TaxTMI 
TaxTMI 
2022 (11) TMI 1573
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.... (i) On 5-11-2015, elections to the Annamanada Gram Panchayath were held. Apart from others, the appellant and respondent No. 1 contested from Ward No.5. (ii) On 7.11.2015, the appellant was declared as having been elected from Ward No.5. (iii) Respondent No.1 filed an Election Petition on the file of the District Munsif Court, on 4.12.2015 challenging the election of the appellant. (iv) By a Judgment dated 19.11.2016, the Election Petition was dismissed by the District Munsif Court, primarily on the ground that there was no prayer in the Election Petition to declare the election of the appellant as void, on the grounds stipulated in Section 102 of the Kerala Panchayat Raj Act. There was actually a prayer for cancelling the election held on 5.11.2015. (v) Aggrieved by the dismissal of the Election Petition, respondent No. 1 filed an appeal in the Court of the Additional District Judge. The appeal was allowed by a Judgment dated 18.06.2018 and the election of the appellant was declared as void on the ground that the appellant suppressed in his nomination form, his involvement in a criminal case and that therefore he had committed a corrupt pract....
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....of the Kerala Police Act and the sentence of a fine of Rs.200/- imposed upon him, was upheld by the First Appellate Court. (iv) Since the appellant is involved in active electoral politics and his conviction by the criminal Court related to a dharna organized by him, the appellant did not pursue the matter further before the High Court against a mere conviction under Section 38 read with Section 52 of the Kerala Police Act. (v) However, while filing his nomination in the elections to the Panchayat held in November-2015, the appellant failed to disclose, in Form No.2A, under Rule 6 of the relevant Rules, his conviction under Section 38 read with Section 52 of the Kerala Police Act, 1961. Therefore, his election was challenged by respondent No. 1 and the matter has now landed up before this Court. 6. In the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as "the Act"), an amendment was made in the year 2005, by Act 30 of 2005 with effect from 22.08.2005. One of the amendments introduced by the said Act, was the insertion of sub-section (1A) in Section 52. Section 52 (1A) reads as follows :- "52. Presentation of nomination paper and requirements f....
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....X (b). Those in which punished (i) Case number (ii) Name and place of court (iii) Description of the offence for which punishment was awarded (iv) Sections of the concerned Act under which punishment was awarded (v) Punishment awarded (period of imprisonment/quantum of fine imposed) etc. (vi) Date of sentence (vii) Details regarding appeal, revision etc. filed against the sentence." 10. The reasoning of the High Court was that any failure to disclose the correct information regarding the past conviction by a criminal court, would tantamount to suppression of information relating to "involvement in a criminal case". The High Court reasoned (i) that insofar as elections to the State Assemblies and Parliament are concerned, Section 33A of the Representation of the People Act, 1951 requires the disclosure of only those convictions where a sentence of imprisonment for one year and more had been imposed; and (ii) but that the rules framed in Kerala relating to the elections to Panchayats are more stringent, as they require the disclosure of any involvement in any criminal case. The High Court opined that the Court....
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....learned senior counsel for respondent No.1, the Court is obliged to keep in mind the fact that Section 33B of the Representation of the People Act, 1951, was brought in by the Parliament to nullify the effect of the decision in Association for Democratic Reforms and Anr (supra). But Section 33B was declared unconstitutional in People's Union for Civil Liberties (supra). Relying upon the decision in Resurgence India vs. Election Commission of India and Anr [(2014) 14 SCC 189], it was contended by the learned senior counsel for respondent No.1 that the filing of an affidavit with blank particulars has also been held to be a ground to reject the nomination papers. 13. We have carefully considered the rival contentions. Before we proceed to consider the rival contentions, we must point out that the case on hand relates to an election to the Panchayat held in November-2015. The term of office of the appellant is already over. But if the Judgment of the High Court is found to be correct, the appellant might have incurred a disqualification. Therefore, a decision on merits in this case is not a mere academic exercise and hence we have to deal with the rival contentions. 14. To t....
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....on (1) of Section 102, the election of a candidate can be declared void, under five different contingencies. They are: (i) that the returned candidate was not qualified or was disqualified on the date of his election; (ii) that any corrupt practice has been committed by the returned candidate or his election agent or by any other person with the consent of the returned candidate or his agent; (iii) that any nomination had been improperly rejected; (iv) that the details furnished by the elected candidate under sub- section (1A) of Section 52 were fake; and (v) that the result of the election, insofar it concerns the returned candidate, has been materially affected either by the improper acceptance of any nomination or by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with the provisions of this Act or of any Rules or orders made thereunder. 16. Interestingly, sub-section (1) of Section 102 places the first four contingencies listed in the preceding paragraph, {which are relatable to c....
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.....- The following shall be deemed to be corrupt practices for the purposes of this Act - (1) "Bribery", that is to say, - (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing - (a) a person to stand or not to stand as, or to withdraw or not to from being a candidate at an election, or (b) an elector to vote or refrain from voting at an election, or as a reward to - (i) a person for having so stood, or not stood, or for having withdrawn or not having withdrawn his candidature; or (ii) an elector for having voted or refrained from voting; (B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward - (a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or (b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or....
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....to be a religious symbol or a national symbol for the purposes of this clause. (4) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. (5) The publication by a candidate or his agent or by 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 the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate being a statement reasonably calculated to prejudice the prospects of that candidate's election. (6) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent, or the u....
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....rangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidates election. (9) Booth capturing by a candidate or his agent or other person acting with the consent of the candidate or his election agent. Explanation 1 .- In this section the any expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate. Explanation 2 .- For the purposes of clause (8), a person shall be deemed to assist in the furtherance of the prospects of a candidate's election if he acts as an election agent of that candidate. Explanation 3 .- For the purposes of clause (8), notwithstanding anything contained in any other law, the publication in the Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Government or of a Panchayat shall be conclusive proof - (i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and (ii) where the ....
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.... The election of the returned candidate was challenged in that case under the provisions of Section 259 read with Section 260 of the Tamil Nadu Panchayats Act, 1994. While section 259 of the Tamil Nadu Act dealt with the grounds on which an election can be declared as void, Section 260 of the Act defined what are corrupt practices. Section 259 of the Tamil Nadu Act is similar, though not in pari materia to Section 102 of the Kerala Act and Section 260 of the Tamil Nadu Act is similar to Section 120 of the Kerala Act. Section 259(1) of the Tamil Nadu Act and Section 102(1) of the Kerala Act are presented in a tabular column so that the difference between them can be appreciated: Section 259 of Tamil Nadu Act Section 102 of Kerala Act 259. Grounds for declaring elections to be void (1) Subject to the provisions of sub- section (2), if the District Judge is of opinion - (a) that on the date of his election a returned candidate was not qualified or was disqualified, to be chosen as a member under this Act, or, (b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidat....
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....shnamoorthy arose at a time, place and circumstance (i) when the disclosure regarding criminal antecedents was made mandatory only under the Notifications of the State Election Commission; and (ii) the non-disclosure was not yet made a ground in the Statute, for declaring the election as void. Therefore, the Court found (pro-actively), a provision already available in the Statute at that time, namely 'undue influence in the free exercise of electoral right' and held that the non-disclosure had an undue influence on the free exercise of choice of the voter. 25. The decision of the Madras High Court in Krishnamoorthy, traces the historical perspective of the election law relating to disclosure of criminal antecedents, as follows: (i) In the year 1999, the Association for Democratic Reforms filed a Writ Petition on the file of the Delhi High Court, seeking a direction to the Union of India to implement the recommendations made by the Law Commission in its 170th Report and to make necessary changes under Rule 4 of Conduct of Election Rules, 1961. One of the recommendations made by the Law Commission was for debarring a candidate from contesting an election, if charg....
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.... a Writ Petition filed by the People's Union of Civil Liberties (referred to as "PUCL" in short), under Article 32 seeking certain similar directions. (v) After hearing elaborate arguments, this Court framed two questions, as arising for consideration in the matter and they are as follows :- "(a) Whether the Election Commission is empowered to issue directions, as ordered by the High Court? (b) Whether a voter-a citizen of the country has a right to get relevant information, such as the assets, qualifications and involvement in offences, of candidates, for being educated and informed for judging the suitability of a candidate contesting the election as MP or MLA?" (vi) After referring to various decisions, this Court summed up the legal position in paragraph-46 of its decision. The contents of paragraph-46 of the decision can be summarised in brief as follows :- "(a) The jurisdiction of the Election Commission is wide enough to include all powers necessary for the smooth conduct of the elections, including the entire process of election consisting of several stages and embracing many steps; (b) The limitation on the plenary ....
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....ovable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues. (5) The educational qualifications of the candidate." (viii) Following the above decision, the Election Commission of India decided to amend Forms 2-A to 2-E appended to the Conduct of Election Rules, 1961 and approached the Government of India seeking suitable Amendments. But the ECI was informed by the Government that steps were being taken in consultation with all political parties. Therefore, finding that the time limit fixed by the Supreme Court in the above case was running out, the ECI issued an order bearing No.3/ER/2002/JS-II/Vol-III dated 28.6.2002 under Article 324 of the Constitution. (ix) However, almost simultaneously with the issue of the above order of the ECI, the President of India promulgated an Ordinance known as "Representation of the People (Amendment) Ordinance 2002". The validity of the Ordinance was challenged by the People's Union of Civil Liberties and a few others under Article 32. During the pendency of....
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....ion 33-B of the Representation of the People Act, 1951, brought forth by the Third Amendment Act, 2002, to be unconstitutional. (xi) After this court declared Section 33-B to be unconstitutional, the Election Commission of India issued revised orders dated 27.03.2003 requiring every candidate, at the time of filing his nomination paper for any election to the Council of States, House of the People, Legislative Assembly of a State or the Legislative Council of a State having such a Council, to furnish full and complete information in regard to the matters specified by this Court, in an affidavit, the format whereof was annexed as Annexure-I to the order. 26. Despite the judgment of this Court in PUCL, Section 100 of the Representation of the People Act, 1951 was not amended so as the make the non-disclosure or false disclosure, as one of the grounds for declaring an election as void. Section 100 (1) continues to contain only four grounds for declaring an election void. These four grounds are comparable to clauses (a), (b), (c) and (d) of Section 102 of the Kerala Panchayat Raj Act, 1994. The special feature of the Kerala Act is the insertion of clause (1-A) in Section 52....
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...., with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed commits forgery. [IPC (45 of 1860), S. 463] "A man's signature of his own name may amount to forgery." [IPC (45 of 1860), S. 464, Expln. 1] "While it is true that there is a distinction between fraud and forgery, and forgery contains some elements that are not included in fraud, forgeries are a species of fraud. In essence, the crime of forgery involves the making, altering, or completing of an instrument by someone other than the ostensible maker or drawer or an agent of the ostensible maker or drawer." 37 CJS Forgery S. 2, at 66 (1997). The fraudulent making or altering of an instrument that apparently creates or alters a legal liability of another. The offence of making a false instrument so that it can be accepted as genuine. The fraudulent imitation of a document or the writing or sig- nature of a signatory in order to pass it off as written by another. The fr....
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....orgery or the uttering of a forged instrument as the case may be. [People v. Peacock, 6 Con. (NY) 72] Forgery constitutes fraud, and no legal title passes to the transferee. [Thorappa Devanappa v. Umedmalji, AIR 1924 Bom 205, 87 IC 226, 25 Bom LR 604; Brij Basi v. Moti Ram, AIR 1982 All 323; Banku Behari Sikdar v. Secretary of State for India in Council, (1909) ILR 36 Cal 239; Karachi Bank v. Kodumal Kalumal, AIR 1923 Sind 54; Firm Kalka Pd Ram Charan v. L Kunwar Lal Thapper, AIR 1957 All 104; Kodumal Kalumal v. Karachi Bank Ltd., AIR 1921 Sind 172; Mahabir Prasad Bubna v. Union Bank of India, AIR 1992 Cal 270] Bankers are specially protected under special conditions against claims based on forged documents [See the Negotiable Instruments Act, 1881, S. 85] Since forging prejudices the person whose signature has been forged, no action is maintainable on the promissory note even against the real executant of the note. [Satya Narayan Tewari v. Sital Missir, AIR 1934 Rang 345, 153 IC 631]" 31. A reading of the above entry in the Law Lexicon shows that the word "forgery" has its origin in French, signifying "the framing or fashioning of a thing as the smith....
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....ding at the time of the nomination. 38. Therefore, in the absence of Rule 6 and Form No.2A we could have easily concluded that the case of the appellant will not be covered by Section 52(1A) as he was not involved in any criminal case on the date of the nomination. But Rule 6 and Form No.2A taken together with what the law means to be "fake", makes things difficult for the appellant. 39. We have extracted in paragraph 9 above, the relevant portion of Form No.2A. 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. Therefore, Form No.2A goes far beyond the requirement of Section 52(1A). The appellant admittedly failed to furnish details of his past conviction in Form No.2A. Therefore, the ground on which his election was sought to be declared void, falls squarely within Section 102(1)(ca) of the Act. ....
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....andated by law is a categorical imperative. 94.2. When there is non-disclosure of the offences pertaining to the areas mentioned in the preceding clause, it creates an impediment in the free exercise of electoral right. 94.3. Concealment or suppression of this nature deprives the voters to make an informed and advised choice as a consequence of which it would come within the compartment of direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate. 94.4. As the candidate has the special knowledge of the pending cases where cognizance has been taken or charges have been framed and there is a non-disclosure on his part, it would amount to undue influence and, therefore, the election is to be declared null and void by the Election Tribunal under Section 100(1)(b) of the 1951 Act. 94.5. The question whether it materially affects the election or not will not arise in a case of this nature." 45. 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, th....