TMI Blog2021 (12) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... f an FIR does not bring the matter adverted to therein, within the ambit of a pending criminal case. Mr. Srivastava is right when he says that a criminal case is said to be pending, either when the concerned Magistrate has taken cognizance under Section 190 of the Code of Criminal Procedure, 1973, or a charge sheet has been filed. Admittedly, the petitioner has neither made any assertion nor placed any document on record, in this behalf. Merely because the May 2002 Academic Examination Result for Class X, concerning the applicant/respondent no. 1, does not align with the assertion made in the petition that the application/respondent no. 1 did not pass the examination of Class X in 2003 would not be a good enough reason to reject the petition. The averments made in this behalf have to be read in their entirety, and, therefore, the matter, in my view, needs to be tried. Leave is granted to the petitioner to file a fresh affidavit in the prescribed form i.e., Form-25 [read with rule 94A of the 1961 Rules] , within fifteen days from today - Application dismissed. - El. Pet. 10/2020 - - - Dated:- 24-12-2021 - Rajiv Shakdher, J. For the Appellant : Abhijat, Adv. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant/respondent no. 1 says that the election petition should be rejected at this stage itself given the fact it has not been framed in accordance with Form-25, prescribed in Rule 94A of the Conduct of Elections Rules, 1961 [in short 1961 Rules ]. The petitioner has neither specified the name of the person whose election is being questioned nor adverted to the corrupt practice undertaken by the applicant/respondent no. 1; an aspect which is required to be stated in the affidavit prescribed under Form-25. 2.6. Furthermore, the applicant/respondent no. 1 avers that the affidavit filed along with the election petition does not conform to the requirements of the proviso to sub-section (1) of Section 83 of the 1951 Act. In this context, the assertions made qua alleged corrupt practice referred to in paragraphs 8, 12, 13 and the grounds contained in the election petition, have not been verified as per law. In this context, it is averred that there is no distinction made while verifying the assertion made in the election petition, as to the averments, which are true to the knowledge of the deponent and those, which are based on the information received and believed to be true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on this document, it was contended that the document reveals that applicant/respondent no. 1 was absent and not that he had failed. As against this, the applicant/respondent no. 1 had placed on record Form-26, which indicated that he had passed his Class-X examination via NIOS in 2003. Thus, the best evidence placed on record contradicts the averments made in the petition. Since the evidence does not support the allegation, no cause of action arises against the applicant/respondent no. 1 qua this allegation, and therefore, the petition is liable to be rejected. (ii) The allegation concerning the criminal proceedings pending against applicant/respondent no. 1 is founded on FIR No. 64/2016, dated 30.01.2016, registered with P.S. Paharganj, Central District, Delhi. The applicant/respondent no. 1 in Form - 26 has indicated that there was no criminal case pending against him. A criminal case is said to be pending against a person only if cognizance is taken of an offence by a Magistrate under Section 190 of Code of Criminal Procedure, 1973 [in short, Cr. P.C. ] or once charges are framed and not before that. [See Paras vs. Chaitanya Kashyap 2015 (1) JLJ 391 @ paragraphs 15, 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s assertion in Form-26 regarding his educational qualification, to the effect, that he had passed Class-X examination via NIOS in 2003 and that it was his highest qualification was false. 6.2. The petitioner, in this context, has referred to Form-26 filed by the applicant/respondent no. 1 in 2013 and 2015. In Form-26 filed in 2013, the applicant-respondent no. 1 had declared that his highest educational qualification was B.Com; a degree that he had obtained from Chaudhary Charan Singh (CCS) University, in 2008. However, in Form - 26 filed in 2015, the applicant/respondent no. 1 had declared that his educational qualification was B.A. (Prog.), which he was said to be pursuing, at the relevant point in time, from Indira Gandhi National Open University, Delhi. 6.3. There was, thus, a clear contradiction in the highest educational qualification declared by the applicant/respondent no. 1 in Form-26 filed in 2020, as against the disclosure made qua the same aspects in Form-26 filed in 2013 and 2015, at the time, when he participated in Assembly Elections in respect of the said year. 6.4. It was further submitted by the petitioner that as per the result available for enrolm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.1. In my opinion, the only issue which arises for consideration at this stage is whether the petition should be rejected at this stage without the matter going to trial. As per the well-established principle of law, at this juncture, I am required to examine only the assertions made in the election petition and the documents filed in support of thereof. 7.2. As alluded to hereinabove, one of the principal reliefs sought in the petition is, to the effect, that this Court should declare the result of the applicant/respondent no. 1 qua the Karol Bagh Constituency as null and void. In this context, reference is made to the election held on 08.02.2020. 7.3. There are other consequential prayers made in the petition; which were given up by the petitioner at the hearing held on 29.09.2020 when the election petition was listed before the Court for the very first time. On that date, counsel for the petitioner indicated to the court that insofar as the reliefs sought in prayer clause (ii) and (iii) are concerned [which, inter alia, sought criminal prosecution of the applicant/respondent no. 1 and his debarment from participating in an election for six years], the same are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant/respondent no. 1 has filed a reply to the election petition, the above-captioned application was also instituted in which, notice was issued on 08.01.2021. 9.2. I may also record that the petitioner has filed an application i.e. I.A. No. 11988/2020 for amendment of the election petition on which orders have not been passed since the same has not been pressed by the petitioner. The proceedings of 01.03.2021 show that the counsel for the petitioner, Mr. Abhijat, had conveyed, on that date, that he would like to reassess as to whether or not the petition needs to be amended. 10. With this preface, the first aspect which in my view, should be dealt with at the very outset, is as to whether there was an obligation on the part of the applicant/respondent no. 1 to disclose information, inter alia, about his educational qualifications and the fact concerning his involvement in a criminal case. 10.1. The Supreme Court in the judgment rendered in Union of India vs. Association of Democratic Reforms (2002) 5 SCC 294, has held that the voter has a fundamental right to know the antecedents of the candidate, who stands for elections. The relevant observations made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion concerning the candidate's assets including those of the spouse and dependents as also liabilities, particularly, those related to the Government or public institutes. 10.5. Therefore, the assertions made in the election petition have to be viewed in the broad framework of law, as enunciated by the Supreme Court in the aforementioned judgments. 10.6. The petitioner, even according to the applicant/respondent no. 1, has adverted to the fact that the FIR No. 64/2016 dated 30.01.2016 was filed with P.S. Paharganj, Delhi. Concededly, the said assertion is made in the election petition and a copy of the FIR has been placed on record by the petitioner. 10.7. The argument advanced by Mr. Srivastava that the relevant entry in the prescribed form required the applicant/respondent no. 1 to only disclose pending criminal cases, may not be a tenable argument, given the enunciation of law by the Supreme Court in the aforementioned judgments. The candidate who files his/her nomination is required to disclose his past conviction/acquittal/discharge, if any, and punishment awarded by way of imprisonment and/or fine. Likewise, if prior to six months of filing nomination, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as Class X pass in 2003, via NIOS. 11.3. Given the material on record, I am unable to persuade myself that merely because the May 2002 Academic Examination Result for Class X, concerning the applicant/respondent no. 1, does not align with the assertion made in the petition that the application/respondent no. 1 did not pass the examination of Class X in 2003 would not be a good enough reason to reject the petition. The averments made in this behalf have to be read in their entirety, and, therefore, the matter, in my view, needs to be tried. 12. The argument of Mr. Srivastava that the verification of the averments made in the election petition is faulty, and not in consonance with the provisions of Order VI Rule 15(2) of CPC or that the affidavit filed along with the petition does not adhere to the prescribed format i.e., Form-25 read with Rule 94 A of the 1961 Rules, in my opinion, are curable defects . [See A. Manju v. Prajwal Revanna, [17. It was further sought to be urged by referring to Section 83 of the RP Act that the signing and verification of pleadings in terms of Section 83(1)(c) of the RP Act if not complied with, cannot be fatal and the circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ater. This Constitution Bench judgment was also referred to in G.M. Siddeshwar case to come to a conclusion that non-compliance with proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition. We cannot say that the High Court fell into an error while considering the election petition as a whole to come to the conclusion that the allegations of the appellant were not confined only to Section 33A of the RP Act, but were larger in ambit as undue influence and improper acceptance of nomination of respondent No. 1 were also pleaded as violation of the mandate under Sections 123 and 100 of the RP Act. 25. However, we are not persuaded to agree with the conclusion arrived at by the High Court that the non-submission of Form 25 would lead to the dismissal of the election petition. We say so because, in our view, the observations made in Ponnala Lakshmaiah case which have received the imprimatur of the three Judges Bench in G.M. Siddeshwar case appear not to have been appreciated in the correct perspective. In f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educational qualification does not fall within the ambit of Section 123(4) of the 1951 Act, which provides as to what practices are deemed as corrupt practices for the purposes of 1951 Act. A coordinate Bench of this Court in the matter of Nand Kishore Garg, on this aspect, has ruled that nondisclosure and/or false declaration made, vis-a-vis educational qualifications, would constitute a corrupt practice. 13.1. A bare reading of sub-Section (4) of Section 123 of the 1951 Act would show that, inter alia, corrupt practice as defined in the said provision includes publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true in relation to: (i) the personal character or conduct of any candidate; (ii) in relation to a candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. 13.2. The expression in relation to candidature should, in my view, include information concerning the educational qualification of a cand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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