Gujarat municipal poll candidates must disclose assets belonging to spouse: Supreme Court

The Supreme Court on Wednesday held that candidates contesting Gujarat municipal elections are required to disclose assets solely by their spouses in their election affidavits [Chandrikaben Kishor Dafda v. State of Gujarat & Anr]

The ruling came in an appeal filed by Chandrikaben Kishor Dafda, who had contested the 2015 Gujarat municipal elections and argued that she was not required to disclose properties standing exclusively in her husband's name.

A Bench of Justice Sanjay Karol and Justice N Kotiswar Singh held that Rule 7A of the Gujarat Municipalities (Conduct of Elections) Rules requires candidates to disclose the assets of themselves, their spouses and their dependants, and does not exclude properties owned solely by a spouse.

"The appellant, in view of the above, had to have disclosed the properties owned by her spouse too," the Bench said.

The dispute stemmed from the 2015 Gujarat municipal elections. A private complainant alleged that Dafda, in the affidavit filed with her nomination papers, had not disclosed several immovable properties standing in her husband's name.

Acting on the complaint, the Additional Chief Judicial Magistrate at Gandhidham took cognisance under Section 125A (penalty for filing a false affidavit) of the Representation of the People Act of 1951 (RPA) and issued summons to Dafda.

Dafda challenged the summons before the Gujarat High Court which declined to quash the proceedings.

The High Court observed that the complaint was still at an early stage and that the Dafda's contention that some of the properties had been agreed to be sold did not transfer title. Therefore, it refused to interfere.

Dafda then approached the Supreme Court.

Before the apex court, Dafda argued that the Magistrate had taken cognisance under the wrong law.

She contended that Section 125A of the RPA applies only to elections to the parliament and State legislatures, whereas municipal elections are governed by the Gujarat Municipalities Act and the Gujarat Municipalities (Conduct of Elections) Rules. It was also argued that the Rules did not require disclosure of properties owned exclusively by her spouse.

The top court agreed that the Magistrate had invoked the wrong statutory provision. It held that Section 125A of the RPA applies only to elections to the parliament and State legislatures and could not be invoked in relation to a municipal election.

However, the Bench rejected Dafda’s argument concerning the disclosure requirements. It held that the Gujarat Rules require candidates to disclose assets belonging to themselves, their spouses and their dependants, including properties standing solely in the spouse's name.

It also held that taking cognisance under the wrong statutory provision was a curable defect and did not, by itself, invalidate the criminal proceedings

The Court reiterated that cognisance is taken of an offence and not of an offender.

“In view of the above, the taking of cognizance itself, even if it was taken under a singular section and that too was erroneous, for it is a well settled principle of law that cognizance is taken of the offence and not people. If the issue is that a false affidavit has been filed in the electoral process, that is an offence against society at large and has to be investigated,” the Court said.

Thus, the Court set aside the Magistrate's order taking cognisance under the Representation of the People Act and remanded the matter to the Magistrate to take cognisance afresh under the appropriate law.

It also clarified that it had expressed no opinion on the merits of the allegations against Dafda. Accordingly, the appeal was disposed of.

Advocate Namit Saxena appeared for Dafda. Advocate Swati Ghildiyal appeared for the State of Gujarat. Advocate Jitendra Kumar Singh appeared for the complainant.

[Read Judgement]