N.S. Nandiesha Reddy vs Kavitha Mahesh

HELD: 1.1 Mere reference to inconsistent statements alone is not sufficient to take action unless a definite finding is given that they are irreconcilable; one is opposed to the other so as to make one of them deliberately false. Notwithstanding the conclusion reached by the Judge on the aspect of improper rejection of the nomination paper, the correctness of which was not required to be gone into for the reasons stated, the manner in which the Judge has concluded that the appellant in C.A. No. 6171/2012 was inconsistent in his statements in the course of his evidence tendered by him as PW3 is not justified. Further the conclusion reached that he is to be prosecuted, without the findings being recorded regarding deliberate or intentional falsehood cannot be sustained. Hence the direction issued to the Registrar General of the High Court to initiate the proceedings by lodging a criminal complaint also cannot be sustained in the facts and circumstances arising in this case. [Para 11, 16][309-EF; 311-F-H; 312-A]

1.2 Even in a case where the Court comes to the conclusion on the aspect of intentional false evidence, still the Court has to form an opinion whether it is expedient in the interest of justice to initiate an inquiry into the offences of false evidence, having regard to the overall factual matrix as well as the probable consequences of such prosecution. The Court must be satisfied that such an inquiry is required in the interest of justice and is appropriate in the facts of the case. In that backdrop, insofar as the observation made by the Judge of the election tribunal relating to the need for maintaining purity of the election process which is the heart and soul of democracy and in that situation the role of the Returning Officer being pivotal, the same is fully concurred with. [Para 17][312-B-D]

1.3 From the evidence as tendered, there is no reason to permit the prosecution since there is no intentional falsehood uttered. The other relevant facts also indicate that the factual matrix does not indicate that it is expedient in the interest of justice to initiate an inquiry and expose the appellant to criminal prosecution. On this aspect it is to be noted that the instant case is not a case where the nomination paper which was complete in all respect was filed and it had been improperly rejected in the scrutiny stage. The allegation of the election petitioner is that the Returning Officer had refused to receive the nomination paper, which the learned Judge in the ultimate analysis has accepted and termed the same as an improper rejection. Even that be so, to indicate that the non-acceptance alleged by the election petitioner was a deliberate action by the Returning Officer with a specific purpose, it has neither been pleaded nor proved in the course of the proceedings so as to penalise the appellant to face yet another proceeding. The Assembly Constituency concerned is a vast constituency which had nearly four lakh voters on the electoral rolls. The election petitioner had not placed material to indicate that she had contested in any earlier election or had wide support base in the election concerned and it is in that view she had been shut out from the contest. Further there is no allegation that the Returning Officer was acting at the instance or behest of any other candidate who was feeling threatened by the participation of the election petitioner in the election process. [Para 18][312-D-H; 313-A]

1.4 On the other hand, the election petitioner, as per her own case was seeking to present the nomination paper which was incomplete and even in that circumstance, she had come to the office of the Returning Officer only at 2.00 pm on the last day for filing nomination which was to close at 3.00 pm. Thereafter she made attempts to complete the formalities in filling up the nomination paper and having failed had still presented the nomination paper since according to her the needful could have been done within 24 hours. In such a case it cannot be said that the Returning Officer with an ulterior motive had declined to receive the nomination paper and to cover up his folly was seeking to tender false evidence before the Court and thereby to justify his illegal action. In fact, the appellant had received the other nomination papers submitted to him on the last day even as late as 2.58 pm. It is also the consistent view of this Court that the success of a candidate who has won at an election should not be lightly interfered with. In any event it ought not to have been made the basis to initiate prosecution by terming the appellant as unreliable witness. Further, the appellant was aged 59 years as on 15.06.2011 while recording his deposition and a decade has passed by and now would be 69 years. The appellant has retired from service about eight years back. For all these reasons, it is found that any proceeding against the appellant is also not expedient apart from not being justified. [Para 19][313-A-E]

Amarsang Nathaji v. Hardik Harshadbhai Patel & Ors., (2017) 1 SCC 113 : [2016] 12 SCR 80 – relied on.

KTMS Mohammad and Another v. Union of India,

(1992) 3 SCC 178 : [1992] 2 SCR 879; Mahavir Singh and Ors. v. Naresh Chandra & Anr. AIR 2001 SC 134 : [2000] 4 Suppl. SCR 454; Jagan Nath v. Jaswant Singh & Ors. AIR 1954 SC 210 : [1954] SCR 892 – referred to.