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2013 DIGILAW 394 (GAU)

Sunil Rajkonwar v. Jibontara Ghatowar

2013-06-11

BROJENDRA PRASAD KATAKEY

body2013
JUDGMENT Brojendra Prasad Katakey, J. 1. The petitioner, who was a candidate of Assam Gana Parishad and contested the last General Election held in 2012 to the Assam Legislative Assembly Constituency from No. 115 Moran Legislative Assembly Constituency (in short 'the Constituency'), has filed this election petition under Section 80, 80A read with Section 81 of the Representative of People Act, 1951 (in short the 1951 Act), calling in question the result of the said election declaring the respondent elected from the said Constituency, on the ground of improper acceptance of nomination paper and also on the ground of non-compliance with the provision of the 1951 Act and the orders made by the Election Commission of India, within the meaning of Section 100(1)(d)(i) & (iv) of the 1951 Act, contending inter alia that the respondent/returned candidate, along with the nomination paper, did not submit legally valid affidavits, as required under Section 33A of the 1951 Act and also under the order of the Election Commission dated 27.03.2003 and the said affidavits having not been duly sworn, the nomination paper of the respondent ought to have been rejected for non-compliance of the provisions of the 1951 Act as well as the order of the Election Commission of India. The facts relevant for the purpose of the election petition may be noticed as under:-- The Returning Officer of the Constituency on 10.03.2011 issued a public notice of election, as required by Section 31 of the 1951 Act read with Rule 3 of the Conduct of Election Rules, 1961, of the intended election, inviting nomination of candidates fixing 17.03.2011 as the last date for submission of nomination, 18.03.2011 as the date of scrutiny of nomination, 21.03.2011 as the last date of withdrawal of candidature, 04.04.2011 as the date of poll and 13.05.2011 as the date of counting of votes. As per the schedule fixed, the election process was required to be completed on 18.05.2011. 5(five) candidates including the petitioner and the respondent/returned candidate filed their nomination papers and contested the election from the said Constituency. The result of the election was declared on 13.05.2011, declaring the respondent/returned candidate elected from the said Constituency, having secured highest number of valid votes. The valid votes polled by the candidates in the said election, are as follows:-- 2. The result of the election was declared on 13.05.2011, declaring the respondent/returned candidate elected from the said Constituency, having secured highest number of valid votes. The valid votes polled by the candidates in the said election, are as follows:-- 2. It has been pleaded by the petitioner in the election petition that two affidavits filed by the respondent/returned candidate, one dated 15.3.2011 and the other dated 16.3.2011, and though in the first affidavit the returned candidate did not disclose the fact of the pendency of the case, where cognizance has been taken by the Court, but in the second affidavit the respondent/returned candidate has disclosed the same, those affidavits are not duly sworn affidavits so as to construe the same as the affidavits required to be filed under Section 33A of the 1951 Act read with the order dated 27.03.2003 issued by the Election Commission, there being inherent defects in such affidavits. The said pleadings, however, has been denied by the respondent/returned candidate in the written statement filed, contending inter alia that she has filed duly sworn affidavits. It has further been pleaded that though in the affidavit dated 15.03.2011, filed along with the nomination paper, the fact of pendency of a criminal proceeding has not been disclosed, because of the bonafide mistake and oversight, she immediately on the next day i.e. on 16.03.2011, sworn another affidavit in the prescribed format disclosing the criminal proceeding pending against her, where the Court has taken cognizance of, which was filed before the last date and the time fixed for filing the nomination paper. The respondent/returned candidate has asserted that those affidavits are duly sworn affidavits within the meaning of Section 33A of the 1951 Act as well as the order dated 27.03.2003 passed by the Election Commission of India. 3. Based on the pleadings of the parties, the following issues were framed vide order dated 11.06.2012: (i) Whether the affidavits filed by the returned candidate along with the nomination paper and subsequent thereto are duly sworn affidavits within the meaning of Section 33(A) of the Representation of Peoples Act, 1951 read with the Election Commission's order dated 27.3.2003, if not, whether it constitute the ground for rejection of the nomination paper, consequently declaration of the result of the election as void under the 1951 Act? (ii) Whether the nomination paper of the returned candidate was improperly accepted by the returning officer? 4. (ii) Whether the nomination paper of the returned candidate was improperly accepted by the returning officer? 4. The election petitioner as well as the respondent/returned candidate in order to prove their respective cases, have examined their witnesses and proved a number of documents. While the election petitioner has examined 5(five) witnesses, being the election petitioner himself as PW-1; Shri Krishna Kr. Dwivedi, the District Election Officer as PW-2; Smt. Kanta Das, the Election Officer as PW-3; Shri Prabhat Konwar, the Returning Officer of the Constituency as PW-4 and Smt. Manashi Bora, the Notary, as PW-5, the respondent/returned candidate has examined only herself as DW-1. The witnesses were cross-examined by the respective parties. The election petitioner has proved the order dated 12.12.2006 passed by the learned Addl. Chief Judicial Magistrate, Dibrugarh in Complaint Case No. 123c/2006 registered under Section 420/468/193 IPC; the examination-in-chief in the form of an affidavit filed by the election petitioner; the notice dated 2.3.2011 issued by the District Election Officer notifying the schedule of election; affidavit bearing Sl. No. 2563 dated 15.3.2011; affidavit bearing Sl. No. 2562 dated 15.3.2011; affidavit bearing Sl. No. 2561 dated 16.3.2011 and another affidavit bearing Sl. No. 2561 dated 16.03.2011, as Exts.-1 to 7, respectively. The respondent/returned candidate has proved her examination-in-chief filed in the form of affidavit, which has been marked as Ext.-A. 5. I have heard Mr. T. Das, learned counsel for the election petitioner and Mr. R. Sharma, learned counsel appearing for the respondent/returned candidate. 6. Referring to the deposition of the witnesses examined by the election petitioner and also the documents exhibited, more particularly the affidavits dated 15.03.2011 and 16.03.2011, which are marked as Exts.-4 and 7, it has been submitted by the learned counsel for the election petitioner that while Ext.-4 affidavit dated 15.03.2011 bears the Sl. No. 2563, Ext.-7 affidavit dated 16.03.2011 bears the Sl. No. 2561, put by the notary before whom such affidavits were sworn, wherefrom it appears that those affidavits were subsequently manufactured for the purpose of filing the same at a subsequent stage. No. 2563, Ext.-7 affidavit dated 16.03.2011 bears the Sl. No. 2561, put by the notary before whom such affidavits were sworn, wherefrom it appears that those affidavits were subsequently manufactured for the purpose of filing the same at a subsequent stage. According to the learned counsel the affidavit dated 16.03.2011 (Ext.-7) was filed only on the date of scrutiny i.e. on 18.03.2011 and the same having not been filed before expiry of the time and date fixed for filing the nomination paper, the said affidavit could not have been taken into consideration by the Returning Officer while scrutinizing the nomination paper filed by the respondent/returned candidate. It has also been submitted that even assuming both the affidavits being Exts.-4 and 7 were filed along with the nomination paper, there being no indication and no application having been filed before the Returning Officer disclosing which of the affidavits should be taken into consideration, both affidavits ought to have been rejected by the Returning Officer, as in one affidavit dated 15.03.2011 (Ext.-4) while it has been mentioned that no criminal proceeding has been pending, in other affidavit dated 16.03.2011 (Ext.-7), it has been disclosed that a criminal proceeding, where cognizance has been taken, has been pending against the respondent/returned candidate. It has also been submitted that the said affidavit dated 16.03.2011 is not in the format prescribed by the Election Commission of India, as the respondent/returned candidate did not disclose the date of taking cognizance, as only the year 2006 has been mentioned. The learned counsel, therefore, submits that had the Returning Officer rejected both the affidavits, which he ought to have done, it would have been non-compliance of the provision of Section 33A of 1951 Act as well as the direction issued by the Election Commission vide order dated 27.03.2003 and consequently the nomination of the respondent/returned candidate would have been rejected. The learned counsel submits that the said affidavits being not duly sworn, ought to have been rejected by the Returning Officer. 7. The learned counsel submits that the said affidavits being not duly sworn, ought to have been rejected by the Returning Officer. 7. The learned counsel referring to the objection dated 18.03.2011 (Ext.-8) has also submitted that despite filing the said objection by the election petitioner against the nomination paper submitted by the respondent/returned candidate, the Returning Officer has improperly accepted the nomination paper, though it discloses the defects in the affidavits and are not duly sworn affidavits apart from filing of the Ext.-7 affidavit only on 18.03.2011 i.e. on the date of scrutiny. 8. The learned counsel, placing reliance on the decision of the Apex Court in S.M. Banerji Vs. Sri Krishna Agarwal reported in AIR 1960 SC 368 , has submitted that if the Returning Officer, despite the defects in the nomination paper and filing of an objection raising to its reception on that ground, accepts the nomination of a candidate, it would amount to improper acceptance of nomination paper within the meaning of Section 100(1)(d)(i) of 1951 Act, for non-compliance of the provisions of Section 33A of the said Act as well as Section 100(1)(d)(iv), and also for violation of the direction of the Election Commission contained in the order dated 27.03.2003 requiring filing of a duly sworn affidavit disclosing pendency of the criminal case, where cognizance has been taken by the Court. 9. Mr. Sharma, learned counsel appearing for the respondent/returned candidate, on the other hand, drawing attention of the Court to the pleadings in the election petition, has submitted that according to the election petitioner himself the defects in the affidavit filed along with the nomination paper being suppression of fact relating to the framing of charge in the criminal case pending against the respondent/returned candidate, there being no case pending against the respondent/returned candidate, where the charge has been framed, the election petition does not disclose any cause of action. It has also been submitted that it has come out in evidence that both the affidavits, one dated 15.03.2011 (Ext.-4) and the other dated 16.03.2011 (Ext.-7), respectively, were filed along with the nomination paper filed by the respondent/returned candidate and while in Ext.-4 affidavit, because of the inadvertent mistake the fact of pendency of a criminal case where cognizance has been taken by the Court has not been mentioned, in Ext.-7 affidavit the tact of pendency of the criminal case where cognizance has been taken, has been disclosed. The learned counsel further submits that non-discloser of the exact date of taking cognizance and mentioning the year only, would not render the affidavit defective, so as to constitute non-compliance of the provisions of Section 33A of the 1951 Act as well as the direction of the Election Commission contained in the order dated 27.03.2003. 10. Referring to the deposition of Manashi Bora (PW-5), Mr. Sharma further submits that the said witness has admitted that by mistake she has put Sl. No. 2561 in the affidavit dated 16.03.2011 (Ext.-7), instead of 2564, which is nothing but a human error, though she in the register required to be maintained by the Notary entered the serial number of the said affidavit, being Ext.-7, as 2564. It has further been submitted that the election petitioner's case being that the affidavit dated 16.03.2011 (Ext.-7), is defective on that count, he ought to have prove the register maintained by the Notary, where the correct serial number, being 2564, has been mentioned, to negate the version of PW-5, which the election petitioner did not do and as such he has failed to prove his case. In any case, according to the learned counsel, mere defect in putting the serial number in the affidavit would not render the same defective so as to reject the nomination paper filed by the respondent/returned candidate. Mr. In any case, according to the learned counsel, mere defect in putting the serial number in the affidavit would not render the same defective so as to reject the nomination paper filed by the respondent/returned candidate. Mr. Sharma further submits that under Section 33A of the 1951 Act what a candidate is required to do is to furnish the information specified therein, in his nomination paper and since the election petitioner pursuant to the Election Commission's order dated 27.03.2003 has filed the affidavit disclosing the information relating to the pendency of a case where cognizance has been taken by the Court, the Returning Officer has rightly acted on the second affidavit dated 16.03.2011 (Ext.-7), though in the earlier affidavit dated 15.03.2011 (Ext.-4) the respondent/returned candidate did not disclose the pendency of such criminal case. 11. Mr. Sharma, the learned counsel referring to the provisions of Section 100(1)(d) of the 1951 Act submits that the election petitioner, so as to set aside the election of a returned candidate on the ground of improper acceptance of nomination paper or non-compliance with the provisions of the Act or the order made by the Election Commission, must plead and prove that because of improper acceptance of nomination, the result of the election, in so far as it concerns the returned candidate, has been materially affected. In the instant case, according to the learned counsel, the election petitioner has neither pleaded in the election petition nor proved by adducing any evidence that the result of the election, in so far as it concerns the returned candidate, has been materially affected. The learned counsel, therefore, submits that the election petition deserves to be dismissed on that count alone. 12. It has also been submitted by Mr. Sharma that according to the election petitioner himself, the duly sworn affidavit being the affidavit disclosing the correct facts and since the affidavits, being Exts.-4 and 7, contained the false information, those are not duly sworn affidavits, the Returning Officer did not commit any illegality in accepting the nomination paper, as the Returning Officer, while scrutinizing the nomination papers submitted by the candidates, cannot go into the question as to whether the statement made in the affidavits, required to be filed along with the nomination paper disclosing the information under Section 33A of the 1951 Act, are correct or false. The Returning Officer is only required to see as to whether any affidavit has been filed and in the instant case even assuming that the information furnished by the returned candidate in the form of the affidavits are not correct information, the Returning Officer having no jurisdiction to reject the same on that ground has rightly accepted by the nomination paper, submitted by the respondent/returned candidate. 13. The learned counsel referring to the deposition of the Returning Officer (PW-4), has also submitted that the said witness in categorical terms has stated about filing of the nomination paper on 16.03.2011 along with both the affidavits dated 15.03.2011 (Ext.-4) and 16.03.2011 (Ext.-7) and there being no evidence on record adduced by the election petitioner to substantiate his case that the affidavit dated 16.03.2011 (Ext.-7) was filed only on the date of scrutiny i.e. on 18.03.2011, the election petitioner is not entitled to any relief, he having failed to discharge his burden of proof of filing the affidavit after the last date and time fixed for filing the nomination paper was over. The learned counsel referring to the deposition of the Returning Officer has also submitted that though the objection dated 18.03.2011 (Ext.-8) was filed after the process of scrutiny was over, the Returning Officer re-scrutinized the nomination paper filed by the respondent/returned candidate and found the same to be in order. It has also been submitted that though the election petitioner in his deposition has also stated that the Notary (PW-5) has put her signature and seal on the blank papers, which were subsequently converted into affidavits by the respondent/returned candidate, the election petitioner could not prove the same and even did not put any question to the PW-5 Manashi Bora, the Notary and not even a suggestion, who during her examination-in-chief has categorically stated that the respondent/returned candidate was personally present before her at the time of swearing of the affidavits (Exts.-4 to 7). 14. The learned counsel in support of his contention has placed reliance on the decision of the Apex Court in Santosh Yadav Vs. Narender Singh reported in AIR 2002 SC 241 , Ramesh Rout Vs. Rabindra Nath Rout reported in (2012) 1 SCC 762 , Mangani Lal Mandal Vs. Bishnu Deo Bhandari reported in (2012) 3 SCC 314 and Shambhu Prasad Sharma Vs. Charandas Mahant & Ors. reported in (2012) 11 SCC 390 . 15. Narender Singh reported in AIR 2002 SC 241 , Ramesh Rout Vs. Rabindra Nath Rout reported in (2012) 1 SCC 762 , Mangani Lal Mandal Vs. Bishnu Deo Bhandari reported in (2012) 3 SCC 314 and Shambhu Prasad Sharma Vs. Charandas Mahant & Ors. reported in (2012) 11 SCC 390 . 15. I have considered the submissions advanced by the learned counsel for the appearing parties and also perused the pleadings as well as the evidence adduced by the parties, both oral and documentary. 16. Before dealing with the pleadings as well as the evidence adduced by the parties, I proposed to discuss relevant provisions of 1951 Act, as well as the Election Commission's order dated 27.03.2003, apart from various pronouncements of the Apex Court. 17. Section 33A of the 1951 Act, which has been inserted w.e.f. 24.08.2002, confers a right to the voters to know about the criminal antecedents of a candidate. It provides that a candidate shall, apart from any information which he is required to furnish, under the Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of Section 33, shall 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. It also requires the candidate or his proposer to deliver an affidavit sworn by the candidate in a prescribed form verifying the information specified under sub-section (1) of Section 33 at the time of delivering to the Returning Officer the nomination paper. The Returning Officer is also required to display the aforesaid information by affixing a copy of the affidavit, at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered. 18. Sub-section (1) of Section 100 of the 1951 Act empowers the High Court to declare the election of the returned candidate as void, on any of the eventualities mentioned in clauses (a) to (d). 18. Sub-section (1) of Section 100 of the 1951 Act empowers the High Court to declare the election of the returned candidate as void, on any of the eventualities mentioned in clauses (a) to (d). Since the allegation in the election petition is relating to the improper acceptance of the nomination paper of the respondent/returned candidate and non-compliance of the provisions contained in Section 33A of the 1951 Act as well as the order of the Election Commission dated 27.03.2003, clause (d) of sub-section (1) of Section 100 of the 1951 Act only, is reproduced below:-100. Grounds for declaring election to be void.--(1) Subject to the provisions of sub-section (2), if the High Court is of opinion- (a).... (b).... (c).... (d) that the result of the election, insofar 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 other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. 19. Section 125A of the 1951 Act provides the penalty in case of failure to furnish information relating to sub-section (1) of Section 33A and for giving false information which the candidate or his proposer knows or has reason to believe to be false as well as for concealment of any information. 20. Clause (d) of Section 100(1), therefore, provides that the High Court shall declare the election of the returned candidate to be void on any of the eventualities mentioned in sub-clauses (i) to (iv) provided the result of the election in so far as it concerns the returned candidate has been materially affected. The election petitioner in an election petition, therefore, must plead and prove that because of the improper acceptance of the nomination paper or non-compliance of the provisions of the 1951 Act or the order passed by the Election Commission, the result of the election, in so far as it concerns the returned candidate has been materially affected. 21. The Apex Court in Union of India Vs. 21. The Apex Court in Union of India Vs. Association for Democratic Reforms reported in (2002)5 SCC 294 had directed the Election Commission 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 the candidature: I. Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past - if any, whether he is punished with imprisonment or fine. II. 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. III. The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants. IV. Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues. V. The educational qualifications of the candidate. 22. The Election Commission of India on 28.06.2002 passed an order for implementation of the directions contained in the said judgment. In the said order the Election Commission has also directed that furnishing of any wrong or incomplete information or suppression of any material information by any candidate in or from the said affidavit may also result in the rejection of his nomination paper where such wrong or incomplete information or suppression of material information is considered by the Returning Officer to be a defect of substantial character, apart from inviting penal consequences under the Indian Penal Code for furnishing wrong information to a public servant or suppression of material facts. 23. The 1951 Act was, thereafter, amended by insertion of Sections 33A and 33B by Representation of the People (Third Amendment) Act, 2002, which provisions came into force w.e.f. 24.08.2002 and 02.05.2002, respectively. 23. The 1951 Act was, thereafter, amended by insertion of Sections 33A and 33B by Representation of the People (Third Amendment) Act, 2002, which provisions came into force w.e.f. 24.08.2002 and 02.05.2002, respectively. Section 33B, which has been inserted by way of amendment just to negate the aforesaid judgment of the Apex Court and also the order of the Election Commission, stipulates that no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under the Act or the rules framed thereunder, notwithstanding anything contained in any judgment, decree or order of any Court or any direction, order or any other instruction issued by the Election Commission. 24. Constitutional validity of Section 33B of 1951 Act came to be challenged before the Apex Court in People's Union for Civil Liberties Vs. Union of India reported in (2003)4 SCC 399. The Apex Court in the said case also considered the Election Commission's aforesaid order dated 28.6.2002. The Apex Court while declaring Section 33B of the 1951 Act as illegal, null and void, has also held that while no exception can be taken for insistence of affidavit with regard to the matters specified in the judgment in Association for Democratic Reforms case. The Apex Court, however, has held that the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary enquiry at the time of scrutiny of the nominations, as stipulated by the Election Commission in its order dated 28.06.2002, is not justified. The Election Commission, therefore, was directed to revise its instructions in the light of directions issued in Association for Democratic Reforms case and as provided under the 1951 Act and its 3rd Amendment. 25. The Election Commission, therefore, was directed to revise its instructions in the light of directions issued in Association for Democratic Reforms case and as provided under the 1951 Act and its 3rd Amendment. 25. The Election Commission, thereafter, issued the order dated 27.03.2003 requiring each candidates to file an affidavit, duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court or the State concerned, disclosing information in regard to the matters specified in Association for Democratic Reforms case as well as in People's Union for Civil Liberties case and further intimating that non-furnishing of the affidavit by any candidate shall be considered to be violation of the order of the Apex Court and the nomination of such candidate shall be liable to rejection by the Returning Officer at the time of scrutiny of nominations and also for displaying a copy of the affidavit on the notice board of the office of the Returning Officer, apart from making the copies thereof available freely and liberally to all other candidates and the representatives of the print and electronic media. It has further been informed by the said order that if any rival candidate furnishes information to the contrary, by means of a duly sworn affidavit, then such affidavit of the rival candidate shall also be disseminated along with the affidavit of the candidate concerned in the manner directed above. The format, in which the affidavit has to be filed, has also been annexed to the said order. 26. The Apex Court in Ramesh Rout (supra), referring to its earlier decision, has held that for rejection of the nomination paper of a candidate, on the ground of defect, it must be of substantial nature. The Apex Court in Jeet Mohinder Singh Vs. Harminder Singh Jassi reported in AIR 2000 SC 256 (1) has also held that when the nomination paper of a candidate is accepted, the Returning Officer need not record any reason therefor, the reasons are required to be recorded in writing by making brief statement thereof in case of rejection of nomination paper. 27. Harminder Singh Jassi reported in AIR 2000 SC 256 (1) has also held that when the nomination paper of a candidate is accepted, the Returning Officer need not record any reason therefor, the reasons are required to be recorded in writing by making brief statement thereof in case of rejection of nomination paper. 27. In Santosh Yadav(supra), the Apex Court while dealing with the term "result of election materially affected" occurring in Section 100(1)(d) of 1951 Act, in case of improper acceptance of nomination paper, has held that the election petitioner has to make out by raising specific pleadings setting out all material facts and adducing cogent evidence that for improper acceptance of nomination paper, the result of the election of the returned candidate, has been materially affected. In Mangani Lal Mandal(supra), the Apex Court has reiterated the law that it is the sine qua non for declaring the election for a returned candidate to be void on the ground under clause (iv) of Section 100(1)(d) that such breach or non-observance has resulted in materially affecting the result of the returned candidate, which has to be specially pleaded and proved by the person challenging the election. The same view has also been taken by the Apex Court in Shambhu Prasad Sharma (supra). 28. There is no dispute to the proposition of law that sub-clauses (i) and (iv) of Section 100(1)(d) of 1951 Act provides for two distinct grounds, namely, for improper acceptance of any nomination and for noncompliance with the provisions of the Constitution or the Act, or of any rules or orders under the Act, as held by the Apex Court in S.M. Banerji (supra). 29. Having noticed, the relevant provisions of 1951 Act and various pronouncements of the Apex Court, as discussed above, I shall now proceed to discuss the relevant evidence adduced by the parties in the present case. 30. The election petitioner having challenged the election of the respondent/returned candidate and praying for declaration of the result as void, on the ground enumerated in clauses (i) and (iv) of Section 100(1)(d) of 1951 Act, the burden lies on the petitioner to prove its ingredients constituting improper acceptance of nomination paper. 31. The election petitioner has pleaded that the affidavit dated 15.03.2011(Ext.-4) and dated 16.03.2011 (Ext.-7) are not duly sworn affidavits as, while the Ext.-4 affidavit bears the Sl. No. 2563, the Ext.-7 affidavit bears the Sl. 31. The election petitioner has pleaded that the affidavit dated 15.03.2011(Ext.-4) and dated 16.03.2011 (Ext.-7) are not duly sworn affidavits as, while the Ext.-4 affidavit bears the Sl. No. 2563, the Ext.-7 affidavit bears the Sl. No. 2561, though sworn one day after the date of swearing of Ext.-4 affidavit. It has also been pleaded that Ext.-7 affidavit, disclosing the pendency of criminal case against the respondent/returned candidate, where cognizance has been taken by the Court, has been filed on the date of scrutiny i.e. on 18.03.2011. 32. The election petitioner (PW-1) in his examination-in-chief has reiterated the same. During cross-examination, he has, however, stated that the nomination paper submitted by the returned candidate ought to have been rejected as it was supported by a false affidavit. He has further stated that what he means by the term "duly sworn affidavit" is filing of a false affidavit along with the nomination paper. PW-1 though has claimed that the affidavit dated 16.03.2011 (Ext.-7) was neither filed along with the nomination paper nor before the last date of filing the nomination paper, but was filed on the date of scrutiny, the Returning Officer, PW-4, who has been examined by the election petitioner, has stated that both the affidavits dated 15.03.2011 (Ext.-4)and 16.03.2011 (Ext.-7) were filed along with the nomination paper on 15.03.2011 and was never filed on the date fixed for scrutiny of nomination paper. On the face of such positive statement of the Returning Officer and in the absence of any other corroborative evidence adduced by the election petitioner relating to the filing of the affidavit dated 16.03.2011 (Ext.-7) on the date of scrutiny of nomination paper, his statement to that effect cannot be accepted, more so, when the election petitioner did not examine any other candidates or their representative, who were present at the time of scrutiny of nomination paper. The election petitioner, therefore, has failed to prove that the affidavit dated 16.03.2011 (Ext.-7) was not filed along with the nomination paper, be it on 15.03.2011 or 16.03.2011, but was filed after the last date for filing nomination paper was over. 33. This leads to the question as to whether the Returning Officer was justified in considering the affidavit dated 16.03.2011 (Ext.-7) while scrutinizing the nomination paper filed by the respondent. 33. This leads to the question as to whether the Returning Officer was justified in considering the affidavit dated 16.03.2011 (Ext.-7) while scrutinizing the nomination paper filed by the respondent. It has come out from the evidence of PW-4, Returning Officer, that both the affidavits dated 15.03.2011 (Ext.-4) and 16.03.2011 (Ext.-7) were filed along with the nomination paper on 15.03.2011. While in Ext.-4 affidavit the respondent/returned candidate did not disclose pendency of any criminal proceeding where the cognizance has been taken by Court, in the affidavit dated 16.03.2011 (Ext.-7) the information relating to the pendency of the criminal case against the respondent/returned candidate, where cognizance has been taken by Court, has been furnished along with the year of taking cognizance but not the date. The Returning Officer cannot held to be at fault for taking into consideration the affidavit (Ext.-7), disclosing the pendency of criminal case, in view of the requirement of filing such affidavit. Non-discloser of the exact date of taking cognizance in the criminal case, in the Ext.-7 affidavit dated 16.03.2011, is not a material defect so as to render the affidavit as not duly sworn affidavit. 34. Though it has been contended by the election petitioner that the affidavits both dated 15.03.2011 (Ext.-4) and 16.03.2011 (Ext.-7) are not duly sworn affidavits within the meaning of Section 33A as well as the order of the Election Commission dated 27.03.2003, there being discrepancy in the serial numbers put and that the Notary has signed the blank papers, which have been converted to the affidavits by the respondent/returned candidate later, the same also could not be proved by the election petitioner by adducing any cogent evidence. PW-5, the Notary, before whom the affidavit was sworn and who has been examined by the election petitioner as his witness, in her deposition has stated that she has wrongly put the Sl. No. 2561 in the Ext.-7 affidavit dated 16.03.2011 instead of 2564, as has been recorded in the register she is required to maintain, which register, however, has not been called for by the election petitioner to prove his case. According to the PW-5 the mistake in mentioning the serial number in Ext.-7 affidavit dated 16.03.2011 is a human error. No. 2561 in the Ext.-7 affidavit dated 16.03.2011 instead of 2564, as has been recorded in the register she is required to maintain, which register, however, has not been called for by the election petitioner to prove his case. According to the PW-5 the mistake in mentioning the serial number in Ext.-7 affidavit dated 16.03.2011 is a human error. This witness has also not been put any question, not even a suggestion, by the election petitioner that she has put her signatures in the blank papers which were subsequently converted to the affidavits, being Exts.-4 and 7. PW-5, on the other hand, has made a categorical statement that the respondent/returned candidate was personally present before her at the time of swearing the affidavit. In view of such evidence the election petitioner could not prove that there is any defect in the affidavits being Exts.-4 and 7 or the Notary has put her signature in the blank papers which are subsequently converted to the affidavits. Mere mistake committed by the Notary in putting the serial number in the Ext.-7 affidavit would not render the same defective so as to reject the same, when there is evidence on record that the said affidavit was sworn by the respondent before the Notary (PW-5). 35. The Returning Officer, PW-4, as discussed above, in his evidence has stated about filing of the nomination paper along with both the affidavits dated 15.03.2011 and 16.03.2011, Ext.-4 and Ext.-7, respectively, by the respondent/returned candidate. The election petitioner has in his evidence stated that according to him the duly sworn affidavit means the affidavit which does not contain any false information. Even if the said affidavit contains any false information, the same cannot be the ground for rejection of the nomination paper, as held by the Apex Court in People's Union for Civil Liberties (supra). Even assuming that the respondent had filed only the affidavit dated 15.03.2011 (Ext.-4) along with the nomination paper and not the affidavit dated 16.03.2011 (Ext.-7), as contended by the election petitioner, since admittedly the affidavit dated 15.03.2011 was filed, without disclosing the criminal antecedent of the respondent/returned candidate, the Returning Officer cannot refuse to accept the nomination paper, the scrutiny of correctness or otherwise of the contents of the affidavit, at the time of scrutiny of the nomination paper, being not within his purview. 36. 36. The High Court, as discussed above, can declare the election of the returned candidate void on the grounds enumerated in Section 100(1)(d) of 1951 Act provided it is pleaded and proved by the election petitioner that the result of the election, in so far as it concerns the returned candidate, has been materially affected. In the instant case, the difference of vote polled between the election petitioner and the returned candidate is about 30,000. The election petitioner, as noticed above, in the election petition has not even made a whisper about materially affecting the result of the returned candidate because of improper acceptance of nomination paper. No evidence in that respect has also been led, which in any case cannot allowed to be led in the absence of any pleadings in that regard. In view of the aforesaid discussion, I am of the view that the election petitioner has miserably failed to prove his case and hence the election petition is dismissed with cost of Rs. 5,000/-. Petition dismissed