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2019 DIGILAW 763 (SC)

Sunil Rajknowar v. Jibontara Ghatowar

2019-02-20

DEEPAK GUPTA, S.A.BOBDE, SANJAY KISHAN KAUL

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ORDER 1. This appeal is preferred by the appellant against the impugned order dated 11.06.2013 passed by the Guwahati High Court in Election Petition No.4 of 2011 whereby the High Court dismissed the said petition filed by him. 2. The appellant had charged the respondent, a returned candidate, for inter alia exerting undue influence on the Electorate which amounts to a corrupt practice under section 123(2) of the Representation of People Act, 1951 (for short, the "RP Act"). 3. The facts on which this charge was sought to be supported are, that the respondent - returned candidate had furnished incorrect and false information by stating in the statutory form submitted under section 33A of the RP Act that the offences pending against her were nil, that is, none were pending. Section 33A of the RP Act 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.] 4. This was not true since indeed there was a criminal case pending against the respondent in which she was accused for offences under sections 420/468/193 of the Indian Penal Code. This was not true since indeed there was a criminal case pending against the respondent in which she was accused for offences under sections 420/468/193 of the Indian Penal Code. According to the learned counsel for the appellant, this constituted a clear commission of the corrupt practice of undue influence. 5. This argument may have been worth considering if the respondent - returned candidate had not furnished an affidavit subsequently pointing out that the information given by her in the statutory form was not wholly correct and in fact, a criminal case being Complaint Case No.123c/2006 was pending against her in the Court of Chief Judicial Magistrate, Dibrugarh. The respondent - returned candidate had also given the details of the criminal case in her affidavit. This, according to us, is obviously a mere mistake committed by the returned candidate while submitting the statutory form which has been duly corrected by filing an affidavit. Incidentally, there is no particular form prescribed for corrigenda. 6. We are also satisfied that the above act of the returned candidate cannot amount to corrupt practice since the mistake occurred at the stage of filing the nomination form and the incorrect information that was given in the statutory form was admittedly corrected in the affidavit which was filed by her later on, but before the scrutiny. The Returning Officer was thus possessed of the correct information at the time of scrutiny. It is obvious that no votes were sought on the basis of the mistaken information supplied. 7. The relevant part of Section 123(2) of the RP Act reads as follows : "123. Corrupt practices. - (1) .......... The Returning Officer was thus possessed of the correct information at the time of scrutiny. It is obvious that no votes were sought on the basis of the mistaken information supplied. 7. The relevant part of Section 123(2) of the RP Act reads as follows : "123. Corrupt practices. - (1) .......... (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person [with the consent of the candidate or his election agent], with the free exercise of any electoral right: Provided that - (a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who - (i) threatens any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social ostracism and ex- communication or expulsion from any caste or community; or (ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause; (a) a declaration of public policy, or a promise of publication, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause. 8. None of the acts which constitutes the corrupt practices of undue influence, were committed on the basis of the incorrect information supplied by the returned candidate. 9. In the circumstances, it is not necessary to consider any other submissions made by the learned counsel appearing for the appellant before us. This appeal is dismissed accordingly.