1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CIVIL APPLICATION (0) NO: .452 / 2010 IN ELECTION PETITION NO. 4 /2009 (Smt. Sulabha Sanjay Khodke vs. Ravindra @ Ravikant Gangadhar Rana ) .................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. A.S. Kilor, Adv. for the petitioner Mr J.T.Gilda, Advocate for the Respondent CORAM : SMT.VASANTI A. NAIK, J. DATED : 18th October, 2010. 1. Heard the counsel for the parties. 2. This is an application by the respondent under Order VII Rule 11 of the Civil Procedure Code for the rejection of the Election Petition. 3. The petitioner had contested the election from 37, Badnera Maharashtra Legislative Assembly constituency, held some time in the month of October, 2009 on a ticket of Nationalist Congress Party. The respondent had also contested the said election and was declared elected on 22nd October, 2009 by the Returning Officer. 2 4. It is the case of the petitioner that the respondent had filed his nomination paper along with the necessary affidavit and had falsely stated in the affidavit that no cases were pending against him at the relevant time. According to the petitioner, the affidavit filed by the respondent was obviously false as several cases were pending against the respondent at the time of filing of the nomination form. According to the petitioner, the suppression of material facts in the affidavit and the non-furnishing of proper information in the same, is a defect of a substantial character and the said defect has materially affected the result of the election as the voters were not made aware of the pendency of the cases against the respondent. According to the petitioner, it was necessary for the candidates to furnish an affidavit in the proper format along with the nomination form, in view of the order passed by the Election Commission of India on 27th March, 2003. It is stated in the petition that the order passed by the Election Commission of India on 27.3.2003 is based on guidelines issued by the Hon'ble Supreme Court in the judgments reported in AIR 2002 SC 2112 ( Union of India vs. Association of Democratic Reforms and another) & AIR 2003 Sc 2363 ( Peoples Union for Civil Liberties and another vs. Lok Satta and others ). It is pleaded in the petition that in the affidavit submitted along with the nomination form, the respondent had stated against the column which related to the pendency of cases that the said clause was not applicable in 3 his case. 5. However, it is pointed out to this Court, on the basis of the application under Order 7 Rule 11 of the Code and the other documents which are produced on record by the respondent and are exhibited that at the time of submission of nomination paper, no criminal case was pending against the respondent, to the knowledge of the respondent and the questionnaire in the affidavit about the pendency of cases did not relate to the civil matters in which the respondent was one of the parties. On the basis of the documents produced on record, it appears that only one criminal case was pending against the respondent at the time of filing of the nomination form and the summons in regard to that case were not served on the respondent before the nomination form was filed. This position is also not disputed by the learned counsel for the petitioner. 6. It would now be necessary to consider whether the petitioner has made out any cause of action for filing the Election Petition. Rule 4A of the Conduct of Election Rules, 1961 requires the candidate to swear an affidavit before a Magistrate of First Class or a Notary in form No.26. Form No. 26 under Rule 4-A reads thus : 4 FORM 26 (See Rule 4-A) Affidavit to be furnished by the candidate before the Returning Officer for election to............................. (Name of the House ) from................................... constituency ( Name of the constituency) I,................................................... son/daughter/wife of... .................................... aged about.................years, resident of............................................candidate at the above election, do hereby solemnly affirm /state on oath as under :- 1. I am/ am not accused of any offence(s) punishable with imprisonment for two years or more in a pending case(s) in which a charge(s) has/have been framed by the court(s) of competent jurisdiction. If the deponent is accused of any such offence(s) he shall furnish the following information; (i) Case /First Information Report No./Nos................................................................................. (ii) Police Station(s) …...District (s) ….........State (s).......................................................................................... (iii) Section(s) of the concerned Act(s) and short description of the offence (s) for which the candidate has been charged........................................................................ (iv) Court(s) which framed the charge(s)............................................................................... (v) Date(s) on which the charge(s) was/were framed ….......................................................................... 5 (vi) Whether all or any or any of the proceeding (s) have been stayed by any court(s) of competent jurisdiction........................................................................... 2. I have been/ have not been convicted of an offence (s) ( other than any offence(s) referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of Section 8 of the Representation of the People Act, 1951 (43 of 1951) and sentenced to imprisonment for one year or more. If the deponent is convicted and punished as aforesaid, he shall furnish the following information: (i) Case /First Information Report No./Nos.............. (ii) Court................(s) which punished........................ (iii Police Station(s)......District (s)....State (s)................ (iv)Section(s) of the concerned Act(s) and short description of the offence(s) for which the candidate has ever been charged.................. (v) Date(s) on which the sentence (s) was/were pronounced......... (vi) Whether the sentence (s) has/have been stayed by any court(s) of competent jurisdiction............................. Place : Dated. Signature of the deponent VERIFICATION: 6 I, the above named deponent, do hereby verify and declare that the contents of this affidavit are true and correct to the bet of my knowledge and belief, no part of it is false and nothing material has been concealed therein. Verified at......................... this............day of..................20...................... Signature of the deponent.” 7. It is apparent from a reading of Form No.26 under Rule 4A of the Rules of 1961 that a candidate is required to solemnly state on oath whether he is accused of any offence punishable for imprisonment for a period of two years or more in a pending case or cases in which charges have been framed by the Courts of competent jurisdiction. The candidate has to furnish the relevant information in regard to the offences of which he is accused and is further required to state whether he has been convicted of any offence, other than the offences about which he has supplied information in the earlier part of the affidavit. Apart from Form 26, the candidate is also required to supply the information in an affidavit in regard to the pendency of cases in which the cognizance has been taken by the Court. An affidavit in this form is annexed to the Election Petition. It is apparent on a reading of the affidavit in form No.26 and the other affidavit which is required to be furnished by a candidate along with nomination form in pursuance of the 7 directive of the Election Commission of India dated 27.3.2003 that a candidate is required to furnish the data or the information in regard to the pendency and the decision in the criminal cases and not the civil ones. The observations of the Hon'ble Supreme Court in the cases reported in AIR 2002 SC 2212 and AIR 2003 SC page 2363 ( supra) and on the basis of which the directives of the Election Commission dated 27.3.2003 are issued also show that a candidate is required to furnish the information in regard to the offences of which the Court has taken cognizance and/or of which the candidate was made aware. 8. On reading of Rule 4-A of the Conduct of Election Rules, 1961 and Form No. 26 thereunder along with the affidavit which is required to be furnished by the candidate before the Returning Officer, it is clear that the petitioner has not made out any cause of action for filing the petition against the respondent, since it is an admitted position that the respondent was not made aware of the pendency of the solitary criminal case pending against him as he was served with the summons in that case after the filing of the nomination form along with the relevant affidavit. The petition is, therefore, liable to be rejected as it does not disclose the cause of action. 9. The application filed by the respondent Under O. VII R.11 of the 8 Civil Procedure Code is allowed. The Election Petition stands dismissed. JUDGE sahare