A Returning Officer's discretion regarding prosecution for false information in election affidavits is bound by evidence sufficiency, and not all decisions are subject to CEO's appellate review.

JUDGMENT

1.The petitioner, a voter in No.125 Eravipuram LA Constituency, filed a petition on 10.6.2006 before the Returning Officer stating that the third respondent, a candidate from that constituency in 2006 general elections, had given wrong information in the affidavit filed along with the nomination paper. It was alleged that the information given by the third respondent that he had passed the SSLC examination conducted by the Board of Public Examination, Kerala in 1959 was false. The plea was that only a person who had passed the SSLC examination could claim that he is a holder of SSLC, while the third respondent is not a holder of such certificate. The Board of Public Examinations, Kerala come into being only in 1965 and any entry in that regard in the affidavit was also therefore wrong.

2.The Returning Officer issued Ext.P5 taking the view that as nobody had raised any objection at the time of scrutiny of the nomination paper, the nomination was accepted and there is no provision to initiate action to prosecute a candidate for which documentary evidence is a must. The Chief Electoral Officer (CEO), thereafter, directed the Returning Officer to re- consider the said decision. After hearing the parties again, the Returning Officer issued Ext.P14 taking the view that on the basis of the materials placed before him, it could not be decided either way as to whether there was a false statement in relation to the educational qualifications. The petitioner filed an appeal against that decision to the CEO. That was ordered as per Ext.P16 saying that the appeal petition cannot be considered as no appeal lies before the CEO against any order passed by the Returning Officer under the authority of Section 125A of the Representation of the People Act, 1951 and Section 177 of the Indian Penal Code.

3.Learned counsel for the petitioner, on the strength of the materials on record, argued that those materials unequivocally showed that the third respondent had made a false statement in the affidavit and that Ext.P1 evidences that the third respondent had left school from standard VI. Relying on Annexure A produced along the statement submitted on behalf of the first respondent CEO, it was argued by the learned counsel for the petitioner that the Returning Officer was duty bound to ensure action to prosecute the third respondent by making formal complaint. It was also argued that when a complaint was submitted by the petitioner supported by some documentary evidence, it is not for the Returning Officer to enter on any consideration as to the merit of the materials or to conclude that it was not worthwhile to ensure action to prosecute the third respondent who was a candidate.

4.Per contra, learned counsel appearing for the third respondent argued that no offence referable to Sections 33A and 125A of the Representation of the people Act, 1951 having been made out, it cannot be stated that the officer should be compelled to ensure any prosecution referable to section 177 IPC , having regard to the powers of the third respondent, as a public servant, under Section 195 Cr.PC.

5.The Apex Court inUnion of lndia v. Association for Democratic Reforms [ (2002) 5 SCC 294 ] and People's Union of Civil Liberties v. Union of India [ (2003) 4 SCC 399 ] noticed that the voters have a right to information about the criminal antecedents, if any, of the candidates as also the assets and liabilities, including those of their spouse, dependent children as well as educational qualifications so that the voters may make an individual choice at the time of election. Pursuant to those directions, the Election Commission has issued a detailed order on 27.3.2003 providing inter alia that every candidate, at the time of filing his nomination, shall furnish full and complete information regarding all the five matters specified by the Apex Court. The 5th among the matters enumerated by the Apex Court is the educational qualification of the candidate. Therefore, in te