Election petition challenging a parliamentary election result on the ground that the returned candidate suppressed a decades-old criminal case in his nomination affidavit. The court held he had no knowledge of the long-dormant case, that the disclosure made was substantial compliance with Section 33A, and dismissed the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Election Petition No.6 of 2014
| ========================= Prabhunath Singh |
================================== .... .... Petitioner Versus |
|---|---|
| Shri Janardan Singh Sigriwal ========================= |
.... .... Respondent ================================== |
| Appearance : | . |
| For the Petitioner : | Mr. P.K. Verma, Sr. Advocate. |
| Mr. S.B.K. Manglam, Advocate. | |
| Mr. Raghvendra Kumar, Advocate. | |
| Mr. Suman Kumar Jha, Advocate. | |
| For the Respondent : | Mr. S.D. Sanjay, Sr. Advocate. |
| Mr. Sarvdeo Singh, Advocate. Miss Parul Prasad, Advocate. |
|
| ======================== | ================================== |
| CORAM: HONOURABLE MR. | JUSTICE MUNGESHWAR SAHOO |
J U D G M E N T
Date: 08-08-2017
The petitioner Prabhunath Singh has filed this election petition under Section 80 and 80A of the Representation of People Act, 1951 (hereinafter referred to as “the R.P. Act”) questioning the election of the returned candidate Sri Janardan Singh Sigriwal, the sole respondent from 19, Maharajganj Parliamentary Constituency for which the election was held on 07.05.2014 and the result was declared on 17.05.2014.
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No.91 of 1992. It was incumbent for him to disclose the said case in the nomination paper but he deliberately and intentionally did not disclose the said information in the nomination paper filed before the Returning Officer. Therefore, the present case of the respondent is fully covered by the decision of the Supreme Court in the case of Union of India vs. Association for Democratic Reforms, A.I.R. 2002 Supreme Court 2112 and also the decision of the Supreme Court in the case of Kisan Shankar Kathore Vs. Arun Dattatraya Sawant & Ors, A.I.R. 2014 Supreme Court 2069 . Because of nondisclosure by the respondent this case will be covered within the ambit of definition of “corrupt practice” as mandated under Section 100 of the R.P. Act, as such the election result of the respondent is fit to be declared as void. Further the respondent did not carry out the requirement for valid nomination as per requirement of Section 33A of the R.P. Act. Therefore also the election result of the respondent be declared as null and void.
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Constituency. The other candidates including the respondent also filed nomination paper and ultimately ten candidates contested the election from the said constituency.
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and 380 IPC and charge-sheet was submitted against the accused persons including the respondent after investigation.
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no knowledge about Bhagwan Bazar P.S. Case No.46 of 1986 on the date of filing the nomination paper, the respondent could not have disclosed the same in the nomination paper. Neither any notice nor any summon or warrant was served on the sole respondent as such the sole respondent was not aware about the pendency of the criminal case. Moreso the records were deposited in the record room. The petitioner has got criminal antecedent and has a historic background but the sole respondent is not facing any criminal case and in fact he contested the election of M.L.A. in 1995, 2000, 2005, 2010 and finally in 2014. He won all the elections right from 2000 and he was Minster in the State of Bihar also. Neither it can be said that the nomination paper of the respondent was improperly received nor it can be said that the petitioner violated the requirement of Section 33A of the R.P. Act nor this is a case under Section 100(1)(d)(iv) of the R.P. Act nor it can be said that in any way the respondent violated any provision of Constitution or the R.P. Act or rule made thereunder. On these grounds the respondent prayed for rejection of the election petition with heavy cost as this election petition has been filed due to jealousy with a view to gain cheap popularity and to cause irreparable loss and hamper the popular reputation of the respondent amongst the people.
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on 20.08.2015 the following issues were framed :
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election petition is maintainable before the High Court under section 80 and 80A of the R.P. Act. No provision of any other law or the R.P. Act is shown by the respondent which provides that the election petition is not maintainable. Thus, it is held that this election petition is maintainable.
Issue no.(ii) : So far this issue is concerned, from perusal of the election petition it appears that material facts have been disclosed by the petitioner, therefore, the election petition cannot be dismissed on this ground. Thus, Issue no.(ii) is answered in favour of the petitioner.
Issue nos.(iii) to (x) : All these issues are interlinked, as such are decided together as the parties have adduced evidences relating to all these issues and all these issues center round the only question that for non-disclosure of criminal case being Bhagwan Bazar P.S. Case No.46 of 1986 whether the election result of the respondent be declared as void either under Section 100 (1)(d)(iv) or 100(1)(d)(i) of the R.P. Act and on the ground that non-compliance of
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constitutional provisions and the orders passed by Election Commission under Article 324 of the Constitution of India.
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submitted that the F.I.R. of Bhagwan Bazar P.S. Case No.46 of 1986 has been marked as Ext.II/2 wherein the respondent has been shown as an accused. The copy of charge-sheet has been marked as Ext.II/3. The trial court took cognizance of the offence on 06.10.1986 and this order sheet has been marked as Ext.II/4 which clearly shows that against this respondent cognizance was taken. The order dated 15.04.1986 has been marked as Ext.II/5 which shows that the respondent was granted bail by the court below. Further the bail petition filed by the respondent has been marked as Ext.II/6(b) and on this bail application the advocate of the respondent Yogendra Narayan Singh had signed and this signature of advocate has been marked as Ext.II/6(c). According to learned Senior Counsel, after obtaining bail the respondent furnished bail bond which has been marked as Ext.II/6(a) and the advocate who identified the L.T.I. of the respondent has been marked as Ext.II/6(d). All these documentary evidences clearly prove the fact that the respondent had the knowledge of pendency of Bhagwan Bazar P.S. Case No.46 of 1986. According to the learned Senior Counsel, since the petitioner is challenging the election of the respondent, the burden is on the petitioner to prove the fact that the respondent is an accused in the criminal case about which he had the knowledge and on the basis of these documentary evidences the petitioner has been able to discharge
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the burden. In such circumstances, mere denial of knowledge by the respondent will not suffice.
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another co-accused Prem Chandra Prasad were made accused. This dispute related to the ownership of the building and he got the kirayanama executed as landlord. According to the learned Senior Counsel, this witness has fully supported the case that the respondent was accused and had obtained bail and furnished bail bond. Subsequently the respondent left pairvi and bail bonds were cancelled. Thereafter warrants were issued. According to the learned Senior Counsel, Trial Register has been produced which has also been marked as exhibit which shows that permanent warrant was issued and the record of the aforesaid case relating to the respondent was split up and was deposited in the Record Room. The trial of rest accused was conducted after splitting up the record. In such view of the matter the petitioner has been able to prove about the knowledge of the respondent regarding the criminal case beyond all reasonable doubts.
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registered sale deeds were produced by the petitioner, which have been marked as Ext.III/1, Ext.III/2 and Ext.III/3.
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or is nominated to represent them. This right flows from Article 19 (1)(a) of the Constitution of India and thus non-disclosure of pending cases, assets or liabilities would amount to violation of said fundamental right of the voters as has been held by the Supreme court in the case of Union of India vs. Association for Democratic Reforms (supra) . Therefore, the nomination paper itself was improperly accepted by the Returning Officer, as such the election of the respondent is also liable to be declared as void as provided under Section 100(1)(d)(i) and (iv) of the R.P. Act. According to the learned Senior Counsel, because in the present case the improper reception of nomination paper of the respondent itself is the ground, the petitioner is not required to further prove that because of improper reception the election result was affected. Once it is held that because of nondisclosure of the criminal case and the assets, the nomination paper was not in conformity with the provision of Section 33A of the R.P. Act as such his nomination paper is liable to be rejected which automatically means that the election result is affected. On these grounds the learned Senior Counsel submitted that the election petition be allowed and the election result of the returned candidate, the respondent be declared as void.
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there is no proof of the fact that the respondent Janardan Singh Sigriwal ever appeared in the aforesaid Bhagwan Bazar P.S. Case No.46 of 1986. The respondent neither appeared in the said case nor he ever filed any bail application nor he furnished bail bond prior to taking cognizance and after taking cognizance also he never appeared and filed a bail application seeking permission to remain on previous bail. The respondent never filed any hazri in the case nor he ever engaged any advocate on his behalf nor there is signature of the respondent on any paper in record of the aforesaid criminal case. There are many discrepancies in the name of the accused. Somewhere it is written as Janardan Singh, somewhere it is written as Janardan Srivastava, somewhere it is written as Janardan Sikariwal. In the bail order also Janardan Singh was granted bail. Much has been argued on behalf of the petitioner that it is not the case of the respondent that there was other accused named as Janardan Singh or Janardan Srivastava but when the respondent specifically stated that he has no knowledge about this case, the burden is on the petitioner to prove that in fact this respondent had the knowledge of the said case and in fact he ever appeared and filed vakalatnama or bail application or hazri etc. but the petitioner has tried to establish the fact that the respondent was an accused. When there is discrepancy in the order sheet, in the bail bond and in the bail application and also in some of
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the hazries, can it be presumed that this respondent had appeared in the case. According to the learned Senior Counsel since the petitioner is alleging that intentionally and deliberately the respondent did not disclose the criminal case in nomination paper, the petitioner is required to prove the knowledge of the respondent beyond all reasonable doubts because it will be a corrupt practice according to the decision of the Supreme Court and it will have serious consequences. In such circumstances, a fact which is required to be proved beyond all reasonable doubts cannot be presumed on the basis of preponderances of probabilities.
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present case hazries are filed by Ravindra Singh and/advocate clerk writing the names of the accused without obtaining the signature or L.T.I. of the accused persons. Therefore, on the basis of these type of false hazries or unauthorized representation application filed by any person or advocate under section 317 Cr.P.C, the court cannot presume the fact that this respondent had appeared in the case and instructed the particular advocate or advocate clerk to appear on his behalf and moreover there is absolutely no evidence on record to show that this respondent ever executed any vakalatnama in favour of any advocate and gave any instruction to him. The evidence of P.W.5 cannot be relied upon. He has stated in the cross-examination that Yogendra Narayan Singh had filed the bail application on behalf of the respondent and this P.W.5 was working with him. This respondent had executed a vakalatnama which was accepted by this witness and Yogendra Narayan Singh but Yogendra Narayan Singh has been examined on behalf of the respondent as R.W.2, who has stated that the bail petition was prepared and presented to him by Ravindra Singh who was also an accused and he was knowing him from before who is a litigant. At that time Ravindra Singh was a law student and he used to defend his case on his own. He clearly stated that when he argued the bail application no accused was present before him and after bail the other works such as bail bonds etc. were filed by Ravindra Singh.
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He has also stated that Arun Kumar Verma (P.W.5) was never his junior nor he worked as junior in any case with him. In such circumstances, the evidence of either P.W.5 or P.W.6 cannot be relied upon.
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of because it was petty matter according to the case made in the complaint exhibited in this case. There is no reason as to why he will allow this cancer to spoil his political life because the respondent is fighting the election and winning the same.
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letter to the S.P. but it was also not executed. In such circumstances, how the knowledge of the respondent shall be presumed by the court of law. In fact after deposit of the record in the year 1993 the case was shown as disposed of case by the court because that case was not running for trial, as such also legally it cannot be said that the criminal case was pending for trial.
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a plea which is not raised in the pleading. The prayer for declaration of election result of the respondent as void is based on only plea i.e. non-disclosure of criminal case. This non-disclosure is entirely different than the non-disclosure of asset, therefore, it cannot be said that petitioner had pleaded precisely about the non-disclosure and this non-disclosure will include every other non-disclosure i.e. other than the criminal case.
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imprisonment and is lying in jail custody, as such, he will not lose anything but if the election result of the respondent is declared void, then the reputation, name and position of the respondent will be lost that too for this petty matter, specially when the respondent has got no knowledge about the same and he has disclosed the cases which were pending for trial against him. Therefore also, it is substantial compliance of the requirement of law. On these grounds, the learned Senior Counsel submitted that the election petition be dismissed with cost.
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the date of cognizance and under which section the cognizance has been taken. The F.I.R. of Bhagwan Bazar P.S. Case No.46 of 1986 has been marked as Ext.II/2. At serial no.8 the name of the respondent is there. It may be mentioned here that this Bhagwan Bazar P.S. Case No.46 of 1986 arises out of Complaint Case No.111 of 1986. The petitioner-respondent got bail order dated 15.04.1986 marked as Ext.II/5. From perusal of this order sheet, it appears that it is mentioned in the order sheet that accused Jagdish Prasad, Prem Chand and Janardan Singh surrendered and a bail application was moved by Yogendra Narayan Singh, who has been examined as R.W.2.
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signed. This witness has also stated that the advocate Arun Kumar Verma never worked with him nor he was ever junior to him. Examining the record, this witness has further stated that the hazri at page 69 of the original record has been filed on behalf of five accused but it is not signed by any advocate.
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that bail application was filed by Yogendra Narayan Singh and this witness was working as junior to Sri Yogendra Narayan Singh. This statement of this witness has been contradicted by R.W.2, Yogendra Narayan Singh. Admittedly no vakalatnama executed by Janardan Singh Sigriwal is on record. It is also admitted fact that there is no chit of paper either hazri or anything on the record of Bhagwan Bazar P.S. Case No.46 of 1986 showing either signature of the respondent or writing of the respondent.
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years but he is saying that respondent was present before him and he identified the accused. From perusal of the bail order, no doubt it is mentioned that the accused persons including Janardan Singh surrendered and filed bail application but in the order sheet nowhere it is mentioned that the accused persons were physically present in the court. As stated above, if Janardan Singh Sigriwal surrendered and the bail application was filed by Janardan Singh Sigriwal, how in the order sheet Janardan Singh is mentioned and the bail bond is also furnished mentioning the name as Janardan Singh. The other fact is one of the bailors Sri Krishna Singh has been examined on behalf of the respondent as R.W.3, who has clearly denied and said that the signature and thumb impression are not his signature and thumb impression. He has also stated that he never stood as a bailor for Janardan Singh Sigriwal and there is no case number on the bail bond.
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mentioned in the order sheet that the Presiding Officer had been transferred but subsequently on the same day it is written in the order sheet that hazries have been filed by five accused persons and application was filed praying for allowing them to remain on previous bail. The so-called hazri dated 06.11.1986 is available on record. From perusal of this hazri which is at page 45 of the record of criminal case, it is clear that names of five accused persons are written only by somebody else and it is signed by advocate. There is no signature of any of the accused. Now, therefore, there is no hazri of the respondent and from the order sheet dated 06.11.1986 also it does not appear that any of the accused was physically present or that this respondent herein was physically present before the court. According to the evidence of R.W.2, the co-accused Ravindra Singh was defending cases by himself. From perusal of this hazri dated 06.11.1986, it is clear that one person has written the name of other accused persons including the respondent. From perusal of the entire record of the criminal case, there is no other paper which indicates either signature or physical presence of the respondent before the court.
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time of filing nomination paper a list of absconder is before the Returning Officer and a police officer also sits outside the office of the Returning Officer and if the list contains the name of any such candidate against whom there was a non-bailable warrant issued, then it is the duty of the police officer to take appropriate step and arrest him. In the present case, therefore, on the date of election the nonbailable warrant of arrest was not there with the Returning Officer nor the name of respondent was there in the list.
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Mr. Janardan Singh Sigriwal to file appearance. Now it is clear that after taking cognizance this respondent was never present physically before the court nor he appeared and signed any document or paper nor he engaged any advocate nor he instructed anybody to file appearance on his behalf or to file hazri on his behalf,. Then the question is who was filing hazries, who was obtaining the order from the court and who was impersonating the respondent, there is no clear answer nor it is explained.
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there is no chit of paper showing that in fact the order of the court was ever complied with. No carbon copy is available or exhibited on behalf of the petitioner. Therefore, now it becomes admitted fact that nothing was affected on the respondent.
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have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
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it appears that in the bail order one Janardan Singh was granted bail whereas the respondent is Janardan Singh Sigriwal, in hazri filed on behalf of accused it is mentioned as Janardan Singh Srivastava, no vakalatnama is available and one advocate, P.W.5 said that he had no instruction on behalf of respondent and the other advocate R.W.2 said that the respondent never appeared before him and whatever has been done is done by P.W.6, co-accused Ravindra Singh. In view of the above fact now the question will be whether this Court will presume a fact that this respondent was ever physically present before the Court or that he engaged any advocate either P.W.5 or R.W.2. Whether this Court will presume that the respondent had the knowledge about the case?
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bond is of April, 1986 which is prior to filing of charge-sheet. Therefore, after taking cognizance if the accused was not present, summons are required to be issued under Section 204 Cr.P.C. In the present case, no summon was issued and nothing is there on record that this respondent appeared and application for previous bail was filed by him. The record shows that somebody had written his name on so-called hazri and application was moved for previous bail which was signed by the In-Charge Court. Whether in this fact the Court will presume that this respondent had appeared physically and had filed application for previous bail without there being any evidence only on the basis of the provision as contained in illustration (e) of Section 114 of the Evidence Act. In my opinion, when the respondent categorically denied this fact, only on the basis of presumption no categorical finding cannot be recorded.
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its legal death. It will revive only after arrest of the respondent. It impliedly means that when the criminal case died legally in the year 1993, the case was not pending for trial. Once the record is deposited in the Record Room then it is shown as disposed of case and never shown as pending for trial. The case is never shown in the cause list of the Court nor any future date is fixed. Now since 1993 nothing happened in the case. How the respondent will know that the case is pending against him after 20 years because the nomination paper is filed in the year 2014? Whether this Court will presume this fact? It is very easy to say that Court can presume but in the present case the circumstances discussed above have to be considered.
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warrant has been issued against the respondent. It is also not clear. It appears that in this matter the main role is played by the co-accused of the criminal case i.e. Ravindra Singh, P.W.6.
facts emerge:
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many discrepancies and, therefore, in my opinion, the presumption according to illustration (e) of Section 114 of the Evidence Act cannot be applied in the present case.
India Vs. Association for Democratic Reforms, A.I.R. 2002 Supreme Court 2112 has held that in a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. He has choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in criminal case, for maintaining purity of elections and healthy democracy, voters are
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required to be educated and well informed about the contesting candidate. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided its result, if pending - whether charge is framed or cognizance is taken by the Court? There is no necessity of suppressing the relevant facts from the voters. In this very decision, the Supreme Court directed the Election Commission to call for information on affidavit by issuing necessary order in exercise of its power under Article 324. Pursuant to this decision Sections 33A and 33B of the R.P. Act were inserted by way of amendment. However, Section 33B has been declared ultra vires. Section 33A(1)(i) provides that candidate shall also furnish the information as to whether 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.
“ When the information is given by a candidate in the affidavit filed along with the nomination paper and
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objections are raised thereto questioning the correctness of the information or alleging that there is nondisclosure of certain important information, it may not be possible for the returning officer at that time to conduct a detailed examination. Summary enquiry may not suffice. Present case is itself an example which loudly demonstrates this. At the same time, it would not be possible for the Returning Officer to reject the nomination for want of verification about the allegations made by the objector. In such a case, when ultimately it is proved that it was a case of nondisclosure and either the affidavit was false or it did not contain complete information leading to suppression, it can be held at that stage that the nomination was improperly accepted. Ms. Meenakshi Arora, learned senior counsel appearing for the Election Commission, right argued that such an enquiry can be only at a later stage and the appropriate stage would be in an election petition as in the instant case, when the election is challenged. The grounds stated in Section 36(2) are those which can be examined there and then and on that basis the Returning Officer would be in a position to reject the nomination. Likewise, where the blanks are left in an affidavit, nomination can be rejected there and then. In other cases where detailed enquiry is needed, it would depend upon the outcome thereof, in an election petition, as to whether the nomination was properly accepted or it was a case of improper acceptance. Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void. Otherwise, it would be an anomalous situation that even when criminal proceedings under Section 125A of the Act can be initiated and the selected candidate is criminally prosecuted and convicted, but the result of his election cannot be questioned. This cannot be countenanced. ”
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election petition has been filed by the petitioner and it is submitted that since there is suppression of material information, it will be a case of improper acceptance of nomination paper and therefore, the election result can be declared as void. So far factual aspect is concerned, it appears that in the said case before the Supreme Court the returned candidate did not disclose about dues in respect of electricity meters standing in his name. He did not disclose municipal dues in respect of bunglow standing in the name of his wife. The affidavit was also silent about bunglow and vehicle standing in the name of his wife and about his share in partnership firm. Therefore, it appears that in that case the returned candidate was knowing the facts but then he suppressed many facts. Therefore, the Supreme Court found that the information contained in the affidavit cannot be treated as sufficient/substantial compliance. It appears that there was total suppression of material information about the assets. In the present case, at our hand, the respondent had disclosed four criminal cases which are of recent years. This criminal case which is not mentioned is of the year 1986 i.e. prior to 30 years of the election and according to the respondent he had no knowledge. I have seen above the record of the criminal case, how badly it was maintained and the case was conducted by the Court. When the respondent had disclosed four criminal cases what prevented him from mentioning the fifth one.
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Because it is not the law that had the fifth one been mentioned, the nomination paper would have been rejected. Therefore, there is no reason as to why the respondent will suppress the criminal case. As stated above, the law requires i.e. Section 33A (1)(i) that the candidate is required to mention pending criminal case wherein charge has been framed. Admitted position is that no charge has been framed against the respondent. Section 33A(1)(ii) is about the criminal antecedent of the respondent. It is not the case of the petitioner that respondent has already been convicted.
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in full detail, it would amount to corrupt practice of undue influence covered under section 100(1)(b) of the R.P. Act . It appears that in that case it is not the defence of the candidate that he has no knowledge about the cases but this fact was rather not disputed by the returned candidate. Therefore, knowingly the returned candidate did not disclose the details but in the present case the fact is otherwise. In the present case, the details of four cases have been mentioned and according to the respondent because he had no knowledge about 30 years old case, he has not mentioned. Admittedly after insertion of Section 33A in the year 2002 also the respondent had contested many elections and he won and in all those elections he did not mention about this criminal case. Prior to that also he had contested the election but nowhere he disclosed about this criminal case. It is not disputed by the parties that if criminal case is pending which is disclosed in the nomination paper then it will not be a ground for rejection of the nomination paper then why one will not disclose as it is the requirement after insertion of Section 33A of the
R.P. Act.
had also disclosed this criminal case then also his nomination paper would not have been rejected. Then why he did not disclose only to give a chance to the petitioner to get the election result of the
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respondent declared as void. There is no clear answer to this fact.
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pendency of criminal case pending against respondent prior to filing nomination but then he never objected to the nomination of the respondent. Moreover, in the case before the Supreme Court in spite of direction of the Returning Officer, the candidate did not submit the document in support of his declaration. In spite of the said fact his nomination paper was accepted. In the present case, directly election petition has been filed after declaration of the result.
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the Election Commission to issue directions requiring furnishing of the details and accordingly, section 33A was added and the informations are supplied by the candidates. That does not mean that if information about one case is not given because of want of knowledge, the election will be declared as void. There cannot be any straightjacket formula. The intention of the candidate has to be considered i.e. whether he intentionally and knowingly made the concealment or suppressed the fact and thereby deprived the voters in their free exercise of electoral right. In my opinion, by no stretch of imagination it can be said here that because of non-disclosure of this criminal case the voters did not exercise freely the right of voting. In other words, it cannot be said that only if the respondent had disclosed this criminal case, the voters would have freely exercised the voting right.
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the present case, the case is petty matter and the main dispute was between Ravindra Singh and the complainant, which was compromised.
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the basis of above discussed materials and the relevant laws, the petitioner is insisting the Court to presume the fact that the respondent had filed vakalatnama engaging advocate, he had filed bail application, he had furnished bail bond, and prayed for permission to remain on previous bail, he was filing hazri and was present in Court physically. On the facts stated above for the purpose of declaring the election result of the respondent as void, the Court cannot presume the facts. If it is presumed then in view of the decision of the Supreme Court it will be corrupt practice of undue influence.
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declared as void. If there is doubt then benefit of doubt must be given to the returned candidate. Here, if the Court presumes this fact then it will have serious consequences, such as the exercise made by the Election Commission in conducting the election, time and money and manpower spent by the Election Commission wherein the public money is involved will be meaningless and again re-election will be held for which same procedure will be followed wherein huge public money will be spent and that will be only because the respondent had not disclosed the criminal case which died its legal death that too which was not within the knowledge of the respondent. In my opinion, this cannot be the intention of the Supreme Court or the legislature. There cannot be any straightjacket formula that if no disclosure is made then the election result will always be declared void. The fact will differ from case to case. Therefore, whenever there is mala fide suppression of fact or non-disclosure of fact knowingly and intentionally, the election can be declared void but where there is bona fide non-disclosure or knowledge is disputed fact as in the case, same principle will not apply. In the present case, admittedly the petitioner has been sentenced to life imprisonment in murder case and is in jail custody. He will be neither getting anything nor losing anything but if the election result is declared void, the respondent shall lose everything and that too for his no fault.
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liable to be declared as void. So far this submission is concerned, it may be mentioned here that there is no pleading at all in the petition nor any issue was framed on this point. It is settled law that the Court cannot travel beyond the pleadings of the party. The point raised by the petitioner is pure question of fact. It is also settled law that the Court is required to find out the controversy and decide the same on the basis of pleadings and evidence but cannot make a third case. Therefore, when there is no pleading in the election petition about non-disclosure of assets in the name of wife of the respondent, the evidence, if any, produced by the petitioner is just liable to be ignored.
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the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be ignored.
Lal Mandal Vs. Bishnu Deo Bhandari (2012) 3 Supreme Court Cases 314 has held that mere non-compliance or breach of the Constitution or the statutory provisions by itself, does not invalidate election of returned candidate. It is essential for election petitioner to aver and prove by pleading material facts that result of the election of returned candidate was materially affected by such breach or non-compliance. It is only on the basis of such pleading and proof that court can form an opinion and record a finding thereon before declaring election of returned candidate void. In the present case, there is nothing on record to show that merely because of non-disclosure of criminal case, the result of the election was materially affected. It also cannot be said that the nomination of respondent was improperly accepted because as I have held above that there is substantial compliance of the
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requirement of law.
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Resurgence India Vs. Election Commission of India & Anr., A.I.R. 2014 Supreme Court 344 has held that when a candidate files an affidavit with blank particulars, it renders the affidavit itself nugatory. It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the “right to know” of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. The candidate who has filed an affidavit with false information as well as the candidate who has filed an affidavit with particulars left blank cannot be treated at par. In view of this decision which is relied upon by the petitioner here it cannot be said that the respondent gave a false information in the affidavit or he filed the affidavit with particulars left blank. Whatever information has been given by the respondent is true information and the affidavit is not left blank.
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peculiar facts and circumstances of this case. So far the laws laid down by the Supreme Court in those cases are concerned, there is no dispute about it but the law has to be applied on the basis of fact of a case.
(Mungeshwar Sahoo, J)
Harish/-
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3 issues framed by the court
Whether non-disclosure of a pending criminal case in the nomination paper rendered the respondent's election void under Section 100(1)(d)(i) or (iv) of the R.P. Act?
Whether the respondent had knowledge of the criminal case so that the non-disclosure was a knowing suppression amounting to corrupt practice?
Whether the court could presume the respondent's knowledge from the criminal court record under Section 114 of the Evidence Act?
Colour shows how this judgement treated each authority
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Krishnamoorthy Vs. Sivakumar, (2015) 3 Supreme Court Cases 467
Sri Mairembam Prithviraj @ Prithviraj Singh Vs. Shri Pukhrem Sharatchandra SinghDistinguished¶50
Sri Mairembam Prithviraj @ Prithviraj Singh Vs. Shri Pukhrem Sharatchandra Singh, 2017 (1) P.L.J.R. 50 (SC)
Resurgence India Vs. Election Commission of India & Anr.Distinguished¶66
Resurgence India Vs. Election Commission of India & Anr., A.I.R. 2014 Supreme Court 344 · Who else cites this
Markio Tado Vs. Takam SorangRelied on¶60
Markio Tado Vs. Takam Sorang, (2012) 3 Supreme Court Cases 236
Union of India Vs. Ibrahim Uddin & Anr.Relied on¶61
Union of India Vs. Ibrahim Uddin & Anr., 2013 (1) P.L.J.R. 48 (SC)
Mangani Lal Mandal Vs. Bishnu Deo BhandariRelied on¶63
Mangani Lal Mandal Vs. Bishnu Deo Bhandari (2012) 3 Supreme Court Cases 314
Narmada Bachao Andolan Vs. State of M.P.Relied on¶65
A.I.R. 2011 Supreme Court 1989 (Narmada Bachao Andolan Vs. State of M.P.) · Who else cites this
Rahim Khan Vs. Khurshid Ahmed and othersReferred¶56
A.I.R. 1975 SC 290 (Rahim Khan Vs. Khurshid Ahmed and others) · Who else cites this
Ch. Razik Ram Vs. Ch. J. S. Chouhan and othersReferred¶56
667 (Ch. Razik Ram Vs. Ch. J. S. Chouhan and others)
Pratap Singh Vs. Rajinder Singh and anotherReferred¶56
1045 (Pratap Singh Vs. Rajinder Singh and another)
Surya Kant Roy Vs. Imamul Hai KhanReferred¶56
1053 (Surya Kant Roy Vs. Imamul Hai Khan)
K. M. Mani etc. Vs. P. J. Antony and othersReferred¶56
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10 provisions across 4 enactments
Prabhunath Singh
Shri Janardan Singh Sigriwal
Mungeshwar Sahoo
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
