked as Exhibit-2, it surfaces that the aforesaid FIR
was registered under sections 188 (disobedience to order duly
promulgated by public servant) and 171F (offence of undue
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
influence or personation at an election) read with section 34 of
the Indian Penal Code and the returned candidate-respondent
no.01 is arrayed as the accused therein.
66. On the other hand, the complaint case
468/2015 filed in Mojahidpur P.S. Case No. 12 of 2014 pending
before CJM, Bhagalpur, wherein cognizance under sections 323
(Punishment for voluntarily causing hurt), 324 (Voluntarily
causing hurt by dangerous weapons or means), 379 (Punishment
for theft), 452 (House-trespass after preparation for hurt, assault
or wrongful restraint) and 120-B (Punishment of criminal
conspiracy) has been taken.
67. The first limb of the defence against the
aforesaid non-disclosure made by the returned candidate-
respondent no.2 is that so far as the first criminal case is
concerned, the non-disclosure was merely a typographical/
clerical error, inasmuch as, instead of Rajaun P.S. Case No. 121
of 2009, the disclosure for Rajaun P.S. Case No.128 of 2009
was made, which was an inadvertent error. It is submitted that
the confusion arose owing to the fact that both the
aforementioned two cases were registered at the same police
station in the same year, largely relating to similar provisions of
law and were being defended by the same advocate. It is
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
emphatically argued that the typographical / clerical error was
unintentional since the Rajaun P.S. Case No.128 of 2009 was
registered under more grave sections wherein the returned
candidate-respondent no.01 was not even arrayed as an accused
when compared with the sections invoked in Rajaun PS. Case
121 of 2009. An attempt was also made to establish that such
non-disclosure could not have materially affected the outcome
of the elections since the criminal case which was disclosed in
the Form-26, though in error, wherein the respondent was not a
named accused, carried more serious and grave sections than the
actual criminal case that ought to have been disclosed.
68. The other limb of defence raised by the
respondent no. 01 is regarding the Mojahidpur P.S. Case 12 of
2014, which came to be registered as Complaint Case No. 468
of 2015 upon protest petition by the complainant. It is argued
that the complainant therein was directed to bring the evidence
before charge by the learned Magistrate but the complainant
repeatedly failed to produce witness and thereafter on
03.07.2019 the evidence was closed. It is argued therefore that
this was construed as the case having been closed therefore the
same was not mentioned in Form-26 by the respondent no. 01. It
was emphasised on behalf of the respondent that the closure of
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
evidence was recalled only on 30.08.2022 by the learned
Magistrate, Bhagalpur whereas nominations were filed in
October 2020 itself.
69. Before weighing the merits of the two sides,
it would be apposite to refer to the judicial precedents,
connected legislative and subordinate legislative enactments, on
the subject matter, in order to adjudicate on this issue and the
factum of the present case.
70. In the case of Union of India vs.
Association of Democratic Reforms reported as (2002) 5 SCC
294, the Hon'ble Supreme Court made the following
observations in relation to electoral reforms particularly the
disclosures of criminal antecedents and assets, which led to the
introduction of sections 33A and 33B in the R.P. Act, 1951.
"46. To sum up the legal and constitutional 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 include
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
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
elections, the Commission 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 exercise 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 Kanhiya Lal Omar case [(1985) 4
SCC 628] the Court construed the expression
―superintendence, direction 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.
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 the candidate of his
past including the assets held by him so as to
give a proper choice to the candidate according
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
to his thinking and opinion. As stated earlier, in
Common Cause case [(1996) 2 SCC 752] the
Court dealt with a contention that elections in
the country are fought 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 reelection. 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-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 and voters may
not elect law-breakers as law-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 in the
process of election would include transparency
of a candidate who seeks election or re-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
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
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
this stage, we would refer to Article 19(1) and
(2) of the International Covenant on Civil and
Political Rights, which is as under:
"(1) Everyone shall have the right to hold
opinions without interference.
(2) Everyone shall have the right to
freedom of 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 Article 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)(a)
provides for freedom of speech and expression.
Voter's speech or expression in case of election
would include casting of votes, that is to say,
voter speaks out or expresses by casting vote.
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
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
lawbreakers as law-makers.
......
48. The Election 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 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,
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
bank balance, etc.) of a candidate and of
his/her spouse and that of dependants.
(4) Liabilities, if any, particularly
whether there are any over dues of any
public financial institution or
government dues.
(5) The educational qualifications of the
candidate. (emphasis supplied)"
71. The Representation of the People
(Amendment) Ordinance, 2002, subsequently added section
33A and 33B, which were incorporated into the R.P. Act, 1951
with retrospective effect and the aforesaid ordinance was
replaced by the Representation of the People (Third
Amendment) Act, 2002.
72. At this junction it would be apposite to
reproduce the section 33A of the R.P. Act, 1951:-
"33A. Right to information.--(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 sub-section (1) of section 33,
also furnish the information as to 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
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
[other than any offence referred to in sub-
section (1) or sub-section (2), or covered in
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 (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 of information to him
under sub-section (1), display the aforesaid
information by affixing a copy of the affidavit,
delivered under 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."
73. The Hon'ble Supreme Court in the case of
People's Union for Civil Liberties (PUCL) vs. Union of India,
reported as (2003) 4 SCC 399 while dealing with the challenge
to the constitutionality of the aforesaid amendment to the R.P.
Act, at paragraph 14 and 15, the Hon'ble Apex Court had taken
note of fact that the statute had subsequently limited/curtailed
the disclosure required to be made, the relevant excerpt from the
aforesaid decision is as under :-
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
"14. The learned counsel for the respondent submitted
that the directions issued by this Court are, to a large
extent, implemented by the aforesaid Amended Act. It is
true that some part of the directions issued by this
Court are implemented. Comparative chart on the
basis of judgment and Ordinance would make the
position clear -
Subject Discussion in judgment Provision under the
dated 2-5-2002 impugned
Ordinance/Amended Act
Past Para 48(1) Section 33A(1)(ii)
criminal All past convictions/ Conviction of any offence
record acquittals/ discharges, (except Section 8 offence)
whether punished with and sentenced to
imprisonment or fine. imprisonment of one year
or more.
No such declaration in
case of acquittals or
discharge.
(Section 8 offences to be
disclosed in nomination
paper itself)
Pending Para 48(2) Section 33-A(1)(i)
Criminal Prior to six months of Any case in which the
Cases filing of nomination, candidate has been
whether the candidate has accused of any criminal
been accused of any offence punishable with
criminal offence imprisonment of two
punishable with years or more, and
imprisonment of two years charge framed.
or more, and charge
framed or cognizance
taken.
... .... .....
15. From the aforesaid chart, it is clear that a
candidate is not required to disclose (a) the cases in
which he is acquitted or discharged of criminal
offence(s); (b) his assets and liabilities; and (c) his
educational qualification. With regard to assets, it is
sought to be contended that under the Act the
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
candidate would be required to disclose the same to the
Speaker after being elected. It is also contended that
once the person is acquitted or discharged of any
criminal offence, there is no necessity of disclosing the
same to the voters. (emphasis supplied)".
74. In the aforesaid case People's Union for
Civil Liberties (PUCL) v. Union of India (Supra), the Hon'ble
Supreme Court had further held as follows:-
"78. What emerges from the above discussion can be
summarised thus:
(A) The legislature can remove the basis of a
decision rendered by a competent court thereby
rendering that decision ineffective but the
legislature has no power to ask the
instrumentalities of the State to disobey or
disregard the decisions given by the court. A
declaration that an order made by a court of
law is void is normally a part of the judicial
function. The legislature cannot declare that
decision rendered by the Court is not binding or
is of no effect.
It is true that the legislature is entitled to
change the law with retrospective effect which
forms the basis of a judicial decision. This
exercise of power is subject to constitutional
provision; therefore, it cannot enact a law
which is violative of fundamental right.
(B) Section 33-B which provides that
notwithstanding anything contained in the
judgment of any court or directions issued by
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
the Election Commission, no candidate shall
be liable to disclose or furnish any such
information in respect of his election which is
not required to be disclosed or furnished under
the Act or the rules made thereunder, is on the
face of it beyond the legislative competence, as
this Court has held that the voter has a
fundamental right under Article 19(1)(a) to
know the antecedents of a candidate for
various reasons recorded in the earlier
judgment as well as in this judgment.
The Amended Act does not wholly cover the
directions issued by this Court. On the contrary,
it provides that a candidate would not be bound
to furnish certain information as directed by this
Court.
(C) The judgment rendered by this Court in
Assn. for Democratic Reforms (Ed.: See full
text at 2003 Current Central Legislation, Pt. II,
at p. 3) has attained finality, therefore, there is
no question of interpreting constitutional
provision which calls for reference under Article
145(3).
(D) The contention that as there is no specific
fundamental right conferred on a voter by any
statutory provision to know the antecedents of a
candidate, the directions given by this Court are
against the statutory provisions is, on the face of
it, without any substance. In an election petition
challenging the validity of an election of a
particular candidate, the statutory provisions
would govern respective rights of the parties.
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
However, voters' fundamental right to know the
antecedents of a candidate is independent of
statutory rights under the election law. A voter
is first citizen of this country and apart from
statutory rights, he is having fundamental rights
conferred by the Constitution. Members of a
democratic society should be sufficiently
informed so that they may cast their votes
intelligently in favour of persons who are to
govern them. Right to vote would be
meaningless unless the citizens are well
informed about the antecedents of a candidate.
There can be little doubt that exposure to public
gaze and scrutiny is one of the surest means to
cleanse our democratic governing system and to
have competent legislatures.
(E) It is established that fundamental rights
themselves have no fixed content, most of them
are empty vessels into which each generation
must pour its content in the light of its
experience. The attempt of the Court should be
to expand the reach and ambit of the
fundamental rights by process of judicial
interpretation. During the last more than half a
decade, it has been so done by this Court
consistently. There cannot be any distinction
between the fundamental rights mentioned in
Chapter III of the Constitution and the
declaration of such rights on the basis of the
judgments rendered by this Court."
75. In People's Union for Civil Liberties
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
(PUCL) v. Union of India (supra) the Hon'ble Supreme Court
speaking through Hon'ble Justice Reddi, J, had finally
summarised the conclusions as follows -
"123. Finally, the summary of my conclusions:
...
(6) The right to information provided for by
Parliament under Section 33-A in regard to the
pending criminal cases and past involvement in
such cases is reasonably adequate to safeguard
the right to information vested in the
voter/citizen. However, there is no good reason
for excluding the pending cases in which
cognizance has been taken by the Court from
the ambit of disclosure.
.....
(9) The Election Commission has to issue
revised instructions to ensure implementation of
Section 33-A subject to what is laid down in this
judgment regarding the cases in which
cognizance has been taken. The Election
Commission's orders related to disclosure of
assets and liabilities will still hold good and
continue to be operative. However, Direction 4
of para 14 insofar as verification of assets and
liabilities by means of summary enquiry and
rejection of nomination paper on the ground of
furnishing wrong information or suppressing
material information should not be enforced."
76. Evidently in the aforesaid decision Hon'ble
Justice Dharmadhikari had also concurred with the opinion of
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
Hon'ble Justice Reddi, J.
"131. With these words, I agree with
Conclusions (A) to (E) in the opinion of Brother
Shah, J. and Conclusions (1), (2), (4), (5), (6),
(7) and (9) in the opinion of Brother P.V. Reddi,
J."
77. In the case of Public Interest Foundation v.
Union of India reported as (2019) 3 SCC 224 the Hon'ble
Supreme Court held as follows :-
"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 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
the aforesaid information pertaining to
candidates having criminal antecedents.
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
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 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."
78. In compliance with the directions given by
the Hon'ble Supreme Court in Lok Prahari vs. Union of India
& Ors. (2018) 4 SCC 699 and Public Interest Foundation &
Ors. vs. Union of India and Anr. (Supra), the Union
Government in exercise of powers under section 77(3) read with
section 169 of the R.P. Act 1951, amended the Conduct of
Election Rules 1961 by way of Conduct of Election
(Amendment) Rules, 2018. The paragraph 5 of the present
Form-26, as amended which was in vogue during the subject
election cycle, thus stood as under -
"(5) Pending criminal cases.-
(i) I declare that there is no pending criminal
case against me. (Tick this alternative, if there is
no criminal case pending against the Candidate
and write NOT APPLICABLE against
alternative (ii) below)
OR
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
(ii) The following criminal cases are pending
against me:
(If there are pending criminal cases against the
candidate. then tick this alternative and score
off alternative (i) above and give details of all
pending cases in the Table below)
Table
(a) FIR No. with name and
address of Police Station
concerned
(b) Case No. with Name of the
Court
(c) Sections of concerned
Acts/Codes involved (give
no. of the section. e.g.
Section ...... of IPC, etc.)
(d) Brief description of offence
(e) Whether charges have been
framed (mention YES or
NO)
(f) If answer against item (e)
above is YES, then give the
date on which charges were
framed
(g) Whether any
Appeal/Application for
revision has been filed
against the proceedings
(Mention YES or NO)
79. The Hon'ble Supreme Court in the case of
Satish Ukey vs. Devendra Gangadharrao Fadnavis & Anr.
(Three Judge Bench) reported in (2019) 9 SCC 1, while
considering the provisions of Section 33A of the R.P. Act of
1951 and the amended provisions of (amended in 2012) Rule 4-
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
A of the Conduct of Election Rules of 1961 and the contents of
the Form-26 had held in paragraph 24 as follows
"20. A bare perusal of Form 26 makes it
abundantly clear that, for offences
punishable with imprisonment for two
years or more, while Entry (5)(i)
mandates disclosure of information by
the contesting candidate regarding the
case(s) that is/are pending against him in
which charges have been framed by the
Court; Entry (5)(ii) mandates disclosure
of information by the contesting
candidate regarding cases that are
pending against him in which
cognizance has been taken by the Court.
21. Entry 5(ii) specifically mentions that the
candidate is required to provide
information of the case(s) pending in
which cognizance has been taken. This is
in addition to the information he is
required to provide against the column in
Entry 5(i) as the words "Other than the
cases mentioned in Item (i) above" are
specifically used in Entry 5(ii).
.......
24. A cumulative reading of Section 33-A of
the 1951 Act and Rule 4-A of thể 1961
Rules and Form 26 along with the letters
dated 24-8-2012 26-9-2012 and 26-4-
2014, in our considered view, make it
amply clear that the information to be
furnished under Section 33-A of the
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
1951 Act includes not only information
mentioned in clauses (i) and (ii) of
Section 33-A(1), but also information,
that the candidate is required to furnish,
under the Act or the Rules made
thereunder and such information
should be furnished in Form 26. which
includes information concerning cases
in which a competent court has taken
cognizance [Entry 5(ii) of Form 26].
This is apart from and in addition to
cases in which charges have been
framed for an offence punishable with
imprisonment for two years or more or
cases in which conviction has been
recorded and sentence of imprisonment
for a period of one year or more has
been imposed [Entries 5(i) and 6 of
Form 26 respectively].
80. In the case of Karikho Kri vs Nuney Tayang
& Anr. reported as 2024 SCC OnLine SC 519 the Hon'ble
Supreme Court had observed as under -
"45. So far as the ground under Section 100(1)(d)
(iv) of the Act of 1951 is concerned, the
provision requires that the established
noncompliance with the provisions of the
Constitution or the Act of 1951 or any rules or
orders made thereunder necessarily has to be
shown to have materially affected the result of
the election insofar as it concerns the returned
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
candidate. Significantly, the High Court linked
all the nondisclosures attributed to Karikho Kri
to Section 100(1)(d)(i) of the Act of 1951 but
ultimately concluded that his election stood
invalidated under Section 100(1)(d)(iv) thereof.
Surprisingly, there is no discussion whatsoever
on what were the violations which qualified as
non-compliance with the provisions of either the
Constitution or the Act of 1951 or the rules and
orders framed thereunder, for the purposes of
Section 100(1)(d)(iv), and as to how the same
materially affected the result of the election.
46. In Mangani Lal Mandal v. Bishnu Deo
Bhandari, this Court held that where a returned
candidate is alleged to be guilty of
noncompliance with the provisions of the
Constitution or the Act of 1951 or any rules or
orders made thereunder and his election is
sought to be declared void on that ground, it is
essential for the election petitioner to aver, by
pleading material facts, that the result of the
election insofar as it concerned the returned
candidate has been materially affected by such
breach or non-observance. It was further held
that it is only on the basis of such pleading and
proof that the Court would be in a position to
form an opinion and record a finding that such
breach or non -compliance has materially
affected the result of the election before election
of the returned candidate could be declared
void. It was further observed that mere non-
compliance or breach of the Constitution or the
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
statutory provisions, as stated above, would not
result in invalidating the election of the returned
candidate under Section 100(1)(d)(iv) as the
sine qua non for declaring the election of a
returned candidate to be void on that ground
under clause (iv) of Section 100(1)(d) is further
proof of the fact that such breach or non-
observance has resulted in materially affecting
the election of the returned candidate. For the
election petitioner to succeed on such ground,
viz., Section 100(1)(d) (iv), he has not only to
plead and prove the breach but also show that
the result of the election, insofar as it concerned
the returned candidate, has been materially
affected thereby.
47. In L.R. Shivaramagowda v. T.M. Chandrashekar
(Dead) by LRs, a 3-Judge Bench of this Court
pointed out that in order to declare an election
void under Section 100(1)(d)(iv) of the Act of
1951, it is absolutely necessary for the election
petitioner to plead that the result of the election,
insofar as it concerned the returned candidate,
has been materially affected by the alleged non-
compliance with the provisions of the
Constitution or the Act of 1951 or the rules or
orders made thereunder and the failure to plead
such material facts would be fatal to the election
petition.
48. However, perusal of the election petition filed by
Nuney Tayang reflects that the only statement
made by him in this regard is in Paragraph 21
and it reads as follows:
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
'......Hence, his nomination papers
suffer from substantial and
material defects. As such, the
result of the election, insofar as the
respondent No. 1 is concerned, is
materially affected by the improper
acceptance of his nomination as
well as by the non-compliance with
the provisions of the
Representation of the People Act,
1951 and the rules and orders
made thereunder, including Section
33(1) of the Representation of the
People Act, 1951, Rule 4A of the
Conduct of Election Rules, 1961
and the orders made
thereunder......'
Again, in his 'Ground No. (ii)', Nuney Tayang
stated as under:
'.......As such, the nomination
and 2 were improperly accepted by
the Returning Officer and the
result of the election in question,
insofar as it concerns the
respondent No. 1 the return
candidate, as well as the
respondent No. 2, has been
materially affected by such
improper acceptance of their
nominations......'
Though there are some general references to
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
non-compliance with particular provisions of the
Act of 1951 and the rules made thereunder, we
do not find adequate pleadings or proof to
substantiate and satisfy the requirements of
Section 100(1)(d)(iv) of the Act of 1951.
Therefore, it is clear that Nuney Tayang tied up
the improper acceptance of Karikho Kri's
nomination, relatable to Section 100(1)(d) (i) of
the Act of 1951, with the non-compliance
relatable to Section 100 (1)(d)(iv) thereof and he
did not sufficiently plead or prove a specific
breach or how it materially affected the result of
the election, in so far as it concerned the
returned candidate, Karikho Kri. It was not
open to Nuney Tayang to link up separate issues
and fail to plead in detail and adduce sufficient
evidence in relation to the non-compliance that
would attract Section 100(1)(d)(iv) of the Act of
1951. The finding of the High Court in that
regard is equally bereft of rhyme and reason and
cannot be sustained.
49. As regards the failure on the part of Karikho Kri
to disclose the dues of municipal/property taxes
payable by him and his wife, the same cannot be
held to be a non-disclosure at all, inasmuch as
he did disclose the particulars of such dues in
one part of his Affidavit but did not do so in
another part. In any event, as Mr. Arunabh
Chowdhury, learned senior counsel, fairly
stated that he would not be pressing this ground,
we need not labour further upon this point.
50. On the above analysis, we hold that the High
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
Court was in error in concluding that sufficient
grounds were made out under Sections 100(1)
(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Act of
1951 to invalidate the election of Karikho Kri
and, further, in holding that nondisclosure of the
three vehicles, that still remained registered in
the names of his wife and son as on the date of
filing of his nomination, amounted to a 'corrupt
practice' under Section 123(2) of the Act of
1951. In consequence, we find no necessity to
independently deal with Civil Appeal No. 4716
of 2023 filed by Nuney Tayang, in the context of
denial of relief to him by the High Court, or the
issues raised by Dr. Mohesh Chai in the replies
filed by him."
81. From the perusal of the aforesaid decisions
of the Hon'ble Supreme Court and the statutory provisions
along with rules made thereunder, it becomes patently clear that
a contesting candidate is supposed to disclose the criminal
antecedents in the nomination papers, in the form and manner as
prescribed under Form-26 (as amended from time to time), in
order to ensure that the electors have due and proper exposure to
make an informed and intelligent choice while casting their
votes. This fundamental right to know the criminal antecedents
of the contesting candidates is sine qua non for functioning of a
healthy democracy and to ensure its purity. However, in order to
declare the election of a returned candidate as null and void the
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
election petitioner would have to ensure specific and adequate
pleadings or prove to substantiate and satisfy the requirements
of section 100(1) of the R.P. Act, 1951 in order to abundantly
illustrate that the result of the election stood materially affected.
The Hon'ble Apex Court in Karikho Kri (supra) placing
reliance on Mangani Lal Mandal vs. Bishnu Deo Bhandari
(2012) 3 SCC 314, had emphasised on the 'two-layered' test to
set aside the election of the returned candidate having been
declared as null and void. Bald and vague allegations without
any basis would not be sufficient compliance of the requirement
of stating material facts in the election petition, therefore on the
first layer of the test, the petitioner is essentially required to aver
by way of specific, adequate and unambiguous pleadings on
material facts regarding non-compliance/non-observance of
provisions of Constitution or the R.P. Act, 1951 or any rules or
orders made thereunder. However, a mere non-compliance
simpliciter would not ipso facto result in straightaway
invalidating the election of the returned candidate. The second
and more crucial layer of the test is for the petitioner to
abundantly establish that such non-observance/non-compliance
has materially affected the result of the election in each case.
82. The Hon'ble Supreme Court in Sudarsha
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
Avasthi v. Shiv Pal Singh, reported as (2008) 7 SCC 604 has
observed as under:
"20. The election petition is a serious
matter and it cannot be treated lightly or
in a fanciful manner nor is it given to a
person who uses this as a handle for
vexatious purpose."
83. Therefore, what falls from a close analysis of
the precedents cited above and the materials available on record
is that the election petitioner has not been able to sufficiently
establish that the mere non-disclosure of the two criminal cases
has materially affected the outcome of the election. In the
peculiar factual matrix of the present case wherein there is
admittedly a typographical error in Form 26 submitted by the
respondent no.1 which carries a more grave offence as
compared to the original case which ought to have been
declared. The respondent has brought several independent
witnesses to establish that the non-disclosure of the aforesaid
criminal cases did not materially affect the outcome of the
election.
84. The Hon'ble Supreme Court in the case of
Thakur Sen Negi vs. Dev Raj Neji reported as AIR 1994 SC
2526 has held that the decision of the ballot must not be lightly
interfered with unless the challenge is on a substantial ground
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
supported by responsible and dependable evidence.
85. The instant case is peculiar in the sense that
the respondent no.1 has disclosed a case wherein he has not
been named as an accused and the particular case which was
disclosed in fact carries a more serious offence as compared to
the actual case. Therefore, it cannot be drawn from this fact that
the right the know of the electors was deliberately infringed in
order to benefit the respondent no.1 in the elections. Each
election petition has to be examined on its own facts.
86. Be that as it may, the first criminal case i.e.
Rojoun P.S. Case No.121 of 2009 carries maximum punishment
which is less than two years.
87. The onus of sufficiently establishing the
grounds under section 100 of the R.P. Act, 1951 lies solely on
the election petitioner and therefore, it is the election petitioner
who has to meticulously satisfy the procedural and substantive
requirements under the R.P. Act, 1951. Non-filing of Form 25
by the election petitioner to substantiate the allegation of undue
influence and corrupt practices is a fatal flaw that prevents
attracting the grounds enumerated under section 100 of the R.P.
Act, 1951.
88. Therefore, the first issue is answered in the
Patna High Court E.P. No.17 of 2020 dt.27-02-2025
negative i.e. against the petitioner and in favour of the
respondent no.1.
89. Since the first issue, which is the central
issue, has been decided against the petitioner, the rest issues
which have been framed on the question of maintainability of
the petition do not warrant further adjudication.
90. In view of the aforesaid discussions, the
election petitioner has not been able to establish sufficient
grounds for declaring the election of the respondent no.1 as null
and void and therefore this election petition must fail.
According, this election petition is dismissed.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R.
CAV DATE 28.11.2024.
Uploading Date 27.02.2025
Transmission Date
