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CRIMINAL APPEAL NOS.1515-1516 OF 2019
[Arising out of Special Leave Petition (Criminal) Nos. 19-20 of 2019]
SATISH UKEY APPELLANT(S)
AND ANR. RESPONDENT(S)
JUDGMENT
1. Leave granted.
2. The appellant– Satish Ukey is a practicing Advocate of the Bombay High Court. The first respondent is an elected member of the Maharashtra State Legislative Assembly and is presently holding the post of Chief Minister of the State of Maharashtra. 2019 INSC 1103
3. The appellant had filed a criminal complaint before the learned Judicial Magistrate First Class, Nagpur for registration of a case against the first respondent under Section 125-A of the Representation of the People Act, 1951 (hereinafter referred to as “the 1951 Act”). The learned Judicial Magistrate First Class, Nagpur by order dated 7th September, 2015 dismissed the complaint. In Revision, the learned Sessions Judge, Nagpur remanded the matter to the learned trial Court for a de novo consideration. Aggrieved, the first respondent moved the High Court and the High Court having set aside the order of the learned Sessions Judge by its judgment and order dated 3rd May, 2018, the present appeals have been filed.
4. The complaint filed by the appellant contains an allegation that in the affidavit in Form-26, prescribed by the Conduct of Election Rules, 1961 (hereinafter referred to as “the 1961 Rules”), which had accompanied the nomination papers of the first respondent details of two cases in which cognizance was taken i.e. (i) Summary Case No.231 of 1996 (under Section 500 of IPC) before the Judicial Magistrate First Class, Nagpur; and (ii) Regular Criminal Case No.343 of 2003 (Old No.125 of 1998) (under Sections 468, 471, 218, 467, 420 and 34 of IPC) before the Court of Judicial Magistrate First Class, Nagpur have not been mentioned by the first respondent despite knowledge of the same. Consequently, according to the appellant – complainant, an infraction of the provisions of Section 125-A has been committed for which the first respondent is liable to be prosecuted in a court of competent jurisdiction. On the very same allegations the appellant had challenged the election of the first respondent before the High Court by instituting Election Petition No.1 of 2014 which has been dismissed by the High Court by its order dated 19th August,
2015.
5. To determine the correctness of the stand taken by the appellant - complainant and the legality of the impugned order of the High Court holding that the complaint is liable to be dismissed, the Court would be required to consider the provisions of Sections 33-A and 125-A of the 1951 Act, Rule 4A of the 1961 Rules read with Form-26 prescribed under the said Rules. Several letters of the Election Commission of India to the Chief Electoral Officers of all the States and the Union Territories issued in this regard would also require a close look.
6. Before setting out the relevant provisions of the law enumerated above, a brief prologue on the judicial precedents that had led to the insertion of Sections 33-A and 125-A in the 1951 Act and the provisions of Rule 4-A of the 1961 Rules read with Form-26 is considered necessary.
7. In Union of India (UOI) and Ors. v. Association for Democratic Reforms and Ors.[1] this Court while examining the issue of the Voters right to know relevant particulars of the contesting candidates before they are called upon to cast their votes had made the following observations:
8. Consequent to the above and the directions issued in Association for Democratic Reforms (Supra), Section 33-A was inserted into the 1951 Act vide the ‘Representation of the People (Third Amendment) Act, 2002’ (Section 2 of the Act 72 of 2002).
9. The new Section 33-A, which is the bone of contention in the present case, deals with the ‘Right to Information’ and reads as under: “33A. 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 –
(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 delivered. It is pertinent to note here that Section 33-A(1), as worded and drafted, required furnishing of the information of cases where (i) the person filing the nomination has been convicted; and (ii) where charges have been framed against the person filing the nomination but excluded cases where cognizance had been taken. This was despite the order of this Court, noticed above, to the effect that details of case(s) of which cognizance has been taken should also be furnished.
10. The aforesaid discrepancy was addressed by this Court, in the case of People's Union for civil Liberties (PUCL) and Ors. v. Union of India (UOI) and Ors.[2] In the said case, this Court had examined the import of Sections 33-A and 33-B[3] of the 1951 Act [as inserted in the 1951 Act through the amendment in 2002 (Supra)] vis-à-vis the directions issued by this Court in the case of Association for Democratic Reforms (Supra) and held as under (opinion of M.B. Shah, J. is quoted. The opinion of P. Venkatarama Reddi and D.M. Dharmadhikari, JJ. on the point is one of concurrence):
11. Section 125-A of the 1951 Act [Inserted by Section 5 of the Representation of the People (Third Amendment) Act, 2002’ (Act 72 of 2002)] reads as under: “Section 125-A. Penalty for filing false affidavit, etc.- A candidate who himself or through his proposer, with intent to be elected in an election,—
(i) fails to furnish information relating to sub-section (1) of section 33-A; or
(ii) gives false information which he knows or has reason to believe to be false; or
(iii) conceals any information, in his nomination paper delivered under subsection (1) of section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33-A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both”
12. Whether the provisions of Section 125-A of the 1951 Act would be applicable in the present case, as claimed by the appellant – complainant, to make the first respondent liable in law, would require the Court to decide on the true meaning and purport of the following phrases found in Section 125-A of the 1951 Act. (a) fails to furnish information relating to sub-section (1) of Section 33-A; (b) conceals any information;
(c) in his nomination paper delivered under sub-section
(1) of section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33-A.
13. To find out the true meaning and purport of the aforesaid phrases, the crucial question that has to be answered is whether the word ‘information’ as mentioned in Section 33-A of the 1951 Act means only such information as mentioned in clause (i) and (ii) of Section 33-A(1) or whether along with the said information a candidate is also required to furnish such other information as required under the Act or the Rules made thereunder. The consequential question that would arise is whether in the affidavit required to be filed under sub-section (2) of Section 33-A information is to be given as required in terms of the affidavit which is prescribed by Form-26 of the 1961 Rules or such information is confined to what is required to be submitted under Section 33-A (1) (i) and (ii). It is at this stage that Rule 4- A of the 1961 Rules would require to be noticed. Rule 4-A which was inserted by S.O.935(E), dated 3.9.2002 with effect from 3.9.2002 is in the following terms. “4-A. Form of affidavit to be filed at the time of delivering nomination paper.— 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.”
14. Form 26 is the prescribed form of affidavit to be filed by a candidate along with his nomination papers as required under Section 33-A (2) of the 1951 Act. The said affidavit in the prescribed form reads as hereunder: " [FORM 26 (See Rule 4-A) Please affix your recent passport size photograph here Affidavit to be filed by the candidate along with nomination paper before the returning officer for election to ………………………….(name of the House) from……………………………constituency (Name of the constituency)
I ……………………………………., **son/daughter/wife of………………………………………… Aged…………………………..years, resident of ………………………………………………… (mention full postal address), a candidate at the above election, do hereby solemnly affirm and state on oath as under— (1) I am a candidate set up by……………………….(**name of the political party)/**am contesting as an Independent candidate. (**Strike out whichever is not applicable) (2) My name is enrolled in ………………………………………….(Name of the constituency and the State), at
┌──────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. Description Self Spouse Dependent- Dependent- Dependent- │ │ No. 1 2 3 │ │ (i) Loan or dues to Bank/financial institution(s) │ │ Name of the Bank or financial institution, │ │ Amount outstanding, Nature of Loan │ │ Loan or dues to any other individuals/entity │ │ other than mentioned above Name(s), │ │ Amount outstanding, nature of loan │ │ Any other liability │ │ Grand total of liabilities │ │ (ii) Government Dues │ │ Dues to departments dealing with │ │ government accommodation │ │ Dues to department dealing with supply of │ │ water │ │ Dues to department dealing with supply of │ │ electricity │ │ Dues to department dealing with supply of │ │ telephones/mobiles │ │ Dues to department dealing with │ │ government transport (including aircrafts │ │ and helicopters) │ │ Income Tax dues │ │ Wealth tax dues │ │ Service tax dues │ │ Municipal/Property tax dues │ │ Sales tax dues │ │ Any other dues │ └──────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
Term Deposits and all other types of
│ │ deposits including saving accounts), │ │ Deposits with Financial Institutions, Non- │ │ Banking Financial Companies and │ │ Cooperative societies and the amount in │ │ each such deposit │ │ (iii) Details of investment in Bonds, │ │ debentures/shares and units in │ │ companies/Mutual funds and others and │ │ the amount │ │ (iv) Details of investment in NSS, Postal │ │ Saving, Insurance policies and investment │ │ in any Financial instruments in Post Office │ │ or Insurance Company and the amount │ │ (v) Personal loans/advance given to any │ │ person or entity including firm, company, │ │ Trust etc., and other receivables from │ │ debtors and the amount │ │ (vi) Motor Vehicles/Aircrafts/Yachts/Ships │ │ (Details of Make, registration number etc. │ │ year of purchase and amount) │ │ (vii) Jewellery, bullion and valuable thing(s) │ │ (give details of weight and value) │ │ (viii) Any other assets such as value of │ │ claims/interest │ │ (ix) Gross Total Value │ └────────────────────────────────────────────────────────────────────────────────────────────────────────�
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6. Total number of cases in which convicted and sentenced to imprisonment for one year or more except for offences referred to in sub-sections(1), (2) or (3) of Section 8 of Representation of the People Act,
1951.
7. PAN of Year for which last income tax return filed Total income shown (a) Candidate (b) Spouse
(d) Dependents]
8. [Details of Assets and Liabilities in rupees] Description Self Spouse Dependent-I Dependent- II III
I. Purchase Price of self-acquired immovable property
II. Development/Construction cost of immovable property after purchase (if applicable)
III. Approximate Current market price of—
9. Liabilities
(i) Government dues (Total)
(ii) Loans from Bank, Financial Institutions and others (Total)
10. Liabilities that are under dispute
(i) Government dues (Total)
(ii) Loans from Bank, Financial Institutions and others (Total)
11. Highest educational qualification: (Give details of highest School/University education mentioning the full form of the certificate/diploma/degree course, name of the School/College/University and the year in which the course was completed.) VERIFICATION I, the deponent, abovenamed, do hereby verify and declare that the contents of this affidavit are true and correct to the best of my knowledge and belief and no part of it is false and nothing material has been concealed therefrom. I further declare that— (a) there is no case of conviction or pending case against me other than those mentioned in Items 5 and 6 of Part A and B above; (b) I, my spouse, or my dependents do not have any asset or liability, other than those mentioned in Items 7 and 8 of Part A and Items 8, 9 and 10 of Part B above. Verified at…………………………this the…………………day of……………………………………… DEPONENT Note: 1. Affidavit should be filed latest by 3.00 PM on the last day of filing nominations. Note: 2. Affidavit should be sworn before an Oath Commissioner or Magistrate of the First Class or before a Notary Public. Note: 3. All column should be filled up and no column to be left blank. If there is no information to furnish in respect of any item, either “Nil” or “Not applicable”, as the case may be, should be mentioned. Note: 4. The Affidavit should be either typed or written legibly and neatly.”
15. It may be noticed here that Form-26 was substituted by S.O. 1732 (E) dated 1.8.2012 with effect from 1.8.2012.
16. A bare perusal of Form-26 makes it abundantly clear that, for offences punishable with imprisonment for two years or more, while entry (5) (i) mandates disclosure of information by the contesting candidate regarding the case(s) that is/are pending against him in which charges have been framed by the Court; entry (5)(ii) mandates disclosure of information by the contesting candidate regarding cases that are pending against him in which cognizance has been taken by the Court. Entry 5(ii) specifically mentions that the candidate is required to provide information of the case(s) pending in which cognizance has been taken. This is in addition to the information he is required to provide against the column in Entry 5(i) as the words ‘Other than the cases mentioned in item (i) above’ are specifically used in Entry 5 (ii).
17. The above can leave no element of doubt that, subsequent to the substitution of Form 26 in 2012, the new Form 26 (as in vogue at the time of the elections in 2014), mandates the disclosure of information by the contesting candidate of not only case(s) in which charges have been framed but also case(s) in which cognizance has been taken by the Court.
18. The position is made further clear by the letters written by the Election Commission of India to the Chief Electoral Officer of all the States and the Union Territories. A reading of the said letters would go to show that a contesting candidate is mandated to furnish information concerning the cases in which a Competent Court has taken cognizance along with the cases in which charges have been framed. The said letters also make it clear that the affidavit mentioned in Section 33-A(2) of the 1951 Act is prescribed in Form-26 and that any false declaration or concealment of information in the said affidavit will attract the provisions of Section 125-A of the 1951 Act. The letters in this regard are dated 24.8.2012, 26.9.2012 and 26.4.2014, relevant portions of which are extracted below:
(i) Letter dt. 24-08-2012: “1. Sub:- Affidavit to be filed by candidates with their nomination paper-modification of formatregarding. The candidates at elections to the Parliament and the State Legislatures hitherto were required to file two affidavits: one, in Form-26 appended to Conduct of Elections Rules, 1961 and the other, in the Form prescribed by the Commission, vide its Order No. 3/ER/2003 dt. 27-03-2003, as subsequently modified by the letter of even number dt. 25-02-2011. In the affidavits, the candidates are required to declare information about their criminal background, if any, assets, liabilities and educational qualifications.
2. On a proposal moved by the Commission for amalgamating the two affidavits into one format, the Govt. has amended Form 26 so as to include in it all the information that was sought in the two separate affidavits. The Ministry of Law and Justice have notified the revised format 26 in the Gazette of India on 01- 08-2012. A copy of the said notification dated 1st August, 2012 is enclosed herewith.
3. In view of the amendment to Form-26, all candidates shall, hereafter, file only one affidavit in the revised Form 26 notified on 01- 08-2012 (at elections to the Parliament and State Legislatures). The requirements to be followed while filing the affidavit have been mentioned in the notes given at the end of the format….....
5. You are requested to furnish a copy of this letter along with the copy of the enclosed notification to every political party (including registered unrecognized parties) having headquarters in your State/UT, including the State Units of recognized National and State political parties.”[Emphasis is ours].” (ii). Letter dt. 26-09-2012: “Sub: Affidavit to be filed by the candidates with their nomination paper-regarding: …
2. Item 5 of Part A and Part B of the revised Form 26 relates to information regarding criminal antecedentsto be furnished by the candidates. It is clarified that in item (5)(ii) of the said Part A & Part B of Form-26, the details of all pending cases in which cognizance has been taken by the Court, irrespective of the quantum of punishment or framing of charges will have to be disclosed by the candidate. This may be brought to the notice of all candidates when they file their nomination at all future general/bye-elections in the State…”
(iii) Letter dt. 26-04-2014: “Sub: Filing of false affidavit in Form-26.reg. Sir/Madam, You are aware that the format of affidavit in Form-26 appended to the Conduct of Election Rules, 1961, was amended with effect from 01- 08-2012. Now the candidates are required to make declarations about assets and liabilities including that of spouse and dependants, candidate’s criminal antecedents and educational qualifications, in the affidavit in Form 26. The concealing of information in the affidavit in Form 26 will attract the provisions of Section 125A. Under Section 125A, furnishing of any false information or concealing of information in the affidavit in Form 26 is an electoral offence punishable with imprisonment upto six months, or with fine or both.
2. Prior to amendment to Form 26 in August 2012, the affidavit regarding declaration about assets, liabilities, criminal antecedents and educational qualification was given in the format prescribed by the Commission. In the case of complaints about false statement in the said affidavit, the Commission, vide its circular letter No. 3/ER/2004, dated 2/6/2004, had clarified that if complaints were filed before the Returning Officer raising the issue of false declaration in the affidavit and if the RO was prima facie satisfied about the merits of the complaint, then the RO was to file a complaint before the competent Court under Section 177 of IPC read with Section 195 of Cr.P.C.
3. Now that the affidavit is in Form 26 under Section 33A of the R.P. Act, 1951, making false declaration/concealing of information in the affidavit would be covered under Section 125A of the Act. Under Section 125A, there is no stipulation that complaints under the Section have to be made by the public servant concerned (in this case the R.O.). Therefore, it would be open to any aggrieved person to move petition before the appropriate Court of competent jurisdiction with petition for action under Section 125A in the case of any false declaration or concealing of information in the affidavit in Form 26.
19. A cumulative reading of Section 33-A of the 1951 Act and Rule 4-A of the 1961 Rules and Form-26 along with the letters dated 24.8.2012, 26.9.2012 and 26.4.2014, in our considered view, make it amply clear that the information to be furnished under Section 33-A of the 1951 Act includes not only information mentioned in clauses (i) and (ii) of Section 33-A(1), but also information, that the candidate is required to furnish, under the Act or the Rules made thereunder and such information should be furnished in Form 26, which includes information concerning cases in which a competent Court has taken cognizance (Entry 5(ii) of Form 26). This is apart from and in addition to cases in which charges have been framed for an offence punishable with imprisonment for two years or more or cases in which conviction has been recorded and sentence of imprisonment for a period of one year or more has been imposed (Entries 5(i) and 6 of Form 26 respectively).
20. In the light of the view that we have taken and in view of the clear averment made in the complaint to the effect that the First Respondent had knowledge of the two cases against him which had not been mentioned in the affidavit filed by the First Respondent alongwith his nomination papers, we unhesitatingly arrive at the conclusion that the order of the learned trial Court upheld by the High Court by the impugned judgment and order dated 3rd May, 2018 is legally not tenable and the same deserves to be set aside which we hereby do. The complaint of the appellant will be considered afresh by the learned trial Court from the stage where it was interdicted by the order dated 30.5.2016.
21. Our view as above is in consonance with a similar view expressed by this Court in paragraph 75 of the report in Krishnamoorthy v. Sivakumar and others[4]. Para 75 of the report in Krishnamoorthy (supra) reads as under: