Representation of the People Act, 1951:
ss. 33A and 125A – Rules 4A r/w Form 26 of Conduct of Election Rules, 1961 – Criminal complaint against MLA – Alleging infraction of the provision u/s 125-A as the MLA had not mentioned in Form 26 two criminal cases in which cognizance was taken against him – Complaint dismissed by trial court – Order affirmed by High Court – Appeal to Supreme Court – Held: Form 26 mandates disclosure of information by the contesting candidate of not only case(s) in which charges have been framed but also case(s) in which cognizance has been taken by the Court – Certain Letters written by Election Commission of India to the Chief Electoral Officers of all the States and UTs also show that contesting candidate is mandated to furnish information with regard to cases in which cognizance is taken and that any fake declaration or concealment in the affidavit prescribed in Form 26 as required u/s. 33-A(2), will attract the provision of s. 125-A – Cumulative reading of ss. 33-A and r. 4A and Form 26 alongwith the letters from the Election Commissioner, makes it clear that information to be furnished u/s. 33-A includes not only information contained in clauses (i) and (ii) of s. 33-A (1), but also the information made under the Act or the rules made thereunder and such information should be furnished in Form 26 – As per the averment in the complaint, the criminal cases were deliberately not mentioned in Form 26 – Hence, orders of courts below dismissing the complaint is not tenable – Complaint to be considered afresh by trial court. Allowing the appeals, the Court
HELD: 1. Consequent to the directions issued in *Association for Democratic Reforms case, Section 33-A was inserted into Representation of the People Act, 1951 vide the Representation of the People (Third Amendment) Act, 2002. Section 33-A(1), as worded and drafted, required furnishing of the information of cases where (i) the person filing the nomination has been convicted; and (ii) where charges have been framed against the person filing the nomination but excluded cases where cognizance had been taken. This was despite the order of this Court, to the effect that details of case(s) of which cognizance has been taken should also be furnished. [Paras 8 and 9] [531-A-G-H]
People’s Union for civil Liberties (PUCL) and Ors. v. Union of India (UOI) and Ors. (2003) 4 SCC 399 : [2003] 3 SCR 75 ; *Union of India (UOI) and Ors. v. Association for Democratic Reforms and Ors. (2002)
5 SCC 294 : [2002] 3 SCR 696 – relied on.
2. Whether the provisions of Section 125-A of the 1951 Act would be applicable in the present case, to make the first respondent liable in law, would require the Court to decide on the true meaning and purport of the following phrases found in Section 125-A of the 1951 Act i.e. (a) fails to furnish information relating to sub-section (1) of Section 33-A; (b) conceals any information; (c) in his nomination paper delivered under subsection (1) of section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33-A. To find out the true meaning and purport of the aforesaid phrases, the crucial question that has to be answered is whether the word ‘information’ as mentioned in Section 33-A of the 1951 Act means only such information as mentioned in clause (i) and (ii) of Section 33-A(1) or whether along with the said information a candidate is also required to furnish such other information as required under the Act or the Rules made thereunder. The consequential question that would arise is whether in the affidavit required to be filed under sub-section (2) of Section 33A information is to be given as required in terms of the affidavit which is prescribed by Form-26 of the Conduct of Election Rules, 1961 or such information is confined to what is required to be submitted under Section 33-A (1) (i) and (ii). [Paras 12 and 13] [535-C-G]
3. Rule 4-A of 1961 Rules which was inserted by S.O.935(E), dated 3.9.2002 with effect from 3.9.2002 provides for form of affidavit to be filed at the time of delivering nomination paper. Form 26 is the prescribed form of affidavit to be filed by a candidate along with his nomination papers as required under Section 33-A (2) of the 1951 Act. [Paras 13 and 14] [535-G; 536B]
4. Form-26 was substituted by S.O. 1732 (E) dated 1.8.2012 with effect from 1.8.2012. 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. 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). This would leave no element of doubt that, subsequent to the substitution of Form 26 in 2012, the new Form 26 (as in vogue at the time of the elections in 2014), mandates the disclosure of information by the contesting candidate of not only case(s) in which charges have been framed but also case(s) in which cognizance has been taken by the Court. [Paras 15, 16 and 17] [544-C-F]
5. The position is made further clear by the letters dated 24.8.2012, 26.9.2012 and 26.4.2014 written by the Election Commission of India to the Chief Electoral Officer of all the States and the Union Territories. A reading of the said letters would go to show that a contesting candidate is mandated to furnish information concerning the cases in which a Competent Court has taken cognizance along with the cases in which charges have been framed. The said letters also make it clear that the affidavit mentioned in Section 33-A(2) of the 1951 Act is prescribed in Form-26 and that any false declaration or concealment of information in the said affidavit will attract the provisions of Section 125-A of the 1951 Act. [Para 18] [544-GH; 545-A]
6. A cumulative reading of Section 33-A of the 1951 Act and Rule 4-A of the 1961 Rules and Form-26 along with the letters of Election Commission dated 24.8.2012, 26.9.2012 and 26.4.2014, make it amply clear that the information to be furnished under Section 33-A of the 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). [Para 19] [547-D-F]
7. Therefore, in view of the fact that clear averment was made in the complaint to the effect that the First Respondent had knowledge of the two cases against him which had not been mentioned in the affidavit filed by the First Respondent alongwith his nomination papers, the order of the trial Court upheld by the High Court is legally not tenable and the same deserves to be set aside. The complaint of the appellant will be considered afresh by the trial Court from the stage where it was interdicted. [Para 20] [547-F-H]
Krishnamoorthy v. Sivakumar and others (2015) 3 SCC 467 : [2015] 4 SCR 987 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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