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TMI Blog2019 (10) TMI 1603X X X X Extracts X X X X X X X X Extracts X X X X ..... First Class, Nagpur for registration of a case against the first Respondent Under Section 125-A of the Representation of the People Act, 1951 (hereinafter referred to as "the 1951 Act"). The learned Judicial Magistrate First Class, Nagpur by order dated 7th September, 2015 dismissed the complaint. In Revision, the learned Sessions Judge, Nagpur remanded the matter to the learned trial Court for a de novo consideration. Aggrieved, the first Respondent moved the High Court and the High Court having set aside the order of the learned Sessions Judge by its judgment and order dated 3rd May, 2018, the present appeals have been filed. 4. The complaint filed by the Appellant contains an allegation that in the affidavit in Form-26, prescribed by the Conduct of Election Rules, 1961 (hereinafter referred to as "the 1961 Rules"), which had accompanied the nomination papers of the first Respondent details of two cases in which cognizance was taken i.e. (i) Summary Case No. 231 of 1996 (under Section 500 of Indian Penal Code) before the Judicial Magistrate First Class, Nagpur; and (ii) Regular Criminal Case No. 343 of 2003 (Old No. 125 of 1998) (under Sections 468, 471, 218, 467, 420 and 34 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. He has choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in criminal case. For maintaining purity of elections and healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided--its result, if pending--whether charge is framed or cognizance is taken by the Court? There is no necessity of suppressing the relevant facts from the voters. [underlining is ours] Further, this Court issued the following directions to the Election Commission (para 48, pg. 322): 48. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstituency for which the nomination paper is delivered. [underlining is ours] It is pertinent to note here that Section 33-A(1), as worded and drafted, required furnishing of the information of cases where (i) the person filing the nomination has been convicted; and (ii) where charges have been framed against the person filing the nomination but excluded cases where cognizance had been taken. This was despite the order of this Court, noticed above, to the effect that details of case(s) of which cognizance has been taken should also be furnished. 10. The aforesaid discrepancy was addressed by this Court, in the case of People's Union for civil Liberties (PUCL) and Ors. v. Union of India (UOI) and Ors. (2003) 4 SCC 399 In the said case, this Court had examined the import of Sections 33-A and 33-B Section 33-B was also added through the 2002 Amendment. It stated that notwithstanding anything contained in any judgment of any Court, or any instruction issued by the Election Commission, no candidate shall be liable to disclose information not required by the Act or Rules made thereunder. Section 33-B was declared unconstitutional in People's Union of Civil Liberties v. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able with imprisonment for two years or more in a pending case in which a charge has been framed by the competent court. However, the case in which cognizance has been taken but charge has not been framed is not covered by Clause (i) of Section 33-A(1). Parliament having taken the right step of compelling disclosure of the pendency of cases relating to major offences, there is no good reason why it failed to provide for the disclosure of the cases of the same nature of which cognizance has been taken by the Court. It is common knowledge that on account of a variety of reasons such as the delaying tactics of one or the other Accused and inadequacies of the prosecuting machinery, framing of formal charges gets delayed considerably, especially in serious cases where committal procedure has to be gone through. On that account, the voter/citizen shall not be denied information regarding cognizance taken by the Court of an offence punishable with imprisonment for two years or more. The citizen's right to information, when once it is recognized to be part of the fundamental right Under Article 19(1)(a), cannot be truncated in the manner in which it has been done. Clause (i) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 33 or in his affidavit which is required to be delivered Under Sub-section (2) of Section 33-A, 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. 12. Whether the provisions of Section 125-A of the 1951 Act would be applicable in the present case, as claimed by the Appellant-complainant, to make the first Respondent liable in law, would require the Court to decide on the true meaning and purport of the following phrases found in Section 125-A of the 1951 Act. (a) fails to furnish information relating to Sub-section (1) of Section 33-A; (b) conceals any information; (c) in his nomination paper delivered Under Sub-section (1) of Section 33 or in his affidavit which is required to be delivered Under Sub-section (2) of Section 33-A. 13. To find out the true meaning and purport of the aforesaid phrases, the crucial question that has to be answered is whether the word 'information' as mentioned in Section 33-A of the 1951 Act means only such information as mentioned in Clause (i) and (ii) of Section 33-A(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is/are.............................. and my E-mail ID (if any) is .......................... [(4) Details of Permanent Account Number (PAN) and status of filing of income tax return: Sl. No. Names PAN The financial year for which the last income-tax return has been filed. Total income shown in income tax return (in Rupees) 1. Self 2. Spouse 3. Dependent-1 4. Dependent-2 5. Dependent-3 5. I am/am not Accused of any offence(s) punishable with imprisonment for two years or more in a pending case(s) in which a charge(s) has/have been framed by the court(s) of competent jurisdiction. If the deponent is Accused of any such offence(s) he shall furnish the following information-(i) The following case(s) is/are pending against me in which charges have been framed by the court for an offence punishable with imprisonment for two years or more- (a) Case/First Information Report No. /Nos. together with complete details of concerned Police Station/District/State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ures as per current market value in Stock exchange in respect of listed companies and as per books in case of non-listed companies should be given. Note: 4. Dependent here has the same meaning as assigned in Explanation (v) Under Section 75-A of the Representation of the People Act, 1951. Note: 5: Details including amount is to be given separately in respect of each investment. Sl. No. Description Self Spouse Dependent-1 Dependent-2 Dependent-3 (i) Cash in hand (ii) Details of deposit in Bank accounts (FDRs, Term Deposits and all other types of deposits including saving accounts), Deposits with Financial Institutions, Non Banking Financial Companies and Cooperative societies and the amount in each such deposit (iii) Details of investment in Bonds, debentures/shares and units in companies/Mutual funds and others and the amount (iv) Details of investment in NSS, Postal Saving, Insurance policies and investment in any Financial instruments in Post Office or Insurance Company and the amount (v) Personal loan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Approximate current market value (iv) Residential Buildings (including apartments): -Location(s) -Survey number(s) Area (total measurement in sq.ft.) Built-up area (total measurement in sq.ft.) Whether inherited property (Yes or No) Date of purchase in case of self acquired property Cost of property (in case of purchase) at the time of purchase Any investment on the land by way of development, construction etc. Appropriate current market value (v) Others (such as interest in property) (vi) Total of current market value of (i) to (v) above (8) I give herein below the details of liabilities/dues to public financial institutions and government-- (Note.--Please give separate details of name of bank, institutions, entity or individual and amount before each item) Sl. No. Description Self Spouse Dependent-1 Dependent-2 Dependent-3 (i) Loan or d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent') 5. (I) Total number of pending cases where charges have been framed by the court for offences punishable with imprisonment for two years or more (ii) Total number of pending cases where the court(s) have taken cognizance (other than the cases mentioned in item (i) above 6. Total number of cases in which convicted and sentenced to imprisonment for one year or more except for offences referred to in sub-sections(1), (2) or (3) of Section 8 of Representation of the People Act, 1951 7. (a) Candidate (b) Spouse PAN of Year for which last income tax return filed Total income shown (d) Dependents] 8. [Details of Assets and Liabilities in rupees] Description Self Spouse Dependent-I Dependent-II Dependent-III A Movable Assets (Total Value) B Immovable Asset I. Purchase Price of self-acquired immovable property II. Development/Construction cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending against him in which charges have been framed by the Court; entry (5)(ii) mandates disclosure of information by the contesting candidate regarding cases that are pending against him in which cognizance has been taken by the Court. Entry 5(ii) specifically mentions that the candidate is required to provide information of the case(s) pending in which cognizance has been taken. This is in addition to the information he is required to provide against the column in Entry 5(i) as the words 'Other than the cases mentioned in item (i) above' are specifically used in Entry 5 (ii). 17. The above can leave no element of doubt that, subsequent to the substitution of Form 26 in 2012, the new Form 26 (as in vogue at the time of the elections in 2014), mandates the disclosure of information by the contesting candidate of not only case(s) in which charges have been framed but also case(s) in which cognizance has been taken by the Court. 18. The position is made further clear by the letters written by the Election Commission of India to the Chief Electoral Officer of all the States and the Union Territories. A reading of the said letters would go to show that a contesting candid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A and Part B of the revised Form 26 relates to information regarding criminal antecedents to be furnished by the candidates. It is clarified that in item (5)(ii) of the said Part A & Part B of Form-26, the details of all pending cases in which cognizance has been taken by the Court, irrespective of the quantum of punishment or framing of charges will have to be disclosed by the candidate. This may be brought to the notice of all candidates when they file their nomination at all future general/bye-elections in the State... (iii) Letter dt. 26-04-2014: Sub: Filing of false affidavit in Form-26. reg. Sir/Madam, You are aware that the format of affidavit in Form-26 appended to the Conduct of Election Rules, 1961, was amended with effect from 01-08-2012. Now the candidates are required to make declarations about assets and liabilities including that of spouse and dependants, candidate's criminal antecedents and educational qualifications, in the affidavit in Form 26. The concealing of information in the affidavit in Form 26 will attract the provisions of Section 125A. Under Section 125A, furnishing of any false information or concealing of information in the affidavit in Form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espectively). 20. In the light of the view that we have taken and in view of the clear averment made in the complaint to the effect that the First Respondent had knowledge of the two cases against him which had not been mentioned in the affidavit filed by the First Respondent alongwith his nomination papers, we unhesitatingly arrive at the conclusion that the order of the learned trial Court upheld by the High Court by the impugned judgment and order dated 3rd May, 2018 is legally not tenable and the same deserves to be set aside which we hereby do. The complaint of the Appellant will be considered afresh by the learned trial Court from the stage where it was interdicted by the order dated 30.5.2016. 21. Our view as above is in consonance with a similar view expressed by this Court in paragraph 75 of the report in Krishnamoorthy v. Sivakumar and Ors. (2015) 3 SCC 467. Para 75 of the report in Krishnamoorthy (supra) reads as under: 75. On a perusal of the aforesaid format, it is clear as crystal that the details of certain categories of the offences in respect of which cognizance has been taken or charges have been framed must be given/furnished. This Rule is in consonance with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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