The Leaflet

| @theleaflet_in | October 1,2019

[dropcap]T[/dropcap]HE Supreme Court today paved the way for the criminal prosecution of Maharashtra Chief Minister Devendra Fadnavis under the Representation of the People Act, 1951 (RP Act, 1951) for concealing details of two criminal cases against him in his election affidavit.

Allowing a petition filed by advocate Satish Ukey, a three-judge bench of the apex court comprising the Chief Justice of India (CJI) Ranjan Gogoi, Justices Deepak Gupta and Aniruddha Bose said Form 26 (under Rule 4(a) of the RP Act, 1951) made it abundantly clear that it was mandatory for a contesting candidate to disclose information regarding cases that were pending against them in which charges has had been framed or in which the court has taken cognizance. Form 26 is the affidavit that is to be filed by the candidate along with their nomination papers before the returning officer for election to a Legislative Assembly.

The two criminal cases against Fadnavis are:

  • Summary Case No.231 of 1996 (under Section 500 of IPC) before the Judicial Magistrate First Class, Nagpur; and
  • Regular Criminal Case No.343 of 2003 (Old No.125 of 1998) (under Sections 468, 471, 218, 467, 420 and 34 of IPC) before the Court of Judicial Magistrate First Class, Nagpur.

“A bare perusal of Form 26 makes it abundantly clear that, for offences punishable with imprisonment for two years or more, while entry (5) (i) mandates disclosure of information by the contesting candidate regarding the case(s) that is/are pending against him in which charges have been framed by the Court; entry (5)(ii) mandates disclosure of information by the contesting candidate regarding cases that are pending against him in which cognizance has been taken by the Court,” the court observed.

Adding that Entry 5(ii) specifically mentions that a candidate is required to provide information of the case(s) pending in which cognizance has been taken in addition to the information he is required to provide against the column in Entry 5(i), the court said  “the above can leave no element of doubt that, subsequent to the substitution of Form 26 in 2012, the new Form 26 (as in vogue at the time of the elections in 2014), mandates the disclosure of information by the contesting candidate of not only case(s) in which charges have been framed but also case(s) in which cognizance has been taken by the Court”.

“A cumulative reading of Section 33-A of the 1951 Act and Rule 4-A of the 1961 Rules and Form-26 along with the letters dated 24.8.2012, 26.9.2012 and 26.4.2014, in our considered view, make it amply clear that the information to be furnished under Section 33-A of the 1951 Act includes not only information mentioned in clauses (i) and (ii) of Section 33-A(1), but also information, that the candidate is required to furnish, under the Act or the Rules made thereunder and such information should be furnished in Form 26, which includes information concerning cases in which a competent Court has taken cognizance (Entry 5(ii) of Form 26). This is apart from and in addition to cases in which charges have been framed for an offence punishable with imprisonment for two years or more or cases in which conviction has been recorded and sentence of imprisonment for a period of one year or more has been imposed (Entries 5(i) and 6 of Form 26 respectively),” the court said.

Alluding to the averments made in the election petition alleging that the Chief Minister Fadnavis had knowledge of the two cases against him which had not been mentioned in the affidavit filed by him along with his nomination papers, the Supreme Court set aside the order of the both trial court as well as the Bombay High Court upholding the order of the former. It also ordered the complaint of the petitioner to be considered afresh by the trial Court from the stage where it was interdicted.

With this, the Maharashtra Chief Minister opens himself up to criminal prosecution under Section 125-A of RP Act, 1951.

Section 125-A of the RPA Act, 1951 reads as follows:

125A. Penalty for filing false affidavit, etc.—A candidate who himself or through his proposer, with intent to be elected in an election,— 

(i) fails to furnish information relating to sub-section (1) of section 33A; or

(ii) gives false information which he knows or has reason to believe to be false; or

(iii) conceals any information, in his nomination paper delivered under sub-section (1) of section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.

 

Read Order:

Leave a Comment