1 EP-30 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Election Petition No.30 of 2009 Arjunadada Dashrath Bhuse ... ... Petitioner v/s. Dadaji Dagadu Bhuse ... ... Respondent Mr.P.N. Patil for Petitioner. Mr.M.M. Vashi with Mr.S.M.Sabrad for Respondent. ------ CORAM : SMT.ROSHAN DALVI, J. Date of reserving the judgment : 28th January 2011 Date of pronouncing the judgment : 23rd February 2011 JUDGMENT : 1.This petition has been filed under Section 80 of the Representation of the People Act, 1951 (RPA) challenging the election of the Respondent from Malegaon (Outer) Assembly Constituency, Maharashtra Legislative Assembly General Elections, 2009, essentially on the ground that the Respondent was disqualified from standing for such election under Section 100(1)(a) of the RPA and that thus the result of the election was materially affected in so far as it concerned the returned candidate by improper acceptance of his nomination and by non-compliance of the 2 EP-30 provisions of the Constitution as also the Conduct of Elections Rules, 1961, resulting in the Respondent s election being held void under Section 100(1)((d)(i) and (iv) of the RPA. It is further contended on behalf of the Petitioner that the Respondent did not take oath in accordance with Article 173(a) of Constitution of India before a person authorised for taking such oath by the Election Commission in accordance with Schedule III of the Constitution. It is argued that the time of taking oath by the Respondent is shown to be incorrect, the oath has not been taken before the authorised officer and that it is taken under Article 84(a) of the Constitution of India and not under Article 173(a) of the Constitution of India, as required. 2.It is also contended by the Petitioner that the nomination of the Respondent was incorrectly accepted without complying with the mandatory provisions of Sections 33A of the RPA resulting in the right to information of the citizens as also the Petitioner being adversely affected and consequently invalidating the nomination of the Respondent. It is the case of the Petitioner that consequently the acceptance of the nomination was improper and such improper acceptance of the Respondent as the returned candidate rendered it void. The Petitioner, therefore, claims that consequently the nomination is void under Section 3 EP-30 100(1)(d)(i) and (iv) as it was improperly accepted without following the provisions of the Constitution, RPA or any rules or orders made under the RPA. It is, therefore, contended that even if the result of the election of the Respondent would not materially affect the Petitioner, it is required to be declared void under Section 100(1)(a) of the RPA as the improper acceptance of the nomination was of the Respondent himself as the returned candidate. 3.It is contended on behalf of the Petitioner that pursuant to the newly added Section 33A of the RPA, consequent upon the amendment of 2002 of the RPA, a candidate standing for election was required to give the specified information set out in the said section in his nomination itself. This relates to disclosing inter alia 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 or cognizance has been taken by a Court of competent jurisdiction, whether or not he has been convicted of any offence thereunder and whether or not he has been sentenced to imprisonment for one year or more. Further, under the aforesaid section, the candidate standing for election is required to swear an affidavit verifying the information given as required which the Returning Officer is required to display at a 4 EP-30 conspicuous place in his office by affixing a copy of his affidavit there for information of the electors of that constituency. The Petitioner claims that an order dated 27th March 2003 came to be issued inter alia in this behalf by the Election Commission of India being Election Commission s Order No.3/ER/2003/JS-II, dated 27th March 2003. Under the said order, the candidates standing for election were to furnish information in respect of such offences under an affidavit. Non furnishing of such information was to result in rejection of the nomination by the Returning Officer. Similarly wrong and incomplete information or suppression of material information would also result in rejection as a defect of substantial character. This was to be if the information was capable of easy verification in a summary inquiry at the time of scrutiny of information under Section 36(2) of the RPA. This was inconsonance with the right to information provided by Parliament under Section 33-A inter alia with regard to pending criminal cases and past involvement of the candidates standing for election so that the electorate would have recourse to the relevant information before they exercise an informed choice to elect their representative. 4.It is the case of the Petitioner that the affidavit was required to be in prescribed form as annexed to the 5 EP-30 said order. The affidavit required inter alia the description of the offences to be given by the candidate standing for election in his nomination paper. 5.It is his case that the Respondent was accused of various offences and various criminal cases, several of which were punishable with imprisonment for two years or more. The Respondent enumerated various criminal cases registered against him showing him as an accused therein and which were pending in a Court of law. The Respondent showed the sections of the Indian Penal Code (IPC) under which he was shown as an accused and of which the relevant Court took cognizance. The Petitioner, however, contends that aside from the crime registration number, the Police Station and the section of the IPC, no description of the offence was set out by the Respondent in the affidavit filed by him which was to be filed with his nomination before the Returning Officer. It is contended on his behalf that a look at the affidavit of the Respondent annexed to the nomination paper itself shows that the description of the offence was not given as mandatorily required under the aforesaid order framed under Section 33-A of the RPA. It is contended on behalf of the Petitioner that various cases listed by the Respondent were pending in Criminal Courts in which the competent Courts had taken 6 EP-30 cognizance. It is, therefore, contended that the affidavit filed by the Respondent does not comply with the provisions of Rule 4-A of the Conduct of Elections Rules, 1961 and the aforesaid order. The Respondent s affidavit enumerates 21 criminal cases pending against him in which the competent Courts had taken cognizance and had framed charges. 6.It is a further case of the Petitioner that the Respondent has been shown to be sponsored by the registered political party as also shown as an independent candidate showing his symbol in Part III of his nomination. The Petitioner contends that such contradictory claims must render the nomination void. It is argued that if the Respondent was sponsored by a political party as is shown in his nomination, he would require only to show the symbol of the party. If he is an independent candidate, he is not required to show his own symbol but the fact that he is sponsored by at least ten persons, which is not shown. It may be mentioned straightway that the photo copy of the application annexed to the Petition itself shows in the later portion of Part III Clause B(ii) that the Respondent has struck off the print that he is the independent candidate. The Respondent has shown the correct symbol of the party sponsoring him. 7 EP-30 7.The Petitioner has also claimed that the Respondent is a defaulter of the Government of Maharashtra inasmuch as he was an employee of the State of Maharashtra working as a Junior Engineer in the Irrigation Department of the State of Maharashtra and has not deposited a fine of Rs.6938.40 awarded against him under order dated 12th June 2007 in a departmental enquiry initiated against him and other officers upon the charge of misconduct in which he and some other officers were found guilty. The Petitioner claims that the total of Rs.7178.40 was the fine recoverable from the Respondent by the State. That was a material fact to be disclosed in his nomination form. The Respondent has failed to disclose the same. The Petitioner contends that the non-disclosure of the said dues renders the nomination incomplete and due to such suppression, renders it liable for rejection under Section 36(2)(b) of the RPA. 8.It is upon such a case that the Petitioner has sought declaration that the election of the Respondent as member of the Maharashtra Legislative Assembly from 1st January 2005, Malegaon (Outer) Assembly Constituency in the General Elections of 2009 held in September/October 2009 is void and has prayed for setting aside the said election. 8 EP-30 9.The Respondent has essentially denied that the nomination form was incomplete or defective, or that it was in prescribed form and did not comply with the mandatory rules. He has contended that the form of the affidavit under Form 26 did not require him to furnish the name of the District or the State in which the offence was registered against him and hence the nomination form is in compliance with the rules. 10.The Respondent has further claimed that he has subscribed his oath under Article 173(a) read with Schedule III of the Constitution and not under Article 84(a). 11.The Respondent has also contended that in his nomination paper he has scored off the part relating to the independent candidate and consequently has shown that he was sponsored by the recognised political party whose symbol was described in the nomination form. 12.The Respondent has produced the evidence of the deposit by him of Rs.7179/- with the Government of Maharashtra by producing a receipt issued by the Executive Engineer, Quality Control Division, Dhule, for the said amount on 15th June 2009 prior to the filing of the nomination. The Respondent has thus 9 EP-30 sought to show that there was no suppression of the said fact and non-disclosure on that count and consequently, the Respondent is not a defaulter under the Government of Maharashtra and his nomination paper does not suffer from any substantial defect on that score as he was liable to pay any dues to the Government of Maharashtra on the date of the nomination. The Respondent has, therefore, contended that his nomination paper was not improperly accepted under Section 100(1)(d)(i) of the RPA. 13.On these defences, the Respondent claims that his election as a returned candidate is not void and cannot be set aside. 14.Based upon the pleadings between the parties, this Court framed the following issues which are answered as follows:- ISSUES (1)Whether the Respondent was disqualified from being chosen to fill the seat of the Member of Maharashtra Legislative Assembly at the Maharashtra Legislative General Elections 2009. ... ... ... Yes (2)Whether the Respondent s nomination is defective and liable to be rejected. ... ... ... Yes 10 EP-30 (3)Whether the Respondent furnished all the statutory information required under the Representation of the People Act and Rules. ... ... ... No (4)Whether the Respondent was liable to pay dues to the Government on the date of his nomination and has suppressed the said fact. ... ... ... No (5)Whether the Respondent has complied with the provisions of Article 173(a) of the Constitution of India. ... ... ... ... Yes (6)What relief, if any, is the Petitioner entitled to? 15.It can be seen and it is fairly conceded by Counsel on behalf of both the parties that the essential dispute between the parties relates to the nomination form of the Respondent. The nomination form is itself admitted. Copy of the nomination form is annexed to the Petition. It can be read and interpreted. It can be seen whether it complies with the statutory requirements. Consequently, Counsel on behalf of both the parties agree that no oral evidence would be required in this case. However, there was a dispute with regard to the receipt obtained from the Government of Maharashtra by the Respondent to show the fine 11 EP-30 levied upon him being paid up to the Government of Maharashtra before the Respondent stood for election. Consequently, the oral evidence in that behalf has only been led. However, upon the production of the certified copy of the receipt from the relevant Government record by the competent Government Officer, who has deposed as a witness on behalf of the Respondent and produced the document kept in the normal course of the conduct of that office, being the Irrigation Department in which the inquiry against the Respondent was held, Counsel on behalf of the Petitioner has fairly accepted the document on record. 16.The respective contentions of the parties are, therefore, only required to be considered upon the admitted documents relied upon by both the parties and interpreted by their Counsel. 17.Issue Nos.1 to 3 : The history of the requirement of the disclosure of the criminal prosecution against the candidate must be seen. (i) Pursuant to the directions passed by the Supreme Court in the case of Union of India vs. Association for Democratic Reforms, (2002) 5 SCC 294, Section 33-A of 12 EP-30 the RPA came to be incorporated under the Amendment Act 1972 of 2002 which came in effect on 24th August 2002. 18.Section 33-A of the RPA requires the candidate standing for election to furnish information in his nomination paper inter alia relating 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 and whether he has been convicted and sentenced to imprisonment for one year or more. The candidate is required to deliver the nomination paper along with the affidavit in the prescribed form verifying the aforesaid information. The Returning Officer is required to display the said information by way of the copy of the affidavit at a conspicuous place in his office for information to the electorate of that constituency. Section 33- A runs thus: 33-A. 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- 13 EP-30 (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 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 14 EP-30 delivered. (ii)Under Section 33-A(1)(i), the disclosure which was to be made was of the charge which had been framed by a Court of competent jurisdiction in a case pending against the candidate which related to an offence punishable with imprisonment for two years or more. 19.Rule 4-A of the Conduct of Elections Rules, 1961 sets out the form of the affidavit required to be filed along with nomination papers by a candidate standing for election sworn before the Magistrate of the First Class or Notary in Form 26 of the said Rules. Section 4A runs thus: 4-A. Form of affidavit to be filed at the time of delivering nomination papers.- 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 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the First Class or a Notary in Form 26. 20.Form 26 under Rule 4-A requires the candidate to state whether he is or is not accused of any offence 15 EP-30 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. Under the said form, there are six requisites to be filled in which are enumerated from Form 26 as follows: (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) 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 charges(s)was/were framed...... (vi) whether all or any of the proceeding(s) have been stayed by any Court(s) of competent jurisdiction ..... (Emphasis supplied) Consequently, the entire description of the offence, the CR No./FIR No., Police Stations in the District or the State, sections of the legislations under which the CR is registered, description of the offence, the Court which framed the charge, date thereof and whether there has been a stay of the proceedings, would have to be 16 EP-30 mentioned by each candidate. 21.(iii) Consequently, in Form 26 under Section 4-A of the Conduct of Elections Rules, 1961, the candidate had to inter alia disclose whether he was accused of any offence so punishable in which a charge had been framed by any Court. 22.(iv) The Supreme Court in the case of People s Union for Civil Liberties (PUCL) vs. Union of India, (2003) 4 SCC 399 commented upon the said amendment whilst considering its constitutional validity. In paragraph 115 of the judgment at page 470, the Supreme Court considered the requirement of disclosure of offences for which the charge is framed as it falls short of the avowed goal to effectuate the right of information on a vital aspect . The Supreme Court observed that it was common knowledge that for various reasons such as delaying tactics of the accused and inadequacies of the prosecuting machinery, framing of formal charges gets delayed considerably, especially in serious cases. It considered that that was not the case that the citizens were to be denied information regarding the cognizance taken by the Court for an offence punishable with imprisonment for two years or more. Considering the citizens right to information recognised as a fundamental right under Article 19(1) 17 EP-30 (a) of the Constitution which could not be truncated, the Supreme Court observed that in addition to the requirement of disclosure for offences against the candidate in which charges have been framed the cases in which cognizance had been taken also were to be brought within the framework of the disclosure. The said judgment was delivered on 13th March 2003. 23.(v)Consequent upon that judgment, the Election Commission of India, by its order dated 27th March 2003, bearing No.3/ER/2003/JS-II passed under Article 324(1) of the Constitution of India, set out the format of the affidavit to be furnished by the candidate along with the nomination paper. 24.The requisites to be incorporated in the affidavit annexed to the said order dated 27th March 2003 are : (i)Section of the Act and description of the offence for which cognizance taken : (ii) The Court which has taken cognizance: (iii) Case No. : (iv) Date of order of the Court taking cognizance : 18 EP-30 (v) Details of appeal(s)/application(s) for revision, etc., if any, filed against above order taking cognizance. 25.Hence that affidavit required disclosure of the information relating to offences against the candidate punishable with imprisonment for two years or more in which cognizance was taken by the Court. It did not deal with the requirement of disclosure only after the charges framed by the Court. For those offences for which cognizance was taken, the candidate was to disclose the section of the Act, description of the offences for which the cognizance was taken, the Court which took cognizance, the case number, the date of the order of the Court taking cognizance and the details of appeal, revision, etc. filed therefrom (though not the relevant District and the State). 26.This would constitute a full substantial disclosure of the candidate s conduct and character. The fact that cognizance was taken implies that some prima facie case was noticed by the Court. The name of the Court and the case number shown ensured that the person interested may inspect the record and proceedings of the case to see the order taking cognizance. The further information relating to appeals and revisions would enable the candidate to show the voters the exception, 19 EP-30 if any, taken by him to the cognizance being taken and its details would provide the reasons upon which the orders, if any, were passed therefrom. A full and complete disclosure of the aforesaid five aspects would, therefore, show the voters the precise conduct of the candidate and enable the candidate to show the voters his say to the cognizance. 27.It has been the case of the Petitioner that the requirement of showing the State and the District in the affidavit to be filed by the candidate standing for election such as the Respondent is under Form 26 of Rule 4-A. It is the case of the Respondent that in view of the format of the affidavit given by the Election Commission of India under its last order dated 27th March 2003 that disclosure is not a requirement. To this end, the Respondent s contention appears to be correct. The Respondent has shown the Police Stations in which the complaints have been filed. Even the Police Stations are not required to be shown in the affidavit, the format of which is given in the order dated 27th March 2003. The Respondent has nevertheless given the name of the Police Stations. However, it is accepted that the District and the State need not be mentioned and may be usually known or inferred, if the other details are provided. 20 EP-30 28.It is the description of the offence which is the most material aspect for disclosure. The description of that offence must not be in numerical terms by giving the numbers of the sections of the IPC which is the general substantive law enumerating various offences with which a citizen could be charged or accused of. It requires the description to be given in words which is under the sub-title of the respective sections dealing with those offences. The description in words would be more intelligible to the discerning, though not an educated, voter. 29. The Respondent has filed two affidavits. These are shown annexed to the application for nomination of the Respondent, Exhibit-D to the Petition. In the first affidavit, the Respondent has disclosed all the pending cases against him in which cognizance has been taken. He has shown 21 such cases. He has enumerated the case numbers, the Police Stations, the names of the Courts and the sections of the IPC without any reference to the IPC. He has also shown the dates of the orders of the Court taking cognizance and the fact that there have been no revision or appeal against the order of taking cognizance. This has complied with most of the requirements of Form 26 as also the form of the affidavit annexed to the order dated 27th March 2005. The most material omission is the description of the 21 EP-30 offences the Respondent was accused of. 30.In the other affidavit filed by the