Non-Disclosure Of Criminal Cases In Which Charges Have Not Been Framed Does Not Amount To Suppression In Election Affidavit: Bombay HC [Read Judgment]

The Bombay High Court has refused to set aside the election of Shiv Sena MLA from Kohlapur Rajesh Vinayak Kshirsagar, holding that failure to mention criminal cases in which charges have not been framed does not amount to suppression of facts in election nomination.

Kshirsagar's election to Maharashtra legislative assembly in 2014 was challenged by the defeated Congress candidate Shivajirao Kadam on the ground that he had not disclosed in his election affidavit three criminal cases in which charge-sheets had been filed. Therefore, the petition sought to set aside the election on the ground of improper acceptance of nomination.

Dealing with the petition, Justice Sandhana.S.Jadav observed that the requirement under Section 33A(I)(i) of the Representation of People Act 1951 was to disclose offences punishable with imprisonment of two years or more in a pending case, in which a charge has been framed and that Rule 4A of the Conduct of Election Rules contemplates mentioning of offences in which cognizance is taken and charges are framed by court of competent jurisdiction.

The Court noted that the petitioner had no case that charges were framed in the three cases which were omitted to be mentioned by the returned candidate.

"The petitioner has misconstrued that filing of charge-sheet amounts to taking of cognizance or framing of charge", observed the Court.

The respondent stated that he had submitted the affidavit based on the information given by police, and that at the stage of filing of nomination, no charges were framed in the cases

"The fact that the petitioner is alleging non-compliance of Section 33A(1)(i), it was necessary to plead the same and bring it on record as to whether the offences mentioned in paras nos. 8(a), 8(b), 8(c) and 8(d) are the cases, in which the charge has been framed. Hence, the petition lacks material particulars to substantiate that there is non-compliance of Section 33A(1)(i) and Rule 4(a) of the Representation of Peoples Act, 1951", observed the Court.

The Court noted that the petitioner had failed to place material pleadings on record as to whether charges were framed in the cases before nomination. 

"It is in these circumstances that this Court needs to take a holistic approach to see that setting aside the election by ignoring lapses in the pleadings would result in dysfunctioning democracy wherein the result of the election or the mandate of the people would be set aside on smallest technicalities. Thus it would not be possible for this Court to allow the petition to travel beyond the pleadings by giving such a latitude to consider the issues which are not specifically pleaded", observed the Court dismissing the petition.

Latest directions issued by the SC

In September 2018, a Constitution Bench of the Supreme Court had issued a slew of directions regarding disclosure of criminal cases pending against election candidates. It was directed in the judgment that the details of all pending criminal cases should be stated in bold letters in the election affidavit, and also uploaded in the official website of the party to which the candidate belongs. The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media.

These directions were issued by the Court while deciding a PIL to disqualify elected representatives on framing of charges. While the Court declined the main prayer citing that it was for the Parliament to amend the law in that regard, it issued directions for advertising criminal antecedents of candidates.

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