IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 CRP.No. 989 of 2007() --------------------- CMA.47/2006 of DISTRICT COURT, KASARAGOD OPELE.11/2005 of MUNSIFF COURT, HOSDRUG .................... REVN. PETITIONER(S)/APPELLANT/RESPONDENT: --------------------- GEORGE JOSEPH, S/O JOSEPH, AGED 52 YEARS, RESIDING AT AZHATH HOUSE, MARATHUMKALAM, BALAL VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. BY ADV. SRI.JAWAHAR JOSE SMT.CISSY MATHEWS SRI.A.G.ADITYA SHENOY RESPONDENT(S)/RESPONDENT/PETITIONER: ------------------------------------ P.K.RAMACHANDRAN, S/O KOMAN, AGED 45 YEARS, RESIDING AT POOCHAKANDAM VEEDU, P.O.BALAL, BALAL VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. ADV. SMT.DHANYA P.ASHOKAN FOR R THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON 04/12/2009 PASSED THE FOLLOWING: ORDER IN I.A.NO.2833/07 IN CRP.989/07. DISMISSED. 4.12.2009 S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.989 OF 2007 (A) ----------------------------------- Dated this the 4th day of December, 2009 O R D E R Concurrent decision rendered by the two courts below that the petitioner, a returned candidate, in the election to the Grama Panchayath has suppressed material particulars of a criminal case he was involved while submitting his nomination paper, disclosure of which was mandated by the rules, and, therefore, his election as a member of the Panchayath is liable to be set aside, is challenged in the revision. 2. Petitioner and the respondent contested the Panchayath election held on 26.9.2005 from Ward No.3 of Balal Grama Panchayath. Petitioner having secured majority of votes than those secured by the respondent, he was declared elected. The respondent challenged the election of the petitioner filing an election petition before the Munsiff Court, Hosdurg contending that he had suppressed material CRP.989/07 2 particulars of a criminal case against him while furnishing Form 2A with his nomination paper. Petitioner was involved in a criminal case and facing trial, numbered as C.C.No.304 of 2004, for offences punishable under Sections 143, 147, 447 and 153 read with Section 149 of the Indian Penal Code before the Judicial 1st Class Magistrate Court, Hosdurg, was the ground canvassed by the respondent to impeach his election. Petitioner resisted that election petition filing a counter statement, in which he contended that the above criminal case had been stayed by the orders of the High Court. He had also raised counter allegations that the respondent (petitioner in the election petition) was a defaulter to a bank, a public sector undertaking, when he filed his nomination paper to contest the election. Both sides did not adduce any oral evidence. On the side of the respondent (petitioner in the election petition) A1 to A3 and for the revision petitioner (respondent in the election petition) B1, the order passed by the High Court staying the trial of the criminal case before the Judicial 1st Class Magistrate were exhibited, and towards court exhibits, X1 to X4 series were also marked. The learned Munsiff, on the materials placed and hearing the counsel on CRP.989/07 3 both sides, came to the conclusion that the petitioner had suppressed material facts as to his involvement in a criminal case when he furnished Form 2A with his nomination paper, and thus, he had violated Section 52 (1A) of the Kerala Panchayath Raj Act, which mandate furnishing of details of the criminal cases at the time of submission of nomination. His election was therefore found liable to be declared void under Section 102 (1)(a) of the Kerala Panchayath Raj Act, and it was ordered accordingly. Challenge raised by the revision petitioner against the acceptance of the nomination of the respondent (petitioner to the election petition) that he was a defaulter to a bank, a public sector undertaking, was also found true on the materials placed, and accordingly, it was held that he too was not qualified to contest the election. So much so, the election petition was allowed in part setting aside the election of the revision petitioner. In the appeal preferred against that decision of the learned Munsiff by the petitioner, the learned District Judge confirmed the finding of the court below and dismissed the appeal. Hence this revision. CRP.989/07 4 3. I heard the counsel on both sides. The main thrust of attack, and, in fact, the only challenge, canvassed by the learned counsel for the revision petitioner to assail the concurrent finding of the court below is based on what meaning should be attached to the word 'trial' appearing in column No.1 of Form 2A of the Kerala Panchayath Raj (Conduct of Election) Rules, 1995. The offences imputed against the petitioner in the case, which was pending before the Judicial Ist Class Magistrate Court, as C.C.No.304 of 2004 as on the date of filing of his nomination, all of them, were triable as a summons case, the trial of which start not when the report was filed before the court nor when the accused appear, but, only, when the particulars of the offences were made known to the accused, is the submission of the counsel relying on State of Kerala v. Achutha Panicker (1975 KLT 703) and Radhamany Amma v. Kunju Pillai (1980 KLT 393). The learned counsel for the petitioner also contended that Section 52 (1A) of the Kerala Panchayath Raj Act mandating the furnishing of the details of the criminal cases by the candidate while submitting the nomination contemplate of furnishing such information in the form and manner as may CRP.989/07 5 be prescribed. Relying on Thampanoor Ravi v. Charupara Ravi and others ((1999) 8 SCC 74), it is contended that in interpreting the words used in a statute, its meaning cannot be enlarged by importing any meaning other than permissible on a strict interpretation of the expression used therein and such being the case, the word 'trial' used in column No.1 of Form 2A cannot be given a larger meaning to hold that involvement of the candidate in any criminal offence, whatever be the nature of the offences, required to be furnished in that form to be submitted with the nomination paper. It was also contended that the election petition lacked particulars as the petitioner has not alleged the essential ingredients showing that there was an improper acceptance of the nomination paper and his election was vitiated by such improper acceptance of nomination paper. Material allegations are lacking as to how Form 2A furnished under Section 52 (1A) is filed, which, according to the counsel, was fatal to the election petition involved in the case as the petitioner to such an election petition is not entitled to adduce evidence to supplement details which have not been furnished. Reliance is placed on Lucy Joseph v. Elikutty James and another CRP.989/07 6 (2009 KHC 4431) in support of that proposition. Reliance is also placed on Joseph v. Kuriakose (2007 (2) KLT 242) to contend that unless necessary ingredients are alleged that the improper acceptance of nomination paper materially affected the election, an election cannot be set aside under Section 102 (1)(d)(i) of the Kerala Panchayath Raj Act. Inviting my attention to the observations of the apex court in Harikrishna Lal v. Babu Lal Marandi ((2003) 8 SCC 613) that the success of a winning candidate is not lightly to be interfered with and the burden of proof would lie on one who challenges the election to raise necessary pleadings and adduce evidence to prove such averments as would enable the election to be set aside on any of the grounds available in the law it is contended that both the courts below have gone wrong in appreciating the lack of material particulars in the election petition and also of the significance to be given to the word 'trial' in Form 2A of the Kerala Panchayath Raj (Conduct of Election) Rules, 1995. Lastly, inviting my attention to Gopalakrishnan N. v. A. Sarasi and Others (2009 (2) KHC 472), the learned counsel submitted that this Court, in the above decision, had taken a view that the criminal case CRP.989/07 7 contemplated under Section 52 (1A) could only be the criminal case in which a final report is filed and cognizance was taken, but, that view, according to the counsel, requires reconsideration since Form 2A contemplate of furnishing details only of criminal cases against him pending 'trial'. Submission of the counsel was that as the meaning attached to the word 'trial', vis-a-vis, a criminal case involving offences triable as a summons case as in the case of the present petitioner has not been gone into in the above decision. The decision is not applicable to the facts of the case and also in judging the merit of the decisions rendered by the court below, according to the counsel. 4. Responding to the challenges canvassed, the learned counsel for the respondent relying on Gopalakrishnan N. v. A. Sarasi and Others (2009 (2) KHC 472) contended that this Court has meticulously gone into what should be the meaning to be attached to 'trial' with reference to the involvement in the criminal case and the details thereof to be furnished in Form 2A with the nomination by the candidate. The revision petitioner has not disputed his involvement in the CRP.989/07 8 criminal case, and, in fact, he had obtained an order from this Court staying the trial of that case by the Magistrate Court, according to the counsel. His contention was only to the effect that he was not involved in the commission of the offences imputed in that case. Knowing fully well that he was involved in a criminal case, it was suppressed in Form 2A while furnishing the nomination paper and it was found so by both the courts below, and in exercise of revisional jurisdiction that concurrent finding is not liable to be interfered with, is the submission of the counsel. All material particulars necessary to sustain the challenge against the election have been specifically pleaded in the petition to show that there was material suppression of the involvement in the criminal case while furnishing Form 2A with the nomination paper by the returned candidate, specifying particulars as to the number of the case, court and the offences etc., and it was also so established by evidence in the case, submits the counsel. So much so, there is no merit in the challenges raised that there was lack of pleadings in the petition as to the ground raised for setting aside the election and how it had materially affected the result of the election of the returned CRP.989/07 9 candidate. Revision is devoid of any merit and it is only to be dismissed, submits the counsel. 5. This Court in Gopalakrishnan N. v. A. Sarasi and Others (2009 (2) KHC 472) has considered the question whether Section 52 (1A) mandates the candidate contesting the election to a Panchayath to furnish details of the criminal cases in which he was involved in the form prescribed while submitting his nomination paper. After taking note of the ambit and scope of Section 52 (1A) of the Kerala Panchayath Raj Act, it has been held that the criminal cases contemplated under that section are those cases in which a final report is filed and cognizance taken. A candidate submitting his nomination paper, it was further held, is not expected to go over to the police station to find out whether a final report was filed, and if so, whether cognizance was taken. In other words, whatever criminal case in which a final report was given and cognizance taken to which the candidate is involved to his knowledge, at the time of his nomination paper, has to be furnished in Form 2A which is to be filed with the nomination paper, is the view taken by this Court interpreting CRP.989/07 10 Section 52 (1A) of the Kerala Panchayath Raj Act. The learned counsel for the petitioner canvassing on some decisions of this Court in State of Kerala v. Achutha Panicker (1975 KLT 703) and Radhamany Amma v. Kunju Pillai (1980 KLT 393) and also the apex court in Thampanoor Ravi v. Charupara Ravi and others ((1999) 8 SCC 74) wants to carve out a distinction that what is to be given significance is not the criminal case, but the word 'trial' as appearing in column No.1 of Form 2A. 6. To examine the challenge canvassed by the counsel it will be profitable to take note of Section 52 (1A) of the Kerala Panchayath Raj Act, 1994 and Sub rule (2a) of Rule 6 and also column 1 in Form 2A of the Kerala Panchayath Raj (Conduct of Election) Rules, 1995. Section 52 (1A) to the Kerala Panchayath Raj Act, 1994 reads thus: 52. Presentation of nomination paper and requirements for a valid nomination:- [(1A) Every candidate submitting nomination under sub-candidate (1) shall not be deemed to be qualified to be elected to fill that post unless he submits, along CRP.989/07 11 with such nomination, the details regarding this educational qualification, criminal cases in which he is involved at the time of submission of nomination, property owned by him and other members of his families, liabilities including arrears due from him to any public sector undertaking or government or local self government institutions and whether disqualified for defection under the Kerala Local Authorities (Prohibition of Defection) Act, 1999, in the form and manner as may be prescribed]. Sub rule (2a) of Rule 6 of the Kerala Panchayath Raj (Conduct of Election) Rules, 1995 mandates that every candidate shall submit before the Returning Officer, the details in Form 2A which reads thus: 6. Nomination of candidates:- (1) ................ (omitted) (2) ................ (omitted) [(2a) Every candidate shall submit before the Returning Officer, the details in Form No.2A along with the nomination paper] Form 2A under the above Rules in column No.1 directs for the furnishing of the details of the criminal cases which states CRP.989/07 12 thus:- 1. The following criminal cases are pending against me for trial before the court/ I have been convicted by the court in criminal cases. (Sub clause (a) and (b) deals with particulars to be furnished on such cases, which not being relevant in the case are omitted) The argument of the learned counsel for the revision petitioner is that the word 'trial' in column 1 in Form 2A has to be given significance as Section 52 (1A) mandates of furnishing details in the form and manner as may be prescribed, and in doing so, the meaning should be imported to that word can never be an enlarged meaning than what such word can be given to. The word 'trial' used has to be understood with reference to the offences indicted against the accused and the petitioner having been indicted with offences triable as a summons case as the trial of that case had not commenced as on the date of submitting the nomination he was not bound to furnish the details of his involvement of that criminal case in Form 2A while submitting the nomination, is CRP.989/07 13 the argument of the learned counsel. That line of argument need be noticed only for its rejection. It is not the word 'trial' in the 'Form' that is of significance in furnishing of the information of the criminal cases, but, that of the mandatory requirement for furnishing the information of the criminal cases under Section 52 (1A) of the Kerala Panchayath Raj Act, 1994. That section stipulates furnishing of details of the criminal cases in which the candidate is involved at the time of submission of the nomination making no distinction whether the offences imputed against him in the criminal cases is triable as a summons case or a warrant case. A candidate as per the mandate of that Section is bound to disclose in Form 2A, the details of the criminal cases in which he is involved, and in the decision rendered by this Court in Gopalakrishnan N. v. A. Sarasi and Others (2009 (2) KHC 472), it has been pointed out involvement of the criminal cases means those cases in which a final report is filed and cognizance taken. A criminal case proceeded with offences triable as a warrant case, after investigation, may lead to filing of a report only for offences triable as a summons case. Similarly, a criminal case proceeded for offence of a CRP.989/07 14 lesser gravity after investigation necessitate inclusion of major offence triable as a warrant case. In the course of the trial also a summons case can also be converted as a warrant case. A case tried as a summons case may necessitate a warrant trial. So, it is not the word 'trial' in Form 2A, that is of significance, but the involvement of the criminal case of the candidate that has to be disclosed in Form 2A with the nomination paper. Knowing fully well that a criminal case was pending trial and after getting it stayed by orders of this Court, the revision petitioner has not furnished the details of that case while giving Form 2A with his nomination paper. When that be the case, he cannot escape or wriggle out for the noncompliance of the mandatory requirements of Section 52 (1A) of the Kerala Panchayath Raj Act, 1994 which render his election void. 7. There is no merit in the arguments raised by the learned counsel that there was lack of pleadings in the petition. Form 2A furnished by the petitioner is a fake was pleaded in the election petition furnishing necessary particulars of the case in which he was involved, the offences CRP.989/07 15 imputed against him, the name of the court where the case was pending etc., which had been suppressed in the Form by the candidate. There is also no merit in the submission of the counsel that the decision rendered by this Court in Gopalakrishnan N. v. A. Sarasi and Others (2009 (2) KHC 472) is inapplicable for the reason, the significance of the word 'trial' has not been considered in that case. That decision in fact applies squarely to the facts of the case as well, and as already indicated that there is no merit in the case projected that the word 'trial' has to be given significance and not the mandatory requirements of the Section for disclosure of the criminal case by the candidate. The apex court in A.Neelalohithadasan Nadar v. George Mascrene and Others (1994 supp (2) SCC 619) has pointed out that it is the purity of the election that has to be given significance. A candidate, who is bound to disclose his involvement in the criminal case in the Form prescribed with his nomination paper if deliberately suppress such information, then, necessarily, his election as a returned candidate is vitiated and liable to be set aside for flouting the mandatory requirement of law. CRP.989/07 16 8. The learned Munsiff while setting aside the election has quoted the provision Section 102 (1)(a) of the Kerala Panchayath Raj Act for setting aside the election. Section applicable in the present case for setting aside his election is under Section 102 (1)(d)(iv) of the Kerala Panchayath Raj Act, which deals with noncompliance of the provisions of the Act or rules or orders made thereunder. 9. The revision petitioner, the returned candidate, in suppressing his involvement in the criminal case in Form 2A filed with his nomination paper flouted the mandatory requirement under Section 52 (1A) of the Kerala Panchayath Raj Act, 1994 rendering his election void. Revision is dismissed with cost to the respondent. S.S.SATHEESACHANDRAN JUDGE prp