2021 (12) TMI 1316 - HC - Indian Laws

Maintainability of application - application is predicated on the ground that the election petition read as a whole along with the documents filed does not disclose a cause of action and hence ought to be rejected - whether the petition should be rejected at this stage without the matter going to trial? - HELD THAT - As per the law which obtains at present the candidate who files his nomination is required inter alia to disclose his educational qualifications as also his past convictions including fines imposed imprisonments suffered acquittals/discharge if any obtained - Disclosure qua the aforesaid is in addition to the disclosure of information qua pending criminal case where a person if convicted can be sentenced to imprisonment for two years or more albeit where charge is framed or cognizance is taken by Court of law and information concerning the candidate s assets including those of the spouse and dependents as also liabilities particularly those related to the Government or public institutes. One cannot quibble with the proposition that the registration of an FIR does not bring the matter adverted to therein within the ambit of a pending criminal case. Mr. Srivastava is right when he says that a criminal case is said to be pending either when the concerned Magistrate has taken cognizance under Section 190 of the Code of Criminal Procedure 1973 or a charge sheet has been filed. Admittedly the petitioner has neither made any assertion nor placed any document on record in this behalf. Merely because the May 2002 Academic Examination Result for Class X concerning the applicant/respondent no. 1 does not align with the assertion made in the petition that the application/respondent no. 1 did not pass the examination of Class X in 2003 would not be a good enough reason to reject the petition. The averments made in this behalf have to be read in their entirety and therefore the matter in my view needs to be tried. Leave is granted to the petitioner to file a fresh affidavit in the prescribed form i.e. Form-25 read with rule 94A of the 1961 Rules within fifteen days from today - Application dismissed.

Issues Involved:

1. Whether the election petition discloses a cause of action.
2. Alleged false declaration of educational qualifications by the respondent.
3. Non-disclosure of pending criminal proceedings by the respondent.
4. Compliance with procedural requirements for filing an election petition.
5. Verification of the election petition and affidavit conformity.
6. Whether the alleged false declaration constitutes corrupt practice under Section 123(4) of the Representation of the People Act, 1951.

Issue-wise Detailed Analysis:

1. Whether the election petition discloses a cause of action:

The respondent argued that the election petition, read as a whole along with the documents filed, does not disclose a cause of action and should be rejected under Order VII Rule 11 of the CPC and Section 86 of the 1951 Act. The petitioner countered that the allegations made in the petition are sufficient to disclose a cause of action and require a trial.

2. Alleged false declaration of educational qualifications by the respondent:

The petitioner alleged that the respondent's declaration in Form-26 that he had passed Class-X from NIOS in 2003 was false. The respondent contended that the document filed by the petitioner (NIOS Academic Examination Result for May 2002) showed him as absent, not failed. The court noted that the petition included assertions about the respondent's inconsistent declarations of his highest educational qualification in different years, which warranted a trial to resolve.

3. Non-disclosure of pending criminal proceedings by the respondent:

The respondent argued that the FIR registered against him did not amount to a pending criminal case as defined by law. The petitioner contended that the respondent failed to disclose material facts about his criminal antecedents. The court acknowledged that the registration of an FIR alone does not constitute a pending criminal case but emphasized the Supreme Court's directive for candidates to disclose past convictions and pending cases where charges are framed or cognizance is taken.

4. Compliance with procedural requirements for filing an election petition:

The respondent claimed that the election petition should be rejected for not being framed in accordance with Form-25 and Rule 94A of the 1961 Rules. The petitioner argued that any defects in the verification or format of the affidavit were curable. The court agreed with the petitioner, citing precedents that such procedural defects do not warrant dismissal at the threshold and can be remedied.

5. Verification of the election petition and affidavit conformity:

The respondent asserted that the verification of the petition did not comply with Order VI Rule 15(2) of the CPC and Section 83(1)(c) of the 1951 Act. The court held that these defects were curable and directed the petitioner to file a fresh affidavit in the prescribed form, clearly stating which parts of the petition were true to his knowledge and which were based on information.

6. Whether the alleged false declaration constitutes corrupt practice under Section 123(4) of the 1951 Act:

The respondent argued that a false declaration of educational qualifications did not amount to corrupt practice under Section 123(4). The court referred to the Supreme Court's judgment, which held that voters have a fundamental right to know the antecedents of candidates, including their educational qualifications. The court concluded that a false declaration in this regard could be considered a corrupt practice.

Conclusion:

The court dismissed the application to reject the election petition at this stage, allowing the matter to proceed to trial. The petitioner was granted leave to file a fresh affidavit in the prescribed form within fifteen days. The matter was listed for admission/denial of documents on 10.01.2022 and for framing of issues on 25.02.2022.

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