Patna High Court
Lal Das Rai vs The State Of Bihar & Ors on 27 June, 2014
Author: Jayanandan Singh
Bench: Jayanandan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Election Petition No.10 of 2009
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Lal Das Rai, son of Late Jaglal Rai, resident of Mohalla- Mee4rganj Bans Tal, Post-
Chowk Ara, P.S. Ara Town, District- Bhojpur.
.... .... Election Petitioner
Versus
6. Sri Hulas Pandey son of Late Kameshwar pandey, resident of Mohalla New
Area, Ward No.25, Dalmia Nagar, P.O. & P.S. - Dalmia Nagar, District- Rohtas,
presently lodged in Sasaram Jail, Post- Sasaram, P.S. Sasaram Muffasil, District-
Rohtas.
7. Sri Radha Charan Sah, son of Harbansh Sah, resident of Mohalla- Babu Bazar,
Post- Ara, P.S. Ara Town, District- Bhojpur.
8. Sri Bisheshwar Ojha, son of Late Raj Kishore Ojha, resident of village
Ojhawalia, Post- Ishwarpura, P.S. Shahpur, District- Bhojpur
9. Sri Ashok Kumar, son of Mukhi Ram, resident of village and post Belawati, P.S.
Shahpur, District- Bhojpur
10. Sri Mohammad Muslim, son of Mohammad Sanisuddin, resident of village
Araila, Post Manudihari, P.S. Tiyar, District- Bhojpur
11. Sri Rajesh Kumar Singh, son of Dadan Singh, resident of village and post
Bhagwan, P.S. Garahani, District- Bhojpur
12. Sri Rajendra Singh, son of Late Gorakh Singh, resident of village Amarpur
Makhtiya, Post Dhamar, P.S. Ara Muffasil, District- Bhojpur
13. Sri Shiv Narayan Singh, son of Gauri Shankar Singh, resident of village
Garhaiya, P.O. Sikrol, P.S. Sikrol, District- Buxar
14. Sri Ramanuj Pandey, son of Kameshwar Pandey, resident of village Nawadih,
Post Nasariganj, P.S. Karakat, District- Rohtas.
.... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Rajendra Narayan, Sr. Adv.
Mr. Sanjay Kumar
Mr. Nasim Yahya
Mr. Surendra Kumar Choubey
Mr. Ratnakar Ambastha
For the Respondent/s : Mr. S.N.P. Sharma, Sr. Adv.
Mr. Surya Prakash
Mr. Amarendra Kumar Singh
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CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH
CAV JUDGMENT
Date:
27-06-2014
The election petitioner, who himself was also a candidate for
election as a member of Bihar Legislative Council from Bhojpur-cum-
Patna High Court E.P. No.10 of 2009 dt.27-06-2014
2/101
Buxar, Local Authorities' Constituency, through this petition filed under
sections 80 and 80-A of the Representation of the People Act, 1951, has
challenged the election of respondent no.6 Sri Hulas Pandey held on
13.7.2009and the declaration of the Returning Officer issued in his favour on 15.7.2009. He has further prayed for declaring him as elected from the Constituency in place of respondent no. 6. For this purpose, he has made all other candidates, who had contested the election, as respondent nos. 7 to 14, besides officials of the State of Bihar and the Election Commission Respondent Nos. 1 to 5, who were subsequently deleted and by order dated 14.5.2010 the private respondents were re- numbered as Respondent nos. 1 to 9.
2. It is stated in the election petition that the election program was announced for election of Members of Bihar Legislative Council from Local Authorities' Constituencies of the State through notification dated 19.6.2009 (Annexure-1) issued by the election authorities, published in the official gazette, according to which date for nomination was fixed as 26.6.2009; date for scrutiny of nominations was fixed as 27.6.2009; last date of withdrawal of candidature was fixed as 29.6.2009 and date of poll was fixed as 13.7.2009. So far as Bhojpur-cum-Buxar Local Authorities' Constituency was concerned, the District Magistrate, Bhojpur was appointed as Returning Officer before whom the election petitioner, respondent no.1 and other respondents filed their nomination Patna High Court E.P. No.10 of 2009 dt.27-06-2014 3/101 papers within the stipulated time, which were scrutinized and found valid. However, later on, respondent no.9 i.e. Ramanuj Pandey withdrew his nomination. Thus, only nine candidates, including election petitioner and respondent nos.1 to 8 remained in the fray. Election was held and result was declared on 15.7.2009 and respondent no.1 was declared elected on having secured total 2456 votes, defeating his nearest contestant, namely, election petitioner, who secured 1783 votes only.
3. It is stated in the election petition that respondent no.1 is a veteran and notorious criminal, accused of serious and heinous crimes and large number of cases are pending against him in the State of Bihar, State of U.P. and State of West Bengal. It is also stated that in several cases coercive steps have been taken by the court concerned for his arrest and production including steps under sections 82 and 83 of the Code of Criminal Procedure. However, it is stated that respondent no.1 evaded his arrest and has remained absconder since the year 1997 itself. It is stated that respondent no.1 had/has no place of ordinarily residence and he kept on stealthily and secretly moving from one place to another to avoid arrest. It is stated that he never resided at his native village or even at Dalmianagar. It is stated that the State Election Commission, at the time of Municipal Election in 2007 itself, vide Memo No. 50- 11/2007-C-277 dated 23.7.2007 (Annexure-2), had issued directions to all the District Magistrates-cum-District Election Officers to take action Patna High Court E.P. No.10 of 2009 dt.27-06-2014 4/101 to delete the names of such persons from the voter list against whom execution of non-bailable warrant of arrest was pending for the last six months. It is stated that some action had been taken at the time of Bihar Legislative Assembly Election, 2005 and Panchayat Election, 2006. It is stated that though respondent no.1 is accused in as many as 30 cases and has been absconder since 1997, his name was not deleted from the voter list and he was allowed to contest the election for the Legislative Council in complete violation of law and rules and directives. It is stated that it is egregious act of continuing the name of respondent no.1 in the voter list and is serious dereliction of duty on the part of the authorities and is collusive act and amounted to fraud upon the Statute. It is stated that respondent no.1 had not been ordinarily residing at any place for the last six months and he could not have claimed to be an ordinarily resident within any constituency in terms of section 20 of the Representation of People Act, 1950 (in short ‗1950 Act'), and therefore, he was not entitled to be registered on electoral roll of any constituency. Hence, it is stated that continuity of his name in the electoral roll is non est as per section 22 of the said Act.
4. It is stated in the election petition that respondent no.1 filed two sets of nomination papers for contesting the election, vide Annexures-3 and 4. It is stated that in the nomination papers he had shown his address as Mohalla- New Area, Ward No.25, Dalmia Nagar, Patna High Court E.P. No.10 of 2009 dt.27-06-2014 5/101 District- Rohtas and his name appears at 212 Dehri Legislative Constituency, Bhag No.187, Serial No.390. It is stated that respondent no.1 never resided at Dalmianagar. It is stated that the proposers of respondent no.1 are not valid in the eye of law. It is stated that the name and serial number of one of the proposer of respondent no.1, namely, Barmeshwar Chaudhary, does not tally from the concerned voter list (Annexure-5). It is stated that the said Barmeshwar Chaudhary is one of the proposers in both the nomination papers of respondent no.1, who is at serial no.249, Bhag No.19 as mentioned in the nomination papers but in the voter list of 2009 at Bhag No.19, serial no.249, name of one Rajesh Singh is recorded and not of Barmeshwar Chaudhary. It is stated that in the second set of nomination paper of respondent no.1, one Rang Nath Mishra is the proposer, who is shown at serial no.135 under Bhag No.24 whereas in the voter list of the constituency at serial no.135 under Bhag No.24, name of one Gorakh Sharma appears and not of Rang Nath Mishra. It is stated that the said Barmeshwar Chaudhary, who was proposer in the first set of nomination paper of respondent no.1 had again been mentioned as one of the proposers in his second set of nomination paper with same details. It is stated that these defects are substantial in character as same proposer could not be in both sets of nomination papers and the proposers must be at least ten. It is stated that the nomination papers filed by respondent no.1 were not in proper Patna High Court E.P. No.10 of 2009 dt.27-06-2014 6/101 proforma and had not been properly filled in as per directives of the Election Commission and in the nomination papers the words ‗not applicable' are mentioned at many places whereas Election Commission prohibits such words and prescribes for use of ‗zero' or ‗x' to be used in the nomination papers. It is stated that attaching separate sheet along with nomination papers of the candidate is against the provisions of the Representation of People Act and rules and circulars of the Election Commission. Still, respondent no.1 had attached separate sheets with the nomination papers with list of only 11 criminal cases pending against him, which is again in violation of the rules, Act and circulars. It is stated that as many as 30 criminal cases are pending against respondent no.1 in different courts of different States. It is stated that from the nomination papers of respondent no.1, it is clear that he has mentioned only 11 cases as pending against him and deliberately concealed the other cases pending against him and thus his nomination papers suffer from the vice of superessio veri and suggesteo falsi. It is also stated that of the 11 cases, which have been mentioned in the nomination papers, he has not given full details of the sections under which the cases have been instituted, names of the courts where they are pending and the stage of individual cases.
5. It is further stated that respondent no.1 did not file nomination papers himself before the Returning Officer. His nomination papers were Patna High Court E.P. No.10 of 2009 dt.27-06-2014 7/101 filed by the proposers. It is stated that he did not swear the affidavit before the Returning Officer and claimed that he subscribed to the oath in the Sheo Prasad Gupta Divisional Chikitsalaya, Kabir Chaura, Varanasi and ‗it was informed on 26.6.2009'. It is stated that respondent no.1 was an absconder and his proposers submitted the certificate of oath, which was fake and clandestinely procured. It is stated that an objection was raised in this regard by the parties/candidates and a fax dated 26.6.2009, vide Annexure-7, was sent to the Returning Officer by Bhartiya Janta Party. It is stated that the Returning Officer did not properly enquire about the objection raised against respondent no.1 and treated his application as valid and genuine. It is stated that respondent no.1 sworn an affidavit before the Notary on 24.6.2009 at Civil Court, Arrah vide S.R. 3164 dated 24.6.2009 in Form 26 along with nomination papers and his signature was identified by Satyendra Singh, Advocate. It is stated that, on the other hand, Dr. M.P.Mishra, Surgeon of Sheo Prasad Gupta Divisional Hospital, Kabira Chaura, Varanasi granted certificate that respondent no.1 had taken oath before him on 25.6.2009. It is stated that it was false that respondent no.1 was hospitalized on 24.6.2009 in a private cabin of the hospital and was referred to I.M.S. B.H.U., Varanasi on 25.6.2009 for further management. It is stated that in fact the certificate issued by Dr. Mishra was fake and manipulated one and the oath claimed/purported to have been taken before Dr. Mishra Patna High Court E.P. No.10 of 2009 dt.27-06-2014 8/101 was invalid for the purpose of nomination as the doctor is not the competent person for taking oath by the candidate. Hence, it is stated that the nomination of respondent no.1 was illegally accepted by the Returning Officer of the constituency on 29.6.2009. It is stated that the nomination of respondent no.1 was accepted by the Returning Officer on 29.6.2009, which was, in fact, the date fixed for withdrawal of candidature and hence the acceptance of his nomination by the Returning Officer was completely illegal and without jurisdiction. Thus, it is clear that the Returning Officer had improperly accepted the nomination of respondent no.1 and it suffered from non- compliance/violation of the provisions of the Constitution and of the Representation of People Act, 1951 (in short ‗1951 Act') and the rules and orders made therein. Hence, result of the election so far as it concerned the returned candidate had been materially affected. It is stated that the Returning Officer had to follow the mandatory provisions of section 33 of the 1951 Act sub section (4) whereof requires that on presentation of nomination papers the Returning Officer shall satisfy himself that the names and electoral numbers of the candidates and his proposers as entered in the nomination papers are the same as those entered in the electoral rolls. It is stated that the nomination papers of respondent no.1 were liable to be rejected as there were substantial defects in them. It is stated that respondent no.1 did not present himself Patna High Court E.P. No.10 of 2009 dt.27-06-2014 9/101 at the time of filing of nomination papers and did not take oath, and objections filed in this regard were improperly disposed of by the Returning Officer.
6. It is again stated that acceptance of nomination papers of respondent no.1 on 29.6.2009, i.e. the date fixed for withdrawal, was completely illegal and without jurisdiction. It is stated that section 36 of the 1951 Act deals with scrutiny of nomination papers and sub-section (5) thereof provides that in case of objection by the Returning Officer or by any other person, the candidate concerned may be allowed time to rebut it but not later than the next day or the following day fixed for scrutiny and the Returning Officer shall record his decision on the date on which the proceeding has been adjourned. It is stated that the Returning Officer has violated the mandatory provisions of law as provided under section 36 of the 1951 Act. It is stated that respondent no.1 had concealed information/details about himself and he has violated section 33A of the 1951 Act. It is stated that respondent no.1 is a veteran criminal and he has secured votes by corrupt practices. But for the votes obtained by him with corrupt practices, the election petitioner would have received majority of valid votes and the fact is that he had received majority of valid votes. It is stated that respondent no.1 is a notorious criminal and terror in the area and large number of voters, out of fear, either did not turn up at the polling booths or could not muster courage Patna High Court E.P. No.10 of 2009 dt.27-06-2014 10/101 to cast votes against him. It is stated that the agents of respondent no.1 threatened and scared the voters away from polling booths. It is stated that the agents and persons associated with respondent no.1 were moving on the polling day and they had threatened the voters with dire consequences to cast votes in his favour. It is stated that there were irregularities and illegalities committed in favour of respondent no.1. It is stated that respondent no.1 is a notorious criminal and absconder. It is stated that his nomination was accepted and he was allowed to contest election and was declared elected in complete violation of law although the Court has passed orders to check entry of criminals in politics. It is stated that since many irregularities and illegalities have been committed in the election of respondent no.1, his election cannot be sustained in the eye of law and is fit to be set aside. It is stated that the election petitioner has not filed any petition in this regard earlier in respect of election from the said constituency and has deposited a sum of Rs.2000/- as a security as provided under section 117 of 1951 Act vide challan no.155 dated 17.8.2009.
7. This election petition was filed on 24.8.2009 and after removal of defects, same was admitted on 13.11.2009 and notices were issued to the respondents. By order dated 14.5.2010, after deletion of names of respondent nos.1 to 5 the State of Bihar and its authorities, the remaining respondents were re-numbered as respondent nos.1 to 9, out of which, Patna High Court E.P. No.10 of 2009 dt.27-06-2014 11/101 after notice, respondent nos.1 to 8 appeared and notice was found validly served on respondent no.9. Hence, six weeks time was allowed to the appearing respondents, who had not filed written statement, to file their written statements.
8. Accordingly, written statements were filed in the case by the respondents. In his written statement, respondent no.1 stated that the election petition was not maintainable and was fit to be summarily dismissed in terms of the provisions of section 86(1) of the 1951 Act for non-compliance of the mandatory provisions of sections 81, 82 and 117 of the said Act. It is stated that the election petition was fit to be dismissed under Order VII Rule 11 of the Code of Civil Procedure as it did not disclose the cause of action because the pleadings did not contain material facts and necessary particulars which violated the mandatory provisions of section 83 of the said Act. It is stated that the election petitioner had made bald and vague allegations of commission of corrupt practice, of threatening and scaring away the voters by agents and associates of respondent no.1, but had not disclosed the contemporaneous and supporting documents and hence the allegations remained merely allegations without material facts. In this regard, it is stated that the Apex Court has held that if the allegation of making attempt to threatening and scaring the voters is not proved by material facts including material particulars accompanied by contemporaneous Patna High Court E.P. No.10 of 2009 dt.27-06-2014 12/101 documents then the allegations are not allegations in the eye of law. It is stated that the election petitioner had also not annexed extra affidavit in Form 25 in support of the said allegations, as required under Rule 94A of the Conduct of Elections Rules, 1961 (in short ‗1961 Rules'). It is stated that there are many discrepancies in the original election petition and the copy served on respondent no.1, which has misled respondent no.1 and caused him prejudice making him unable to give an effective reply of allegations and as such the election petition was fit to be dismissed in terms of section 86(1) of the 1951 Act and for non- compliance of the mandatory provisions of section 81(3) of the said Act. It is stated that the election petition also suffered from incurable defects and infirmities, and verification and affidavit had not been done in accordance with Order VI Rule 15 of the Code of Civil Procedure. It is stated that the election petition contained frivolous and untenable allegations as nomination papers of respondent no.1 was legally and properly accepted by the Returning Officer in accordance with law and hence election petition was fit to be dismissed summarily at the threshold itself without adducing any evidence. It is stated that the statements made in paragraph 6 of the election petition are not correct and true and are misleading and contrary to the records and it is stated that respondent no.1 is not accused of any serious and heinous crime, rather, he has been made accused by the political opponents to take Patna High Court E.P. No.10 of 2009 dt.27-06-2014 13/101 advantage. It is stated that respondent no.1 is on bail and is not an absconder as claimed by the election petitioner. It is stated that he, being an ordinarily resident, is voter also from 212 Dehri Assembly Constituency.
9. It is further stated that the allegations made by the election petitioner in paragraphs 9, 10 and 12 are beyond the scope of sections 80, 81, 100 and 101 of the 1951 Act and are not justiceable as has been put at rest by the Apex Court in various judgments and therefore allegations made in paragraphs 9 and 10 are fit to be rejected. It is stated that the matter regarding residential qualification of respondent no.1 is beyond the scope of provisions of the 1951 Act and the 1961 Rules. It is further stated that the matter of residential qualification of a voter falls within the provisions of the 1950 Act and Registration Rules, 1960, which only deal with the preparation and maintenance of voter list and therefore, question of residential qualification of a voter is not justiceable in this election petition. Therefore, allegation made in this regard in the election petition is fit to be rejected. It is stated that the allegations made in paragraph 14 of the election petition read with Annexure-5 and paragraph 15 read with Annexure-6 are hyper technical objection and do not come within the scope of substantial defect in the nomination paper as names of the proposers did, in fact, appear in the voter list, though at different serial, and there were some misprints in the Patna High Court E.P. No.10 of 2009 dt.27-06-2014 14/101 voter list. The numbers mentioned in the nomination papers of respondent no.1 were clerical mistakes, which were explained at the time of scrutiny of the same. It is stated that no candidate or proposer raised any objection regarding this hyper-technical defect and this has been raised only after the election petitioner lost in election. It is also stated that there is no provision that a voter cannot be a proposer of a candidate in two sets of nomination papers and it is stated that no objection was raised by the election petitioner or his proposer or any other candidate or other proposers at the time of scrutiny in this regard. It is stated that there is no provision prescribed under the 1951 Act to reject the nomination paper on the basis of baseless allegations as made in paragraphs 17 and 18 of the election petition and they do not entail rejection of the nomination papers because section 36 of 1951 Act does not provide power to the Returning Officer to reject nomination papers under the provisions of section 33A and 33B of the said Act. It is stated that in paragraph 10 of the Hand Book for Returning Officers specific grounds for rejection of nomination papers are laid down, as reproduced in the written statement, which do not cover the allegations made by the election petitioner. It is stated that respondent no.1 had subscribed oath before the doctor, which was not contrary to law and filing of nomination papers by the proposers is also not contrary to law. It is stated that it is incorrect to say that the certificate of oath subscribed by Patna High Court E.P. No.10 of 2009 dt.27-06-2014 15/101 respondent no.1 was fake and clandestinely obtained. It is stated that it is not indicated in the election petition that at the time of scrutiny of nomination papers, either any of the candidates or their proposers had raised any objection with regard to validity of nomination of respondent no.1. It is accepted that the Fax message was received from the office of B.J.P. Bihar Pradesh, Bir Chand Path, Patna of which the election petitioner wants to take advantage though he was fully satisfied with the scrutiny of nomination papers of respondent no.1 and had not raised any objection against their validity. It is stated that the Returning Officer did make thorough and detailed enquiry with regard to the oath of respondent no.1 and in this connection she deputed one Madhav, Executive Magistrate, Bhojpur, Arrah and one Rajesh Tripathi, D.S.P., Arrah and directed them to go to the concerned hospital at Varanasi regarding objection raised by the aforesaid B.J.P. State Convenor and the Returning Officer also directed them to submit report on or before 28.6.2009 so that pending scrutiny of nomination papers of respondent no.1 may be disposed of by 29.6.2009. In this regard, Returning Officer also directed all the proposers to be present on 29.6.2009 for verification, vide order dated 27.6.2009, as contained in Annexure-A with the written statement. It is stated that the said two officers visited the concerned hospital at Varanasi and made thorough enquiry on 27.6.2009 both oral and documentary and submitted report on 28.6.2009, Patna High Court E.P. No.10 of 2009 dt.27-06-2014 16/101 vide Annexures-B, B/1 and B/2 of the written statement. It is stated that the oath subscribed to respondent no.1 was by the competent authority and was a legal one. It is stated that the nomination papers of respondent no.1 were accepted by the Returning Officer properly and strictly in accordance with law. It is stated that the allegations made by the election petitioner are hyper-technical and he or his proposers did not raise any objection, which was thoroughly clarified by the proposers of respondent no.1 and was accepted by the Returning Officer. It is stated that in fact respondent no.1 was ill and hospitalized at Varanasi and as such his nomination papers were presented by his proposers and in fact he had subscribed oath before the doctor which was got thoroughly enquired by the Returning Officer and hence his nomination papers were accepted before the withdrawal of nomination papers. It is stated that section 33A of the 1951 Act does not provide any penalty and as such nomination papers of a candidate cannot be rejected under section 36 of the said Act for violation of provisions of section 33A. It is stated that the allegations of corrupt practices made in the election petition are too vague and do not contain any material facts and full particulars as required under the law and the election petitioner has not filed separate affidavit in Form 25 as required by section 83 of the said Act read with Rule 94A of the Rules. It is stated that it was incorrect to say that respondent no.1 was a notorious criminal and absconder and he was allowed to contest the Patna High Court E.P. No.10 of 2009 dt.27-06-2014 17/101 election in complete violation of law. It is stated that his nomination papers were accepted in accordance with law and no illegality or irregularity was committed by the Returning Officer. It is stated that in the circumstances the election petition has no legs to stand and is therefore fit to be summarily dismissed.
10. Other respondents have also filed their written statements. Respondent Radhacharan Sah has supported the case of the election petitioner and has stated that respondent no.1 had more than 11 criminal cases against him of serious nature and he was also absconder and in several cases coercive processes under sections 82 and 83 of the Code of Criminal Procedure had been issued against him. He has also stated that respondent no.1 has no ordinarily place of residence and he does not reside at one place for more than six months. He has also stated that there were defects of substantial nature in the nomination papers of respondent no.1 in respect of serial numbers of the proposers. He has also stated that the oath subscribed by respondent no.1 and the certificate issued by the doctor at Varanasi was fake and clandestinely procured and he had filed an objection on 26.6.2009 in this respect, vide Annexure-A with his written statement, on behalf of B.J.P. under the signature of Ajit Kumar Singh, State Convenor. He has also stated that though the Returning Officer had enquired into the matter but improperly, and oath of respondent no.1 and his nomination papers were Patna High Court E.P. No.10 of 2009 dt.27-06-2014 18/101 wrongly accepted as valid. It is stated that the order was issued by the Returning Officer on 27.6.2009, vide Annexure-B with his written statement, for scrutiny of nomination paper of respondent no.1 at 11.00 A.M. on 29.6.2009. It is stated that though the concerned persons were present but the scrutiny started at 12.00 Noon and the persons present put their signature on the attendance sheet with time, vide Annexure-C. It is stated that finally on that day at 3.15 P.M. nomination paper of respondent no.1 was accepted by the Returning Officer illegally. It is stated that respondent no.1 had secured votes with corrupt practices and there was improper acceptance of his nomination paper.
11. Respondent Bisheshwar Ojha has also filed his separate written statement. It is stated that he was a candidate in the election belonging to Bhartiya Janta Party. He has also stated that there were many more cases of serious nature against respondent no.1, besides 11 cited by him, and he was absconder from before and in many cases coercive steps under sections 82 and 83 of the Code of Criminal Procedure had been taken against him. He also has stated that respondent no.1 had no ordinarily place of residence and he did not reside at one place for more than six months. He too has stated that in the nomination papers of respondent no.1 there were some substantial defects in the name, serial number of the proposers and oath subscribed by him and the certificate of doctor at Varanasi produced by him was fake and Patna High Court E.P. No.10 of 2009 dt.27-06-2014 19/101 clandestinely procured. Objection to that effect was filed on 26.6.2009 on behalf of B.J.P. He has also stated that enquiry in the matter was made by the Returning Officer but improperly and oath and nomination of respondent no.1 were wrongly and illegally accepted as valid and genuine. He too has stated about the orders of the Returning Officer dated 27.6.2009 fixing scrutiny of nomination paper of respondent no.1 on 29.6.2009 at 11.00 A.M. and the presence of the persons and signature on the attendance sheet and start of scrutiny at 12.00 Noon and its acceptance at 3.15 P.M. He has also stated that the Returning Officer wrongly and illegally accepted the nomination of respondent no.1 and its acceptance was improper and in violation of the Acts, Rules and Circulars.
12. Written statements of Respondents Ashok Kumar, Respondent Mohammad Muslim, Respondent Rajesh Kumar Singh, Respondent Rajendra Singh and Respondent Shiv Narayan Singh are almost identical to the written statement of Bisheshwar Ojha on all material particulars supporting the stand of the election petitioner.
13. After respondent no.1 filed his written statement in the case on 3.8.2010, this Court, by order dated 6.8.2010, called for the documents as per list provided by the election petitioner in paragraph 2 of the petition dated 21.7.2010 from their respective custodians and two weeks time was allowed to the parties to file their respective proposed Patna High Court E.P. No.10 of 2009 dt.27-06-2014 20/101 issues. By order dated 27.8.2010 this Court also directed the respondents to file list of witnesses along with proposed issues and the election petitioner was also directed to file list of witnesses. Parties thereafter filed proposed issues on which they were heard and by order dated 17.9.2010, following issues were settled for decision in the instant case :
(i) Whether the election petition as framed is maintainable?
(ii) Whether the election petition is fit to be dismissed summarily under section 86(1) of the Representation of People Act, 1951 for non-
compliance of mandatory provisions of sections 81, 82 and 117 of the said Act read with Section 100 of the Act?
(iii) Whether election petition is fit to be dismissed summarily under Order VII Rule 11 of the Code of Civil Procedure as no complete cause of action arises out of vague pleadings of general nature and not containing material facts and material particulars?
(iv) Whether the verification and affidavit is not in accordance with Order VI Rule XV of the Code of Civil Procedure? If so, is the election petition fit to be dismissed summarily?
(v) Whether election petition is not an election petition in the eye of law? If so, whether election petition is fit to be dismissed summarily to prevent the abuse of process of law?
(vi) Whether the nomination of Sri Hulas Pandey, the returned candidate has been improperly accepted by the Returning Officer?
(vii) Whether there has been non-compliance with the provision of Constitution or the Representation of the People Act 1951 or of any rules or order made under this Act in favour of the returned Patna High Court E.P. No.10 of 2009 dt.27-06-2014 21/101 candidate?
(viii) Whether the oath and certificate of oath submitted on behalf of the returned candidate, Sri Hulas Pandey with his nomination is fake and manipulated one and invalid and objection in this regard has been improperly disposed of?
(ix) Whether the nomination of Sri Hulas Pandey, the returned candidate was illegally accepted by the Returning Officer, beyond time on 29.06.2009 on the date fixed for withdrawal of candidature?
(x) Whether the nomination of the returned candidate is in improper form and not in accordance with guidelines of Election Commission of India for filing nomination?
(xi) Whether the returned candidate was an accused in any other criminal case/cases apart from the cases mentioned in his nomination paper and the information/details regarding which has been concealed by him?
(xii) Whether the returned candidate was an absconder in criminal cases and against him non-bailable warrants were pending at the time of Election process which includes the date of filing of nomination till declaration of result?
(xiii) Whether there is any other case which has not been disclosed by the returned candidate in the nomination paper in which he is an accused of an 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?
(xiv) Whether the returned candidate has concealed any information in the nomination paper which he was required to disclose?
(xv) Whether the returned candidate had not been ordinarily residing at any place for last six months and was not an ordinary resident of any Patna High Court E.P. No.10 of 2009 dt.27-06-2014 22/101 place within any constituency in terms of the definition as under section 20 of the R.P. Act 1950 and entry of his name in the electoral roll is non est in terms of section 22 of the said Act for contesting the present election?
(xvi) Whether the result of the election, in so far as it concerns returned candidate, has been materially affected?
(xvii) Whether corrupt practice was committed in the interest of the returned candidate?
(xviii) Whether the election of the returned candidate Sri Hulas Pandey is fit to be declared void?
(xix) Whether the election petitioner is fit to be declared as to have been duly elected?
(xx) Whether the petitioner is entitled to any other relief/reliefs in the case?
14. As stated earlier, respondent no.1 had thereafter filed a petition under section 86(1) of the 1951 Act read with Order VII Rule 11 of the Code of Civil Procedure on 8.8.2011 raising a preliminary objection regarding maintainability of the election petition. Accordingly, by order dated 12.8.2011 election petitioner was granted two weeks time to file reply, which he filed on 23.8.2011. On 9.9.2011 parties were heard on the preliminary objection regarding maintainability raised by respondent no.1 and orders were passed by the Court on 30.9.2011 directing the said application to be heard at the time of final hearing of the election petition. It appears that against the said order, respondent no.1 moved the Apex Court through an S.L.P. Meanwhile, P.W.1 Patna High Court E.P. No.10 of 2009 dt.27-06-2014 23/101 Surendra Yadav, whose affidavited examination-in-Chief had been filed on 24.8.2011, was cross-examined on 9.12.2011 and was discharged. However, on the next date, i.e. 16.12.2011, in view of the order of the Apex Court staying further proceedings in the election petition, case was adjourned and was directed to be listed after disposal of S.L.P. No. 31647 of 2011. On 30.3.2012 this Court noticed the order of the Apex Court dated 13.2.2012 passed in Civil Appeal No.2051 of 2012 which showed that consensus appeared to have emerged amongst learned counsels on the basis of which order dated 30.9.2011 passed in this case was set aside with a direction to this Court to decide the preliminary objection as early as may be possible. Hence, on the request of learned counsel for respondent no.1 for some more time, matter was fixed for 13.4.2012 for hearing on preliminary objection. Hearing on preliminary objection was held on 27.4.2012, 4.5.2012, 11.5.2012, 18.5.2012 and was concluded on 13.7.2012 and orders were reserved. On 18.9.2012 detailed orders were passed and the petition of respondent no.1 raising preliminary objection was rejected with the finding that the objector respondent no.1 had failed to substantially support his objection on any valid ground. On 21.9.2012 learned counsel for respondent no.1 informed the Court that respondent no.1 was intending to challenge the said order of this Court dated 18.9.2012 before the Apex Court for which he sought for adjournment.
Patna High Court E.P. No.10 of 2009 dt.27-06-2014 24/101
15. Meanwhile, this Court proceeded with recording of evidence of the witnesses on behalf of election petitioner. After examining five witnesses, election petitioner filed an application for summoning two official witnesses for which cost was deposited by him and summons were issued fixing 26.4.2013 for their appearance. Accordingly on 26.4.2013 official witness Ms Safeena A.N. appeared, who was examined and cross-examined on the same day and the case was fixed for cross-examination of another official witness Mr. Sunil Kumar, D.I.G., Patna Range, Patna, who appeared before this Court on 13.9.2013 and was cross-examined and was discharged. On 13.9.2013 itself election petitioner closed his evidence.
16. Thereafter respondent no.1 entered into evidence and his first witness was cross-examined and discharged on 24.9.2013. Altogether six witnesses were examined on his behalf including respondent no.1 himself, who was examined as witness no.6. Thereafter, by order dated 2.12.2013 two petitions filed on behalf of the election petitioner and its rejoinder filed by respondent no.1 were taken up for hearing and disposed of. On the next date, i.e. 6.1.2014, hearing of the case commenced and was finally concluded on 24.3.2014.
17. After close of evidence, Sri S.N.P. Sharma, learned senior counsel appearing for respondent no.1, opened up his arguments on 6.1.2014 by placing the provisions of Article 329 of the Constitution of Patna High Court E.P. No.10 of 2009 dt.27-06-2014 25/101 India. He submitted that the Constitution itself had put a bar on the powers of any Court, which included High Court also, to interfere with any election of either of the Houses of Parliament or either of the Houses of State Legislature, except by an election petition preferred in such manner as may be provided under the law made by appropriate legislation. With a purpose to place the provisions of law in connection with filing and dealing with an election petition, he submitted that the Representation of People Act, 1951, read with Conduct of Election Rules 1961, is complete code in itself dealing with the election of either of the Houses of Parliament or of the Legislature of a State. He submitted that, as per constitutional mandate, any election can be called into question only in terms of the provisions of the said Act read with the Rules and not otherwise. He then referred to part 6 of 1951 Act relating to disputes regarding elections and particularly referred to sections 80 and 80A, which provided for calling an election in question only through an election petition in accordance with the provisions of the said Act and conferring jurisdiction on a single Judge of a High Court to try such election petition. He referred to section 81 of the Act and submitted that an election petition could be presented within 45 days from the date of election of the returned candidate and only on one or more grounds specified under sub-section (1) of section 100 and section 101 of the 1951 Act by a candidate of such election or any elector. He referred to Patna High Court E.P. No.10 of 2009 dt.27-06-2014 26/101 section 67A to submit that the date of election of the candidate has to relate to the date of declaration of result and therefore 45 days has to be counted from that date. He further referred to the explanation under this section and submitted that an elector, to be eligible to file an election petition, has only to establish that he was entitled to vote in the election in question although he may not have actually voted in the election. He referred to sub-section (3) of section 81 also and submitted that an election petition has to be accompanied by as many copies as there are respondents in the petition and every such copy had to be duly attested by the petitioner under his signature to be a true copy of the petition. He referred to section 82 and submitted that if petitioner of an election petition seeks only a declaration for election of the returned candidate to be held void, he is required to make the elected candidate only as respondent in the petition, but if he intends to seek further declaration that he himself or any other candidate should be declared as elected, he has to necessarily add all contesting candidates also as party respondents. He submitted that initially the election petitioner had added official also as party respondents in the election petition, which was unnecessary and not a requirement under section 82. Hence, he subsequently rightly deleted them from the array of parties. Then he referred to section 86 containing provisions for trial of election petition and in particular referred to sub-section (1) and submitted that it contains Patna High Court E.P. No.10 of 2009 dt.27-06-2014 27/101 a mandate to all High Courts to reject the election petition which does not comply with the provisions of section 81 or 82 or section 117. He referred to section 83 laying down provisions for necessary contents in the petition and submitted that it must contain concise statement of material facts and particulars of corrupt practices including as full a statement as possible of the names of the parties involved, date and place, and election petition has to be signed and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. He submitted that if the election petitioner alleged corrupt practices, petition has also to be accompanied by an affidavit in a prescribed form in support of allegation of such alleged corrupt practices and particulars thereof, which is lacking in the present petition. At this stage, he referred to Rule 94A of 1961 Rules and Form 25, the prescribed form, to show that such affidavit should accompany with the petition in case of allegation of corrupt practices and also referred to sub-section (5) of Section 86 to submit that if the petition did not contain, as in this case, particulars of corrupt practices, High Court could not allow amendment of the petition to introduce them. Then he referred to section 87 of the Act and submitted that the election petition had to be tried by the High Court as nearly as may be in accordance with the provisions applicable under the Code of Civil Procedure for trial of suits and provisions of the Indian Evidence Act were made to apply to trial of election petition also Patna High Court E.P. No.10 of 2009 dt.27-06-2014 28/101 subject to provisions of the 1951 Act. He referred to section 58 of the Evidence Act and submitted that the facts, which are admitted by the parties, in terms of this section, need not be proved. He also referred to Order XIV Rule 1 of the Code of Civil Procedure and submitted that in the proceeding, issues of fact as well as law have to be framed only in respect of material proposition affirmed by one party and denied by the other party. The Court has to ascertain with regard to material proposition of fact and law on which parties are at variance and thereafter has to frame issues.
18. He placed deposition of official witness no.1 (P.W.6) the Returning Officer of the Election and submitted that the facts which were admitted or not denied by the Returning Officer have to be treated as proved. He submitted that if the election petitioner did not put questions to the Returning Officer with regard to conduct of election and actions taken by her, he cannot be permitted to question her conduct during hearing of the case. In connection with the scope and limitation of a Court in dealing with the election petition, he submitted that statutory requirement of election law must be strictly followed and success of a candidate must not be lightly interfered with. In this connection, he referred to a judgment of the Apex Court in the case of Jagan Nath v. Jaswant Singh [AIR 1954 SC 210] and in particular, placed reliance on the following observations of the Court contained in Patna High Court E.P. No.10 of 2009 dt.27-06-2014 29/101 paragraph 7 :-
"7. The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions, however, have any application if the special law itself confers authority on a tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down by it. It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the tribunal entrusted with the trial of the case is not affected.‖
19. Referring to the following paragraphs of judgment of the Apex Court in the famous case of Jyoti Basu v. Debi Ghosal [AIR 1982 SC 983], he submitted that right to be elected is a statutory right and right to dispute is also a statutory right :-
"8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is Patna High Court E.P. No.10 of 2009 dt.27-06-2014 30/101 pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, court is put in a strait- jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any rights claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the scheme of the Act. We have noticed the necessity to rid ourselves of notions based on common law or equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act Patna High Court E.P. No.10 of 2009 dt.27-06-2014 31/101 say?
9. Section 81 prescribes who may present an election petition. It may be any candidate at such election; it may be any elector of the constituency; it may be none else. Section 82 is headed ―Parties to the petition‖ and clause (a) provides that the petitioner shall join as respondents to the petition the returned candidates if the relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of Section 82 requires the petitioner to join as respondent any other candidate against whom allegations of any corrupt practice are made in the petition. Section 86(4) enables any candidate not already a respondent to be joined as a respondent. There is no other provision dealing with the question as to who may be joined as respondents. It is significant that while clause (b) of Section 82 obliges the petitioner to join as a respondent any candidate against whom allegations of any corrupt practice are made in the petition, it does not oblige the petitioner to join as a respondent any other person against whom allegations of any corrupt practice are made. It is equally significant that while any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under Section 86(4), any other person cannot, under that provision seek to be joined as a respondent, even if allegations of any corrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candidates at the election. If such is the design of the staturte, how can the notion of ―proper parties‖ enter the picture at all? We think that the concept of ―proper parties‖ is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Section 82 and Patna High Court E.P. No.10 of 2009 dt.27-06-2014 32/101 Section 86(4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents.‖
20. In respect of the procedural part of an election dispute, he placed paragraph 29 of the famous judgment of the Apex Court in the case of Samant N. Balkrishna Vs. George Fernandez [AIR 1969 SC 1201] and submitted that the Apex Court has elaborately dealt with the provisions of the Act and has held that the election petition must contain material particulars of allegation to enable the Court to try the same, in absence of which petition has to be dismissed summarily. He also placed the provisions of sub-section (5) of Section 86 and submitted that no particulars in respect of corrupt practices can be allowed to be introduced in the petition if the same is not there at all. In this connection he has also referred to the famous judgment of the Apex Court in the case of Azhar Hussain Vs. Rajiv Gandhi [AIR 1986 SC 1253] and submitted that for non-compliance of provisions of section 83 an election petition can be dismissed at its threshold.
21. He submitted that the provisions of section 83 read with section 86 clearly mandates that if a particular allegation is not there in the election petition, the same must be dismissed as it will be waste of valuable time of the Court to take the election dispute to its logical end by entering into evidence and hearing. He referred to a judgment of a Division Bench of this Court in the case of Chandrashekhar Singh Vs. Patna High Court E.P. No.10 of 2009 dt.27-06-2014 33/101 Sarjoo Prasad Singh [AIR 1961 Patna 189] and particularly relied upon observation made in paragraph 15 thereof to submit that the provisions of section 83 was exclusive and not exhaustive. He submitted that no petition was filed in the present case by the election petitioner in terms of sub-section (5) of section 86 to amplify any particulars of alleged corrupt practices made in the petition. He submitted that no particulars at all of the alleged corrupt practices has been mentioned in the election petition and therefore this Court could not allow the same even if the election petitioner would have filed any such petition under the provisions of sub-section (5). In this connection, he also placed judgment of this Court in the case of Parmatma Sinha Vs. Sri Ram Lakhan Singh Yadav [1975 BLJR 129]. Then he submitted that the law prohibits examination and scrutiny of evidence in an election petition if in the election petition no foundational pleadings are made in this regard. He submitted that the provisions of law have to be strictly followed in the trial of an election petition and pleadings and case not set up in the election petition cannot be proved by producing evidence. In this connection he placed reliance on a judgment of the Punjab High Court in the case of Gurbanta Singh Vs. Piara Ram [XX Election Law report 350] and also referred to section 58 of the Evidence Act and submitted that the facts admitted at the hearing would be deemed to have been admitted and any further pleadings in course of time need not be Patna High Court E.P. No.10 of 2009 dt.27-06-2014 34/101 proved.
22. Coming to the evidence produced in the case, learned senior counsel for respondent no.1 first placed the evidence of official witness no.1 (P.W.6), the Returning Officer and pleadings made in paragraphs 35, 36, 37 and 38 of the election petition and referred to section 86(1) and (2) of the 1951 Act and submitted that as per evidence of the Returning Officer she did not find nomination papers of respondent no.1 fit to be rejected on any of the grounds mentioned in sub-section (2) of section 83. In respect of disqualification of a person to be chosen to be a member of Legislation of the State, he referred to Article 173, 188, 191 and clause (b) of Article 329 of the Constitution and submitted that it was only on the basis of disqualification or on the basis of not being qualified or being disqualified in law the Returning Officer could reject the nomination of any person and not otherwise. Thereafter, he placed evidence of official witness no.2 (P.W.7) the Superintendent of Police and the statements made by the election petitioner upto paragraph 9 and submitted that the election petition did not contain details of allegations in this regard. He placed evidence of the candidates and the agent of the petitioner, namely, P.W.2, P.W.3, P.W.4. He placed evidence of six respondent's witnesses, who were proposers or agents of respondent no.1 except R.W.4, who was himself a candidate and had withdrawn and R.W.6, who was respondent no.1 himself. He placed judgment of Apex Patna High Court E.P. No.10 of 2009 dt.27-06-2014 35/101 Court in the case of Ram Awadhesh Singh Vs. Sumitra Devi [AIR 1972 SC 580 and, in particular, observations made in paragraphs 13, 14, 15 thereof and submitted that mistake in serial number and part number of the proposers and seconders in the nomination papers are held not to be defects of substantial character if the names of the proposers and seconders are otherwise included in the electoral roll. In this connection, he also referred to Chapter VI of the Hand Book for Returning Officers providing for guidelines for scrutiny and, in particular, on grounds of rejection of a nomination paper mentioned in clause (10) thereof. He also referred to sections 33, 33A and 33B of the 1951 Act in respect of information to be furnished and requirements of a valid nomination paper and submitted that any shortfall or concealment in the information furnished by any candidate in the nomination paper, if not covered by the grounds for rejection of the nomination in terms of the said guidelines of the Election Commission of India contained in the said Hand Book, can not be rejected by the Returning Officer. He finally submitted that the case of corrupt practices alleged in the election petition has not at all been made out by the election petitioner by giving particulars thereof with the election petition in accordance with law. He further submitted that the election petitioner has totally failed to establish that the nomination of respondent no.1 was fit to be rejected on any of the grounds mentioned in the said Hand Book for Returning Patna High Court E.P. No.10 of 2009 dt.27-06-2014 36/101 Officers. He further submitted that the election petition totally lacked any particular with regard to any other criminal cases pending against respondent no.1 apart from the 11 cases mentioned by respondent no.1 in his nomination paper and had failed to give any particular of any case which invited disqualification of respondent no.1 from contesting the election and getting elected. He further submitted that no material particular had been mentioned in the election petition and facts could not be introduced through evidence by the election petitioner.
23. Learned senior counsel, appearing for the election petitioner, first of all referred to the application filed by respondent no.1 under section 86(1) of the 1951 Act read with Order VII Rule 11 of the Code of Civil Procedure for summary dismissal of the election petition, and submitted that in the petition respondent no.1 had sought for dismissal of the election petition on two grounds, namely, that the pleadings in the election petition in respect of corrupt practices were vague and respondent no.1 was not convicted in any criminal case and hence he was not disqualified from contesting election. He submitted that the election petitioner filed reply to it in which he challenged the bonafide of respondent no.1 in filing the petition so late and asserted that the material particulars and cause of action was fully described in the election petition. He submitted that earlier by order dated 30.9.2011 this court had directed the said petition to be considered at the time of Patna High Court E.P. No.10 of 2009 dt.27-06-2014 37/101 hearing of election petition. However, respondent no.1 moved the Apex Court, which, by order dated 13.2.2012, set aside the said order of this Court and directed the preliminary issue to be decided first. Thereafter, matter was again heard by this Court and by a detailed order dated 18.9.2012 petition was rejected. He submitted that against this order also respondent no.1 moved the Apex Court in SLP No. 3996 of 2012. However, the same was dismissed by the Apex Court by order dated 21.1.2013. Hence, he submitted that the order of this Court, rejecting the said petition of respondent no.1 on the issue of maintainability of the election petition became final. In the circumstances, he submitted that so far as challenge to the maintainability of the election petition on the ground of absence of material particulars in the election petition was no longer open for the respondent no.1 to raise again at this stage.
24. Thereafter, he referred to issue nos. 6 to 14 in respect of and in connection with the allegations of improper and illegal acceptance of nomination papers of respondent no.1 and placed the pleadings from the election petition in this connection first. Then he drew the attention of the Court towards two sets of nomination papers of respondent no.1, marked as Ext.-3 and paginated in reverse order from pages 1 to 47. He pointed out defects in the nomination papers and demonstrated that the serial number of one of the proposers Barmeshwar chaudhary in both sets of nomination papers did not tally with the serial number of voter Patna High Court E.P. No.10 of 2009 dt.27-06-2014 38/101 list; there was cutting in the date of declaration at page 45 of the first set of nomination paper but there was no authentication; in the declaration, in respect of criminal antecedents contained in both the sets of nomination papers, in all columns respondent no.1 had written ‗not applicable'; endorsements of the Returning Officer in both sets of nomination papers postponing acceptance of nomination papers, on objection, for enquiry, and thereafter rejecting the objection on the basis of enquiry report and accepting the nomination papers; the affidavits in terms of Article 173A of the Constitution with both the sets of nomination papers being blank except for the signature of respondent no.1 and not even name filled up in the second set; affidavit in Form 26 with both sets not giving in details and mentioning about list enclosed separately against column nos.(i) and (ii) in respect of details of the F.I.R., P.S., District and State and ‗not applicable' written in all other columns; in Annexure-1 with Form 26 not giving in details, and mentioning about details being given in separate sheet, giving no details of immoveable properties and educational qualification with both the sets of nomination papers; list of 11 cases furnished with both the sets of nomination papers containing no details about stage of cases and the specific courts as per information required in the Form of the prescribed affidavit in Form 26; his name not tallying with the acknowledgement of the Income Tax Department produced with both sets of nomination Patna High Court E.P. No.10 of 2009 dt.27-06-2014 39/101 papers and his address being different than the address given in the declaration in his affidavit; letter of the proposer being received by the Returning Officer on 26.6.2009 at 11.22 A.M.; letter no.1 dated 25.6.2009 of the Assistant Returning Officer available with the first set of nomination paper giving details of the documents wanting not available in the second set of nomination paper; letter of the doctor at Varanasi being received by the Returning Officer on the same day and at the same time; and some other defects. Thereafter, he reverted to his submissions in respect of Exhibits in the case. He referred to the Fax Message of the State Convenor of BJP Election Management and Coordination Cell, Bihar dated 26.6.2009 addressed to the Returning Officer. He pointed out that in the fax message Returning Officer was informed about several complaints received in respect of certificate of oath subscribed by the proposers of respondent no.1 clandestinely procured and the same being fake one. He pointed out that in the said fax message Returning Officer was requested to get the certificate of oath of the doctor verified before accepting nomination of respondent no.1, ‗who is a proclaimed absconder charged under various major Sections of IPC'. He submitted that, in view of this fax message, the Returning Officer was under a legal obligation to make enquiries about criminal history of respondent no.1 also, besides enquiry in respect of his oath as, if respondent no.1 was declared absconder, he stood disqualified from Patna High Court E.P. No.10 of 2009 dt.27-06-2014 40/101 contesting election at all. He referred to Ext.-2, the Attendance Sheet of the meeting held on 29.6.2009 on the said objection, and showed from the signatures and time mentioned on the Sheet that the meeting started at 12.00 Noon only. He also referred to Ext.4, order sheet of Returning Officer from 19.6.2009 to 15.7.2009 and, in particular, orders dated 19.6.2009 and 29.6.2009 and submitted that no enquiry at all was made by the Returning Officer in respect of respondent no.1 being proclaimed absconder or otherwise as mentioned in the said fax message (Ext.1). He also referred to Ext.-5, the electoral roll, to show that serial numbers of the proposers of respondent no.1 as mentioned in his nomination papers did not tally with the serial numbers mentioned in the electoral roll.
25. He then referred to Ext.-6, the record of G.R.Case No.1823 of 2003, corresponding to Sasaram Town P.S. Case No. 524 of 2003, registered under section 386 of the IPC and sections 25(1-b)(a(A), 26 and 35 Arms Act, and showed from the F.I.R. of the case that respondent no.1 had been named as accused no.3 in the F.I.R. He also showed from the records the charge sheet submitted in the case finding the case under the aforesaid sections true. He also pointed out the description of the accused along with charge sheet and showed that respondent no.1 had been shown as absconder. He then referred to Ext.-7, certified copy of F.I.R. of Karakat P.S.Case No.14 of 1998, registered under sections 307, 324/34, 147, 148, 149, 353 IPC, 27 Arms Act and 136 R.P. Act, and Patna High Court E.P. No.10 of 2009 dt.27-06-2014 41/101 showed that in the F.I.R. Respondent no.1 had been named as an accused and submitted that in this case charge sheet had been submitted on 31.7.2003 against respondent no.1 showing him and others as absconders. He also referred to Ext.-8, charge sheet submitted by the police on 31.7.2003 in connection with Karakat P.S.Case No.9 of 1999 under section 441 IPC solely against respondent no.1 showing him absconder in this case also. He referred to Ext.-9, certified copy of order sheet of Karakat P.S.Case No.8 of 1999 in which case charge sheet had been submitted on 2.8.2005 against respondent no.1 again showing him absconder. He submitted that though in the nomination paper, in the list of cases pending against him, respondent no.1 had mentioned about Karakat P.S.Case No.8 of 1999, but had not mentioned the fact that charge sheet had been submitted in the case against him and he had been declared as absconder in this case. Thereafter, he referred to Ext.-10, the certified copy of charge sheet submitted in Vaishali Sadar Hajipur P.S.Case No. 493 of 2002, submitted on 19.8.2003 under sections 364(A)/392/120B IPC. He pointed out that in this case also charge sheet had been submitted against respondent no.1 again showing him absconder. He also drew the attention of this Court to the certified copy of the order sheet of the court and particularly to the order dated 19.9.2003, pointing out that on that day court had directed for issue of warrant of arrest against respondent no.1, who was shown as absconder. Patna High Court E.P. No.10 of 2009 dt.27-06-2014 42/101
26. He lastly drew the attention of this Court to Ext.-12, records of Patna (Kotwali) P.S.Case No. 405 of 2003, registered on 21.9.2003 under sections 120B/109/302/34 IPC and 27 Arms Act, showing respondent no.1 as one of the named accused. He pointed out that charge sheet had been submitted in the case on 26.7.2004 under the above sections in which also respondent no.1 had been shown as absconder. He submitted that in the list of cases submitted with his nomination papers, respondent no.1 had mentioned about Karakat P.S.Case Nos.9 of 1999, Karakat P.S.Case Nos 8 of 1999, Vaishali Sadar Hajipur P.S.Case No. 493 of 2002 as well as Patna (Kotwali) P.S.Case No. 405 of 2003, but he did not mention in the list the stages of the respective cases and their status and he conveniently omitted to mention that he had been declared absconder in all these cases. He submitted that respondent no.1 had not mentioned in his list of cases about pendency of Sasaram Town P.S. Case No. 524 of 2003 and Karakat P.S.Case No.14 of 1998 in which also he had been declared absconder. He submitted that these records of cases were called for at the request of election petitioner and have been exhibited in this case, which clearly show that at least, in as many as six cases of serious nature respondent no.1 had been declared absconder.
27. Learned senior counsel for the election petitioner further referred to Chapter VI of Hand Book for Returning Officers and submitted that, in case of any objection to the nomination paper of a Patna High Court E.P. No.10 of 2009 dt.27-06-2014 43/101 candidate, the Returning Officer was required to adjourn the matter for the next day or the day after that, but the scrutiny of the nomination paper must be completed on the day fixed for scrutiny, and notwithstanding such adjournment in respect of the nomination papers objected upon, any hearing on the objection must be completed by 11.00 A.M. on the day fixed for withdrawal of candidates. He submitted that in the present case the Returning Officer had not completed the hearing by 11.00 A.M. of 29.6.2009 and had in fact called a meeting at 11.00 A.M. He referred to Article 173, clause (a) and (b), prescribing for qualification for membership of State Legislature and submitted that a candidate has to submit oath or affirmation after filing of nomination paper but before the date fixed for scrutiny of the same. He then referred to section 33A of the 1951 Act. He submitted that by amendment, section 33A had been added in the Act as also section 33B, prescribing for a candidate to furnish information in respect of his criminal antecedents including pending cases against him, by way of an affidavit. He submitted that so far as the amendment introduced in the Act and inserted as section 33B, protecting a candidate from furnishing such information, which was not required to be furnished under the Act or the rules, was struck down by the Apex Court. He referred to Ext.-3, the nomination papers of respondent no.1 again and submitted that respondent no.1 had not furnished in detail all criminal cases pending Patna High Court E.P. No.10 of 2009 dt.27-06-2014 44/101 against him, as required under law, and had cleverly not furnished entire details of the cases mentioned in the list. He referred to a well known judgment of the Apex Court in the case of Union of India v. Assn. for Democratic Reforms, [(2002) 5 SCC 294] and submitted that after detailed discussions the Court in paragraph 48 directed the Election Commission to call for information on affidavit, by issuing necessary orders in exercise of powers conferred under Article 324 of the Constitution, from each candidate about criminal cases against him, disposed of or pending, with their stages as well as details of the assets and liability. For easy reference, the said paragraph 48 of the judgment is reproduced herein below :-
"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 any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or Patna High Court E.P. No.10 of 2009 dt.27-06-2014 45/101 government dues.
(5) The educational qualifications of the candidate.‖
28. In this context, he also referred to the judgment of the Apex Court in the subsequent case of People's Union for Civil Liberties (PUCL) v. Union of India [(2003) 4 SCC 399] and submitted that in the challenge to the amendments, the Apex Court upheld the vires of section 33A but held the newly inserted section 33B as ultra vires. He particularly placed the concluding part of the judgment of Hon'ble Mr.Justice P. Venkatarama Reddi containing specific directions, which are as follows :-
―123. Finally, the summary of my conclusions:
(1) Securing information on the basic details concerning the candidates contesting for elections to Parliament or the State Legislature promotes freedom of expression and therefore the right to information forms an integral part of Article 19(1)(a). This right to information is, however, qualitatively different from the right to get information about public affairs or the right to receive information through the press and electronic media, though, to a certain extent, there may be overlapping.
(2) The right to vote at the elections to the House of the People or Legislative Assembly is a constitutional right but not merely a statutory right;
freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter.
(3) The directives given by this Court in Union of India v. Assn. for Democratic Reforms were Patna High Court E.P. No.10 of 2009 dt.27-06-2014 46/101 intended to operate only till the law was made by the legislature and in that sense ―pro tempore‖ in nature. Once legislation is made, the Court has to make an independent assessment in order to evaluate whether the items of information statutorily ordained are reasonably adequate to secure the right of information available to the voter/citizen. In embarking on this exercise, the points of disclosure indicated by this Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced.
(4) The Court has to take a holistic view and adopt a balanced approach in examining the legislation providing for right to information and laying down the parameters of that right.
(5) Section 33-B inserted by the Representation of the People (Third Amendment) Act, 2002 does not pass the test of constitutionality, firstly, for the reason that it imposes a blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients and secondly, for the reason that the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate.
(6) The right to information provided for by Parliament under Section 33-A in regard to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen.
However, there is no good reason for excluding the pending cases in which cognizance has been taken by the Court from the ambit of disclosure.
(7) The provision made in Section 75-A regarding declaration of assets and liabilities of the elected candidates to the Speaker or the Chairman of the House has failed to effectuate the right to information and the freedom of expression of the voters/citizens. Having accepted the need to insist Patna High Court E.P. No.10 of 2009 dt.27-06-2014 47/101 on disclosure of assets and liabilities of the elected candidate together with those of the spouse or dependent children, Parliament ought to have made a provision for furnishing this information at the time of filing the nomination. Failure to do so has resulted in the violation of guarantee under Article 19(1)(a).
(8) The failure to provide for disclosure of educational qualification does not, in practical terms, infringe the freedom of expression.
(9) The Election Commission has to issue revised instructions to ensure implementation of Section 33-A subject to what is laid down in this judgment regarding the cases in which cognizance has been taken. The Election Commission's orders related to disclosure of assets and liabilities will still hold good and continue to be operative. However, Direction 4 of para 14 insofar as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information should not be enforced.‖
29. He also referred to a Division Bench judgment of this Court in the case of Bihar Rajya Panchayat Parishad Vs. Election Commission [2003(3) PLJR 764] and concluding observations of the Court, as contained in paragraphs 18 and 19, reproduced herein below for easy reference :-
―18. In short, absconders and those who have jumped their bail, cannot enter the election arena. Such persons cannot cook a snook at the Law and have the luxury of displaying their powers in politics. They must first surrender to the Court in any terms which the Court may set upon them. Of criminals in politics in the context of Section 33A, their criminal background is public information Patna High Court E.P. No.10 of 2009 dt.27-06-2014 48/101 which the public has a right of access to. The spirit of this right of information, in the present context, is clear that the criminal background of such persons standing for election is to be advertised widely so as to make the electorate aware of the choices they have to make between citizens who lived by the law and criminals who have violated it.
19. This Court thus orders that those who come within the Section 33A, are obliged to reveal the offences which they have been convicted or charged with, and these must receive the widest publicity to make the electorate aware. Further, of those who have been declared as absconders and have not surrendered, these persons also violate the rule of law and they cannot make a mockery of the law and the Courts and their candidatures must be cancelled by the Returning Officers concerned because even on the eve of elections they have shown scant respect of the law of the land.‖
30. He referred to the evidence of official witness no.2, the Superintendent of Police, and particularly statement made in paragraph 6 of his affidavited statement in Chief, acknowledging that at the relevant time respondent no.1 was absconder in Nawadah P.S.Case No. 122 of 2003 instituted for an offence under section 302/34 IPC and 27 Arms Act, as appearing from the charge sheet submitted vide C.S. No. 161 of 2004. He also pointed out paragraph 9 of his cross-examination, affirming that he had seen the charge sheet no.161 of 2004 submitted in connection with Nawadah P.S.Case No. 122 of 2003 as available on record. In the circumstances, he submitted that respondent no.1 was declared absconder in a criminal case from before the election, is a fact established from the records beyond any doubt. He submitted that Patna High Court E.P. No.10 of 2009 dt.27-06-2014 49/101 though Nawada P.S.Case No. 122 of 2003 had been mentioned by respondent no.1 amongst the 11 cases, list of which had been furnished with the nomination papers, but he conveniently omitted in mentioning the fact that in this case he had been declared absconder. In this connection, he again referred to paragraphs 13 to 19 of the said judgment of the Division Bench in the case of Bihar Rajya Panchayat Parishad (Supra).
31. Thereafter, learned senior counsel for the election petitioner again proceeded with the manner of scrutiny held by the Returning Officer and submitted that, as per schedule, scrutiny was fixed on 27.6.2009 and date of withdrawal was fixed on 29.6.2009. As per the Hand Book for Returning Officer issued by the Election Commission, hearing on the objection on nomination papers had to be held and completed latest by 11.00 A.M. on the date of withdrawal, but in the present case nomination paper of respondent no.1 was accepted by the Returning Officer at 3.15 P.M. on 29.6.2009, which was the date for withdrawal. Thus, this was serious irregularity committed by the Returning Officer in accepting the nomination paper of respondent no.1 at 3.15 P.M. after the period for withdrawal, as prescribed under section 37 of the 1951 Act, was over. He referred to Articles 84, 173(c), 191(e) of the Constitution and once again Ext.-1 and submitted that the Returning Officer had been informed that respondent no.1 was a Patna High Court E.P. No.10 of 2009 dt.27-06-2014 50/101 proclaimed absconder which clearly disqualified him from contesting the election as his name had to be deleted from the finally published electoral roll but the Returning Officer failed to do that and the electoral roll was published with the name of respondent no.1 and thereafter also no enquiry was made by her in respect of allegations of his being proclaimed absconder. He referred to paragraph 3 of affidavit in chief of official witness no.1 the Returning Officer to show that her stand was that it was the liability of respondent no.1 to furnish the details of relevant criminal cases. He referred to section 100 of 1951 Act containing grounds for declaring an election void, and in particular clause (d)(i) and (iv) thereof, and submitted that in cases of non- compliance of the provisions of the Constitution and the Act and rules and orders made thereunder and in case of improper acceptance of nomination papers, the Court has to hold the election as materially affected and has to declare it void. He referred to judgment of the Apex Court in the case of Chhedi Ram Vs. Jhilmit Ram [AIR 1984 SC 146] and in particular the observations of the Court contained in paragraph 2 thereof in respect of circumstances under which an election can be held to be materially affected as reproduced herein below :-
―2. We are afraid the appeal has to be allowed. Under Section 100(1)(d) of the Representation of the People Act, 1951, the election of a returned candidate shall be declared to be void if the High Court is of opinion that the result of the election, insofar as it concerns the returned candidate, has been materially affected by the improper Patna High Court E.P. No.10 of 2009 dt.27-06-2014 51/101 acceptance of any nomination. True, the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election. The burden is readily discharged if the nomination which has been improperly accepted was that of the successful candidate himself. On the other hand, the burden is wholly incapable of being discharged if the candidate whose nomination was improperly accepted obtained a less number of votes than the difference between the number of votes secured by the successful candidate and the number of votes secured by the candidate who got the next highest number of votes. In both these situations, the answers are obvious. The complication arises only in cases where the candidate, whose nomination was improperly accepted, has secured a larger number of votes than the difference between the number of votes secured by the successful candidate and the number of votes got by the candidate securing the next highest number of votes. The complication is because of the possibility that a sufficient number of votes actually cast for the candidate whose nomination was improperly accepted might have been cast for the candidate who secured the highest number of votes next to the successful candidate, so as to upset the result of the election, but whether a sufficient number of voters would have so done, would ordinarily remain a speculative possibility only. In this situation, the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of the case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, as compared with the number of votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted votes (the votes secured by the candidate whose nomination was improperly accepted) bears to the number of votes secured by the successful candidate. If the Patna High Court E.P. No.10 of 2009 dt.27-06-2014 52/101 number of votes secured by the candidate whose nomination was rejected is not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, it would be next to impossible to conclude that the result of the election has been materially affected. But, on the other hand, if the number of votes secured by the candidate whose nomination was improperly accepted is disproportionately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probability is that the result of the election has been materially affected and one may venture to hold the fact as proved. Under the Indian Evidence Act, a fact is said to be proved when after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down an impossible standard of proof and hold a fact as not proved. In the present case, the candidate whose nomination was improperly accepted had obtained 6710 votes, that is, almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes. Not merely that. The number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate -- it was a little over one-third. Surely, in that situation, the result of the election may safely be said to have been affected.
Patna High Court E.P. No.10 of 2009 dt.27-06-2014 53/101
32. He referred to section 84 of the 1951 Act, laying down the relief an election petitioner may claim in an election petition and once again referred to order dated 18.9.2012 passed in this case, rejecting the application of respondent no.1 challenging the maintainability of the election petition and requesting the same to be decided as a preliminary issue, and also pointed out that the SLP of respondent no.1 against the said order had been dismissed by the Apex Court. He submitted that in view of absence of material particulars in respect of corrupt practices adopted by respondent no.1, he was not pressing for adjudication of the issue framed by this Court in that regard and confined his challenge to the election of respondent no.1 on the ground of his being disqualified to contest the election on account of being absconder in several criminal cases and having not furnished the entire details of criminal cases against him through affidavit as prescribed under the law. He referred to the judgment of the Apex Court in the case of K. Kamaraja Nadar Vs. Kunju Thevar [AIR 1958 SC 687] and submitted that due to election of a disqualified candidate from the constituency, entire constituency has suffered and therefore in the interest of people of the constituency election of respondent no.1 has to be set aside and the election petitioner, having secured next highest votes, is fit to be declared as elected.
33. Learned senior counsel appearing for respondent no.1, in reply, made a short submission by referring to Article 324 of the Patna High Court E.P. No.10 of 2009 dt.27-06-2014 54/101 Constitution and Chapter VI of the Hand Book for Returning Officer containing provisions of scrutiny and particularly ‗N.B.' at page 66 and submitted that the Election Commission has laid down that on the ground of defective affidavit or affidavit containing false information nomination paper should not be rejected. In respect of claim of the election petitioner, he referred to a Constitution Bench Judgment of the Apex Court in the case of Vishwanath Reddy Vs. Konappa Rudrappa Nadgouda [AIR 1969 SC 604] and submitted that the election petition is not maintainable.
34. Now coming to the issues framed in this case, this Court finds that issue nos. (i) to (iii) are in respect of maintainability of the election petition, as to whether the same is fit to be dismissed summarily under section 86(1) of the 1951 Act for non-compliance of the mandatory provisions of sections 81, 82, 117 as also section 100 of the said Act and under the provisions of Order VII Rule 11 of the Code of Civil Procedure or not.
35. These issues were specifically raised by respondent no.1 through his petition filed on 8.8.2011. As noticed above, the said petition was considered by this Court and initially by order dated 30.9.2011 the same was ordered to be considered at the time of final hearing of the election petition. However, under the orders of the Apex Court, hearing was held on the said petition again by this Court, and on 18.9.2012 by a Patna High Court E.P. No.10 of 2009 dt.27-06-2014 55/101 reasoned order the said petition was rejected. The Bench of this Court in its order noticed that the provisions for summary dismissal of an election petition contained in section 86(1) of the 1951 Act was related to sections 81, 82 and 117 of the said Act, which were not applicable in the present case. Thereafter, the Bench noticed the provisions of sections 83 and 100 of the Act and found that the election petition contained material facts and particulars of allegations made against respondent no.1. It noticed that from the reading of different paragraphs of the election petition as a whole, the requirement of law appeared to have been fulfilled by the election petitioner in terms of section 83 of the said Act and hence held that respondent no.1 had failed to substantially support his objection on valid grounds and therefore dismissed the petition. It may be noticed that, in the said petition, while raising question of maintainability of the election petition for its summary dismissal, respondent no.1 had, besides alleging insufficient material facts and particulars in respect of allegations of corrupt practices, had also made a prayer for striking off paragraphs 6, 7, 8, 9, 19, 20, 36, 37 and 40 of the election petition in terms of the provisions of Order VI Rule 16 of the Code of Civil Procedure on the ground that there was no pleading that the respondent no.1 was convicted in any criminal case as per section 8 of the 1951 Act and thus disqualified from contesting the election. It was pleaded that the said paragraphs only talked about Patna High Court E.P. No.10 of 2009 dt.27-06-2014 56/101 pending cases, which was not a disqualification to contest the election.
However, at the time of hearing of the petition, this plea was not raised by learned senior counsel for respondent no.1 and, as appears from the order of the Bench dated 18.9.2012, learned senior counsel for the respondent no.1 confined his submissions only to non-furnishing of material facts and full particulars in support of allegations of corrupt practices, which did not find favour with the Court and the said petition was rejected. It is an admitted position that respondent no.1 had challenged the said order dated 18.9.2012 before the Apex Court but did not succeed. The order, therefore, has attained finality so far as issue of maintainability of the election petition is concerned. Hence, it has to be held that issue nos. (i), (ii) and (iii) stand concluded by the said order dated 18.9.2012 of this Court against respondent no.1.
36. So far as issue nos. (iv) and (v) are concerned, learned senior counsel for respondent no.1 did not advance any arguments for adjudication of the same. Hence, the said two issues have to be held as not pressed by the parties.
37. The main point of learned senior counsel for the election petitioner for challenge to the election of respondent no.1 was on the ground that he had not furnished full details of all the criminal cases pending against him and had not disclosed that in many of the cases he was a proclaimed absconder. In this connection, issues proposed on Patna High Court E.P. No.10 of 2009 dt.27-06-2014 57/101 behalf of election petitioner were accepted and framed as issue nos. (xi),
(xii), (xiii) and (xiv). Hence, it would be appropriate to take up these four issues together.
38. Pleadings of the election petitioner in respect of these allegations are in paragraphs 6, 7, 19, 20 and 40 of the election petition. Election petitioner has also led evidence in support of his contention. Election petitioner in his deposition has given details of other cases pending against respondent no.1 and not included in the list with his nomination papers and also stated that the details of those cases also, which have been mentioned in the list, have not been furnished by him. He has also stated that information was deliberately concealed by respondent no.1 because of which his nomination papers were wrongly accepted. Official witness no.2 the then Superintendent of Police of Bhojpur had accepted, after looking to the records of Nawadah P.S.Case No.122 of 2003, that respondent no.1 had been declared absconder in the case as was apparent from the charge sheet submitted in the case on 31.8.2004. At the instance of election petitioner, records of Sasaram P.S.Case No.524 of 2003, Karakat P.S.Case No.14 of 1998, Karakat P.S.Case No.9 of 1999, Karakat P.S.Case No.8 of 1999, Sadar Hajipur (Vaishali) P.S.Case No. 493 of 2002 and Patna Kotwali P.S.Case No.405 of 2003 were called for and exhibited as Exts.- 6, 7, 8, 9, 10 and 12 respectively. This Court examined the records of cases during the Patna High Court E.P. No.10 of 2009 dt.27-06-2014 58/101 submissions of learned senior counsel for the election petitioner. From the records, it is apparent that respondent no.1 has been cited as an accused in the charge sheets submitted showing him as absconder. Thus, the stand of the election petitioner that respondent no.1 was a proclaimed absconder in many cases from before the date of filing of nomination papers stands supported by these public documents. During the arguments of learned senior counsel for the election petitioner, this Court also cross-checked the list of pending cases furnished by respondent no.1 with the nomination papers and found that, out of the said six cases, he had mentioned about pendency of Sasaram P.S.Case No.524 of 2003 and Karakat P.S.Case No.14 of 1998 in the list. This Court also found that in the list he did not furnish details about cases as prescribed in Form 26. Hence, this Court has no other option than to hold that respondent no.1 was accused in more cases than mentioned in the list of cases furnished by him with the nomination papers and he had concealed information in this regard. This Court has also no option than to hold that respondent no.1 was a proclaimed absconder in many criminal cases as on the date of filing of nomination in which charges had been framed against him for offences punishable for imprisonment of two years or more and he had deliberately concealed the information in this regard also. Thus, these four issues are decided in favour of the election petitioner and against respondent no.1.
Patna High Court E.P. No.10 of 2009 dt.27-06-2014 59/101
39. Issue no. (viii) has been framed in respect of oath and certificate furnished on behalf of respondent no.1 with his nomination papers. Nomination of respondent no.1 was filed on 25.6.2009 at 11.09 A.M. in two sets. The oath taken by respondent no.1 on 25.6.2009 at 1.00 P.M. before one Dr. M.P.Mishra, Surgeon, in Sri Shiv Prasad Gupta District Hospital, Kabir Chaura, Varanasi is enclosed with the first set of nomination with a forwarding letter of the proposer of respondent no.1 stating that due to illness respondent no.1 had subscribed oath in the said hospital and the certificate of oath duly signed and attested by the concerned doctor was enclosed. These three documents bear initial of the Assistant Returning Officer dated 26.6.2009 at 11.22 A.M. It is admitted position that an objection was received in respect of the said certificate of oath through Fax from BJP Office at Patna on 26.6.2009 itself. In the objection it was stated that the certificate of oath submitted by the proposer of respondent no.1 had been clandestinely procured and the same was fake, with a request to get it enquired before accepting his nomination, who was a proclaimed absconder charged under various sections of the Indian Penal Code. Hence, on the date of scrutiny i.e. 27.6.2007 the Returning Officer deferred the scrutiny of nomination papers of respondent no.1 and deputed an Executive Magistrate and a D.S.P. to visit the concerned Hospital, make enquiry and submit report by 28.6.2009 and fixed the scrutiny of the nomination paper of Patna High Court E.P. No.10 of 2009 dt.27-06-2014 60/101 respondent no.1 for 29.6.2009 at 11.00 A.M. Accordingly, the said two officials did visit the Hospital, held enquiry and submitted their report. Report was considered by the Returning Officer on 29.6.2009. She found in the report that on enquiry it had been established that due to some pain in abdomen respondent no.1 was admitted in the Hospital on 24.6.2009 and on 25.6.2009 he was referred to IMS BHU by Dr. M.P.Mishra of the Hospital. Respondent no.1 had indeed subscribed oath and a report to that effect was also obtained from the concerned doctor, which was enclosed with the report of the officials. Hence, the two officers in their report gave their conclusion in favour of correctness of the oath subscribed by respondent no.1 in the Hospital. In view of the said report, nomination papers of respondent no.1 were found valid and were accepted. 29.6.2009 was the date fixed for withdrawal and on that day one Ramanuj Pandey, one of the respondents in this election petition, withdrew his nomination. List of remaining nine candidates was notified by the Returning Officer.
40. Learned senior counsel for the election petitioner submitted that from the nomination papers of respondent no.1 it would be evident that he had subscribed oath in respect of his criminal antecedents before the Notary of Bhojpur on 24.6.2009. Hence, he submitted that it was not possible for respondent no.1 to travel from Ara in Bhojpur to Varanasi on the same day and report in the Hospital on account of pain in his Patna High Court E.P. No.10 of 2009 dt.27-06-2014 61/101 abdomen. He submitted that thus it is apparent that the certificate and oath were manufactured and obtained clandestinely by respondent no.1. However, this Court finds that, except for challenging the said oath and certificate produced on behalf of respondent no.1 by his proposer on the next day of filing of nomination paper on 26.9.2009, election petitioner has not led any evidence in this regard. If at all the election petitioner was serious in pressing this issue for adjudication, it was expected from him to take steps for getting the said Notary and the said doctor at Varanasi examined as witnesses or get the relevant records of the Hospital. As against this, this Court finds that on receipt of objection from the State Convener of BJP, the Returning Officer deferred the scrutiny of nomination of respondent no.1 and deputed two officers to visit Varanasi Hospital to hold enquiry and submit report, who did visit the Hospital, made enquiry and submitted their report in support of genuineness of the oath and the certificate. In the circumstances, this Court finds that there are no materials on record to hold the said oath and certificate submitted on behalf of respondent no.1 as fake and manufactured. This issue is decided accordingly against the election petitioner and in favour of respondent no.1.
41. Issue no. (xv) is in respect of ordinary residence of respondent no.1 for the last six months and a question has been raised in this issue as to whether respondent no.1 had not been residing ordinarily at one Patna High Court E.P. No.10 of 2009 dt.27-06-2014 62/101 place for the last six months and was not an ordinarily resident of the place within any constituency in terms of definition as contained in Section 20 of the 1950 Act and therefore entry of his name in the electoral roll was non est in terms of section 22 of the said Act for contesting the present election.
42. Election petition has been filed by the petitioner under sections 80 and 80A of the 1951 Act challenging the election of respondent no.1 held on the basis of finally published electoral roll of the constituency. Electoral roll is prepared by the authorities and after receiving objections, the same is finally published under the provisions of the 1950 Act before the election process in the constituency of any of the Houses of Parliament or any of the Houses of the State Legislature or even for local authorities commences. It is obvious and it has also been authoritatively held by the Apex Court in the judgments rendered in the case of Laxmi Kant Bajpai vs. Haji Yaqoob [(2010) 4 SCC 81] and in the case of Ishwardas Rohani vs. Alok Mishra [(2012) 7 SCC 309] that in an election petition the High Court has no jurisdiction to go behind the electoral roll and look into legality and propriety of preparation of the same and set aside an election on the ground that the names of certain persons have been illegally entered in an electoral roll. Even if it is assumed that the name of respondent no.1 was illegally continuing in the electoral roll or was fit to be deleted from it under the provisions of Patna High Court E.P. No.10 of 2009 dt.27-06-2014 63/101 section 22 of the 1950 Act on account of he being not ordinarily resident of a place within the constituency or otherwise, the same cannot lead to setting aside of his election on that ground. Therefore, this issue having no bearing on the result of this election petition is held as infructuous.
43. Issue no. (xvii) has been framed in respect of allegation of corrupt practices leveled in the election petition against respondent no.1. However, during the hearing, learned senior counsel for the election petitioner categorically stated that he was not pressing this issue. Hence, the same is disposed of as not pressed.
44. Issue no. (vi) framed by the Court is in respect of whether nomination of respondent no.1 had been improperly accepted by the Returning Officer and, in Issue no. (ix), an issue has been raised as to whether the same was illegally accepted by the Returning Officer on 29.6.2009 beyond the time fixed for withdrawal of nominations.
45. After the notification for election in the constituency is issued by the Election Commission, in terms of section 30 of the 1951 Act, with the date of nomination, scrutiny, withdrawal, and the date of poll, if necessary, is published in the Official Gazette, election process is set into motion. Thereafter, in terms of section 33, any person qualified to be elected, has a right to file his nomination in person or through a proposer on the date fixed for filing of nomination between 11.00 A.M. in the forenoon and 3.00 P.M. in the afternoon, to be delivered to the Returning Patna High Court E.P. No.10 of 2009 dt.27-06-2014 64/101 Officer at the place specified in that behalf in the notice issued under section 31 fulfilling the requirements as set out in the said section. Sub- section (4) of said section 33 provides that on presentation of nomination paper the Returning Officer shall satisfy himself that names and electoral roll numbers of the candidates and his proposers as entered in the nomination paper are the same as those entered in the electoral roll. This sub-section contains proviso also which talks about clerical or technical misnomer or printing errors not to affect the validity of the nomination paper and the Returning Officer has been enjoined with the duty to permit such misnomer, technical and printing errors to be corrected or where necessary to overlook it. Section 34 contains provisions for deposits and section 36 contains provisions for scrutiny of nomination papers. After the Apex Court judgment in the case of Union of India Vs. Association For Democratic Reforms [AIR 2002 SC 2112], the Central Government, by amendment, introduced sections 33A and 33B in the Act. However, the said section 33B has since been held ultra vires by judgment of the Apex Court in the case of People's Union for Civil Liberties (PUCL) v. Union of India, [2003(4) SCC 399], whereas, provisions of section 33A introduced in the Act by the Central Government by amendment has been upheld. This Section provides that with the nomination paper, apart from information required to be furnished in terms of section 33, a candidate has to furnish information in Patna High Court E.P. No.10 of 2009 dt.27-06-2014 65/101 respect of pending cases against him and about his conviction, on affidavit in a prescribed form, which the Returning Officer has been held legally obliged to display at a conspicuous place of his office for information to the electors.
46. As per notification of the Election Commission of India, last date for nomination was fixed as 26.6.2009. The date of scrutiny of nomination papers was fixed as 27.6.2009 and the date for withdrawal was fixed as 29.6.2009 and the last date of election was 13.7.2009.
47. From the two sets of nomination papers of respondent no.1 it appears that the same were filed by his proposer on 25.6.2009 at 11.09 A.M. in Form 2A of the 1961 Rules. The details of the electoral roll numbers and part of the electoral roll in respect of respondent no.1 as well as his proposers and different parts of the nomination papers prescribed in the Rules were filled up and filed with the nomination papers. As per requirement, an affidavit in newly prescribed Form 26 had also been filled and enclosed with the nomination. In the affidavit in Form 26, respondent no.1 had mentioned that details of cases pending against him were enclosed in separate sheet, which he also enclosed. Acknowledgment of Income Tax Department filed by respondent no.1 and challan of deposits with computation of income tax in detail had also been enclosed. As noticed earlier, oath subscribed by respondent no.1 at Varanasi Hospital before the concerned doctor and his certificate was Patna High Court E.P. No.10 of 2009 dt.27-06-2014 66/101 produced in one set by his proposer on 26.6.2009 at 11.00 A.M. As noticed above, an objection was received against the same on which scrutiny was deferred for 29.6.2009 at 11.00 A.M. and enquiry was ordered. Enquiry report was submitted, which was considered on 29.6.2009 and in view of the findings in the enquiry report, nomination of respondent no.1 was found valid. Accordingly, this Court finds that the Returning Officer did not commit any material irregularity in dealing with the nomination of respondent no.1 and accepting the same, good enough to hold his nomination as improperly accepted. It is true that, as per the Hand Book for Returning Officers in respect of adjourned cases for hearing objection on nomination, hearing has to be completed latest by 11.00 A.M. on the day after that. Hence, the date of scrutiny being 27.6.2009, in terms of the provisions of law, final hearing on the objection in respect of nomination of respondent no.1 had to be completed before 11.00 A.M. of 29.6.2009, the date and time to which it was adjourned by the Returning Officer.
48. Learned senior counsel for the election petitioner has pointed out that the hearing did not even commence and was not concluded on that day at 11.00 A.M., which is evident from the attendance sheet (Ext.-
2). He submitted that in fact hearing had been commenced by the Returning Officer on 29.6.2009 after 12.00 Noon and after recording of attendance. It is true that law provides that adjourned hearing on Patna High Court E.P. No.10 of 2009 dt.27-06-2014 67/101 objection to the nomination paper had to be completed latest by 11.00 A.M. of the second day whereas in the present case hearing was fixed at 11.00 A.M. itself and actually commenced after 12.00 Noon, and after completion of hearing, orders were passed accepting the nomination of respondent no.1, after expiry of period of withdrawal, at 3.15 P.M. But, learned senior counsel for the election petitioner failed to point out any consequences of breach of procedural requirements prescribed in law in this regard by any authority or its effect on election of a successful candidate. In the circumstances, though this Court does find that the Returning Officer had not adhered to the time schedule in hearing on the objection to the nomination of respondent no.1 and its scrutiny but in absence of any consequences laid down in law, this Court is of the view that it cannot have any bearing on the result of the election.
49. Next in line for consideration are issue nos. (vii) and (x). Issue no. (x) raises a question whether the nomination of the returned candidate is in improper form and not in accordance with the guidelines of Election Commission of India for filing nomination and issue no. (vii) is as to whether there has been non-compliance with the provisions of Constitution or the Representation of People Act 1951 or of any rules or order made under this Act in favour of the returned candidate. This requires scrutiny of two sets of nomination papers of respondent no.1 by this Court, page by page. Ext.-3 is two sets of nomination of respondent Patna High Court E.P. No.10 of 2009 dt.27-06-2014 68/101 no.1, which have been paginated in reverse order in the manner that first set of nomination paper is from page 47 to 25 and the second set of nomination paper is from page 24 to 1. At the top of the set is money receipt of deposit of fee of Rs.5000/- purportedly in terms of section 34 of the 1951 Act. Thereafter page marked as Page 47 is the certified copy of extract of electoral roll finally published on 2.2.2009 certifying existence of name of respondent no.1 at serial no.390 of part 187. Next page i.e. page 46 is the first page of nomination in Form 2A with the name, father's name, address with part number and serial number of the electoral roll in respect of respondent no.1 and names of 10 proposers with their part numbers and serial numbers in the electoral roll and their signatures. Learned senior counsel for the election petitioner submitted that serial number of 9th proposer did not tally with his serial number in the electoral roll but he did not deny that name of this proposer was in fact in existence in the relevant part of the electoral roll though at different serial. Page 45 is the format of declaration duly filled up and signed by respondent no.1. Learned senior counsel for the election petitioner had submitted that there was a cutting in the date mentioned on this declaration and 25 has been made 24 by overwriting without any authentication. Page 44 is the declaration by respondent no.1 in the prescribed format in respect of his conviction and sentence in criminal cases. In the first column itself at the top requiring a declaration in ‗Yes' Patna High Court E.P. No.10 of 2009 dt.27-06-2014 69/101 ( ) or ‗No' ( ) in respect of being convicted for any offence as enumerated in section 8 of 1951 Act, respondent no.1 has struck off ‗Yes' ( ) leaving out ‗No' ( ), meaning thereby that he was not convicted for any of the offences mentioned in section 8. Thereafter, in the subsequent columns for details of such conviction and sentence, he has filled up ‗Not applicable' in all the lines. Learned senior counsel for the election petitioner submitted that instead of writing ‗Not applicable' respondent no.1 should have put ‗x' mark against the columns. Page 43 is the delivery receipt of the nomination in which date and time and the name of presenter, who was the proposer, appears to have been filled up by the Assistant Returning Officer and in the subsequent part there is a note adjourning the scrutiny for the purpose of enquiry on objection with regard to oath and fixing the same for 29.6.2009 at 11.00 A.M. Thereafter, there is a note dated 29.6.2009 of the Returning Officer in respect of receipt of the enquiry report and finding objection baseless and endorsement of acceptance of the nomination paper. Page 42 is the printed receipt of the nomination paper and notice of scrutiny. In the first part name of respondent no.1 is filled up and his signature is there. Page 41 and 40 are affidavited Form 26 in which respondent no.1 was required to give details of pending criminal matters against him in which charge sheets had been submitted. This affidavit has been notified by the Notary of Bhojpur on 24.6.2009 and bears serial no. 3164. In this Form Patna High Court E.P. No.10 of 2009 dt.27-06-2014 70/101 against the column for numbers of F.I.R., P.S., District and State, it is mentioned that detailed description in respect of the same was being enclosed on a separate sheet and in the rest of the columns respondent no.1 has mentioned ‗Not applicable' only. Learned senior counsel for the election petitioner submitted that this has been done by respondent no.1 deliberately to suppress and conceal the details of his criminal antecedents. Page 39 is the affidavit in Annexure-1. This affidavit also appears to have been notarized on 24.6.2009 and bears serial no. 3165. In this affidavit also in respect of sections of the Act and description of offences, details of the court taking cognizance, case number and the date of cognizance and details of appeals, applications for revision etc., it is commonly mentioned by respondent no.1 that the details of cases pending in the court against him are being given in a separate sheet enclosed with the nomination paper. Page 38 to 35 of the first set of nomination paper are details of immoveable properties required to be given on affidavit and forms part of the affidavited Form 26. Learned senior counsel for the election petitioner submitted that in these pages hardly any detail has been furnished by respondent no.1 and minimum information has been supplied by him. Page 34 is the prescribed request form filled up by respondent no.1 leaving many of the columns blank with small ‗x' mark. Page 33 is the affidavited list of 11 cases said to be pending against him and forms part of the same affidavited Form 26. Patna High Court E.P. No.10 of 2009 dt.27-06-2014 71/101 Learned senior counsel for the election petitioner raised serious objection to the details of said 11 cases furnished by respondent no.1. He submitted that merely 11 cases were mentioned in the list and no information in the Form prescribed in Annexure-1 at Form 26 as available at page 39 were mentioned. He pointed out that in many cases name of court was not mentioned. He further pointed out that in none of the cases all the details, as required under 5 heads of paragraph 1 of the affidavit at page 39, was mentioned. He submitted that though in the affidavit at page 39 respondent no.1 had mentioned that details of cases pending in the court against him were being given in a separate sheet, but in this sheet all the required information were lacking. Page 32 is the acknowledgment of the Income tax Department of payment of tax by respondent no.1. Learned senior counsel for the election petitioner submitted that this acknowledgment bears name ‗Ram Hulas Pandey' and not ‗Hulas Pandey' and therefore he was not respondent no.1. More so, when the address of respondent no.1 on this acknowledgment was quite different from the address mentioned by him in his affidavit and nomination form. Pages 31 to 28 are the receipt of challan of payment of income tax and computation of income etc. of respondent no.1, which also bear the name ‗Ram Hulas Pandey'. He submitted that these documents were not of respondent no.1 as the name differed and no proof had been submitted by him of his having any alias name. Page 27 Patna High Court E.P. No.10 of 2009 dt.27-06-2014 72/101 is the letter of the proposer of respondent no.1 with the original certificate of the doctor at Varanasi. Page 26 is the letter of the doctor. Page 25 is the oath subscribed by respondent no.1 before the doctor. Learned senior counsel for the election petitioner submitted that nomination paper was submitted on behalf of respondent no.1 before the Assistant Returning Officer on 25.6.2009 at 11.09 A.M. but certificate and oath was submitted by his proposer before him on 26.6.2009 at 11.22 A.M. Learned senior counsel for the election petitioner pointed out that receiving of nomination paper on 25.6.2009, as contained in memo no.01 dated 25.6.2009 and available at page 3 of the second set is not attached to this set of nomination. Here bunch of papers comprising first set of nomination ends.
50. Thereafter, page 24 is the photocopy of deposit of fee, the original of which is available with the first set of nomination at the top of the bunch, as noticed earlier. Page 23 with this set is the photocopy of the same certified copy of the extract of part 187 of electoral roll, original of which is at page 47. Page 22 is the nomination form filled up and duly signed in which also names of 10 proposers are mentioned with their part number and serial number in the electoral roll and their signatures. Learned senior counsel for the election petitioner pointed out that proposer Barmeshwar Chaudhary, who was proposer in the first set is the proposer in this set also, which is not permissible. He submitted Patna High Court E.P. No.10 of 2009 dt.27-06-2014 73/101 that out of ten proposers in each set, two of the proposers, namely, Madan Kumar Sanehi and Barmeshwar Chaudhary are common and their serial numbers have also been wrongly mentioned. However, he did not deny that their names were there in the relevant part of the electoral roll, but may be at different serial. Page 21 is the format of declaration duly filled up and signed by respondent no.1. Page 20 is the declaration by respondent no.1 in respect of his criminal antecedents, and like the document at page 44, after striking out ‗Yes' ( ) and leaving out ‗No' ( ), he has mentioned ‗Not applicable' in all rest of the columns. Page 19 is the receiving of nomination form by Assistant Returning Officer on 25.6.2009 at 11.09 A.M. submitted by Madan Kumar Sanehi, one of the proposers. Learned senior counsel for the election petitioner pointed out that in this form initially name of Baijnath Upadhyay, proposer, who had submitted first set of nomination form was mentioned, which was struck off and name of Madan Kumar sanehi was mentioned. From this receiving it appears that so far as nomination form with its enclosures bearing pages 47 to 25, i.e. the first nomination form is concerned, at its page 43 serial number of its receiving is mentioned as 05, whereas receiving of this set of nomination form is mentioned as 06. Like endorsement of the Returning Officer made on this form on 27.6.2009 as appearing at page 43, in this receiving also identical endorsement made by the Returning Officer is available. Format of oath at page 18 is Patna High Court E.P. No.10 of 2009 dt.27-06-2014 74/101 identical to one available with the first set at page 42. It may be pointed out that this format is prescribed for the purposes of oath to be subscribed by the candidate at the time of presentation of the nomination form. Since nomination form of respondent no.1 was presented by his proposer, this form is left blank and has not been used. Page 17 to 16 are affidavited declaration in Form 26 bearing Oath No.3165 though the first page of affidavit does contain number of affidavit. Learned senior counsel for the election petitioner pointed out that the affidavited declaration in form 26, like with the first set at page 41, respondent no.1 has just mentioned that the detailed description of the cases are being enclosed with the nomination paper and thereafter has mentioned ‗Not applicable' in all the rest of the columns. Page 15 is Annexure-1 to the said declaration in Form 26 in which also, just like Annexure-1 at page 39 of the first set, it is only mentioned that the details of cases pending in the court against him are being given in separate sheet. Thereafter, list of properties and assets are from pages 14 to 12 with this set, like the list at page 38 to 36 with the first set. Like page 35 of the first set, at page 11 with this set also is the verification by respondent no.1 duly notarized and at page 10 is the request form. Page 9 is the other copy of list of same 11 cases, as available with the first set at page 33, and the acknowledgment of the Income Tax Department, challan, computation of income etc. bearing the name ‗Ram Hulas Pandey', like available Patna High Court E.P. No.10 of 2009 dt.27-06-2014 75/101 with the first set at pages 32 to 28, are available with this set also. With this set, letter of the Assistant Returning Officer bearing memo no.01 dated 25.6.2009 addressed to Baijnath Upadhyay, proposer of respondent no.1, acknowledging receipt of nomination form and requiring the oath subscribed to be made available, is at page 3. Another letter of the Assistant Returning Officer, acknowledging receipt of another set of nomination paper addressed to Madan Kumar Sanehi, proposer of respondent no.1 requiring oath subscribed to be made available, is at page 2. Page 1 is the letter under the signature of Baijnath Upadhyay addressed to the Returning Officer about submission of nomination form. Learned senior counsel for the election petitioner submitted that the letter of the Assistant Returning Officer available at page 3 is addressed to Baijnath Upadhyay, who was not a proposer in this set, and that Baijnath Upadhyay was proposer in the first set, but no such letter is available with the first set. He submitted that with this set no oath of affirmance is available.
51. As noticed above, defects were pointed out by learned senior counsel for the election petitioner at different pages of nomination forms. So far as defect in respect of serial numbers of the proposers are concerned, it is true that their serial numbers mentioned in the nomination form did not tally with the serial numbers in the electoral roll, but once it is not denied that the names of the said proposers were Patna High Court E.P. No.10 of 2009 dt.27-06-2014 76/101 included in the electoral roll of the concerned part, though at different serials, mere mistake in mentioning of the wrong serial number does not constitute defect of substantial character so as to lead to a finding that the nomination paper of the candidate had been improperly accepted. It is also settled that if any of the sets of nomination papers filed by a candidate is found to be in order and accepted, the same amounts to valid nomination by the candidate in the election. In the declaration at page 44 in respect of conviction in criminal offences, respondent no.1 has struck off ‗Yes' ( ) and left out ‗No' ( ), meaning thereby, he was not convicted in any case till the date of filing of nomination. Hence, this Court does not find any irregularity of substantial character in his mentioning ‗Not applicable' in the subsequent columns and not putting a cross (x) mark.
52. From the submissions and comments made by learned senior counsel for the election petitioner to the nomination papers of respondent no.1, this Court finds that, except for the fact that the declaration in Form 26, together with list of pending cases furnished by him, does not contain all the required details of the cases mentioned in the list and does not contain the mention of all cases against him, the other defects pointed out by the learned senior counsel at different pages of the two sets of nomination papers of respondent no.1 are not of substantial character so as to lead this Court to hold that the nomination Patna High Court E.P. No.10 of 2009 dt.27-06-2014 77/101 of respondent no.1 was improperly accepted and therefore his election was void. It has been settled by successive judgments of the Apex Court that mere typing mistake or error in mentioning serial number of the proposer or even of a candidate in the nomination form, if in fact their names were appearing in the concerned chart of the electoral roll, is not a defect of substantial character. Likewise, mentioning of ‗not applicable' in the declaration in respect of conviction in the criminal cases is not an error of substantial character once respondent no.1 had struck off ‗Yes' ( ) leaving out ‗No ( ), meaning thereby he was facing no conviction. It is true that the declaration on affidavit in Form 26 and the list of cases appended thereto do not contain the details as required in the format, but has dealt with little. But non-furnishing of details in the affidavit in their respect does not invite rejection of nomination papers under the law. It is true that in the acknowledgment of Income Tax Department and computation of income, name mentioned is ‗Ram Hulas Pandey' and not ‗Hulas Pandey'. But this Court has found that in the records of Patna Kotwali P.S. Case No. 405/03 alias name of respondent no.1 is mentioned as ‗Ram Hulas Pandey'. Hence, the difference of name in the Income Tax Department papers does not cut much ice. Moreover, this specific challenge is not pleaded in the election petition and therefore, the nomination paper of respondent no.1 cannot be held as suffering from a defect of substantial character. Patna High Court E.P. No.10 of 2009 dt.27-06-2014 78/101
53. This may be pointed out that the letter of Baijnath Upadhyay, proposer in the first set and the acknowledgment issued in his name contained in memo no.01 dated 25.6.2009 appears to have been attached by mistake at page 3 with the second set, which ought to have been attached with the first set of nomination since first set of nomination had been filed by the said Baijnath Upadhyay and the second set of nomination had been filed by Madan Kumar Sanehi, another proposer, who was issued acknowledgment by memo no.02 dated 25.6.2009 as appearing at page 2. It may be pointed out that sub-section (4) of section 36 of the 1951 Act gives mandate to the Returning Officer not to reject any nomination paper on the ground of any defect in the same which is not of a substantial character. Hence, in case of challenge to the acceptance of nomination paper on the ground that it had been improperly accepted, onus lies on the election petitioner to establish that the defect as may be appearing in the nomination paper was of substantial character which the election petitioner has failed to do. In the circumstances, the issues under consideration do not warrant any finding in favour of the election petitioner so as to hold the nomination papers of respondent no.1 to have been improperly accepted by the Returning Officer in terms of sub-clause (i) of clause (d) of sub-section (1) of section 100 of the 1951 Act. The issues are decided accordingly.
54. After having considered all other issues and having given Patna High Court E.P. No.10 of 2009 dt.27-06-2014 79/101 findings/opinion in respect of them, issues finally remained to be answered are issue nos. (xviii), (xix) and (xx). Issue nos. (xix) and (xx) as to whether the election petitioner is fit to be declared as to have been duly elected and whether he is entitled to any other relief or reliefs in the case are dependent on the answer to issue no. (xviii), namely, whether the election of the returned candidate Sri Hulas Pandey is fit to be declared void. This Court is conscious of the fact that in this case it is not exercising its constitutional powers as enshrined under Article 226 of the Constitution. This Court is trying an election petition raising a challenge to the election of respondent no.1 as a Member of the Legislative Council from Bhojpur-cum-Buxar Local Authorities' Constituency of the State.
55. India is a Democratic Republic and Part XV of the Constitution deals with elections to its elected bodies set up by the Constitution at different levels. Article 324 vests the superintendence, direction and control of preparation of the electoral roll and conduct of all elections in an Election Commission to be constituted in the manner prescribed. Article 329, which has overriding effect on all other provisions of the Constitution, which obviously includes Article 226 also, lays down that the validity of law relating to the delimitation of constituencies or allotment of seats to such constituencies, made or purported to be made under Article 327 or 328, shall not be called in Patna High Court E.P. No.10 of 2009 dt.27-06-2014 80/101 question in any court and also lays down that no election to either of the Houses of Parliament or either of the Houses of Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. By virtue of provisions of Article 246 of the Constitution, read with Entry 72 of list-I of Schedule 7, framing of law in respect of election of either of the Houses of Parliament or to the either of the Houses of the Legislature of the State falls within the domain of Parliament and the ‗appropriate Legislature' mentioned in clause (b) of Article 329 has to be therefore necessarily read as ‗Parliament'. In exercise of this power, for the purposes of preparation of electoral rolls, the Parliament framed Representation of People Act, 1950 and for the purposes of conduct of election of either of the Houses of Parliament or the State Legislature, it framed Representation of People Act, 1951. This 1951 Act contains provisions in detail in respect of election covering the period between the date of notification and the date of declaration of result and other connected matters. To enforce the provisions of the two Acts, it also framed Registration of Electors Rules, 1960 and Conduct of Elections Rules, 1961. Besides providing for provisions in respect of conduct of elections, the 1951 Act provides for forum and manner for challenge of elections to either of the Houses of the Central Legislature or the State Patna High Court E.P. No.10 of 2009 dt.27-06-2014 81/101 Legislature in Part VI of the Act. This Part contains three Chapters. Chapter I consists of section 79 containing definition. Chapter II consists of sections 80 to section 84 providing for forum to challenge the elections held under the Act through election petition. Chapter III consists of section 86 to section 107 providing for manner of conduct of trial of election petition. In section 80 it is reiterated that no election can be called in question except by an election petition presented in accordance with the provisions of this Part i.e. Part VI. Section 80A, which is an enabling section, inserted in this Act by Act 47 of 1966, lays down that the Court having jurisdiction to try an election petition shall be the High Court and the jurisdiction shall be exercised ordinarily by a single Judge of the High Court, who may be assigned for the purpose by the Chief Justice. Section 81 provides for presentation of election petition. Section 82 provides for parties of the petition and section 83 provides for contents of petition. This makes it clear that it is a statutory power, in terms of section 80 and 80A, that a single Judge of a High Court exercises while holding trial of an election petition. Section 98 deals with the decision of the High Court and lays down that at the conclusion of the trial of an election petition, High Court shall either dismiss the election petition or declare the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. Since power has to be exercised by the High Patna High Court E.P. No.10 of 2009 dt.27-06-2014 82/101 Court in terms of the provisions of this Act, only on conclusion of trial of an election petition, High Court has jurisdiction to pass orders only in either of the three terms. Section 99 gives power to the High Court, while passing order in terms of section 98, to make further orders in case charge of corrupt practice having been committed in the election is made in the election petition. Sub-section (a) of section 100 limits the powers of the High Court to declare an election void on specific grounds, which is subject to sub-section (2), which lays down that even in case of any allegation of corrupt practice is made out in the election petition, the High Court may not hold the election of the returned candidate void, in case corrupt practice is not directly related to him or his election agent in certain contingencies. Section 101 deals with the ground for which a candidate other than the returned candidate may be declared to have been elected. Sub-section (1) of Section 100 lays down four grounds for declaring the election to be void, out of which clause (d) contains four sub-clauses for holding, in four different contingencies, that the result of the election, so far as it affects the returned candidate, has been materially affected. Thus, it is clear that this Court, while trying an election petition, can declare the election of the returned candidate void only if the facts of the case satisfies the tests of either of the clauses i.e. clauses (a), (b), (c) or (d) of sub-section (1) of section 100 and not otherwise. Clause (a) is in respect of a candidate not being qualified or Patna High Court E.P. No.10 of 2009 dt.27-06-2014 83/101 disqualified to be chosen; clause (b) is in respect of corrupt practice committed by the returned candidate or his election agent or by any other person with the consent of either of them; clause (c) is in respect of nomination having been improperly rejected and clause (d) is in respect of result of election having been materially affected (i) by improper acceptance of nomination or (ii) by any corrupt practice committed in the interest of returned candidate or (iii) by improper reception, refusal or rejection of any vote or reception of vote which is void or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under the 1951 Act. Sub-section (2) further clarifies the circumstances in which corrupt practice, though proved, may not call for holding the election of the returned candidate void. Learned senior counsel for the election petitioner had left out the case of allegation of corrupt practice made in the pleadings by the election petitioner. What he confined to in his arguments on behalf of the election petitioner was disqualification of the election petitioner in reference to clause (a), improper acceptance of his nomination in reference to sub-clause (i) of clause (d), and non-compliance of the provisions of the Act and the rules and circulars made under the Act, in reference to sub-clause (iv) of clause (d).
56. Taking up the issue of disqualification first, this Court finds that the Constitution itself under Article 173, provides for some Patna High Court E.P. No.10 of 2009 dt.27-06-2014 84/101 fundamental eligibility for a person to be chosen to fill a seat in the Legislature of the State. Further Article 191 lays down certain disqualification for a person from being chosen or being a Member of Legislative Assembly or Legislative Council of the State. It is not the case of the election petitioner that respondent no.1 did not fulfill the tests of eligibility as laid down under Article 173 or was disqualified under any of the clauses under Article 191. Sub-clause (e) of Clause (1) of Article 191 provides that a person shall be disqualified from being chosen as Member if he is disqualified by or under any law made by Parliament. This necessarily takes this Court to the provisions of the 1951 Act, which is apparently a law made by the Parliament in this regard. The 1951 Act also lays down certain disqualification for a person to be chosen as a Member of any of the House of Parliament or any of the Houses of State Legislature, which is supplemental to the constitutional disqualification made under that Article in terms of sub- clause (e) of clause (1) of Article 191. Section 8 of 1951 Act prescribes disqualification of a person convicted for an offence punishable under different provisions of different laws, as detailed therein; Section 8-A provides for disqualification on the ground of corrupt practices; Section 9 provides for disqualification on account of dismissal for corruption or disloyalty; Section 10 provides for disqualification for office under Government company and Section 10-A provides for disqualification for Patna High Court E.P. No.10 of 2009 dt.27-06-2014 85/101 failure to lodge account of election expenses. Learned senior counsel for the election petitioner did not take a stand that respondent no.1 was not qualified or was disqualified from getting elected as a Member of the Legislative Council from the constituency under any of the provisions of the Constitution or of the 1951 Act, as noticed above. What he harped upon was that nomination of respondent no.1 was improperly accepted and there was non-compliance of the provisions of the Constitution or this Act or any rules or orders made under this Act.
57. The provisions for presentation of nomination paper and requirement for valid nomination are contained in section 33 of the 1951 Act. Learned senior counsel for the election petitioner did point out certain defects in the nomination papers of respondent no.1, which have been discussed by this Court above in reference to issue nos. (vii) and
(x). It may be pointed out that satisfaction of the Returning Officer on the presentation of nomination paper is dealt with in sub-section (4) of section 33 and the proviso to the sub-section reads as follows :
―(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls:
[Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, Patna High Court E.P. No.10 of 2009 dt.27-06-2014 86/101 shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.]‖
58. It makes it clear that the nomination paper cannot be rejected on the ground of misnomer or inaccurate description or clerical, technical or printing error in respect of name of the candidate or his proposer or any other person, or in regard to any place mentioned in the electoral roll and such mistakes shall not affect full operation of the electoral roll or of the nomination paper, and where necessary, he may direct the same to be overlooked. Sub-section (5) stipulates that if the elector is of a different constituency, a copy of the electoral roll of that constituency or relevant part thereof or a certified copy of the relevant part shall be produced at the time of scrutiny, if not filed along with nomination paper. It is not disputed that with the nomination paper respondent no.1 had furnished certified copy of the relevant entry of the electoral roll containing his name. Section 34 deals with the required deposits with the nomination paper, which, apparently respondent no.1 did. Section 36 deals with scrutiny of nomination paper and in detail contains stipulation in the manner and under the head under which Patna High Court E.P. No.10 of 2009 dt.27-06-2014 87/101 scrutiny of nomination paper has to be held. Sub-section (7) of this section 36 stipulates that the certified copy of the entry in the electoral roll for the time being in force of the constituency ―shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950‖. However, sub-section (4) specifically restricts the Returning Officer from rejecting any nomination paper on the ground of any defect which is not of a substantial character. This Court, while dealing with issue nos. (vi) and (x), has come to the conclusion that the defects pointed out by learned senior counsel for the election petitioner in the two sets of nomination papers of respondent no.1 were not of substantial character. Hence, this Court has to necessarily hold that the ground of improper acceptance of nomination of respondent no.1 by the Returning Officer is not substantiated.
59. Now, the question remains as to whether there has been non- compliance of the provisions of the Constitution or of the 1951 Act or any rules and orders made under the said Act. As noticed above, learned senior counsel for the election petitioner put much stress and placed documentary evidence in detail and evidence of official witness no.2 i.e. the then Superintendent of Police of Bhojpur, to impress upon the Court that on the date of nomination respondent no.1 was facing criminal Patna High Court E.P. No.10 of 2009 dt.27-06-2014 88/101 charges in many more than 11 cases cited by him with his nomination papers. He also demonstrated from Exts.- 6, 7, 8, 9, 10 and 12 that respondent no.1 had been declared absconder and process against him under sections 82 and 83 of the Code of Criminal Procedure had been taken in many cases much earlier. He also referred to the evidence of official witness no.2, the then Superintendent of Police, who admitted that criminal cases were pending in the district of Bhojpur against respondent no.1 at the relevant time, and in reference to charge sheet no.161 of 2004 connected to Nawada P.S.Case No.122 of 2003 instituted for the offence under section 302/34 IPC and 27 Arms Act, he stated that at the relevant time respondent no.1 was absconder in the case, but denied knowledge of total number of cases in which respondent no.1 had been declared absconder.
60. Election petitioner in his pleadings and evidence has asserted that as many as 30 criminal cases were pending against respondent no.1 at the time of election. Further, from the Exhibits referred to by learned senior counsel for the election petitioner, this also prima facie appears to be correct that respondent no.1 had been declared absconder in many cases in which charge sheet had been submitted against him. Respondent no.1 has not denied that as many number of cases as alleged by the election petitioner were not pending against him. In his cross- examination, he accepted the possibility that he may be involved before Patna High Court E.P. No.10 of 2009 dt.27-06-2014 89/101 his nomination in cases of heinous nature involving murder, attempt to murder and extortion. However, he has asserted, which has not been rebutted by the election petitioner, that he has not been convicted in any case rather the election petitioner in his deposition has accepted this fact. Respondent no.1 in his cross-examination has stated that he could not say correctly whether he has been declared absconder in Ara Nawada P.S.Case No.122 of 2003 and Hajipur Sadar P.S.Case No.493 of 2003 and has further stated that to his knowledge, cases in which he was accused were mentioned in the list and has denied the suggestion that he did not deliberately mention all the cases. Thus, from the evidence and materials available on record, what appears to be established that respondent no.1 was facing criminal charges in more cases than the 11 mentioned by him in the list and in many cases he had been declared absconder in which charges had been framed against him. But this is not established that he had knowledge of the other cases also against him apart from the said 11 in which charges had been framed and/or process had been issued against him under sections 82 and 83 of the Code of Criminal Procedure and he had been declared absconder. Question is whether this was sufficient in law to hold him disqualified from getting elected as member of the Legislative Council or legally obliged the Returning Officer to reject his nomination paper ?
61. Criminalization of politics and criminals entry into fray for Patna High Court E.P. No.10 of 2009 dt.27-06-2014 90/101 getting elected to elected bodies has been a thorny issue in the Country since long. Politician criminal nexus became a matter of concern in the Country, at least since the beginning of 1990s, which was acknowledged by Sri N.N.Vohra in his report submitted on 5th October, 1993. But no visible step was taken by the Government to curb this problem raising its head in the democratic set up of the Country. Subsequently, Election Commission in 1998 suggested that the persons involved in serious offences punishable with imprisonment for five years or more should also be disqualified from contesting elections during the pendency of their trial, if cognizance had been taken of the offence and charges had been framed against him. Law Commission also, in its 170th Report submitted to the Government in May 1999, made recommendations in similar terms. One of its suggestions was also that the assets of each candidate should be published before their nominations were accepted. But the approach in the political circles and the Government to this suggested amendment in the Constitution, the 1950 Act as well as the 1951 Act and the IPC, for the purposes of disqualifying the persons facing criminal charges and steps to be taken to stop entry of criminals in politics suffered from scepticism. In the circumstances, a writ petition was filed as a Public Interest Litigation by the Association of Democratic Reforms before the Delhi High Court in the year 1999, which, though, in its order dated 2.11.2000 (AIR 2001 Del 126), refused Patna High Court E.P. No.10 of 2009 dt.27-06-2014 91/101 to give any direction to the Government or the Parliament to amend the law but held that the electors had a right of information enshrined under Article 19(1)(a) of the Constitution to know the criminal propensities and activities of the candidate. Hence, the High Court directed the Election Commission to secure to the voters the information pertaining to a candidate standing for election to either of the Houses of Parliament or either of the Houses of the State Legislature (a) with regard to them being accused in offences punishable with imprisonment and the details thereof; (b) assets possessed by them or their spouse and their dependents; (c) their educational qualification and other necessary information which the Election Commission may consider necessary for judging the capacity and capability of political party feeding them. The Central Government felt aggrieved by this order and moved the Apex Court supported by the Election Commission., which in its order dated 2nd May, 2002 in the case of Union of India v. Assn. for Democratic Reforms [(2002) 5 SCC 294] held that Article 324 is the reservoir of powers of the Election Commission which, in appropriate cases in absence of law made by appropriate legislation, can issue necessary directions and therefore directed it in the following terms in paragraph 48 of the judgment :-
"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 Patna High Court E.P. No.10 of 2009 dt.27-06-2014 92/101 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 any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues.
(5) The educational qualifications of the candidate.‖
62. However, before itself complying with the directions of the Apex Court, the Election Commission took a view that it would be more appropriate for it to request the Central Government to suitably amend the nomination forms so that it itself may contain all required information for knowledge of the electors. But the Central Government sat over the matter and only requested the Commission to get further time from the Court. The Commission was not of the view in approaching the Apex Court for further time as it felt that the order of the Apex Court was a law within the meaning of Article 141 of the Constitution enforceable throughout the Country under Article 142.
Hence, it issued an order on 28.6.2002 requiring the candidates to file an Patna High Court E.P. No.10 of 2009 dt.27-06-2014 93/101 affidavit giving information in terms of the directions of the Apex Court and furnishing of any wrong information or suppression of material information therefrom was made a ground for rejection of the nomination of the candidate concerned. Thereafter only the Central Government came up with an Ordinance, namely, Representation of People (Amendment) Ordinance 2002 on 24.8.2002, inserting Sections 33A, 33B and 125 in 1951 Act and amending section 169 thereof, diluting the order of the Commission dated 28.6.2002. Though under section 33A, labeled as Right to information, a provision was made for a candidate to furnish information about pending cases in which charges had been framed for offences punishable with imprisonment for two years or more by a court of competent jurisdiction and conviction for an offence punishable with imprisonment for one year or more, other than the offences referred to in sub-section (1) or sub-section (2) or covered in sub-section (3) of section 8, in a duly verified affidavit, and providing for the Returning Officer to display the information by affixing a copy of the affidavit at a conspicuous place at his office for information to the electors, but section 33B limited this liability of a candidate to provide information only to the extent required under the Act and the Rules. Subsequently, vires of the Act, which replaced the said Ordinance, was challenged before the Apex Court by the People's Union for Civil Liberties, which, by its judgment dated 13.3.2003 [(2003)4 SCC 399] Patna High Court E.P. No.10 of 2009 dt.27-06-2014 94/101 held section 33B as ultra vires but upheld the validity of section 33A on the principle of fundamental right of a voter enshrined under Article 19(1)(a) of the Constitution to know details of the candidates seeking election from the constituency. Accordingly, it directed the Election Commission to issue revised instructions to ensure implementation of section 33A and held that the order relating to disclosure of assets would continue to be operational. However, in clear terms it held that the direction no.4 in paragraph 14 of the said order of the Election Commission dated 28.6.2002, so far as verification of assets and liabilities and rejection of nomination paper on the ground of furnishing wrong information and suppressing material information, should not be enforced. Accordingly, the Election Commission issued fresh instructions on 27.2.2003 to give effect to the said directions of the Apex Court. In its order the Commission held that only non furnishing of affidavit by any candidate shall be considered as violation of the orders of the Apex Court and nomination of the candidate concerned shall be liable to rejection by the Returning Officer. It also held that if a rival candidate furnishes information to the contrary by means of duly sworn affidavit, then such an affidavit of the rival candidate shall also be displayed in the manner directed above i.e. shall be displayed at a conspicuous place in the office of the Returning Officer. Format of affidavit was also prescribed, which was further modified by the Patna High Court E.P. No.10 of 2009 dt.27-06-2014 95/101 Election Commission on 9.3.2004 under the orders of Delhi High Court. Thus, as the law stands after all these developments, non-furnishing of affidavit in Form 26, as prescribed by the Election Commission does amount to violation of the provisions of the 1951 Act and the rules and orders made under it. But furnishing of wrong information or suppressing material information in the form of affidavit does not make the nomination paper liable for rejection, which otherwise has been made punishable by the said newly inserted section 125A in the 1951 Act by means of said Amendment Act.
63. In the circumstances, though it is apparent that respondent no.1 did not provide information about all the criminal proceedings pending against him in which cognizance had been taken and processes under sections 82 and 83 of the Code of Criminal procedure had been issued and had suppressed detailed information in respect of the said 11 cases also disclosed by him as pending against him, but in law, the same does not form a ground for holding his election void in terms of section 100 of 1951 Act. Issue no.(xviii) is therefore answered against election petitioner and in favour of respondent no.1. As a consequence, Issue no. (xix) and (xx) are also answered against election petitioner.
64. However, Before parting with the judgment, this Court would like to place on record its hope and expectations that this case will work as an eye opener for the Election Commission and all concerned. Patna High Court E.P. No.10 of 2009 dt.27-06-2014 96/101 Criminalization of politics and politician criminal nexus has been subject matter of debate in the Country since decades. In the second edition of his book ‗How India Votes : Election Laws, Practice and Procedure', S. K. Mediratta has noticed that ―in the early stages, criminals lent their muscle power to politicians in expectation of a favour in return from those politicians or for money. Eventually, these criminal elements realized that if they could make others win because of their muscle or gun power and criminal acts, they themselves could also win elections and enter legislatures to put an end to their dependence on others. Unfortunately, the current trend, therefore, is the desire of criminals and anti-social elements to join the electoral battle, not only to enjoy the privileges, but also to perpetrate their nefarious activities. In many cases, they have won the electoral battles too‖. This observation of the writer has proved true by analysis of National Election Watch (NEW) and Association for Democratic Reforms (ADR) published in the Delhi edition of Time of India on 18.5.2014, according to which in the 16 th Lok Sabha constituted after recent Parliamentary Election, out of 541 elected members, 186 were facing criminal charges, which constituted 34% of the total elected members. Out of this 186, 112 are facing serious criminal charges. It is shocking to note that in spite of so much hue and cry by the Election Commission, Law Commission and other autonomous and independent bodies, this tendency is growing. In the Patna High Court E.P. No.10 of 2009 dt.27-06-2014 97/101 analysis it has been noticed that in the 15th Lok Sabha constituted in 2009 only 30% members were facing criminal charges. This shows that instead of this tendency of people facing criminal charges entering into electoral politics getting reduced because of voice being raised by the autonomous and independent bodies, it has grown up. It is shocking to note that the highest number of members facing criminal charges in this 16th Lok Sabha are in the BJP, which professes to establish clean and corruption free government. Analysis shows that whereas total percentage of members in the Lok Sabha facing criminal charges is 34%, in the BJP it is 35% and out of 281 elected members, as many as 98 are facing pending criminal charges. This figure shows that notwithstanding all the clamor against criminalization of politics, the present political parties are in fact encouraging it.
65. But the present case at hand is one step ahead. Respondent no.1 was not set up by any political party. He was an independent candidate. That is why, 10 proposers were required for his nomination. It is prima facie established that he was facing criminal charges for serious offences also in respective competent courts of law in which cognizance had been taken showing him absconder and processes under sections 82 and 83 of the Code of Criminal Procedure had been issued. The records show that many of the cases in which he had been declared absconder were in his knowledge as he gave reference of those cases in the list of Patna High Court E.P. No.10 of 2009 dt.27-06-2014 98/101 11 cases pending against him. Therefore, it cannot be logically accepted that he had no knowledge of the fact that in the cases cognizance had been taken against him showing him absconder and processes under sections 82 and 83 of the Code of Criminal procedure were pending against him for execution. But he conveniently concealed all this in his declaration on affidavit and supplied list of only 11 cases, that too, with bare minimum information. But wrong or improper compliance of provisions of section 33A of the 1951 Act is not a ground for rejection of nomination. As the law stands since after amendment of the Act by the Parliament through Act 72 of 2002, by which section 33A has been introduced in 1951 Act, a declaration on affidavit, required to be furnished by a candidate with his nomination paper is only for information to the electorate. Parliament did not include wrong or improper compliance of this section 33A in sub-section (2) of section 36 as a ground for rejection of the nomination and therefore, it is not included by the Election Commission in Chapter VI of its Hand Book for Returning Officer. Since the nomination paper prima facie shows a semblance of compliance of section 33A, deficiency or concealment of information by respondent no.1 in the declaration cannot also be fished out as non-compliance of the provisions of the Act, rules or orders, which is one of the grounds in clause (d) of sub-section (1) of section 100 for declaring the election of a returned candidate void. Thus, it is Patna High Court E.P. No.10 of 2009 dt.27-06-2014 99/101 apparent that by deliberately furnishing insufficient and incomplete information in his affidavit, respondent no.1 had made a mockery of rule of law and had taken undue advantage of this serious lacuna left out by the Parliament while amending the 1951 Act through the said Act 72 of 2002. In spite of attempt of the Election Commission, through its order dated 28.6.2002, to make non-furnishing of full and complete information by a candidate with his nomination paper in respect of pending criminal charges against him, a ground for rejection of his nomination, it was diluted by the Parliament through the Amendment and the order of the Apex Court prohibiting its enforcement.
66. Nonetheless the Election Commission did take a commendable step through its letter no. 315-317 dated 5.8.2005 addressed to the Chief Electoral Officer, Bihar, Patna, by which it directed the Chief Electoral Officer to get a report with regard to non- bailable warrant of arrest pending since more than six months against the accused persons in a pending criminal proceeding and, after due notice, remove their names from the electoral rolls. Logic given by the Election Commission for this was that a person had a right to get his name entered into the electoral roll if he fulfilled the conditions in terms of section 19 of the 1950 Act and qualified as ‗ordinarily resident' in the constituency as defined under section 20. If a non-bailable warrant of arrest issued in a pending criminal proceeding remained pending for Patna High Court E.P. No.10 of 2009 dt.27-06-2014 100/101 execution for more than six months, it would mean that the person was not ‗ordinarily resident' of the place for six months at his given address. In the circumstances, the Election Commission held that his name was fit to be deleted from the electoral roll in terms of provisions of section 22, for which it gave its directions in the letter. The letter and direction of the Election Commission have been held to be having statutory force and binding on the authorities, exercising powers in terms of provisions of 1950 Act and 1951 Act. Hence, clearly the purpose behind this direction issued by the Election Commission was to clean the electoral process and to protect the politics from criminalization. If this direction of the Election Commission to the Chief Electoral Officer, Bihar, Patna would have been complied with by the authorities of the State, names of persons like respondent no.1 would have been deleted from the finally published electoral roll on 2.2.2009 preventing such persons from entering into electoral fray. But this was not done by the authorities of the State enjoined with the duty of preparation and revision of electoral roll in terms of the provisions of 1950 Act. Unfortunately, Election Commission also did not take follow up action and fixed up accountability upon the officers of the State for non-compliance of its orders before issue of notification setting election process in motion. Net result, as on the date of nomination in the present case, was that respondent no.1, with dozen of criminal charges pending against him Patna High Court E.P. No.10 of 2009 dt.27-06-2014 101/101 with order of cognizance and declaring him absconder, filed his nomination, which was not rejected by the Returning Officer on account of law being silent in this regard.
67. Election petitioner has raised a plea in the petition that due to criminal background of respondent no.1 and due to threat by his musclemen and supporters, voters were terrorized and on the date of election there was no free and fair polling. However, no evidence has been led in support of this allegation, which in all probability, may be true. Hence, in spite of these glaring factors weighing against principles of free and fair election, nothing can be done by this Court.
68. In the circumstances, this Court does not find any ground, as enumerated in section 100 of 1951 Act, made out in the case by the election petitioner for declaring election of respondent no.1 as void. Election petition is accordingly dismissed.
69. Let a copy of this judgment be communicated to the Election Commission of India and to all concerned in terms of the provisions of Section 103 of the 1951 Act.
(Jayanandan Singh, J) Pradeep/-
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