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2010 DIGILAW 567 (ALL)

Dinesh Pratap Singh v. State of U. P.

2010-02-11

PRADEEP KANT, RITU RAJ AWASTHI

body2010
JUDGMENT (Pradeep Kant, J.) 1. This writ petition challenges the acceptance of the nomination paper of opposite party no. 5 by the Returning Officer for being a candidate for member of Legislative Council of 9 Raebareli Local Authority Constituency. 2. The elections for Member of Legislative Council for Raebareli Local Authority Constituency was notified and the last date for filing nomination papers was 20.12.09. By the last date, four persons, namely, the petitioner, Dinesh Pratap Singh, Raja Rakesh Pratap Singh, opposite party no. 5 and one Dinesh Singh, filed nomination papers. 3. Leaving aside other facts, the relevant point is that the opposite party no. 5 while filing his nomination paper alongwith an affidavit in the proforma, which was prescribed, he did not give the correct details of the pending criminal cases against him. 4. The case of the petitioner is that there was a criminal case pending against the opposite party no. 5 being Case Crime No. 87 of 2002, P.S. Hazratganj, Lucknow under Sections 420, 406, 467, 469, 47, 120-B and 504 IPC, in which chargesheet has been submitted by the Chief Judicial Magistrate and summons had also been issued to opposite party no. 5. Further case is that despite service of summons upon opposite party no. 5 and he having full knowledge of the criminal case, he deliberately did not mention about the said case in the prescribed column of the affidavit and thus, he filed incomplete nomination paper deliberately. There was another case, namely, Case Crime No. 340 of 1999 under Section 307, P.S. Kaisarbagh, Lucknow, which is also said to have been concealed but during the course of arguments, Dr. L.P. Misra stated that he does not press the objections filed by one Rakesh Singh with respect to the aforesaid criminal case and confines his case only with respect to the other criminal case, namely, Case Crime No. 87 of 2002. The petitioner filed objections against the nomination of opposite party no. 5, clearly indicating the pendency of the aforesaid case, asserting that he has deliberately concealed material facts in the nomination paper, therefore, his nomination paper is liable to be rejected. 5. The petitioner filed objections against the nomination of opposite party no. 5, clearly indicating the pendency of the aforesaid case, asserting that he has deliberately concealed material facts in the nomination paper, therefore, his nomination paper is liable to be rejected. 5. The Returning Officer vide impugned order dated 22.12.09 rejected the objection of the petitioner as well as other objections filed by one other candidate Rakesh Singh, who had mentioned about the other case, namely, Case Crime No. 340 of 1999 under Section 307, P.S. Kaisarbagh, Lucknow. 6. The Returning Officer in his order has taken note of the Handbook For Returning Officer of Election Commission of India, which says that nomination papers should not be rejected on flimsy grounds. He also took into consideration Form 2A to 2E and has stated that only Form 2E is relevant in the present elections. 7. Learned counsel for the petitioner vehemently urged that concealing the aforesaid information of pending criminal case, while filing an affidavit, which forms part of the nomination paper, and thus, giving incorrect and incomplete information, which also amounts to deliberate concealment of the pendency of criminal case, was sufficient to reject the nomination paper but the Returning Officer, without considering the specific objection of the petitioner, rejected the objections and accepted the nomination. To the objections filed by the petitioner, the opposite party no. 5 also filed his own reply. 8. Sri Anupam Mehrotra, appearing for opposite party no. 5, has opposed the writ petition, mainly on the ground that once the election process has started, the question as to whether nomination paper was rightly accepted or not, is a question which cannot be decided in writ jurisdiction, after the elections are over. 9. Besides the aforesaid plea, he also urged that the Returning Officer has given absolutely correct reasoning that mere alleged pendency of the cases in courts, shall not be a ground for rejection of nomination paper and that the law requires disclosure of only those cases in Form 26 affidavit, in which charges have been framed and the minimum imprisonment prescribed is of two years. The objections which were raised before the Returning Officer did not state that charges have been framed in any case against opposite party no. 5. The objections which were raised before the Returning Officer did not state that charges have been framed in any case against opposite party no. 5. The case in which merely chargesheet has been filed or summoning order has been passed is not required to be disclosed under Form 26 and that if there was any alleged infirmity or alleged failure to furnish information in Form 26 affidavit, it does not entail rejection of nomination paper. 10. Argument in nutshell is that the nomination paper can be rejected by the Returning Officer only on the grounds provided under Section 36(2) of the Representation of People Act, 1951 and on no other ground. Form 26 affidavit is prescribed under Section 33-A of the Representation of People Act, which is not part of scrutiny under Section 36 sub-clause (2). In support of this plea, he raised the following points: (i)Form-26 affidavit is not a requirement of Section 33 of the Representation of People Act, 1951; (ii)Form-26 affidavit is only required to be separately delivered under Rule 4-A of the Conduct of Election Rules, 1961 at the time of delivering nomination paper under Section 33 (1) of Representation of People Act, 1951; (iii)Rule 4-A was inserted w.e.f. 3.9.02 but without any corresponding amendment in Section 33 (1) of the Representation of People Act, 1951. It was Section 125-A (Penalty for filing false affidavit, etc.) that was inserted in the Representation of People Act, 1951 by the 2002 amendment. Thus, filing of false affidavit is a ground for action under Section 125-A, but it is not a ground for rejection of nomination paper. Form-26 affidavit is not a requirement of Section 33 of the Representation of the People Act, 1951; (iv)Under Section 36, Representation of People Act, 1951 (scrutiny) what is to be scrutinised is nomination paper under Section 33 (1) and not Form-26 affidavit, which is not part of nomination paper under Section 33 (1) of Representation of People Act, 1951; and (v)Section 33-A of the Representation of People Act, 1951 is excluded from Section 36 (2) thereof (scrutiny). 11. 11. Sri Anupam Mehrotra also relies upon the Handbook For Returning Officer issued by Election Commission of India, wherein Para 10.1 provides specific grounds for rejection of nomination papers and the 'note below' appended to sub-para (ix), says that if the prescribed affidavits have been filed, but are found or considered to be defective or incomplete or containing false information, the nomination should not be rejected on this ground. 12. On the factual position, as to whether summons were issued and served upon opposite party no. 5 before the date of nomination, record was summoned, which indicated that in Case Crime No. 87 of 2002, cognizance was taken by the Court on 31.10.09. On 24.11.09, a direction was issued by the court for summoning the accused persons by issuing summons but there was a report of 17.12.09, which said that on several visits by the police officer, the house of the opposite party no. 5 was found locked and the guard disclosed that opposite party no. 5 has gone outside for election purpose and, therefore, the summons were pasted on the door of the house of opposite party no. 5. 13. Argument of the learned counsel for the petitioner is that service, after affixation of summon, was sufficient service and, therefore, the opposite party no. 5 could not have stated that he had no knowledge of the pending criminal case, whereas Sri Anupam Mehrotra submitted that the report itself shows that only on one day, the police officer visited the house and he was informed that opposite party no. 5 has gone out for election and, therefore, such pasting on the day one on the door of the house could not be taken to be sufficient service in a criminal matter. 14. His further submission is that even if it is taken to be sufficient service, that would not be sufficient for attributing knowledge of the pending criminal case to the opposite party no. 5 for the purpose of disclosing it in the affidavit, as factually and actually the summons were not served upon him, so as to give knowledge about the said fact and, therefore, if under these bona fide circumstances, the said case was not mentioned, it cannot be said to be a case of concealment, much less of deliberate concealment of any information on the part of the opposite party no. 5. 15. 5. 15. Sri Anupam Mehrotra lastly submitted that if it is established that opposite party no. 5 has concealed any material fact in the affidavit, then he can be liable for being proceeded with under Section 25-A, which prescribes penalty for filing false affidavit etc., but it cannot be of any assistance for rejecting the nomination papers. 16. Dr. L.P. Misra has coined his submissions into four questions, namely, the following: (i)Whether directions and prescriptions made by the Election Commission of India, in view of Article 324(1) of the Constitution, are mandatory? (ii)Whether the form relating to discloser of criminal cases after cognizance forms part of nomination paper? (iii)Whether a false statement made by a prospective candidate before the Returning Officer by concealing the discloser is a substantial nature and on conjunctive reading of Section 33 of the Representation of People Act, 1951, sub-section (3) and (4), in particular, nomination can be rejected on the ground of false statement? (iv)Whether a false statement or concealment disentitles a person contesting an election to a State Legislature and whether this Court under Article 226 of the Constitution, in order to maintain the purity of the electoral process, can issue a restraint order? (v)Whether an election can be set aside solely on the ground of false statement made before the Returning Officer alongdwith the nomination papers and thereby, depriving the electorate from having the true picture of the personae of a candidate and if so, whether this Court can exercise the extraordinary jurisdiction by preventing such a candidate, more particularly, when the conduct of making false statement is made punishable under Section 125-A of the Representation of People Act, l951? 17. He also submitted that because of the false statement or concealment of material fact, the opposite party no. 5 is not entitled to contest the election and this Court under Article 226 of the Constitution, can pass a restraint order. 18. In this regard, it is sufficient to mention that the High Court would not entertain a petition or challenge to nomination of a candidate, whose nomination has been accepted by the Returning Officer normally, as the remedy for such an aggrieved person lies in filing the election petition, after the elections are over. 19. The given facts and circumstances of the case do not persuade the Court, even otherwise, to issue any such restraint order. 20. 19. The given facts and circumstances of the case do not persuade the Court, even otherwise, to issue any such restraint order. 20. Arguments have been advanced at great length by the learned counsel for both the parties and number of case laws have been cited in respect of their respective claims. 21. The petitioner stressed that the election so held would stand vitiated as the opposite party no. 5 could not be allowed to contest the elections, whereas opposite party no. 5 submits that both factually and legally, it was not concealment of fact, much less concealment of pending criminal case, as firstly he was not having any knowledge till the date of filing of nomination, about the pending criminal case and secondly, the petition itself is not maintainable at this intermediary stage of elections. 22. We have considered the argument of both the parties and we are of the considered opinion that the questions raised do not require any answer from us in the present writ petition and as nomination paper has been accepted by the Returning Officer, no interference can be made with the election process. 23. The questions raised, therefore, are left open. 24. The petition is dismissed, with the observation that if the petitioner so chooses, he may pursue the remedy of election petition in accordance with law, after the elections are over.