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2025 Supreme(Online)(Bom) 6690
HIGH COURT OF BOMBAY
R.I. Chagla, J
Rajan Baburao Vichare – Appellant
Versus
Naresh Ganpat Mhaske – Respondent
E.P. (L) NO.30947 OF 2024 | E.P. (L) NO.31834 OF 2024
For the Appellants/Petitioners: Mr. Darius Khambata, Senior Counsel, Mr. Pankaj Savant, Senior Counsel, Ms. Shreenandini Mukhopadhyay, Ms. Joshna D’Souza i/b. Mr. Sanjay Gawde
For the Respondents: Mr. Vikram Nankani, Senior Counsel, Mr. Chirag Shah, Mr. Vishal Acharya, Mr. Shyamsundar Jadhav, Mr. Bhavya Shah and Mr. Mehul Talera i/b. Mr. Chirag Shah, Mr. Hare Krishna Mishra i/b. Law Global
A candidate is not required to disclose a criminal conviction if it has not resulted in imprisonment of one year or more, as per Section 33A of the Representation of the People Act.
Headnote:(A) Representation of the People Act, 1951 - Section 33A - Election Petition alleging failure to disclose criminal conviction - Election Petition filed against Respondent No.1, who was convicted but did not disclose this in Form 26 - The Court held that the failure to disclose such conviction is not a cause of action for setting aside the election if the conviction did not result in imprisonment of one year or more. (Paras 1, 3, 107)
(B) Election Laws - Compliance with Form 26 - The court held that the requirements laid down in Form 26 must be in accordance with provisions of the Act, specifically Section 33A (1)(ii). Non-disclosure of a conviction not leading to imprisonment does not violate election law. (Paras 106, 109)
(C) Election Proceedings - Dismissal of Election Petition - The petition was dismissed as it did not disclose a clear cause of action against Respondent No.1 based on the provisions of the 1951 Act. (Paras 110, 112)
Facts of the case:
The Petitioner filed an election petition alleging that Respondent No.1 failed to appropriately disclose a conviction in his nomination Form 26 under the Representation of the People Act, 1951. Respondent No.1 contended that he was not obliged to disclose the conviction as it did not result in imprisonment exceeding one year.
Findings of Court:
The Court determined that Respondent No.1 was not obligated to disclose the conviction, as per the legal standards for disclosure.
Issues: Whether the election petition disclosed a valid cause of action given the failure to disclose a conviction that did not entail imprisonment of one year or more.
Ratio Decidendi: The Court ruled that the election petition was not maintainable as it did not disclose a clear cause of action against Respondent No.1 for failing to disclose a conviction which did not lead to imprisonment of one year or more.
Result: The Election Petition is rejected.
| Table of Content |
|---|
| 1. context of election petition and required disclosures (Para 1 , 2 , 3 , 4) |
| 2. arguments regarding the election rules and constitution (Para 5 , 6 , 8 , 28) |
| 3. supreme court's directives on candidates' information disclosure (Para 7 , 10 , 12 , 14) |
| 4. legal sources and nature of election legislation (Para 11 , 36 , 40 , 42) |
| 5. counterarguments against the admissibility of the petition (Para 15 , 18 , 22 , 49) |
| 6. importance of compliance with legal provisions in election petitions (Para 26 , 27 , 29 , 30) |
| 7. court's final ruling on the election petition (Para 110 , 111) |
J U D G M E N T:-
1. By these Applications, the Respondent Nos.1 and 14 have sought rejection of the Election Petition under Order VII Rule 11 of the Code of Civil Procedure, 1908 as not being maintainable on the ground that the same does not disclose any cause of action.
2. The case of the Petitioner in the Election Petition is that in terms of Sr. No.6 of Form 26 as amended by Notification No. SO 5196 (E) dated 10th October, 2018, the Respondent No.1 ought to have disclosed his conviction in a criminal offence in which he has been convicted and his failure to disclose his conviction has rendered his election liable to be set aside.
3. The Respondent No.1 had been convicted by an Order dated 29th February, 2016 passed by the learned Chief Judicial Magistrate, Thane which Order was upheld in Appeal vide Order dated 9th February, 2017 passed by the learned Additional District Judge – II, Thane but despite the same, the Respondent No.1 put a tick mark against Sr. No.6(i) and stated “Not Applicable’’ against Sr. No.6(ii) of Form 26. Sr.No.6(ii) requires details of cases in which the candidate has been convicted for the offences as required thereunder.
4. The case of Respondent No.1 is that only if his conviction resulted in imprisonment of one year or more, is he required to make a disclosure in Form 26. Accordingly, the disclosure of Respondent No.1 in Form 26 is true and correct since Respondent No.1 was released on the basis of good conduct under the Probation of Offenders Act, 1958 with no imprisonment.
5. Mr. Vikram Nankani, the learned Senior Counsel appearing for the Respondent No.1 has submitted that Rule 4A of the Election Rules, 1961 (“the 1961 Rules” or “Election Rules”) was inserted on 3rd September, 2002 vide Notification No.SO 935(E) issued by the Central Government in exercise of powers conferred by Section 169 of the Representation of People Act, 1951 (“1951 Act’’). He has submitted that Form 26 is in the form of an Affidavit to be filed at the time of delivering nomination paper and which has also been referred to in Section 33A (2) of the 1951 Act. He has submitted that Section 33A was introduced with effect from 24th August, 2002, first by an Ordinance, which was replaced by Amendment Act, 1972. He has submitted that in case of conviction of a candidate of an offence and he being sentenced to imprisonment for one year or more then the candidate shall furnish the information under Section 33A (1) (ii). Section 33A (ii) provides that where a candidate has been convicted of an offence (other than any offence referred to in sub-section (I) or sub-section (2), or covered in sub- section (3) of Section (8)) and sentenced to imprisonment for one year or more then the candidate is required to furnish the information. Under Section 33A (2), this shall be by way of Affidavit sworn by the candidate in a prescribed form verifying the information as above. Further, under Section 33-A (3), the Returning Officer shall as soon as may be after the furnishing of information to him under sub-section (1), display the aforesaid information by affixing a copy of the Affidavit delivered under sub- section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered. The same procedure is to be followed as provided in Section 33A (1)(i) for a pending case where the candidat
