Acts Like Kerala Police Act 1960 Don't Create Substantive Offences; Election Not Void For Not Disclosing Conviction For 'Disobeying Police' Under Such Acts : Supreme Court

The Supreme Court observed that the failure of a candidate to disclose his conviction for an offence under the Kerala Police Act 1960 for holding a dharna in front of the Panchayat office cannot be a ground for declaring his election void under Kerala Panchayat Raj Act.

An offence under enactments such as Kerala Police Act (1960) are not substantive offences, the bench of Justices S. Abdul Nazeer and V. Ramasubramanian observed.

The court also added that the 'Kerala Police Act, 1960 is actually the successor legislation of certain police enactments of the colonial era, whose object was to scuttle the democratic aspirations of the indigenous population.'

Ravi Namboothiri was elected as Councilor of Ward No.5 of Annamanada Gram Panchayath, in the elections held in November­ 2015. The rival candidate filed an election petition before the District Munsif Court which got dismissed on a technical ground. The appeal filed against this order was allowed by Additional District Judge who declared the election as void on the ground that Namboodiri suppressed his involvement in a criminal case in the nomination form (Form 2A) and that therefore he had committed a corrupt practice. The High Court upheld this judgment.

In appeal, the bench noted that Column No.1 in Form 2A requires the details not only of the criminal cases pending trial before the Court but also the criminal cases in which the contestant was convicted. The contestant is required to furnish in Form No.2A, details regarding the cases in which he is punished, the case number, the Court, the offences for which punishment was awarded, the nature of the punishment and the details regarding appeal or revision etc. The court also noted that the offences for which the appellant was eventually convicted, were under Section 38 (Persons bound to conform to reasonable directions of police) read with Section 52 (Penalty for failure to conform to lawful and reasonable directions of police officers) of the Kerala Police Act, 1960.

The bench further noticed that the conviction of the appellant was actually for the disobedience of the directions issued by a police officer in connection with a dharna which the appellant staged in front of the Panchayat office, along with a group of his supporters. In this context, the bench observed thus:

"While offences under the Indian Penal Code or under special enactments such as Prevention of Corruption Act, Arms Act and so on and so forth are substantive offences, the commission of which may make a person a criminal, an offence under certain enactments such as Kerala Police Act are not substantive offences. Just as strike is a weapon in the hands of the workmen and lock­out is a weapon in the hands of the employer under Labour Welfare legislations, protest is a tool in the hands of the civil society and police action is a tool in the hands of the Establishment. All State enactments such as Kerala Police Act, Madras Police Act etc., are aimed at better regulation of the police force and they do not create  substantive offences. This is why these Acts themselves empower the police to issue necessary directions for the maintenance of law and order and the violation of any of those directions is made a punishable offence under these Acts."

The court thus observed that failure of the appellant to disclose his conviction for an offence under the Kerala Police Act for holding a dharna in front of the Panchayat office, is taken as a ground for declaring an election void. While allowing the appeal, the bench further remarked:

"Kerala Police Act, 1960 is actually the successor legislation of certain police enactments of the colonial era, whose object was to scuttle the democratic aspirations of the indigenous population. This aspect should be kept in mind before applying blindfold, the principle 'what is sauce for the goose is sauce for the gander'

It may be noted that in this case the appellant was convicted under the old Kerala Police Act of 1960 and the observations in this judgment may have to be read in the context of the provisions of the old Act. The Act now in force in Kerala is Kerala Police Act, 2011.

Case details

Ravi Namboothiri vs K A Baiju | 2022 LiveLaw (SC) 933 | CA 8261 - ­8262 OF 2022 | 9 Nov 2022 | Justices S. Abdul Nazeer and V. Ramasubramanian

Counsel: Adv Ragenth Basant for appellant, Sr. Adv P.V. Surendranath for respondent

Headnotes

Kerala Panchayat Raj Act, 1994 ; Section 52(1A) and 102(1) - Kerala Police Act, 1960 ; Sections 38 and 52 - The failure of the elected candidate to disclose (in nomination form) his conviction for an offence under the Kerala Police Act for holding a dharna in front of the Panchayat office, cannot be taken as a ground for declaring an election void. (Para 46)

Kerala Police Act, 1960 - While offences under the Indian Penal Code or under special enactments such as Prevention of Corruption Act, Arms Act and so on and so forth are substantive offences, the commission of which may make a person a criminal, an offence under certain enactments such as Kerala Police Act are not substantive offences - Protest is a tool in the hands of the civil society and police action is a tool in the hands of the Establishment. All State enactments such as Kerala Police Act, Madras Police Act etc., are aimed at better regulation of the police force and they do not create substantive offences. This is why these Acts themselves empower the police to issue necessary directions for the maintenance of law and order and the violation of any of those directions is made a punishable offence under these Acts - Kerala Police Act, 1960 is actually the  successor legislation of certain police enactments of the colonial era, whose object was to scuttle the democratic aspirations of the indigenous population. (Para 45-47)

Kerala Panchayat Raj Act, 1994 ; Section 102(1)(ca) - The failure to make a true disclosure in Form 2A, regarding the past conviction, will certainly come within the meaning of the word 'fake', mentioned in Section 102 (1)(ca) - A person having criminal antecedents, poses himself to be one without any such antecedent, when he fails to make a true disclosure. In law, he passes off or comes out as a person without any criminal antecedent. (Para 33)

Kerala Panchayat Raj Act, 1994 ; Section 52(1A) - The words "involvement in a criminal case at the time of filing of the nomination" would only mean (i) cases where a criminal complaint is pending investigation/trial; (ii) cases where the conviction and/or sentence is current at the time of filing of the nomination; and (iii) cases where the conviction is the subject matter of any appeal or revision pending at the time of the nomination. (Para 37)

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