Breaking: SC allows prosecution of Devendra Fadnavis under Section 125 of Representation of People Act
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Breaking: SC allows prosecution of Devendra Fadnavis under Section 125 of Representation of People Act

Murali Krishnan

In a significant judgment, the Supreme Court today held that a case has been made out for the prosecution of Maharashtra Chief Minister Devendra Fadnavis under Section 125A of the Representation of People Act, 1951 for alleged concealment of two criminal cases against him in the election affidavit filed by him in 2014.

A Bench of CJI Ranjan Gogoi and Justices Deepak Gupta and Aniruddha Bose unhesitatingly held that a case has been made for the prosecution of Fadnavis.

It therefore set aside the judgment of Bombay High Court and remanded the matter for trial afresh. The verdict was pronounced in an appeal filed by Satish Ukey against Bombay High Court verdict which had ruled in favour of Devendra Fadnavis.

Fadnavis, who is the current Chief Minister of Maharashtra had contested the elections from Constituency-52, South-West, Nagpur, the State of Maharashtra. He submitted his nomination paper along with the requisite documents and affidavit in prescribed form, Form No. 26 as prescribed under Rule 4A of the Conduct of Elections Rules, 1961.

The affidavit filed in Form No. 26 contained a declaration regarding the information that he was required to submit mandatorily, in particular, the information in terms of Section 33A (1) and (2) of the Representation of the RP Act, 1951. This provision of law required him to disclose information relating to any pending criminal case in which punishment prescribed was of imprisonment for two years or more, and a charge was framed by the Court of competent jurisdiction or those criminal cases in which he was convicted of an offence and sentenced to imprisonment for one year or more.

It was Ukey’s case that Devendra Fadnavis did not disclose the information as required of him under sub-section (1) of Section 33A of the Act of 1951.

According to him, there were two such cases being RCC No. 343 of 2003 (Madanlal Parate v. Shashikant Hastak & ors) involving offences punishable under Sections 217, 218, 425, 466, 467, 468, 470, 474, 506, 109 read with Section 34 of IPC and RCC No. 231 of 1996 (Madanlal Parate v. Devendra Fadnavis) involving an offence punishable under Section 500 IPC in both of which though charge was not framed, the concerned Court of Judicial Magistrate, First Class, Nagpur had taken cognizance. These two cases were not disclosed by Fadnavis in his affidavit, he had submitted.

It was his contention that not only the information relating to pending criminal cases involving offences prescribing punishment of imprisonment of two years or more in which charge was framed, but also such cases in which cognizance was taken by the Court of competent jurisdiction as of the date of filing of the nomination paper was required to be furnished by way of declaration made on affidavit in Form No. 26.

Non-disclosure of these two pending criminal cases was in violation of Section 125A of the Act of 1951 and constituted an offence envisaged by this provision of law, he had contended.

In order to buttress his case, Satish Ukey had relied on prescribed form of the affidavit in Form 26 (prescribed pursuant to Rule 4A) which, according to him, was amended in the year 2012. It has a clause which requires disclosure by the candidate of pending criminal cases in which cognizance has been taken by the Court.

On the other hand, Fadnavis had argued that an offence under Section 125A of the Act of 1951 is constituted only when the information required under Section 33A (1) is concealed or suppressed or submitted in a false manner.

He had submitted that the allegation made by the respondent relates to concealment of an information of two pending criminal cases in which cognizance was taken by the trial Court. However, sub-section (1) of Section 33A of the Act of 1951 mandates disclosure of only that pending criminal case in which offence involved is punishable with imprisonment for two years or more and the charge has been framed. He further submits that a pending criminal case in which only cognizance is taken by the Magistrate and no charge is framed is not the case covered by this provision of law. Since, such criminal cases were not within the scope of Section 33A, there could be no case made out under Section 125, it was argued.

The Judicial Magistrate First Class had accepted contention of Fadnavis and turned down the plea but the same was reversed by Principal District and Sessions Judge, Nagpur.

On appeal, the High Court had accepted the contention of Fadnavis on requirements under Section 125 and Section 33A.

Regarding the clause in Form 26, the High Court had ruled while it does have a clause mandating disclosure as contended by Ukey, the same can be only for some other purpose and not for the purpose contemplated under Sections 125 and 33A. Hence, no disclosure of what is mandated under the Form will not attract Section 125 which will be attracted only upon non-disclosure of what is prescribed under Section 33A.

The High Court had, therefore, set aside the order of Principal District and Sessions Judge leading to the current appeal in Supreme Court.

The Supreme Court today held that after amendment to Form 26, it is mandatory to disclose information relating to cases in which cognizance has been taken by the court and not just cases in which charges have been framed.

“…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.”

The above position is also clear from the letters written by the Election Commission of India to the Chief Electoral Officer of all the States and the Union Territories.

A reading of the said letters would go to show that a contesting candidate is mandated to furnish information concerning the cases in which a Competent Court has taken cognizance along with the cases in which charges have been framed. The said letters also make it clear that the affidavit mentioned in Section 33-A(2) of the 1951 Act is prescribed in Form-26 and that any false declaration or concealment of information in the said affidavit will attract the provisions of Section 125-A of the 1951 Act, the Court held.

The Court, therefore, set aside the judgment of the Bombay High Court.

.”..in view of the clear averment made in the complaint to the effect that the First Respondent had knowledge of the two cases against him which had not been mentioned in the affidavit filed by the First Respondent alongwith his nomination papers, we unhesitatingly arrive at the conclusion that the order of the learned trial Court upheld by the High Court by the impugned judgment and order dated 3rd May, 2018 is legally not tenable and the same deserves to be set aside which we hereby do.”

The complaint of the appellant will now be considered afresh by the learned trial Court from the stage where it was interdicted.

[Read the Judgment]

Devendra-Fadnavis-Judgment-SC-Oct-1-2019.pdf
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