IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 MFA.No. 34 of 2008() -------------------- OPEP.479/2005 of D.C & SESSIONS COURT,TRIVANDRUM .................... APPELLANT(S): FIRST RESPONDENT: ------------------------------- GOPALAKRISHNAN N., S/O. NARAYANAN, AGED 60 YEARS, RESIDING AT ADARSH BHAVAN,KAZHIVOOR BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS RESPONDENT(S): PETITIONER AND RESPONDENTS 2 AND 3: -------------------------------------------------- 1. A. SARASI, D/O. APPI AMMA, AGED 46 YEARS, RESIDING AT AJEESH BHAVAN, KANJIRAMKULAM. 2. C.CHANDRAN, S/O. CHELLAN NADAR, AGED 41 YEARS, VANGANINNA VEEDU, KAZHIVOOR. 3. S.K. JOY RAJ SOMARAJAN, AGED 31 YEARS, S.K. NIVAS, KANJIRAMKULAM. ADV. SRI.GEORGE POONTHOTTAM FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO. 707/08 IN MFA 34/08 DISMISSED 13/2/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ M.F.A.NO. 34 OF 2008 ------------------------------------------ Dated 13th February 2009 JUDGMENT Whether non mentioning of pendency of a criminal case, in which the candidate is one of the accused, would make Form 2A submitted by him along with his nomination paper, in compliance with Section 52(1A) of Kerala Panchayat Raj Act, a fake statement which is a ground for setting aside an election under Section 102(1)(ca) of Kerala Panchayat Raj Act, 1994? This is the question to be decided in this appeal. 2. Appellant is the elected candidate of Ward No.7 of Athiyannoor Block Panchayat of Neyyattinkara Taluk held on 24/9/2005. First respondent is the election petitioner. Respondents were the other candidates. Appellant was declared the elected candidate having secured 3256 votes as against 2779 votes secured by first respondent. First respondent filed O.P(Election petition) 479/2005 before District court, Thiruvananthapuram to declare MFA 34/08 2 the election of the appellant void and to declare herself as the duly elected candidate. Election was sought to be declared void on the ground that the appellant was third accused in C.C.292/2005 on the file of Judicial First Class Magistrate, Neyyattinkara and cognizance in that case was taken on the final report filed by the police after investigation in Crime 309/2004. It was contended that as the appellant suppressed the pendency of C.C.292/2005, where he figured as the third accused, there is material suppression of facts in Form 2A submitted by him and therefore there is noncompliance with the provisions of Kerala Panchayat Raj Act and Rules and election of the appellant is to be declared void on that ground. She also sought to declare herself as the elected candidate. Appellant filed an objection to the election petition contending that no case was pending trial against him, when he filed his nomination paper and no false statement was submitted and therefore his election cannot be declared void. 3. No oral evidence was adduced by both the parties. Exts.A1 to A8 and Exts.X1 to X1(c) were MFA 34/08 3 marked on the side of first respondent. On the side of appellant Ext.B1 was marked. 4. Learned District Judge based on Ext.A8 final report filed by the police after investigation in crime 309/2004 evidenced by Ext.A7 FIR found that on 14/2/2005 a final report was submitted before the court and cognizance was taken by the Magistrate in C.C.292/2005 for the offence under Sections 141, 142, 143 and 353 of Indian Penal Code on 23/2/2005 and appellant had taken bail in that case on 6/12/2004 as stated in Ext.A8 final report and though as seen from Ext.B1, summons was received by the appellant only on 8/1/2006, Ext.X1(a) nomination paper along with Ext.X1(c) Form 2A were submitted only on 5/9/2005 and suppressing the true facts Ext.X1(c) form 2A was filed and therefore it is a fake and declared the election of appellant void under Section 102(1)(ca) of Kerala Panchayat Raj Act. Prayer of the first respondent to get herself declared as the elected candidate was rejected. Appellant, being the elected candidate, filed this appeal challenging the order. 5. Learned counsel appearing for the appellant and first respondent were heard. MFA 34/08 4 6. Learned counsel appearing for appellant argued that election could be set aside as provided under Section 102(1)(ca) of Kerala Panchayat Raj Act (hereinafter referred to as the Act) only if the details furnished by the elected candidate under Section 52(1A) were fake and an incorrect statement in form 2A would not amount to a fake statement and therefore the election cannot be declared void on that ground. It was argued that when Ext.B1 copy of summons served on the appellant establish that he was served with the summons only on 8/1/2006, though Ext.A8 final report shows that cognizance was taken on 23/2/2005 when there is no evidence to prove that appellant was aware of the cognizance taken in that case before 5/9/2005, when the nomination paper along with Ext.X1(c) form 2A submitted, there was no intentional suppression of facts and therefore non mentioning of that case does not amount to a fake statement and therefore the order is not sustainable. Learned counsel also argued that though Ext.A8 final report was filed, no evidence was adduced to prove that appellant had taken bail in that case on 6/12/2004 as stated by the learned District Judge and MFA 34/08 5 when no evidence was adduced to prove that bail was taken by the appellant merely based on the recital in Ext.A8 learned District Judge was not justified in holding that appellant had taken bail on 6/12/2004. It is also pointed out that as the appellant could only furnish the details as provided in form 2A, when form 2A provides a column for noting down the details of cases pending trial alone, appellant is not expected to disclose a case in which to the knowledge of the appellant no final report was filed or cognizance was taken and therefore in any case, non mentioning of pendency of C.C.292/2005 will not make Ext.X1(c) form 2 A, a fake and therefore the election cannot be set aside as provided under Section 102(1)(ca). 7. Learned counsel appearing for first respondent relying on the decision of a learned Single Judge of this court in Arshad v. Nellancheri Mustaffa (2007 (3) KLT 785) argued that submission of form 2A with false details, amount to submission of a fake declaration and when on the date of submission of Ext.X1(a) nomination appellant is proved to be an accused in C.C.292/2005 and in the MFA 34/08 6 relevant column in Ext.X1(a) appellant declared that he is not involved in any criminal case, Ext.X1(c) is a fake declaration and therefore learned District Judge rightly declared the election void. Learned counsel relying on the decision of the Apex court in Union of India v. Association of Democratic Reforms and another (AIR 2002 SC 2112) argued that Section 52(1A) of Kerala Panchayat Raj Act was amended in view of the direction given by the Apex court and what was declared by the Apex court is that a candidate shall declare the details of the criminal cases against him and when Ext.A8 establishes that appellant had taken bail in that case and cognizance of the offence was taken much earlier to the submission of nomination paper, appellant has a duty to enquire and find out whether a charge sheet was filed or not and filling up form 2A without proper enquiry cannot be justified and the omission is intentional and makes the declaration a fake. Relying on the decision of the Apex court in Bipinchandra Parshottamdas Patel v. State of Gujarat and others (2003 (4) SCC 642) learned counsel argued that the word trial cannot be given a restricted MFA 34/08 7 meaning and what is provided under Section 52(1A) of the Act is the discloser regarding criminal cases in which a candidate is involved at the time of submission of his nomination paper and not the cases in which he is facing trial after framing charge and therefore learned District Judge rightly found that the appellant suppressed real facts and filed a false form 2A and therefore election is liable to be declared void as provided under Section 102(1)(ca). Learned counsel pointed out that though Section 102 (1)(ca) was not specifically shown in the election petition, a reading of election petition would show that the election was sought to be set aside on the ground that appellant filed a false form 2A declaration and it is a fake declaration and therefore there is no reason to interfere with the order passed by the learned District Judge. Relying on the decision of the Apex court in M/s.Aphali Pharmaceuticals Ltd. v. State of Maharashtra and others (AIR 1989 SC 2227) and Ispat Industries Ltd. v. Commissioner of Customs, Mumbai (2006 (12) SCC 583) it was argued that even though there is ambiguity between Form 2A prescribed under the MFA 34/08 8 Rules and Section 52(1A) of the Act preference is given to the provisions in the Section 52(1A) and when the appellant did not disclose the details of pending criminal case in Ext.X1(a) form 2 A, Ext.X1 (c) is a fake one. 8. Section 102 of the Act provides the grounds for declaring an election void. Sub Section 1 of Section 102 provides that subject to the provisions of sub section 2, if the court is of the opinion that the election is vitiated either under clause (a), (b),(c), (ca) or (d) it shall declare election of the returned candidate void. Under clause (d) election is to be declared void, if the result of the election in so far as the returned candidate has been materially affected (i)by improper acceptance of any nomination or (ii)by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent or (iii) by improper reception, refusal or rejection of any vote or reception of any vote which is void or (iv) by any non compliance with the provisions of the Act or any rules or orders made thereunder. But, if an election is to be declared void under MFA 34/08 9 clause (d), it is to be pleaded and proved that the result of the election of the returned candidate has been materially affected for any of the grounds under sub clauses (i), (ii), (iii) or (iv). When election is to be declared void under clause (a), (b) (c) or (ca), it is not necessary to prove that the result of the election of the returned candidate has been materially affected on those grounds. Though first respondent did not mention the ground under Section 102(1)(ca) in the election petition and instead in paragraph 8 of the election petition prayed “hence as per Section 102(1)(iv) election of first respondent is liable to be declared void on the sole ground that he has given false and incomplete statement in form 2A”, learned District Judge treated the application as one filed for declaring the election void on the ground provided under Section 102(1)(ca). True, quoting of a wrong section by itself is not fatal, if by reading the petition as a whole it is clear that the petition was filed on that ground. But reading of the election petition shows that it is the case of the respondent that the appellant did not furnish a proper Form 2A and MFA 34/08 10 instead filed Ext.X1(c) with false and incomplete statements. Non compliance with the provisions of the Act or of any rules or orders made under the Act is a ground to set aside the election under clause (d)(iv) of Section 102(1) of the Act. In that sense it could be said that the election petition is one filed under Section 102(1)(d)(iv) of the Act. Whatever it be, as the petition was treated by the District Judge, to set aside the election under Sect 102(1) (ca) of the Act, and first respondent also asserted that election was challenged only on that ground and not under Section 102(1)(d)(iv) by the Act, question is whether the ground is established. Section 102(1)(ca) of the Act reads, 102(1) Subject to the provisions of sub section (2) if the Court is of opinion (a) ..... (b) ..... (c) ..... (ca)that the details furnished by the elected candidate under sub section (1A) of section 52 were fake. Section 52(1A) of the Act reads; 52(1A) Every candidate submitting nomination under sub section (1) shall not be deemed MFA 34/08 11 to be qualified to be elected to fill that post unless he submits, along 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 Kerala Panchayat Raj Act (Conduct of Election) Rules, 1995 prescribes the form to be submitted before the Returning Officer along with the nomination paper as provided under Section 52(1A). Sub Rule (2a) of Rule 6 of Kerala Panchayat Raj Act (Conduct of Election) Rules reads; Every candidate shall submit before the Returning Officer, the details in Form MFA 34/08 12 No.2A along with the nomination paper. Relevant details in form 2A, as provided under Rule 6 (2a) reads; 1. The following criminal cases are pending against me for trial before the court/ I have been convicted by the court in criminal cases. (a) Pending trial before the court (i) Case number (ii) Name and place of court (iii)Description regarding offence (iv) Sections of the concerned Act under which charge has been framed (b) Those in which punished (i) Case number (ii) Name and place of court (iii)Description of the offence for which punishment was awarded (iv) Sections of the concerned Act under which punishment was awarded (v) Punishment awarded (period of imprisonment/ quantum of fine imposed)etc. (vi) Details regarding appeal, revision, etc. filed against the sentence Therefore, under the Act and the rules a candidate MFA 34/08 13 along with the nomination paper has to furnish Form 2A. Ext.X1(c) is the Form 2A furnished by the appellant. All the relevant details with regard to the criminal case in Form 2A are answered by the appellant in the negative. Ext.A8 certified copy of the final report in C.C.292/2005 on the file of Judicial First Class Magistrate, Neyyattinkara shows that a final report was filed under Section 173(2) of Code of Criminal Procedure on 21/2/2005 and the Magistrate took cognizance of the offences under Sections 141, 142, 143, 149 and 353 of Indian Penal Code on 23/2/2005. The recital in Ext.A8 final report submitted by the Sub Inspector shows that accused 1 to 7 appeared before the Sub Inspector and executed a bond and were released on bail on 6/12/2004. As per Ext.A8, appellant is the third accused. On these facts there is no dispute. 9. There is no evidence to prove when the Magistrate had in fact issued summons to the accused, Ext.B1 certified copy of the served summons in C.C.292/2005 shows that summons dated 14/10/2005 was served on the appellant on 8/1/2006 and as per the summons appellant has to appear before the Magistrate MFA 34/08 14 at 11 a.m on 23/1/2006. There is no evidence to show that the appellant was aware of the filing of the final report or taking of cognizance by the Magistrate in that case on a day prior to 8/1/2006, the date on which summons was actually seen served on him. The question in such circumstances is whether the failure to mention about the pendency of C.C.292/2005 in Ext.X1(c) would amount to furnishing fake details which is a ground for setting aside the election under Section 102(1)(ca) of the Act. 10. Ground under Section 102(1)(ca) is not furnishing of false details or incorrect details or incomplete details but only details which were fake. The word fake is not defined in the Act. In Black's Law Dictionary, (sixth edition) the following meaning is given. “fake; to make or construct falsely; A 'faked alibi' is a made, manufactured, or false alibi. Something that is not what it purports to be; counterfeit. An imposter.” In the Concise Oxford Dictionary (ninth MFA 34/08 15 edition) the meaning given is “fake n.1.a thing or person that is not genuine. 2.a trick adj.counterfeit; not genuine. v.tr. 1 make (a false thing) appear genuine; forge, counterfeit. 2.make a pretence of having (a feeling, illness, etc.). faker n. fakery n.[obsolete feak, feague 'thrash' from German fegen'sweep, thrash'].” 11. Question is whether incorrect details or partly incorrect details would tantamount to fake details. If the appellant was an accused in a criminal case pending before any court and he was aware of that case and the pendency of that case was suppressed in Form 2A, it would definitely amount to furnishing details which are fake which is a ground for setting aside an election under Section 102(1) (ca) of the Act. But if there is only an omission of inconsequential details though it could be said that the details furnished are not accurate or complete it cannot be said that the details so furnished are false or fake. There is much difference between MFA 34/08 16 incorrect details, false details and fake details. What is made a ground to set aside the election under clause (ca) of Section 102(1) is only details which were fake. 12. A learned Single Judge of this court in Arshad's case (supra) finding that suppression of the liability of the candidate towards K.S.F.E makes the Form 2A a fake held “If any candidate fails to furnish any one of the details or furnish a detail which is false to his knowledge he is not qualified for chosen to fill a seat in a Panchayat in any level. It is only furnishing a false detail. That makes the declaration a fake one. Omission to furnish any one of the details also will have the same effect. Ext.X2 is the nomination paper filed by the 1st respondent. Ext.X3 is the details furnished by him in Form No.2A along with the nomination paper. The respondent suppressed the details of liability due from him to the K.S.F.E and hence a fake one. So he cannot be deemed to be qualified to contest the election, as enjoined under S.52(1A) of the Act.” It is based on this observation learned counsel argued that when there is omission to mention the MFA 34/08 17 pendency of a criminal case in which he is an accused, it is suppression of material fact and that suppression makes Ext.X1(c) a fake. What was held by the learned Single Judge in Arshad's case is only that if there is furnishing of details “which is false to his knowledge” it is fake. The argument of the learned counsel appearing for respondent is that it is to maintain the purity of elections and in particular to bring transparency in the process of election, Apex court in Association for Democratic Reforms and another v. Union of India(AIR 2002 SC 2112) upheld the jurisdiction of the Election Commissioner to direct disclosure of his assets, liabilities and directed the Election Commission to call for information from the candidate on affidavit whether he is convicted or acquitted in a criminal case or details of any criminal case pending against him and Section 52(1A) was enacted in view of this directions and therefore non mentioning of the pending criminal case make the details furnished a fake one. Relevant portion of the directions of the Apex court in Association for Democratic Reforms's case (supra) reads; MFA 34/08 18 “The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper furnishing therein, information on the following aspects in relation to his/her candidature:- (1) Whether the candidate is convicted/ acquitted/ discharged of any criminal offence in the past-if any, whether he is punished with imprisonment or fine? (2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof. (3) The assets(immovable, MFA 34/08 19 movable, bank balance etc.) of a candidate and of his/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues. (5) The educational qualifications of the candidate.” The disclosure contemplated is about criminal case in which the candidate was convicted or acquitted and the criminal cases in which charge is framed or cases in which cognizance is taken for an offence punishable for a period of two years or more. 13. But section 52(1A) provides for furnishing details of “criminal cases in which he is involved at the time of submission of nomination”. Form 2A calls for details of “criminal case pending trial before the court and also cases in which he is convicted.” It is relying on the decision of the Apex court in Bipinchandra Parshottamdas's case (supra) the learned counsel appearing for respondent argued MFA 34/08 20 that the word trial cannot be given a restricted meaning but is to be interpreted as any pending criminal case. 14. Considering the word trial used in Section 40 of Gujarat Municipalities Act which provides for suspension of President and Vice President against whom a criminal case is pending trial, Supreme Court held, “Therefore the word “trial” in Section 40 of the Act cannot be supplanted with a straitjacket meaning so as to cover all situations. No doubt, the word “trial” used in Part II of Section 40(1) is capable of two interpretations in the context of the present case. One is the restricted interpretation so as to cover only the period after framing of the charge. This view is what the appellant advances. The second possibility is to assign a liberal meaning so as to cover “detention at any stage of the case”.” True, considering the purpose for which Section 52(1A) is enacted, disclosure of details on criminal cases in which he is involved provided thereunder is to be given a wider meaning. But it cannot be extended to absurdity. Even if a criminal case was MFA 34/08 21 registered and cognizance of the offence was taken, unless it is to the knowledge of the candidate, he cannot be expected to disclose it. More over, he can furnish the details only as provided in Form 2A. When the said Form only provides for details of cases pending trial and even if the word trial is given a wider meaning it cannot be extended to cases in which only an FIR is registered or cognizance was not taken. 15. When the evidence establish that appellant was not aware of taking cognizance of the offence in C.C.292/2005 when he submitted the nomination paper, the non mentioning of existence of that criminal case would not amount to furnishing of fake details as found by the learned District Judge. The argument of the learned counsel appearing for first respondent is that when appellant had already obtained bail in that case from the police station and he has to file Form 2A, as mandated under Section 52(1A) of the Act, which provides that a candidate at the time of submitting nomination shall not be deemed to be qualified unless he submits along with such nomination the details of “criminal case in which he MFA 34/08 22 is involved at the time of submission of nomination”, he has a duty to enquire what happened to the case in which he had obtained bail, before submission of Form 2A and if the