IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11396 of 2010 PARAS NATH SINGH S/O LATE MOTI CHAND SINGH, R/O VILL.- HARIHARPUR, P.O. CHAUGAIN, P.S. KARAKAT, DISTT.- ROHTAS. …..PETITIONER. VERSUS 1. THE STATE OF BIHAR. 2. THE STATE ELECTION COMMISSION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA THROUGH THE ELECTION COMMISSIONER. 3. THE ELECTION COMMISSIONER, STATE ELECTION COMMISSION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA. 4. DISTRICT ELECTION OFFICER CUM DISTRICT MAGISTRATE, ROHTAS. 5. ANCHAL PADADHIKARI CUM ELECTION OFFICER, KARAKAT PRAKHAND, P.O. AND P.S. KARAKAT, DISTT.- ROHTAS. 6. DISTRICT PANCHAYATI RAJ OFFICER, ROHTAS. 7. SHARDA NAND SINGH, S/O SHRI ANANT SINGH, R/O VILL.- KURUR, P.O. KURUR, P.S. KARAKAT, DISTT.- ROHTAS. 8. ABHAY SINGH, S/O LATE BHARAT SINGH, R/O VILL.- KURUR, P.O. KURUR, P.S. KARAKAT, DISTT.- ROHTAS. 9. ARBIND KUMAR SINGH, S/O SHRI RAM NATH SINGH, R/O VILL.- KURUR, P.O. KURUR, P.S. KARAKAT, DISTT.- ROHTAS. 10. DHARMENDRA KUMAR, S/O SHRI BHIKHARI THAKUR, R/O VILL.- KURUR, P.O. KURUR, P.S. KARAKAT, DISTT.- ROHTAS. 11. BHARAT SINGH S/O LATE RAM NATH SINGH, R/O VILL.- CHIKSIL, P.O.- CHAUGAIN, P.S. KARAKAT, DISTT.- ROHTAS. 12. RAJESHWARI SINGH, S/O LATE RAM PRABESH SINGH, R/O VILL.- MANGRA, P.O. BHAKURA, P.S. KARAKAT, DISTT.- ROHTAS. 13. SHANKAR DAYAL S/O SHRI LAL BIHARI SINGH R/O VILL.- KURUR, P.O. KURUR, P.S. KARAKAT, DISTT.- ROHTAS. …..RESPONDENTS. ----------- For the petitioner : Mr. Y.V.Giri, Senior Advocate. Mr. Raju Giri, Advocate. For respondent no.1 : Mr. Sunil Kumar Mandal, S.C.15. For respondent nos.2 to 6 : Mr. Sanjeev Nikesh, Advocate. For respondent no.7 : Mr. S.N.P.Sharma, Senior Advocate. Mr. Akhauri Vipin Bihari Shrivastava, Advoate. For respondents nos.8 to 13 : None. -------- P R E S E N T HON’BLE MR. JUSTICE S. N. HUSSAIN --- S.N.Hussain, J. This petition has been filed challenging order dated 09.07.2010 (Anneuxure-7) by which learned Munsif, Bikramganj allowed Election Case no.04 of 2006 filed by Sharda Nand Singh (respondent no.7) and set aside the - 2 - election of the petitioner dated 16.06.2006 on the post of Mukhia of Gram Panchayat Chiksil under Block Karakat in the district of Rohtas (hereinafter referred to as „the Gram Panchayat‟ for the sake of brevity). 2. The Panchayat election was held on 24.05.2006 in which the petitioner along with respondents nos. 7 to 13 were elected members of the Gram Panchayat. However, for the post of Mukhia the petitioner and respondent no.7 contested and on counting of votes it was found that petitioner secured 1587 votes, whereas respondent no.7 secured 1225 votes and the result was declared on 16.06.2006 holding the petitioner as Mukhia of the Gram Panchayat. 3. Against the aforesaid election of petitioner, Election Case No.04 of 2006 was filed by respondent no.7 under Section 137 of the Bihar Panchayat Raj Act, 2006 (hereafter referred to as „the Act‟ for the sake of brevity) before the Munsif, Bikramganj in which the main points raised were that the petitioner in his nomination paper had concealed the fact that he was accused in criminal cases and that the petitioner had committed corrupt practices in obtaining votes by capturing booth no.148 and booth no.149 at village-Hariharpur in collusion with the Presiding Officer and the polling party. 4. In the said election case, the writ petitioner, who was respondent 1st set, appeared and contested the claim of the election petitioner. Respondents 3rd set also appeared and contested, but respondents 2nd set of the said election case did not contest the case. The claim of the said contesting respondents of the election case was that principle of law involved with respect to criminal cases were not applicable to the facts and circumstances of the instant case and that neither any corrupt practice was adopted, nor any booth was captured by respondent 1st set of the election petition. 5. Considering the respective claims of the parties, the learned court below framed the following issues for deciding the case: - 3 - (i) Whether the election case was legally maintainable? (ii) Whether the election petitioner had any cause of action with respect to the allegations which were ambiguous and without any materials at all? (iii) Whether the Election Officer, Karakat had illegally accepted the nomination paper of respondent 1st set of the election petition? (iv) Whether respondent 1st set of the election petition had used violence, corruption and illegal practices in the election? (v) Whether the Election Officer committed illegality, irregularity affecting the result of the election? (vi) Whether the election of respondent 1st set of the election petition to the post of Mukhia can be declared illegal and against the principles of law? (vii) Whether the election petitioner was entitled to be declared as Mukhia of the Gram Panchayat? (viii) Whether the election petitioner was entitled to the reliefs claimed? 6. The learned court below, namely Munsif, Bikramganj, after considering the pleadings and evidence of the parties allowed Election Case No.04 of 2006 and set aside the election of respondent 1st set of the election petition vide his judgment dated 09.07.2010 (Annexure-7) after arriving at the following findings: (a) The election case is legally maintainable? (b) Election petitioner has a cause of action to file the election case. (c) Issue no.(viii) is decorative in nature and needs no consideration. (d) Evidence on record clearly showed that the Election Officer, Karakat had intentionally accepted the nomination paper along with the affidavit filed by respondent 1st set of the election petition and it was void, illegal and ambiguous. - 4 - (e) Since respondent 1st Set of the election petition was involved in criminal cases and was arrested therein, the election officer should have immediately rejected the nomination paper of respondent no.1 of the election petition and thus the Election Officer intentionally committed illegality during the election due to which the election had been adversely affected. (f) In papers filed along with nomination papers, respondent no.1 of the election petition mentioned „zero‟ against column no.(iii) which was for specifying any criminal case pending against the candidate, although he should have mentioned the criminal case pending against him and by not doing so he acted illegally due to which his election has to be declared illegal and void. (g) Election petitioner having secured second highest votes, is entitled to be declared as Mukhia of the Gram Panchayat. 7. The aforesaid order passed in the election case has been challenged by the writ petitioner, who was respondent no.1 in the election petition, with respect to all the findings of the court below on the basis of which the election case was allowed. The instant writ petition has been contested by respondent no.7, who was the election petitioner in the court below, and his claim has been supported by the learned counsel for the State (respondent no.1) as well as learned counsel for the State Election Commissioner and its authorities (respondents nos. 2 to 6). So far respondents nos. 8 to 13 are concerned, since they had never challenged either the election of the writ petitioner or the order of the court below in favour of respondent no.7, they are not necessary parties for deciding this writ petition. 8. On the basis of their respective claims raised by the contesting parties to this writ petition, the following points arise for consideration in the instant case: - 5 - (i) Whether the proforma of the declaration/affidavit was legally and properly filled up or material fact had been concealed playing fraud with the election process? (ii) Whether the finding of corrupt practice arrived at by the court below was justified in the facts and circumstances of the case as the only corrupt practice claimed by respondent no.7 was that the writ petitioner had filed a wrong declaration/affidavit with the nomination paper? (iii) Whether the grounds for declaring the election to be void as per Section 139 of the Act were available? (iv) Whether respondent no.7 can be declared elected as Mukhia only because he had secured highest number of votes without fulfilling the conditions prescribed in Section 140 of the Act and without there being any dispute with regard to number of votes? 9. So far the first point is concerned, the allegation against the writ petitioner is that he had suppressed the pendency of two criminal cases against him in the declaration on affidavit filed by him along with his nomination papers. The said declaration is Annexure-2 series at page-37 of the writ petition. The first clause of the said performa requires the candidate to state as to whether he has been convicted by any court and whether against the said conviction he has filed any appeal or revision. The second clause of the said performa requires the candidate to state as to whether cognizance has been taken and charges have been framed against him in any case. Against both the aforesaid clauses, the petitioner had written „Shunya‟ (Zero). The 3rd, 4th and 5th clauses of the said performa are with respect to other declaration unconnected with the instant case. 10. The allegation against the writ petitioner is that two criminal cases were pending against him at the time when the said nomination papers - 6 - along with declaration/affidavit were filed. The first was Karakat P.S. Case No.95 of 2001 for offences punishable under Sections 406, 409 and 420 of the Indian Penal Code, whereas the second case was Karakat P.S.Case No.68 of 2005 for offences punishable under Sections 147, 148, 307, 387 & 302 of the Indian penal Code along with Section 27 of the Arms Act. It is not in dispute that on the date of filing of nomination papers, the said two cases had already been filed, but neither any order of conviction was passed nor any material has been produced to show that in those criminal cases either cognizance had been taken or charges had been framed against the petitioner by any court of law before the filing of the nomination paper. 11. In the aforesaid circumstances, it is to be decided whether the nomination paper of the petitioner was fit to be rejected due to suppression of any material fact. With respect to the aforesaid question, certain Rules provided in the Bihar Panchayat Election Rules, 2006 (hereinafter referred to as „the Rules‟ for the sake of brevity) have to be considered. They are as follows: “39(1) (f): No nomination paper shall be received by a Returning Officer unless it is accompanied by the following papers:- (i) A declaration in prescribed form regarding enrollment of the candidate and proposer as an elector, (ii) A declaration in prescribed form regarding conviction by competent court or pending criminal cases in any court. (iii) Original Caste Certificate as a proof of belonging to Scheduled Castes/Scheduled Tribes/Backward Classes issued by the District Magistrate/Sub- Divisional Magistrate/ Block Development Officer in case of nomination being filed by a candidate who wants to avail the benefits of the reservation of seats and nomination fee available to the members of Scheduled Castes/Scheduled Tribes/ Backward Classes. (iv) Challan of nomination fee deposited in a Government treasury or Nazir Receipt, (v) Necessary informations regarding the candidate as required by the Commission in prescribed form.” - 7 - “41(2): The Returning Officer shall examine the nomination papers and may reject them on the following grounds:- (a) If the candidate is disqualified for being elected to any post by or under the Act; (b) If the proposer is not qualified for subscribing to the nomination paper; (c ) If the provisions of Rules 38, 39 or 40 have not been complied with; (d) If the nomination paper does not bear the signature of the candidate or his proposer or the signatures are not genuine; (e) The nomination paper has been filed by the candidate for a post which is reserved for women/Scheduled castes/Scheduled Tribes/ Backward Classes and the candidate does not belong to such category. (f) If the papers mentioned in Rule 39(1) (f) have not been enclosed with the nomination paper.” 12. The aforesaid provision of Rule 39 (1)(f) (ii) of the Rules specifically provides that no nomination paper shall be received by a Returning officer unless it is accompanied by declaration in prescribed form regarding conviction by competent court or pending criminal cases in any court. The provision of Rule 41(2) (c) and (f) of the Rules provides that the Returning Officer shall examine the nomination paper and may reject them if the provisions of Rules 38, 39 or 40 have not been complied with and if the papers mentioned in Rule 39(1) (f) have not been enclosed with the nomination papers. In the aforesaid facts and circumstances, learned counsel for the petitioner has relied upon a decision of the Apex Court in case of Asgarali Nazarali Singaporewalla v. State of Bombay, reported in A.I.R.1957 S.C.503, whereas learned counsel for respondent no.7 has relied upon another decision of the Apex Court in case of Shri Baru Ram Vs. Smt. Prasani and others, reported in A.I.R.1959 S.C.93. 13. In its aforesaid decision in case of Asgarali Nazarali Singaporewalla (supra), the Supreme Court relying upon the meaning of word „pending‟ as defined in Stroud‟s Judicial Dictionary, Edn.3, Vol.3, page 2141, in which it was mentioned that a legal proceeding will be deemed to be - 8 - pending from the date of original cognizance until it is concluded, held that the test for a cause said to be pending in a court of justice is when any proceeding can be taken in it. On the other hand, in case of Shri Baru Ram (supra), the High Court had dealt with Section 36 of the Representation of the People Act, 1951 with respect to scrutiny of nomination and objects of its provision, but in that decision, no finding was given as to the date from which a proceeding can be deemed to be pending. 14. However, Section 33-A(i) of the Representation of the People Act, 1951 has been inserted by Act 72 of 2002 which provides that a candidate shall, apart from any information which he is required to furnish, under the said 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 (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; or (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. 15. In the said circumstances, it is quite apparent that the declaration on affidavit sought to be filed along with the nomination paper as required under Rule 39 (1) (f) of the Rules was quite similar to that as required under Section 33A (ii) of the Representation of the People Act, 1951 in which only the information as to whether the petitioner had been convicted or any cognizance had been taken or charges had been framed in any criminal case was to be supplied. Nowhere in either of the said places, it was required that information with regard to any case in which cognizance has not been taken and charges have not been framed, has to be provided. Furthermore, Rule 39 (1) (f) (ii) specifically provides that a declaration has to be made in the - 9 - prescribed form regarding conviction by competent court or pending criminal cases in any court only. 16. With respect to the term „pending‟, the Code of Criminal Procedure, 1973 in Chapter XIV specifically provides conditions requisite for initiation of proceedings which starts from cognizance of offences by Magistrates under Section 190 of the Code up till the prosecution provided in subsequent sections up to Section 199 of the Code. Thus, it is quite clear that the proceeding is initiated on cognizance of any offence taken by the Magistrate and not earlier to it. In this regard, reference may be made to a decision of the Apex Court in case of Devarapalli Lakshminarayana Reddy and others versus V. Narayana Reddy and others, reported (1976) 3 S.C.C.252, in which it was specifically held that from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. 17. In the aforesaid facts and circumstances, it is quite apparent that a criminal case can be said to be pending and initiated only after cognizance has been taken for any offence by a Magistrate or charges have been framed therein and not before that. No document has been produced by the respondents to show that any cognizance had been taken or charges had been framed in the aforesaid two cases against the petitioner prior to the filing of nomination. It is thus quite apparent that at the time of filing of the nomination paper along with required declaration, neither any cognizance was taken in those cases, nor any charges were framed therein and hence no case can be legally said to be pending against the petitioner on that date. Hence, the petitioner was not bound to mention any such case on the declaration required, especially when the said declaration did not require any information regarding - 10 - filing of any F.I.R./complaint against the petitioner, rather it only required a declaration about case in which the candidate was convicted or in which cognizance had been taken/charges had been framed. Hence, the petitioner had duly filled up the said declaration form on affidavit as per the information required in it. Thus, no case of any concealment of relevant fact or playing fraud upon the election process is made out against the petitioner. 18. So far the second point raised by the petitioner is concerned, section 141 has been specifically provided in the Act which reads as follows: 141. Corrupt Practices.- The following shall be deemed to be corrupt practices for the purposes of this Act- (i) bribery as defined in clause (1) of Section 123 of the Representation of the People Act, 1951 (Central Act 48 of 1951), for the time being in force; (ii) undue influences as defined in clause (2) of the said Section for the time being in force; (iii) that appeal by a candidate or his agent or by any other person with the consent of a candidate or his agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to national symbols such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate; (iv) the promotion of or attempt to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the election of that candidate to or for prejudicially affecting the election of any candidate; (v) the publication by a candidate or his agent or by any other person with the consent of candidate or his agent of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal of any candidature being statement reasonably calculated to prejudice the prospects of that candidate‟s election; (vi) the hiring or procuring whether on payment or otherwise, any vehicle or vessel by a candidate or his agent or by any other person with the consent of a - 11 - candidate or his agent, or the use of such vehicle or vessel for the free conveyance of any voter (other than the candidate himself, the member of his family or his agent) to or from any polling station provided in accordance with the Rules made under this Act: Provided that the use of any public transport vehicle or vessel or railway carriage by any voter at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause. Explanation.- In this clause, the word “vehicle” means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise whether used for the drawing of other vehicles or otherwise. (vii) the holding of any meeting at which intoxicating liquors are served; (viii) the issuing of any circular, placard or poster having reference to the election which does not bear the name and address of the printer and publisher thereof; (ix) any other practice which the Government may by Rule specify to be a corrupt practice.” 19. The pleadings with regard to allegation of corrupt practice has to be strictly scrutinised specifically considering whether it had materially affected the election as has been held by the Apex Court in case of Dhartipakar Madan Lal Agrawal v. Shri Rajiv Gandhi, A.I.R.1987 S.C.1577. Mere allegation without pleading any material fact in support of the case set up by the election petitioner will not be sufficient as in the absence of pleading a party cannot be allowed to lead evidence. Hence, failure to state even a single material will entail dismissal of the suit or petition. This view has been expressed by the Supreme Court in case of Virender Nath Gautam Vs. Satpal Singh and others, reported in (2007) 3 SCC 617. 20. However, no corrupt practice has been claimed by respondent no.7, nor any other corrupt practice has been found by the court below, except the allegation that wrong declaration had been made in the proforma of declaration/affidavit filed along with nomination papers concealing the fact regarding the said two criminal cases. Furthermore, no - 12 - finding has been given by the court below even as per the provision of Section 123 of the Representation of the People Act, 1951 regarding any other act of the petitioner which may amount to corrupt practice. Only on the assumption of two criminal cases, the court below has come to the conclusion that the petitioner had adopted corrupt practice, although no condition prescribed under Section 141 of the Act is fulfilled in this case. In the said circumstances, the finding of the court below with regard to corrupt practice also is absolutely frivolous and baseless and is against the settled principle of law. 21. So far the third point raised by the petitioner is concerned, it is with respect to grounds for declaring an election to be void. In this regard, the provision of Section 139(1) has been provided in the Act which reads as follows: “139. Grounds for declaring election to be void.-(1) Subject to the provisions of sub-section (2) if the prescribed authority is of opinion- (a) that on the date of his election, a returned candidate was not qualified or was disqualified, to be chosen as a member under this Act; or (b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance of any nomination; or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent; or (iii) by