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2018 DIGILAW 923 (GUJ)

Khemchand Rajaram Koshti v. Union of India

2018-07-30

R.SUBHASH REDDY, VIPUL M PANCHOLI

body2018
JUDGMENT & ORDER : R. Subhash Reddy, This petition is filed by way of Public Interest Litigation with the prayers which reads as under : "7(A) That this Hon'ble Court may be pleased to issue a writ, order or direction in the nature of certiorari or mandamus or any other appropriate writ, order or direction holding and declaring section 125A of the Representation of People Act, 1951 is unconstitutional and is ultra vires the Constitution of India and also violative of Articles 14, 19 and 324 of the Constitution of India: In the Alternative (B) That this Hon'ble Court may be pleased to issue a writ, order or direction in the nature of certiorari or mandamus or any other appropriate writ, order or direction holding and declaring that the quantum of sentence prescribed under section 125A of the Representation of People Act, 1951 is in consonance with and is governed by the provisions of Section 181 of the Indian Penal Code. (C) Pending admission, hearing and final disposal of the petition, an interim direction may be issued directing the respondent no.1 to submit the status report about the action taken in pursuance of the Law Commission of India's Report No.244 seeking to amend the provisions of Section 125A of the Representation of People Act, 1951. (D) That this Hon'ble Court may be pleased to pass such and further order as the nature and circumstances of the case may require." 2. The petitioner is a practicing advocate and also claims to be convener of Ahmedabad District of Swaraj Abhiyan which is an association alleged to have been formed to promote political movement in democratic form. 3. Mainly, relief as prayed for in the petition is on the ground that under the provisions of Section 125A of the Representation of the People Act, 1951, a candidate, in the event of furnishing false information or concealing any information is liable to be punished with imprisonment for a term which may extend to six months, or with fine, or with both, whereas, under Section 181 of the Indian Penal Code, punishment is upto 3 years and also liable to fine or both, if a person makes a false statement on oath. 4. We have heard Shri Koshti partyinperson and perused the material on record. 4. We have heard Shri Koshti partyinperson and perused the material on record. By referring to Section 125A of the Representation of the People Act, 1951 and Section 181 of the Indian Penal Code, the petitioner - party in person who is an advocate submitted that in recent times, there are more cases where the candidates are filing false statement with regard to educational qualification etc. In that view of the matter, there is no reason for differentiating punishment for Member of Parliament and State Legislators to that of common man. It is submitted that for filing false affidavit under section 125A of the Representation of People Act, 1951, imprisonment is only for a period of six months or fine or both, whereas, under section 181 of the Indian Penal Code, for common man, punishment of three years is contemplated and is liable to pay fine also. 5. Before we proceed further, we deem it appropriate to refer Section 125A of the Representation of the People Act, 1951 and Section 181 of the Indian Penal Code. 6. Section 125A of the Representation of the People Act, 1951 reads as under: "125A. 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 subsection (1) of section 33A; or (ii) give 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 subsection (2) of section 33A, 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." 7. Section 181 of the Indian Penal Code reads as under : "181. Section 181 of the Indian Penal Code reads as under : "181. False statement on oath or affirmation to public servant or person authorized to administer an oath or affirmation Whoever, being legally bound by an oath or affirmation to state the truth on any subject to any public servant or other person authorized by law to administer such oath or affirmation, makes, to such public servant or other person as aforesaid, touching that subject, any statement which is false, and which he either knows or believes to be false or does not believe to be true, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine." 8. We do not find any merit in the submission made by the party in person. It is true that under Section 181 of the Indian Penal Code for making false statement on oath or affirmation to public servant or person authorized to administer an oath or affirmation, punishment is for a period of three years and liable to pay fine, but only on the ground that such punishment is not prescribed under Section 125A of the Representation of the People Act, 1951, the petitioner cannot seek invalidation of very provision under Section 125A of the Representation of People Act, 1951. It is true that provision under Section 125A of the Representation of the People Act, 1951 contemplates penalty for filing false affidavit for a candidate who himself or through his proposer, with intent to be elected in the election. 9. Quantum of punishment in statue depends on various considerations viz., objective of the legislation, nature of offence, purpose for which offence is committed etc. Merely on the ground that for filing false affidavit under Section 181 of the Indian Penal Code, imprisonment provided is 3 years and also liable to fine, same is no ground for quashing the very provision under Section 125A of the Representation of the People Act, 1951. It is fairly well settled that legislation or provision in the legislation can be struck down only on the limited grounds viz. legislative incompetence or provision in legislation is in violation of fundamental rights and also on the ground of arbitrariness. We do not find any such contingency in the submission by party-in-person so as to admit the petition for grant of relief as prayed for. 10. legislative incompetence or provision in legislation is in violation of fundamental rights and also on the ground of arbitrariness. We do not find any such contingency in the submission by party-in-person so as to admit the petition for grant of relief as prayed for. 10. For the aforesaid reasons, this Special Civil Application is devoid of merits and deserves to be dismissed. Accordingly, the Special Civil Application is dismissed at the stage of admission. No order as to costs.