In the High Court of Judicature at Madras Dated: 13.8.2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN Election Petition No.8 of 2009 S.P.K.Dhamodhar .. petitioner vs. 1. Narayanasamy 2. The Returning Officer-cum-District Collector Puducherry Parliamentary Constituency Collector's Office Puducherry .. Respondents Prayer: The election petition has been filed under Section 80-A and 81, read with Section 33-A of the Representation of the People Act, 1951, to declare that the election of the first respondent Mr.Narayanasamy, to the 13th Lok Sabha from Puducherry Parliamentary constituency, in which the result was declared, on 16.5.2009, as null and void, and to direct the first respondent to pay the costs of the petition to the petitioner. For petitioner : Mr.S.Subramaniam Balaji For Respondents : Mr.G.Masilamani Senior Counsel for Mr.Mani Sundargopal for R1 Mr.G.Rajagopalan senior counsel for M/s.G.R. Associates for R2 O R D E R Heard Mr.S.Subramaniam Balaji, the learned counsel appearing for the petitioner and Mr.G.Masilamani, the Senior Counsel for Mr.Mani Sundargopal, the learned counsel appearing for the first respondent, as well as Mr.G.Rajagopalan, the learned Senior Counsel for M/s.G.R. Associates appearing for the second respondent. 2. This election petition had been filed by the petitioner, who is said to be a registered voter at the Puducherry Parliamentary Constituency. 3. The petitioner had stated that he had functioned as the Chief Election Agent for Mr.Vishweswaran, a candidate nominated by the Bharatiya Janata Party, to contest as a candidate in the Parliamentary Elections, concluded in the year, 2009. The first respondent was the candidate nominated by the Indian National Congress party, to contest the said elections. At the said elections, the first respondent had been declared as the winning candidate, by the second respondent/Returning officer, on 16.5.2009. 4. The petitioner had further stated that the first respondent, who is the returned candidate, had furnished an affidavit, along with his nomination form, as mandated under Section 33-A of the Representation of the People Act, 1951. From the information available about the candidates from the relevant website of the Election Commission of India, through the internet, it had been found that the first respondent had sworn to an affidavit, dated 20.4.2009, declaring that he was not accused of any offence, punishable with imprisonment for two years or more, in a pending case, in which a charge had been framed by the Court of competent jurisdiction. 5. It had also been stated that the first respondent had sworn to the affidavit, falsely, stating that no criminal case was pending against him. However, the petitioner had come to learn that a criminal case, vide criminal case No.358 of 2009, had been registered in the Court of the Judicial Magistrate, First Class, Raipur, Chhattisgarh State, under Sections 499 and 500 of the Indian Penal Code, 1860. Thereafter, the petitioner had, immediately, informed the same to the second respondent/Returning Officer, even before the scrutiny of the nomination paper of the first respondent. However, the second respondent had accepted the nomination of the first respondent, without considering the objection raised by the petitioner. 6. The petitioner had also stated that the first respondent ought to have furnished the correct information before the second respondent/Returning Officer, as per the requirements of Section 33- A of the Representation of the People Act, 1951. By the said legislation, it is clear that the candidates should furnish true and real information, without suppressing the material and substantial facts before the Returning Officers concerned, at the time of the filing of the nomination papers. 7. The petitioner had further submitted that the first respondent was holding the position as the observer for Chhattisgarh State unit of the Indian National Congress party, during the run up to the parliamentary elections, held in the year, 2009. One Ajay Chandrakar, Former Minister, Panchayat and Rural Development, State of Chhattisgarh, had instituted a complaint against the first respondent, under Sections 499 and 500 of the Indian Penal Code, 1860, before the Court of the Judicial Magistrate, First Class, Raipur, Chhattisgarh. On 6.4.2009, the Judicial Magistrate, First Class, Raipur, Chhattisgarh, had registered the complaint and had taken the same on file bearing criminal case No.358 of 2009, and had ordered summons to the first respondent. 8. The petitioner had further stated that, on 6.4.2009, the said complainant had given a press conference, at Raipur, informing about the criminal case registered against the first respondent. A daily newspaper published from Raipur, Nagpur and Jabalpur, by the name "The Hitavada" had published the said news item and had also published the version of the first respondent, who had refused to give any comment, saying that he would submit his reply to the Court, whenever the need arose. 9. It had also been stated that, from the newspaper report, it could be seen that the first respondent had been at Raipur, on 6.4.2009, and that he was fully aware of the criminal case registered against him, at Raipur. However, the first respondent had suppressed the said fact, in his affidavit filed before the second respondent. 10. The petitioner had also submitted that the election to the Puducherry Parliamentary Constituency had been, substantially, affected by the fraudulent suppression of material facts, by the first respondent. 11. It had also been stated that the cause of action for the present election petition had arisen within the jurisdiction of this Court, on 17.4.2009, when the Election Commission of India had issued the notification for the Parliamentary Elections, on 27.4.2009, when the second respondent had published the list of contesting candidates, on 13.5.2009, when the election was held, and on 16.5.2009, when the result of the Puducherry Parliamentary Constituency was declared. The petitioner had also declared that the election petition had been filed within the period of 45 days, prescribed, under Section 81(1) of the Representation of the People Act, 1951. Therefore, the petitioner had filed the election petition praying that this Court may be pleased to declare the election of the first respondent, to the 13th Lok Sabha, from Puducherry Parliamentary Constituency, for which the result was declared, on 16.5.2009, as null and void and to direct the first respondent to pay the costs of the petition to the petitioner. 12. The first respondent in the election petition, who is the returned candidate, in Puducherry Parliamentary Election, held on 12.5.2009, had filed an application, in Application No.1049 of 2010, raising certain preliminary objections, an application in Application No.1050 of 2010, to dismiss the election petition for non-compliance of Section 81(3) of the Representation of the People Act, 1951, and an application in Application No.1051 of 2010, to strike out the pleadings in the election petition, as being vague, vexatious, without material facts and material particulars. 13. The first respondent had submitted that, for the reasons stated in the affidavits filed in support of the applications, the election petition is not maintainable, especially, when the petitioner in the election petition had not objected to the acceptance of the nomination of the first respondent, at the time of the scrutiny of the nomination paper and after the nomination paper of the first respondent had been properly accepted and after he had been duly declared as elected in the election. 14. The first respondent in the election petition, who is the applicant in Application No.1049 of 2010, had stated that the election petition filed by the petitioner to declare the election of the first respondent, held on 12.5.2009, as null and void, on the alleged ground that he had not disclosed the pendency of a complaint, made under Sections 499 and 500 of the Indian Penal Code, 1860, on the file of the Judicial Magistrate, First Class, Raipur, State of Chhattisgarh, is devoid of merits. The election petition had been filed under Sections 80-A and 81, read with Section 33-A of the Representation of the People Act, 1951. 15. It had been stated that the election petitioner had not stated, anywhere in the election petition, as to when and how he had informed the Returning Officer, the second respondent herein, about the non-disclosure of the relevant information by the first respondent. Further, the election petitioner had not shown any documentary proof before the second respondent/Returning Officer to impute knowledge of the alleged incident, said to have taken place before the date of the filing of the affidavit, dated 20.4.2009. Further, there is nothing to show that the first respondent had wilfully suppressed such information. 16. It had been further stated that no evidence is placed before this Court, along with the election petition, to prove the allegations of the petitioner, except a copy of the newspaper, which is said to have carried the news of the registering of the criminal case against the first respondent. 17. It had also been stated that the petitioner had only made vague and vexatious allegations in the election petition stating that he had informed the Returning Officer about the serious default, said to have been committed by the first respondent, even before the acceptance of the nomination paper. There is no proof shown to sustain such a claim. As such, the election petitioner had failed to furnish material facts and material particulars to support and sustain his allegations. There is nothing on record to show that the first respondent had suppressed the material information known to him, authentically, which he was lawfully required to disclose in the affidavit filed along with the nomination paper. The vague allegations made by the election petitioner against the first respondent is an abuse of process of Court and therefore, the election petition is liable to be dismissed, in limine, for want of proper pleadings and due to the lack of cause of action and triable issues. 18. It had also been stated that the alleged non- disclosure of relevant information by the first respondent is not a ground to challenge the election of the first respondent and for declaring the same as void, under Section 100 of the Representation of the People Act, 1951. In fact, the election petition is not filed under Section 100 of the Representation of the People Act, 1951. As such, the election petition is liable to be rejected, summarily. 19. It had also been stated that the election, and the rights and duties arising from such election, are created by the relevant statutes and such rights and duties are of paramount importance and therefore, the protection of such rights and the enforcement of the duties arising out of the statutory obligations cannot be tampered with or abridged in a flimsy manner. It is obvious on the face of the records available before this Court that the election petitioner had not shown sufficient proof to substantiate his claims against the first respondent to declare his election, as null and void. There is nothing on record to show that a criminal case has been registered against the first respondent and that the concerned Court, having jurisdiction to try the same, had taken cognisance of the matter and that a charge had been framed and the necessary summons had been served on the first respondent, before the date of the filing of the affidavit before the second respondent/Returning Officer. 20. It had also been stated that the election petition is liable to be dismissed, due to the various incurable procedural defects, which are as follows: (a) The non-disclosure, in clear terms, the date on which the Court had taken cognisance of the complaint said to have been made against the first respondent, and that certain charges had been framed, based on the said complaint, and that the necessary summons had been served on the first respondent, through Court, before he had filed the affidavit before the second respondent along with the nomination paper. (b) The non-disclosure of certain particulars, including the date, time, place, the manner and the method by which the election petitioner had informed the Returning Officer about the alleged criminal complaint and as to whether the election petitioner had, in fact, objected to the acceptance of the nomination paper of the first respondent, at the time of its scrutiny. (c) The non-disclosure of the material facts and the material particulars and the non-production of a copy of the acknowledgment of the information furnished by the election petitioner to the second respondent/Returning Officer. (d) The non-disclosure and the non-production of material facts and particulars to prove that the election petitioner, had, in fact, objected to the acceptance of the nomination paper, by the second respondent. (e) The non-disclosure and the non-production of material facts and the necessary documentary proof required for imputing knowledge, regarding the pendency of the criminal case, on the first respondent, would render the election petition void, for lack of cause of action and triable issues. 21. It had also been stated that the election petitioner cannot be permitted to raise the issue regarding the pendency of the criminal complaint, merely based on a certain newspaper report. It cannot be said that the first respondent had knowledge, regarding the pendency of the alleged criminal case, before the date of the filing of the affidavit before the second respondent. Based only on a statement, said to have been made in the "The Hitavada" newspaper published at Raipur, stating that the first respondent would submit his reply to the Court, whenever, the need arose, it cannot be held that the first respondent had knowledge of the criminal case, said to be pending on the file of the Judicial Magistrate, First Class, Raipur, State of Chhattisgarh. 22. It had been further stated that, even assuming, without admitting, that the newspaper report is true and correct, the election petitioner ought to have shown, by sufficient proof, that summons had been served on the first respondent, regarding the criminal case said to be pending on the file of the Judicial Magistrate, First Class, Raipur, State of Chhattisgarh. Obviously, it would be improper on the part of the first respondent to file his sworn affidavit, merely based on a certain newspaper report, unless such information is communicated to him, officially, in the manner known to law. Even otherwise, the requirement of furnishing of information by the candidate, under Section 33-A of the Representation of the People Act, 1951, would arise only if the candidate is accused of an 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. The offence contemplated, under Sections 499 and 500 of the Indian Penal Code, 1860, does not fall under the category of an offence regarding which the information had to be furnished by the candidate to the Returning Officer. The punishment prescribed for the offence of defamation is simple imprisonment for a term which may extend to two years or with fine or both. Only in cases, where the offence is punishable with imprisonment for two years or more, the candidate would be required to furnish the information regarding the pendency of the criminal case. Therefore, there was no obligation on the part of the first respondent to disclose the information relating to the alleged pendency of a criminal case before the Judicial Magistrate, First Class, Raipur, State of Chhattisgarh. Further, the object of the election petition, filed by the election petitioner, is mala fide in nature, as it has been done only with the intention of maligning the fair name of the first respondent in the eyes of the public and to gain cheap media publicity and undue mileage. 23. It had also been stated that, under Section 81(3) of the Representation of the People Act, 1951, every election petition should be accompanied by as many true copies thereof, as there are respondents. Further, every copy should have been attested by the petitioner, under his own signature, to be a true copy of the petition. In fact, a copy of the election petition served on the first respondent does not have the signature of the election petitioner, attesting the petition to be a true copy. The corrections incorporated in the petition have not been attested by affixing his signature. 24. It had also been stated that the election petitioner had not filed the requisite number of copies of the election petition and the relevant documents, as required under Section 81(3) of the Representation of the People Act, 1951, at the time of the filing of the election petition. All copies of the documents served on the first respondent contain the attestation that they are true copies with the verification date mentioned as 20.10.2009, even though the election petition had been filed, on 30.6.2009. The said discrepancy is a serious flaw in the filing procedure. Section 86 of the Representation of the People Act, 1951, stipulates that an election petition, which does not comply with the provisions of Section 81 of the Act, is liable to be dismissed. As such, the election petition is liable to be dismissed, due to the incurable defects found to have been committed during the process of the filing of the said petition. Further, the Returning Officer, impleaded as the second respondent, is neither a necessary, nor a proper party to the election petition and therefore, the election petition is bad for misjoinder of the second respondent in the election petition. 25. Further, the first respondent had prayed for striking out the following pleadings in the election petition:- "1. The averment in para-4 that "the first respondent has sworn to the above affidavit falsely stating that no criminal case is pending against him. 2. The averment in para-5 that "The returned candidate/1st respondent has suppressed material as well as substantial fact before the returning officer, Puducherry at the time of filing of nomination papers. 3. The averment in para-7 that "was fully aware of the criminal case registered against him at Raipur. However, willingly and dishonestly to the first respondent has suppressed the same in his affidavit filed before the second respondent". 4. The averments in para-7 that "the election to the Puducherry Parliamentary Constituency has been substantially affected the election and the election of the first respondent is void since the first respondent had violated the mandatory provision of Section of 33A of the Representation of the People Act, 1951". 26. It had also been prayed that, after the striking out of certain portions of the pleadings, the election petition may be dismissed, as being vague, vexatious and without the necessary cause of action and triable issues. 27. Further, by an affidavit, dated 10.7.2010, filed by the first respondent, it has been stated that the petitioner has filed a criminal complaint, dated 15.4.2010, on the file of the Chief Judicial Magistrate, Puducherry, under Section 200 of the Criminal Procedure Code, 1973, read with Section 125-A of the Representation of the People Act, 1951, and under Section 177 of the Indian Penal Code, 1860, on the alleged ground that the first respondent had failed to disclose the pendency of the criminal complaint against him, in the affidavit filed along with his nomination paper, on 20.4.2009, as required under Section 33-A of the Representation of the People Act, 1951. The criminal complaint had been filed, on 15.4.2010, after more than 360 days after the filing of the affidavit, by the first respondent, before the second respondent/Returning Officer, on 26.6.2009. The complaint filed by the election petitioner had been dismissed by the Chief Judicial Magistrate, Puducherry, as not maintainable, after a detailed hearing and by a well reasoned order. However, the election petitioner had not brought to the notice of this Court the complaint, made by him, on 15.4.2010, and the order of the Chief Judicial Magistrate, Puducherry, dated 5.5.2010, at the time of the hearing of the election petition by this Court, either on 21.6.2010, or on 29.6.2010. 28. It had also been stated that a certified copy of the order passed by the Chief Judicial Magistrate, Puducherry, on 5.5.2010, had been filed before this Court by way of a memo. 29. In the common counter affidavit filed by the election petitioner, in the applications filed by the first respondent, in Application Nos.1049, 1050 and 1051 of 2010, the averments and allegations made by the first respondent had been denied. 30. It has been stated that the first respondent had knowledge of the criminal complaint that was pending against him on the file of the Judicial Magistrate, First Class, Raipur, State of Chhattisgarh, under Sections 499 and 500 of the Indian Penal Code, 1860. It is clearly seen from the news item, reported in "The Hitavada" newspaper, dated 7.4.2009, that the first respondent had clear knowledge about the criminal complaint pending against him. The election petitioner had objected to the filing of the nomination paper by the first respondent, by suppressing the material fact regarding the pendency of the criminal complaint against him. The very fact that the first respondent had filed a false affidavit before the second respondent, which has been filed as a document, along with the election petition, would prove that the first respondent had, wantonly, suppressed the material fact regarding the pendency of the criminal complaint against him. A copy of the English newspaper "The Hitavada", which is leading newspaper in the State of Chhattisgarh, had been filed as a document, along with the election petition. The Election Commission of India, had made it mandatory for the contesting candidates, to submit the relevant information about the criminal cases pending against them. Even though the first respondent had knowledge of the criminal complaint registered against him, and after he had been questioned about the same by the reporters, and after it had been reported in "The Hitavada" newspaper, it would not be open to the first respondent to plead lack of knowledge regarding the pendency of the criminal complaint. 31. It had also been stated that the first respondent had not denied the newspaper report, nor had he issued a notice against the same. It is not in dispute that the first respondent was in-charge of Chhattisgarh State unit of the Indian National Congress party. While so, he had made certain statements against the complainant belonging to Bharatiya Janata Party, so as to tarnish his image. In such circumstances, the complainant had filed the criminal complaint against the first respondent, which had been taken on file, by the Judicial Magistrate, First Class, Raipur, State of Chhattisgarh, on 6.4.2009. As soon as the news of the criminal complaint had spread, the newspapers, wanting to get clarifications, with regard to the said incident, had interviewed the first respondent to obtain his version, which had been written in the "The Hitavada" newspaper, on 7.4.2009. Even though the election petitioner had filed the necessary complaint, along with the proof, to show that the first respondent had suppressed certain material facts at the time of the filing of the nomination, the second respondent had not given due consideration to the complaint made by the election petitioner. Since, the election petition has sufficient cause of action, as well as certain triable issues, it cannot be dismissed, in limine, as prayed for by the first respondent, in his applications. 32. It had also been stated that the non-disclosure of the pendency of the criminal complaint by the first respondent is a serious issue, as it is the duty of the first respondent to have brought it to the knowledge of the second respondent/ Returning Officer, as per the provisions of Section 33-A of the Representation of the People Act, 1951. In such a case, the claim of the first respondent that the election petition ought to be dismissed, in limine, cannot be sustained. The want of acknowledgment of the complaint made by the election petitioner, to the second respondent/Returning Officer, cannot be a ground for the rejection of the election petition. 33. The election petition is not vague or vexatious, as alleged by the first respondent. Since, the averments made in the affidavit filed in support of the election petition are true and correct, the prayer of the first respondent, in Application NO.1051 of 2010, for