Gujarat High Court
Khanpara Vinodbhai Laljibhai & vs Returning Officer on 24 February, 2014
Author: M.R. Shah
Bench: M.R. Shah, R.P.Dholaria
C/SCA/928/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 928 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/-
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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KHANPARA VINODBHAI LALJIBHAI & 1....Petitioner(s)
Versus
RETURNING OFFICER,GRAM PANCHAYAT GENERAL ELECTION-2011 &
5....Respondent(s)
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Appearance:
MR YATIN SONI, ADVOCATE for the Petitioner(s) No. 1 - 2
DELETED for the Respondent(s) No. 3
MR DHAWAN JAYSWAL AGP for the Respondent(s) No. 5
MR DM THAKKAR, ADVOCATE for the Respondent(s) No. 2
MR JS YADAV, ADVOCATE for the Respondent(s) No. 1 , 6
MR RAJAN D SHAH, ADVOCATE for the Respondent(s) No. 6
RULE SERVED BY DS for the Respondent(s) No. 1 - 2 , 4 - 6
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Page 1 of 20
C/SCA/928/2012 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 24/02/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for appropriate writ, order and/or direction directing the respondent State authorities to initiate / take appropriate action against the respondent No.2 for suppressing the material fact and/or not disclosing the fact with regard to his criminal antecedent and not disclosing in the declaration / affidavit to be filed along with the nomination form that he is an accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the Court of competent jurisdiction though at the relevant time when he filled in the nomination form and submitted the affidavit and declaration along with the nomination form, he was already chargesheeted and charge was framed against him by the competent court having jurisdiction for the offences punishable with imprisonment for two years or more.
2.00. Facts leading to the present petition, in nutshell are as under :-
2.01. That election of Khorasa (Gir) Gram Panchayat was announced. That the respondent No.2 herein with other candidates including the petitioner No.2 filed their nomination Page 2 of 20 C/SCA/928/2012 JUDGMENT form for the post of Sarpanch of the said village to be held on 29/12/2011. That along with the nomination form, the concerned candidate was required to submit affidavit sworn by the candidate before a Magistrate of the First Class or a notary in Form No.4, as per the Gujarat Panchayat Election (First Amendment) Rules, 2005. That in the said Affidavit, the concerned candidate was required to declare that he/she is/is not accused of any offence/s with imprisonment for two years or more in pending case/s in which charge/s has/have been framed by the Court/s of competent jurisdiction. That the deponent / concerned candidate / accused of such offence/s, he/she was also required to furnish the information with respect to case / First Information Report No.; Police Station;
Section/s of the concerned Act and short description of the offence for which the candidate has been chargesheeted; court which framed charge; date on which charge was / were framed and whether all or any of the proceedings have been stayed by any court having competent jurisdiction. It is the case on behalf of the petitioners that at the relevant time when the concerned respondent No.2 filled in the nomination form for the post of Sarpanch of the Khorasa (Gir) Gram Panchayat and filed declaration / affidavit, the respondent No.2 deliberately did not disclose that First Information Report was registered against him for the offences punishable under sections 117, 143, 149, 379, 435, 447 and 451 of Indian Penal Code and charge was also framed for the offences punishable under sections 447, 427 and 114 of Indian Penal Code, having punishment of two years or more. It is submitted that not only that even the trial was pending before the learned Judicial Magistrate (First Class), Maliya Hatina, District Junagadh and the evidence of the complainant was also recorded. It is Page 3 of 20 C/SCA/928/2012 JUDGMENT submitted that despite the above, in the declaration / affidavit filed along with the nomination form, the respondent No.2 did not disclose the above and therefore, committed the offences relating to election. It is the case on behalf of the petitioners that at the relevant time an objection was raised to cancel the nomination form of the respondent No.2 and a request was also made to file criminal complaint against the respondent No.2 as required to be filed as per the order / notification dated 28/6/2011 issued by the State Election Commission, Gandhinagar. It is submitted that however, neither the nomination form of the respondent No.2 was cancelled nor any criminal proceedings were initiated against the respondent No.2 for making false declaration and/or not disclosing correct facts in the nomination form and affidavit / declaration to be filed along with the nomination form and the respondent No.2 was permitted to contest the election and has been declared elected as Sarpanch. When the concerned respondent authorities have not initiated any criminal proceedings against the respondent No.2 though required as per the order / notification dated 28/6/2011 issued by the State Election Commission, Gandhinagar, the petitioners have preferred the present Special Civil Application under Article 226 of the Constitution of India.
3.00. Mr.Yatin Soni, learned advocate appearing on behalf of the petitioners has submitted that in the present case when the respondent No.2 filled in the nomination form / submitted the nomination papers for the post of Sarpanch of the Khorasa (Gir) Gram Panchayat on 14/12/2011, he was already facing criminal prosecution for the offences punishable under sections 427 and 114 of Indian Penal Code i.e. he was accused for the Page 4 of 20 C/SCA/928/2012 JUDGMENT aforesaid offences punishable with imprisonment of two years or more in which charges were framed against by the court having competent jurisdiction for the offences punishable under sections 447, 427 and 114 of Indian Penal Code, however, he did not disclose in the affidavit sworn by him in Form No.4 about the same. It is submitted that as such he has committed offence under sections 171G and 176 read with section 177 of the Indian Penal Code as well as under sections 42 and 43 of the Gujarat Panchayat Act, 1993. It is submitted that as such the omission to give information to public servant by person legally bound to give it amounts to an offence under section 176 and 177 of Indian Penal Code. It is submitted that in such a situation and eventuality, by order dated 28/6/2011, State Election Commission, Gandhinagar has directed the Returning Officer to file necessary criminal complaint under appropriate law before the appropriate authority in respect of the cases where it has come to the notice that the candidate concerned has supplied wrong information or withheld information or supplied misleading information and that as such the candidate is for such reason has committed election related offence under the law applicable. It is submitted that in the said order it has been specifically provided that the returning officer shall be responsible to file necessary FIR/s immediately after the preliminary inquiry which reports or concludes that the candidates has filed wrong affidavit/declaration.
3.01. It is further submitted by Mr.Soni, learned advocate appearing on behalf of the petitioners that in the present case attention of the returning officer was drawn about not furnishing complete details as required and/or about non-
Page 5 of 20C/SCA/928/2012 JUDGMENT disclosure of pending criminal case against him in which charge has been framed by the competent court, by the respondent No.2 and despite the fact that attention of the returning officer was drawn to the order issued by the State Election Commission dated 28/6/2011, the returning officer not only accepted the nomination form of the respondent No.2, but even has not initiated and/or filed any criminal prosecution against the the respondent No.2 for the offences under sections 171G and 176 read with section 177 of the Indian Penal Code as well as under sections 42 and 43 of the Gujarat Panchayat Act, 1993. It is submitted that the returning officer has failed to perform his duty and therefore, it is requested to allow the present Special Civil Application and grant the relief as prayed for.
4.00. Mr.J.S. Yadav, learned advocate appearing on behalf of the returning officer - respondent No.1 herein and State Election Commission, State of Gujarat - respondent No.6 herein, Mr.D.M. Dhakkar, learned advocate appearing on behalf of the respondent No.2. Mr.Dhawan Jayswal, learned Assistant Government Pleader has appeared on behalf of the respondent No.5 - State of Gujarat. Affidavit-in-reply is filed on behalf of the returning officer as well as as respondent No.6 affirmed by the Deputy Election Commission, State of Gujarat.
4.01. It is submitted by Mr.Yadav, learned advocate appearing on behalf of the respondent No.1 - returning officer that after the petitioner No.2 raised objection against the nomination papers filed by the respondent No.2 on 16/12/2011, the said objections were rejected by him on the very day and thereafter the petitioner approached the Civil Page 6 of 20 C/SCA/928/2012 JUDGMENT Court by filing Regular Civil Suit No.55 of 2011 and therefore, it is requested to dismiss the present petition. It is further submitted that in the aforesaid suit, the petitioner - original complainant submitted an application Ex.5 for interim junction restraining the respondent No.2 from contesting the election for the post of Sarpanch and the said application Ex.5 has been dismissed by the learned trial court. It is submitted that before the learned Civil Court the petitioner has raised all the contentions which are raised in the present petition. Therefore, it is requested to dismiss the present petition.
4.02. Relying upon the Affidavit-in-reply filed on behalf of the respondent No.1, it is submitted by Mr.Yadav, learned advocate appearing on behalf of the returning officer that it is true that one criminal complaint has been filed against the respondent No.2 and the respondent No.2 was chargesheeted and the charge was framed by the respondent No.2 by the learned Judicial Magistrate (First Class), Maliya Hatina wherein charge has been framed for the offences punishable under sections 447, 427 and 114 of Indian Penal Code, however, in any of the aforesaid offences, punishment is not prescribed for more than two years and therefore, non-disclosure of the same cannot be termed as in violation of the declaration form attached with the nomination paper. It is further submitted that as such after obtaining opinion from concerned District Government Pleader and Public Prosecutor, District Junagadh, regarding filing of the criminal complaint against the respondent No.2, and as the District Government Pleader and Public Prosecutor, Junagadh opined that when the competent court while passing order below Ex.5 has reached to the conclusion that the respondent No.2 has not committed any Page 7 of 20 C/SCA/928/2012 JUDGMENT willful omission in not disclosing pendency of the aforesaid criminal case, criminal complaint against the respondent No.2 may not be filed and therefore, relying upon the opinion given by the District Government Pleader, respondent No.1 has not filed complaint against the respondent No.2.
4.03. Affidavit-in-reply is also filed on behalf of the respondent No.6 - State Election Commission confirming that the State Election Commission has issued order dated 28/6/2011 authorising the returning officer and/or directing the concerned returning officer to file complaint in case it is found on holding preliminary inquiry that candidate has supplied wrong information or had withheld the information or has supplied misleading information and that such candidate has committed election related offences under the law applicable.
5.00. Mr.Thakkar, learned advocate appearing on behalf of the respondent No.2 is as such not disputing and is not in a position to dispute that at the relevant time when the respondent No.2 filled in the nomination form and submitted declaration / affidavit in Form No.4, respondent No.2 was chargesheeted and even charge was framed against him by the learned Judicial Magistrate (First Class), Maliya Hatina for the offences punishable under sections 427, 447 and 114 of Indian Penal Code. However, has submitted that the petitioner No.2 has already instituted Regular Civil Suit No.55 of 2011 in the Court of learned Principal Senior Civil Judge, Maliya Hatina and even the learned Judge has rejected application Ex.5 for interim relief which was submitted by the petitioner in the said suit in which all the contentions were raised which are before this Court and therefore, it is requested not to entertain the Page 8 of 20 C/SCA/928/2012 JUDGMENT present petition and not to grant the relief as prayed for in the present petition and to dismiss the present petition.
6.00. Mr.Soni, learned advocate appearing on behalf of the petitioners has submitted that as such in the aforesaid suit being Regular Civil Suit No.55 of 2011 the petitioner No.2 has challenged the order passed by the returning officer rejecting the objection against the nomination of the respondent No.2 and as such in the aforesaid suit, there is no direct relief or specific relief sought which is sought in the present petition. He has, further stated at the bar that if any such relief is sought, which is sought in the present petition, he shall submit an appropriate amendment application before the learned trial court to delete such relief and such application for amendment shall be submitted immediately and such relief be treated to have been deleted in the aforesaid suit.
7.00. Heard the learned advocates appearing on behalf of the respective parties at length.
7.01. At the outset, it is required to be noted that by way of present petition under Article 226 of the Constitution of India, petitioners have prayed for appropriate writ, order and/or direction directing the returning officer to initiate criminal proceedings / prosecution against the respondent No.2 for the offences punishable under sections 171G and 176 read with section 177 of the Indian Penal Code as well as under sections 42 and 43 of the Gujarat Panchayats Act, 1993, submitting that at the time of submitting / filling up the nomination form for the post of Sarpanch of the Khorasa (Gir) Gram Panchayat and submitting the declaration / affidavit, Page 9 of 20 C/SCA/928/2012 JUDGMENT though the respondent No.2 was chargesheeted and a charge was framed against him by the competent court for the offences punishable with imprisonment for two years, in the affidavit in Form No.4 which is required to be submitted as per the Gujarat Panchayat Election (First Amendment) Rules, 2005, the respondent No.2 did not disclose the same and despite the order issued by the State Election Commission dated 28/6/2011, directing the returning officer to file necessary criminal complaint, respondent No.1 - returning officer has failed to perform its statutory duty and has not filed any criminal complaint / prosecution against the respondent No.2.
7.02. While considering the aforesaid question, relevant provision of law is required to be considered.
In exercise of the powers conferred by sub-section (1) of section 274 read with sub-section (2) of section 15 of Gujarat Panchayats Act, Government of Gujarat has made rules, to amend Gujarat Panchayat Election Rules, 1994 in the year 2005 called Gujarat Panchayat Election (First Amendment) Rules, 2005. As per the amended provisions, as per sub-rule (6) of rule 12, the candidate or his proposer, as the case may be, shall at the time of delivering to the returning officer the nomination paper also deliver to him an affidavit sworn by the candidate before a Magistrate of the first class or a Notary in Form-4. Pursuant to the said amendment in the rules even Form-4 is also amended and Part-VII and Part-VIII are added after Part-VI in Form-4. Part-VIII in the Form 4 is relevant for the purpose of controversy raised in the present Special Civil Application. Part-VIII in Form-4 as amended in the year 2005 reads as under :-
Page 10 of 20 C/SCA/928/2012 JUDGMENT
"[CENTRAL SECTION] GOVERNMENT OF GUJARAT GAZETTE, EX. 4-
2-2005.
PART-VIII
Affidavit to be furnished by the candidate before the returning officer for election to ________________________________________ (name of the Panchayat) from _______________________________ District/Taluka.
I,_________________________ son/daughter/wife of ___________________ aged ____ about ___________ years, resident of ________________________________________ candidate at the above election, do hereby solemnly affirm/state on oath as under :-
I. I am / am not accused of any offence(s) punishable with imprisonment for two years or more in a pending case(s) in which a charge(s) has/have been framed by the Court(s) of competent jurisdiction.
It the deponent is accused of any such offence(s), he shall furnish the following information :
(i) Case / First Information Report No./Nos.________________
(ii)Police Station(s) _________________ District(s)_____________ State ______________.
(iii)Section(s) of the concerned Act(s) and short description of the offence(s) for which the candidate has been charged ____________________________________________.
(iv)Court(s) which framed the charge(s) ____________________
(v)Date(s) on which the charge(s) was/were framed ________
(vi)Whether all or any of the proceeding(s) have been stayed by any court(s) of competent jurisdiction ___________________________________________________
2. I have been/have not been convicted of / an offence(s) (other than any offence(s) referred to in section 30 of the Gujarat Panchayats Act, 1993 (Guj.18 of 1993) and sentenced to imprisonment for one year or more.
If the deponent is convicted and punished as aforesaid, he shall furnish the following information :
(i) Case / First Information Report No./Nos.___________
(ii)Court(s) which punished __________________________
(iii)Police Station(s) ________________ District(s) ____________ State(s) ________________.
(iv)section(s) of the concerned Act(s) and short description of the offence(s) for which the candidate has ever been charges _______________________________
(v)Date(s) on which the sentence(s) was/were pronounced.
(vi)Whether the sentence(s) has/have been stayed by any court(s) of competent jurisdiction ___________________.Page 11 of 20
C/SCA/928/2012 JUDGMENT
Place :
Date : Signature of the Deponent
VERIFICATION
I, the above named deponent do hereby verify and declare that the contents of this affidavit are true and correct to the best of my knowledge and belief, no part of its is false and nothing material has been concealed therein.
Verified at _____________________ this _________________ day __________ 20______.
Signature of deponent Note : The columns in this form which are not applicable to the deponent may be struck off"
By order and name of the Governor of Gujarat S.N. Dave Joint Secretary to the Government"
Thus, considering the aforesaid statutory provisions, in the affidavit to be furnished by the candidate to the returning officer, a candidate is required to affirm / state on oath that he is / he is not accused of any offence/s punishable with imprisonment for two years or more in a pending case/s in which charge/s has/have been framed by the court/s of competent jurisdiction and he is also required to declare / furnish relevant particulars with respect to the aforesaid criminal prosecution. As it was noticed by the State Election Commission from experience gained through last several elections that the candidate in fray do not take aforesaid requirement of furnishing information with due seriousness and with sense of responsibility and it had come to the knowledge of the State Election Commission several instances where candidates have provided false or wrong or misleading information stating wrong facts in their affidavit / declaration before the returning officer and it not only encourage Page 12 of 20 C/SCA/928/2012 JUDGMENT dishonest approach and inclination to conceal necessary information on the part of the candidates but also more importantly ultimately adversely affects on the purity of the election and probity of the elected representative in the minds of the voter, and therefore, the State Government has issued order dated 28/6/2011 directing the returning officers to file necessary criminal complaint before the appropriate authority in respect of the cases where it has come to the notice that the candidate concerned has supplied wrong information or has withheld the information or has supplied misleading information and that such candidate is for such reason has committed election related offence under the law applicable. In the said order dated 28/6/2011, the State Election Commission has also stated that the returning officer shall be responsible to file necessary FIR/s immediately after preliminary inquiry / reports or conclude that the candidates has filed wrong affidavit/declaration. Further duty is also cast upon the returning officer to inform the Secretary, State Election Commission about the details including details of complaint filed by him and to forward copies of such complaint, if any, filed by him, and also to inform the District Education Officer and Collector about the aforesaid details including the details of the complaints filed by him and forward it to the District Education Officer or Collector copies of such complaint, if any filed by him. A conjoint reading of the aforesaid statutory provisions and order issued by the State Election Commission dated 28/6/2011, it appears that the aforesaid order has been issued by the State Election Commission for fair and free conduct of election in all spheres and to ensure purity of the election process including matter of different kinds of information is required to be furnished by Page 13 of 20 C/SCA/928/2012 JUDGMENT the contesting candidates while filing their nomination. While issuing order dated 28/6/2011 directing the returning officer to file necessary criminal complaint under appropriate law before the appropriate authority in respect of the cases where it has come to the notice that candidate concerned has supplied wrong information or has withheld information or has supplied misleading information and that such candidate has for such reason has committed offence related to election under applicable law, it is observed that such suppression or furnishing wrong or misleading information stating wrong facts in the affidavit / declaration before the returning officer encourages dishonest approach and inclination to conceal necessary information on the part of the candidates and it ultimately works adverse on the purity of the elections and probity of the elected representative in the minds of the voter.
7.03. Section 171G of the Indian Penal Code provides that false statement in connection with an election shall be an offence. Section 176 read with section 177 of the Indian Penal Code provide for offence for omission to give information to public servant by the person legally bound to give it. Sections 42 and 43 of the Gujarat Panchayats Act relates to the election offence. Section 171G & 177 of Indian Penal Code and sections 42 and 43 of the Gujarat Panchayats Act, read as under :-
"Section 171G of IPC:- False statement in connection with an election. --
Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine.
CLASSIFICATION OF OFFENCE Punishment-Fine-Non-cognizable-Bailable-Triable by Magistrate of Page 14 of 20 C/SCA/928/2012 JUDGMENT the first class-Non-compoundable.
Section 177 of IPC: Furnishing false information. - Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both;
or, if the information which he is legally bound to give respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Sections 42 of the Gujarat Panchayats Act :- Other offences and penalties therefor.-
(1) person shall be guilty of an offence, if, at any election he-
(a) fraudulently defaces or fraudulently destroys and nomination paper; or
(b) fraudulently defaces, destroys or removes any list, notice or other document affixed by or under the authority of a returning officer; or
(c) fraudulently defaces or fraudulently destroys any ballot paper or the official mark on any ballot paper; or
(d) without due authority supplies any ballot paper to any person;
(e) fraudulently puts into any ballot box anything other than the ballot paper which he is authorised by law to put in; or
(f) without due authority destroys, takes, opens or otherwise interferes with any ballot box or ballot papers then in use for the purposes of the election; or
(g) fraudulently or without due authority as the case may be, attempts to do any of the foregoing acts or willfully aids or abets the doing of any such acts.
(2) Any person guilty of an offence under this section shall,
(a) if he is a returning officer or a presiding officer at a polling station or any other officer or clerk employed on official duty in connection with the election, on conviction, be punished with imprisonment for a term which may extend to two years or with fine or with both;
(b) if he is any other person, on conviction be punished with imprisonment for a term which may extend to six months or with fine or with both.Page 15 of 20
C/SCA/928/2012 JUDGMENT (3) For the purposes of this section, a person shall be deemed to be on official duty if his duty is to take part in the in the conduct of an election or part of an election including the counting of votes or to be responsible after an election for the used ballot papers and other documents in connection with such election, but the expression "official duty" shall not be include any duty imposed otherwise than by or under this Act.
(4) An offence punishable under clause (b) of sub-section (2) shall be cognizable.
Sections 43 of the Gujarat Panchayats Act : No court shall take cognizance of an offence punishable under section 39 or under section 40 or under clause (a) of sub-section (2) of section 42 except on a complaint made by an order of, or under authority from the State Election Commission."
Under the circumstances, supplying wrong information or withholding information or supplying misleading information by candidate in the affidavit / declaration submitted along with the nomination form amounts to committing the aforesaid offences for which as such the returning officer is duty bound to file necessary criminal complaint before the appropriate authority.
7.04. In the present case, as stated above, despite the fact that at the time when the respondent No.2 filled in the nomination form and submitted affidavit in the Form-4, as required to be submitted as per the Gujarat Panchayat Election (First Amendment) Rules, 2005, though charge was framed by the competent court having jurisdiction i.e. learned Judicial Magistrate (First Class), Maliya Hatina for the offences punishable under sections 427, 447 and 114 of Indian Penal Code and though the respondent No.2 was facing the trial, the respondent No.2 did not disclose the above and thus, suppressed the aforesaid facts and despite the said fact was brought to the notice of the respondent No.1 - returning Page 16 of 20 C/SCA/928/2012 JUDGMENT officer, the returning officer had not initiated / filed criminal complaint against the respondent No.2 for the relevant offences, despite the order passed by the State Election Commission dated 28/6/2011. In the reply filed by the respondent No.1 it is stated that as the offence for which charge was framed against the respondent No.2 does not have punishment of more than two years and therefore, it cannot be said that the respondent No.2 has suppressed material fact and therefore, he has not lodged the complaint. However, the aforesaid seems to be on misreading the relevant provisions more particularly Part-VIII of Form-4. As per Part-VIII of Form-4 which is reproduced hereinabove, a candidate is required to state on oath that he is / he is not accused of an offence punishable for imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction. As per section 427 of the Indian Penal Code, on conviction for the offence under section 427 of Indian Penal Code, punishment provided is of either discretion for a term which may extend to two years or with fine or with both. Thus, for the offence under section 427 of Indian Penal Code, punishment upto two years can be imposed. Therefore, the ground on which the respondent No.1 has not filed the criminal complaint against the respondent No.2, i.e. on the ground charge was not framed against the respondent No.2 since the offence is not punishable for more than two years, is absolutely illegal, contrary to the provisions of the statute, Part-VIII of Form-4 and on misreading and/or misinterpreting the relevant provisions. What is required is offence punishable with imprisonment of two years or more and not the offence punishable with imprisonment for more than two years.
Page 17 of 20C/SCA/928/2012 JUDGMENT 7.05. Now, the another ground on which the respondent No.1 has not filed the criminal complaint against the respondent No.2 is that after the order passed below Ex.5 in Regular Civil Suit No.55 of 2011 by the learned Principal Senior Civil Judge, Maliya Hatina, he obtained opinion from the District Government Pleader and considering the prima facie observation in the order passed below Ex.5 that the respondent No.3 has not suppressed any material fact, the District Government Pleader opined that criminal complaint / prosecution is not required to be lodged and therefore, he has not filed the criminal complaint against the respondent No.2 is concerned, the aforesaid cannot be sustained. As such it was for the returning officer to take appropriate decision on holding preliminary inquiry as mentioned in the order dated 28/6/2011 issued by the State Election Commission. It was the returning officer to take its own independent decision and as such he ought not to have solely relied upon the opinion of the District Government Pleader and/or Public Prosecutor of Junagadh District.
7.06. In view of the above and for the reasons stated above, it appears that the respondent No.1 has failed to perform its statutory duty cast upon him under the rules as well as order dated 28/6/2011 issued by the State Election Commission, by not filing criminal complaint against the respondent No.2 before appropriate authority as the respondent No.2 against whom though charge was framed by the competent court having jurisdiction i.e. Judicial Magistrate (First Class), Maliya Hatina for the punishment with imprisonment of two years, he did not disclose the same in the Page 18 of 20 C/SCA/928/2012 JUDGMENT affidavit as per Part-VIII of Form-4 submitted along with the nomination form. Therefore, this is a fit to allow the present petition and grant the relief as prayed for.
7.07. Now, so far as the contention on behalf of the respondent No.2 that as the petitioner No.2 has instituted Regular Civil Suit No.55 of 2011 in the Court of learned Principal Senior Civil Judge, Maliya Hatina and has raised all the contentions / grounds which are raised in the present petition and therefore, the present petition may not be entertained is concerned, at the outset it is required to be noted that in the aforesaid civil suit, as such there is no specific prayer and/or relief sought, which is sought in the present petition i.e. to direct the respondent No.2 to perform its statutory duty and file criminal against the respondent No.2. What is challenged in the aforesaid suit is the decision of the returning officer in not cancelling the nomination form of the respondent No.2 and rejecting the objections raised by the petitioners. Even as stated above, the petitioner No.2 has declared before the Court that if any such relief as sought in the suit which is sought in the present petition, the petitioners shall submit appropriate application before the learned Civil Court to delete such relief. However, at the cost of the repetition, it is observed that as such no such relief which is sought in the present petition is sought in the aforesaid suit. Under the circumstances, on the aforesaid ground, the present petition is not required to be dismissed, more particularly when it is specifically found that the respondent No.1 has failed to perform its statutory duty cast under the statutory rules and even under the order issued by the State Election Commission dated 28/6/2011.
Page 19 of 20C/SCA/928/2012 JUDGMENT 8.00. In view of the above and for the reasons stated above, present petition succeeds. The respondent No.1 - Returning Officer is hereby directed to perform its statutory duty under the relevant rules and order dated 28/6/2011 issued by the State Election Commission and to file criminal complaint / proceedings against the respondent No.2 for the offences under the appropriate law (as discussed / mentioned hereinabove) before the concerned authority for withholding the material information (as observed hereinabove), as required to be supplied under the Gujarat Panchayat Election (First Amendment) Rules, 2005 and Part-VIII of Form-4, as per sub-rule 7 of rule 12 of the Gujarat Panchayat Election Rules, forthwith within a period of two weeks from the date of receipt of the writ of the present order. As and when such proceedings are initiated, the same shall be concluded by the competent court having jurisdiction at the earliest. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.
Sd/-
(M.R.SHAH, J.) Sd/-
(R.P.DHOLARIA,J.) Rafik.
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