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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 ..... ion 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). 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 candidate is mandated to furnish information concerning the cases in which a Competent Court has taken cognizance along with the cases in which charges have been framed. The said letters also make it clear that the affidavit mentioned in Section 33-A(2) of the 1951 Act is prescribed in Form-26 and that any false declaration or concealment of information in the said affidavit will attract the provisions of Section 125-A of the 1951 Act. A cumulative reading of Section 33-A of the 1951 Act and Rule 4-A of the 1961 Rules and Form-26 along with the letters dated 24.8.2012, 26.9.2012 and 26.4.2014, make it amply clear that the information to be furnished Under Section 33-A of the 1951 Act includes not only information mentioned in Clauses (i) and (ii) of Section 33-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 Indian Penal Code) before the Court of Judicial Magistrate First Class, Nagpur have not been mentioned by the first Respondent despite knowledge of the same. Consequently, according to the Appellant-complainant, an infraction of the provisions of Section 125-A has been committed for which the first Respondent is liable to be prosecuted in a court of competent jurisdiction. On the very same allegations the Appellant had challenged the election of the first Respondent before the High Court b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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 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 his/her candidature: (1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past-if any, whether he is punished with imprisonment or fine? (2) Prior to six months of filing of nomination, whether the candidate is Accused in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Union of India and Ors. ((2003) 4 SCC 399) as violating the fundamental right of citizens to know the antecedents of candidates contesting in the elections, which right was held to be an essential facet of freedom of speech and expression enshrined in Article 19(1)(a) of the Constitution which could only be validly limited through the restrictions conforming with Article. 19(2) of the Constitution of India. of the 1951 Act [as inserted in the 1951 Act through the amendment in 2002 (Supra)] vis-a-vis the directions issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge 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 33-A(1) therefore falls short of the avowed goal to effectuate the right of information on a vital aspect. Cases in which cognizance has been taken should therefore be comprehended within the area of information accessible to the voters/citizens, in addition to what is provided for in Clause (i) of Section 33-A. [underlining is ours] Further, the Court held: 123. Finally, the summary of my conclusions: (1) ..... (2) .... (3) The directives given by this Court in Union of India v. Assn. for Democratic Reforms were intended to operate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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) or whether along with the said information a candidate is also required to furnish such other information as required under the Act or the Rules made thereunder. The consequential question that would arise is whether in the affidavit required to be filed Under Sub-section (2) of Section 33-A information is to be given as required in terms of the affidavit which is prescribed by Form-26 of the 1961 Rules or such information is confined to what is required to be submitted Under Section 33-A(1) (i) and (ii). It is at this stage that Rule 4-A of the 1961 Rules would require to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 (b) Section(s) of the concerned Act(s) and short description of the offence(s) for which charged (c) Name of the Court, Case No. and date of Order taking cognizance: (d) Court(s) which framed the charge(s) (e) Date(s) on which the charge(s) was/were framed (f) Whether all or any of the proceeding(s) have been stayed by any Court(s) of competent jurisdiction (ii) The following case(s) is/are pending against me in which cognizance has been taken by the Court (other than the cases mentioned in item (i) above. (a) Name of the Court, Case No. and date of order taking cognizance: (b) The details of cases where the Court has taken cognizance, section (s) of the Act(s) and description of the offence(s) for which cognizance taken (c) Details of Appeal(s)/Application(s) for revision (if any) filed against the above order(s) (6) I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount (vi) Motor Vehicles/Aircrafts/Yachts/Ships (Details of Make, registration number etc. year of purchase and amount) (vii) Jewellery, bullion and valuable thing(s) (give details of weight and value) (viii) Any other assets such as value of claims/interest (ix) Gross Total Value B. Details of Immovable Assets: Note: 1. Properties in joint ownership indicating the extent of joint ownership will also have to be indicated. Note: 2. Each land or building or apartment should be mentioned separately in this format. Sl. No. Description Self Spouse Dependent-1 Dependent-2 Dependent-3 (i) Agricultural Land Location(s) Survey number(s) Area (total measurement in acres) Whether inherited property (Yes or No) Date of Purchase in case of self acquired property Cost of Land (in case of purchase) at the time of purchase Any investment on the land by way of development, construction etc. Approximate current market value (ii) Non-Agricultural Land: Location(s) Survey number(s) Area (total measurement in sq. ft.) Whether inherited property (Yes or No) Date of Purchase in case of selfacquired property Cost of Land (in case of purchase) at the time of purchase Any investment on the land by way of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ails of highest School/University education mentioning the full form of the certificate/diploma/degree course, name of the School/College/University and the year in which the course was completed.) Part B (11) Abstract of the details given in (1) to (10) of Part A: 1. Name of the candidate Sh./Smt./Kum 2. Full postal address 3. Number and name of the constituency and State 4. Name of the political party which set up the candidate (otherwise write Independent ) 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 V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates 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 candidate is mandated to furnish information concerning the cases in which a Competent Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 26 is an electoral offence punishable with imprisonment upto six months, or with fine or both. 2. Prior to amendment to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect 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 Section 33-A of the 1951 Act. Section 33(1) envisages that information has to be given in accordance with the Rules. This is in add ..... X X X X Extracts X X X X X X X X Extracts X X X X
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