—
Madhya Pradesh High Court
Dr. Govind Singh vs Mr. Jyotiraditya M. Scindia on 15 February, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON’BLE SHRI JUSTICE MILIND RAMESH
PHADKE
ELECTION PETITION No. 2 of 2020
BETWEEN:-
DR. GOVIND SINGH S/O LATE MATHURA SINGH,
AGED-69 YEARS, RESIDENT OF HOUSE NO.61
VILLAGE VAISHPURA POST VAISHPURA TEHSIL
LAHAR DISTT. BHIND (MADHYA PRADESH)
…..PETITIONER
(BY SHRI ANOOP G. CHAUDHARY WITH SHRI KUBER BODH (VC)
AND SHRI MANAS DUBEY (PHYSICAL) -ADVOCATES)
AND
1. MR. JYOTIRADITYA M. SCINDIA S/O SHRI
LATE MADHAVRAO J. SCINDIA, AGED-49
YEARS, RESIDENT OF 1, JAI VILAS LASHKAR
TESIL GWALIOR DISTT. GWALIOR (MADHYA
PRADESH)
2. ELECTION COMMISSION OF INDIA
(DELETED) THR. THE CHIEF ELECTION
COMMISSIONER NIRVACHAN SADAN,
ASHOKA ROAD (DELHI)
3. CHIEF ELECTORAL OFFICER (DELETED)
THR. THE ELECTION COMMISSIONER
NIRVACHAN SADAN, 17, ARERA HILLS
BHOPAL (MADHYA PRADESH)
4. SHRI SUMER SINGH SOLANKI G1, NEW
OFFICERS COLONY BARWANI, (MADHYA
PRADESH)
5. SHRI DIGVIJAY SINGH , B1, SHYAMLA HILLS
BHOPAL (MADHYA PRADESH)
6. SHRI PHOOL SINGH BARAIYA, 20, NEW JIVAJI
NAGAR THATIPUR GWALIOR (MADHYA
PRADESH)
2
…..RESPONDENTS
(BY SHRI NAMAN NAGRATH, SR. ADVOCATE WITH SHRI
SOUMYA PAWAIYA AND SHRI SANJAY SHUKLA- ADVOCATE FOR
R-3 (VC), SHRI DEVRAJ DIXIT- ADVOCATE FOR R-3 (PRESENT))
——————————————————————————
Reserved on 14/12/2023
Delivered on 15/02/2024
——————————————————————————
This petition coming on for hearing this day, Hon’ble
Shri Justice Milind Ramesh Phadke passed the following:
ORDER
1. Instant Election Petition under Section 80, 100 (1) (b) and
(d) and 123 of the Representation of People Act, 1951 (herein
referred to as “Act of 1951”) had been filed by the election
petitioner Dr. Govind Singh challenging the candidature of
Respondent No.1 Jyotiraditya M. Scindiya, as returned
candidate of Bhartiya Janta Party from State of Madhya Pradesh,
in the Biennial Elections to the Council of States (Rajya Sabha)
in the parliamentary elections held on 19.06.2020. The said
elections are put to challenge on the ground that while
submitting nomination paper along with the affidavit, returned
candidate i.e. Respondent no.1 had not disclosed particulars or
information regarding registration of an FIR lodged against him
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and others vide crime no.176/2018, on 27.09.2018 at Police
Station Shyamla Hills, Bhopal for commission of offences
punishable under Sections 465, 468, 469, 471, 472, 474 120-
B of IPC.
2. Brief facts of the case: Election Commission of India
had issued a “Press Note” no. ECI/PN/26/2020 dated 25.02.2020
that the term of office of 55 Members of Rajya Sabha elected
from 17 States is due to expire in the month of April, 2020 and
in lieu of that the Commission notified the election program in
respect of Biennial Elections to the Council of State of Madhya
Pradesh along with other states. The ‘Press Note’ was uploaded
by the Election Commission on its site having web address
‘eci.gov.in.’. As per the said notification, the election was
scheduled to be held as under:
S.NO. EVENTS DATES
1 Issue of notifications 06th March, 2020 (Friday)
2 Last date of making 13th March, 2020 (Friday)
nominations
3 Scrutiny of nominations 16th March, 2020
(Monday)
4 Last date for withdrawal of 18th March, 2020
candidatures (Wednesday)
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5 Date of Poll 26th March, 2020
(Thursday)
6 Hours of Poll 09:00 am to 04:00 pm
7 Counting of Votes 26th March, 2020
(Thursday) at 05:00 pm
8 Date before which election 30th March, 2020
shall be completed. (Monday)
3. Pursuant to the ‘Press Note’ dated 25.02.2020, the
Parliamentary Bulletin of Rajya Sabha dated 06.03.2020
No.59830 was released which read as, “….Members are
informed that the Election Commission of India vide their
notification no.318/CS-Multi/2020(1) dated 6 th of March, 2020,
have fixed the program for Biennial elections to the Rajya Sabha
in the States of Andhra Pradesh, Assam, Bihar, Chhattisgarh,
Gujarat, Haryana, Himachal Pradesh, Jharkhand, Madhya
Pradesh, Maharashtra, Manipur, Meghalaya, Odisha, Rajasthan,
Tamil Nadu, Telangana and West Bengal….”. The said
Parliamentary Bulletin was also thereupon uploaded on the
official website of the Election Commission.
4. Bhartiya Janta Party named present Respondent No.1 as
its Rajya Sabha candidate for the said Biennial Elections for the
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State of Madhya Pradesh for the year, 2020. On 13.03.2020 the
nomination form was submitted by Respondent No.1 before the
returning officer and the said nomination form along with
affidavit was uploaded by the Chief Election Officer on the
official website of the Election Commission.
5. Thereafter, Shri Digvijay Singh (proforma respondent
no.5) filed objections to the nomination form filed by
Respondent No.1 on 16.03.2020 before Returning Officer,
claiming that the nomination form of Respondent No.1 should
be rejected as he has deliberately furnished false information in
his affidavit about his pending criminal case,as he had stated
that there is no criminal case pending against him. Respondent
No.1 replied to the said objections on 17.03.2020, wherein it
was averred that he had no knowledge about the registration of
the said FIR, the objections raised by Shri Digvijay Singh are
not maintainable in this scrutiny proceedings, the only remedy
available to him is to agitate his grievance by way of election
petition and as Representation of People Act mandates to
disclose only those pending cases in which charges have been
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framed and herein no charge has been framed so far, therefore,
non-disclosure of registration of F.I.R is of no consequence.
6. The returning officer accepted the nomination form of
Respondent No.1 on 17.03.2020, observing that “…. the duty of
Returning Officer is only to see whether all the columns are
filled or not by the candidates and there is no furnishing of false
information and it is the duty of the competent court to look into
the matter and it can be agitated under Section 125-A of the Act
of 1951…” On 19.03.2020, the Election Commission passed an
order that looking to the prevailing unforeseen situation of
public health emergency, which indicates the need for avoidance
of possibilities of gatherings of any nature, as it may expose all
concerned to possible health hazard and in the light of the said
order the period of the said election was extended invoking the
provisions of Section 153 of the Act of 1951, with a further
stipulation that the fresh date of pole shall be announced soon
after reviewing the prevailing situation.
7. On 24.03.2020 and 03.04.2020 Election Commission
again passed similar order’s and while exercising powers under
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Section 153 of the Act of 1951 further extended the period of
said election.
8. It was only on 01.06.2020 that the Election Commission
announced the date of deferred Rajya Sabha elections to be held
on 19.06.2020, while maintaining that the Commission has
reviewed the matter in detail, considering all the factors,
including guidelines dated 30.05.2020 issued by Union Home
Secretary and Chairman, National Executive Committee under
the National Disaster Management Act, 2005 and taking into
account the inputs obtained from the Chief Electoral Officers
concerned that the date of poll and counting of votes in respect
of the Biennial Elections for 18 seats including Madhya Pradesh
(3 seats), shall be as per the following schedule:
Events Date
Date of Poll 19th June, 2020 (Friday)
Hours of Poll 09:00am to 04:00 pm
Counting of Votes 19th June, 2020 (Friday) at 05:00 pm
Date before which 22nd June, 2020 (Monday)
election shall be
completed.
9. Thereafter, as per the Schedule the voting took place on
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19.06.2020 by the members of assembly of Madhya Pradesh and
after the voting was over on the same day i.e. 19.06.2020 under
the Conduct of Elections Rule, the Returning Officer declared
the results of the Biennial Elections of the Council of States
stating that, “….in pursuance of the provisions contained in
Section 66 of the Representation of the People Act, 1951 r/w
Clause (a) sub-Rule (1) of Rule 84 of the Conduct of Elections
Rules, 1961, I declare that: Shri Jyotiraditya M. Scindia
sponsored by Bhartiya Janta Party, Shri Digvijay Singh
sponsored by Indian National Congress, Shri Sumer Singh
Solanki sponsored by Bhartiya Janta Party have been duly
elected to fill the seats in the house of three members going to
retire on 09.04.2020 on the expiration of their term of office…..”
10. Along with the aforesaid, the Returning Officer has also
declared the number of votes received by all the candidates, the
details of which are as under:
Name of the Votes Polled by each Elected/Not
candidates candidate elected
Shri Jyotiraditya M. 5600 Elected
Scindia
Shri Digvijay Singh 5700 Elected
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Shri Phool Singh 3600 Not-Elected
Baraiya
Shri Sumer Singh 5500 Elected
Solanki.
11. The said result along with certificate of election were
uploaded by the Election Commission on its official website.
After declaration of the results the present petitioner
downloaded the affidavit of Respondent No.1 from the official
website of the Chief Election Officer of Madhya Pradesh and
procure the documents from present respondent no.5 and found:
(i) One Mr. Santosh Sharma on 23.09.2018 had filed a complaint
under section 200 CrPC read with Section 156(3) CrPC before
the Ld. Special Judge (MP MLA), Bhopal, MP, against (1)
Shri Digvijay Singh i.e. Performa Respondent no. 5 herein, (2)
Prashant Pandey, (3) Shri Kamalnath, and (4) Mr. Jyotiraditya
M. Scindia/Respondent No.1 herein, requesting to register an
F.I.R against them under sections 465, 468, 469, 471, 472, 474
120-B of IPC at Police Station Shyamla Hills, Bhopal.
(ii) The Ld. Special Judge (MP MLA), Bhopal, MP after
hearing the arguments on 24.09.2018 had directed the police
10officer to file the status report on 26.09.2018.
(iii) On the same date i.e. 26.09.2018, after hearing the
application filed under section 156(3) CrPC, had applied his
judicial mind and being satisfied that offences are made out,
prima facie directed the police officer to register an F.I.R against
(1) Shri Digvijay Singh i.e. Performa Respondent no. 5 herein,
(2) Prashant Pandey, (3) Shri Kamalnath, and (4) Mr.
Jyotiraditya M. Scindia/Respondent No.1 herein, under sections
465, 468, 469, 471, 472, 474 120-B.
(iv) Under the directions given by the Ld. Special Judge (MP
MLA), Bhopal, Madhya Pradesh on 27.09.2018, police
authorities registered an F.I.R being FIR No. 176/2018 against
all the four persons.
(v) Various newspapers like Danik Bhasker, Patrika, Hindustan
Times, Indian Express, etc., published the above said news
some of the newspaper also published the photographs on
27/28.09.2018 of Respondent No.1. Moreover, Respondent No.1
herein also responded to the said news while commenting,
‘…false case has been registered against us.’, therefore, the
11registration of F.I.R No. 176/2018 dated 27.09.2018 was in his
special/personal knowledge of Respondent No.1.
12. Since there were clear directions issued by the Election
Commission that all the contesting candidates will have to
furnish all the requisite and correct details mentioned in the
declaration form in support of his/her declaration made in the
nomination form. Thus, all the information contained in that
form was mandatorily required to be filled in that form, but
Respondent No.1 furnished false information in his affidavit:
(I) In Clause 5 (i) of Part-A of the Affidavit Respondent No.1
has ticked the clause which stated that “I declare that there is no
pending criminal case against me”, whereas, he was required to
tick clause 5 (ii) of Part-A of the Affidavit which states that
following criminal cases are pending against him.
(II) In Clause 5 (ii) of Part-A of the Affidavit Respondent no.1
has mentioned ‘Not Applicable’, whereas, he should have filled
the details of F.I.R No. 176/2018 dated 27.09.2018 which was in
his Special/personal knowledge.
(III) In Point 5(ii) (a) of Part-A of the Affidavit, which pertains
12to: “FIR No. with name and address of Police Station
concerned” it had been mentioned by Respondent no.1 as ‘N.A.’,
whereas, he was supposed to furnish the details of the F.I.R No.
176/2018 dated 27.09.2018 registered at Police Station Shyamla
Hills, Bhopal.
(IV) In point 5(ii) (c) of Part-A of the Affidavit, wherein
“Section(s) of concerned Acts/Codes involved (give no. of the
Section, e.g. Section…of IPC, etc.) it was mentioned by the
respondent no.1 as ‘N.A.’, whereas, the details of the sections
involved were required to be furnished.
(V) In point 5(ii) (d) of Part-A of the Affidavit, wherein, “Brief
description of offence”, but Respondent no.1 again mentioned as
‘N.A.’, whereas the brief descriptions of the offences registered
against him i.e. creating forged and fabricated digital records
used the same as genuine with an intent to cause injury falsely
implicate the highly placed public servants for gaining public
mercy” was required to be mentioned.
(VI) In Clause 11 (5) of Part-B of the Affidavit, wherein “Total
Number of pending criminal cases”, were required to be
13mentioned but Respondent no.1 had mentioned as ‘NIL’,
whereas, he had to furnish the total number of pending criminal
cases against him and if the above F.I.R was a solitary incident,
he was required to furnish the details.
(VII) Respondent No.1 had made a false verification in the
affidavit while he sworned that “…there is no pending case
against me…”.
(VIII) Verification date has been left blank.
(IX) In the affidavit signatures of the Respondent No.1 has not
been identified by anyone.
13. Thus, the petitioner upon scrutiny of the documents
procured by him found that the Respondent No.1 had furnished
false information on oath while he was having full knowledge of
the F.I.R No.176/2018 and, therefore, it was crystal clear that
thoughRespondent No.1 had full/special/personal knowledge
about the aforesaid F.I.R, he had suppressed the said fact by not
disclosing the same in his affidavit, which tantamount to fraud
and corrupt practice and since as per the provisions contained in
the Section 33-A of the Act of 1951 the candidates were required
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to fill the details in the prescribed form and the nomination
form/affidavit in Form-26 contains the details of the criminal
antecedents to be disclosed, giving false affidavit in that regard
amounts to undue influence as defined under sub-Section 2 of
the Section 123 of the Act of 1951 and it can, therefore, be said
that Respondent No.1 had committed corrupt practice, thus, on
this account the Election is required to be held to be void under
Section 100 (1) (b) and (d) of the Act of 1951.
14. Further as per Section 123 (2) of the Act of 1951 since
undue influence amounts to corrupt practice which is one of the
grounds for declaring the elections to be void, concealment of
criminal antecedents in the affidavit amounts to using undue
influence on the voters, as the electors voting for such a
candidate may vote for him under mistaken belief formed on the
basis of the disclosure made by him of his criminal antecedents,
hence the same amounts to corrupt practice. Further, as the
affidavit sworn by the candidate has to be put in, in the public
domain so that the electorate can know the factual truth about
the candidate and if they know only the half-truth, it is
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dangerous for the electorate, as they are denied of the
information which is in the special knowledge of the candidates,
which may lead to a candidate getting elected having a criminal
background and this may also be said to be an attempt to
misguide the electorate and keep them in dark and such type of
attempt undeniably and un-disputedly is undue influence and,
therefore, amounts to corrupt practice.
15. The Election Commission of India vide its letter dated
10.10.2018 had informed the Chief Electoral Officers of all the
States and Union Territories that in pursuance of the directions
of the Hon’ble Supreme Court in W.P.(Civil) No.784/2015 titled
as Lok Prahari vs. Union of India and Ors. and in W.P.
(Civil) No.536/2011 titled as Public Interest Foundation and
Ors. vs. Union of India and another, the candidates at all
elections are required to file affidavit in Form-26 along with
nomination paper, declaring information about criminal cases,
assets, liabilities and educational qualifications.
16. On 26.04.2014, the Election Commission of India had
further made it clear that the false declaration or concealing of
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information in the affidavit in Form-26 will attract the provision
of Section 125-A of the Act of 1951 and under the said Section
125-A of the Act of 1951 furnishing any false information or
concealing of information in the affidavit in Form-26 is an
electoral offence. In the said letter it was further stated that it
would be open to any aggrieved person to move petition before
the appropriate Court of competent jurisdiction for action under
Section 125-A of the Act of 1951 in the case of any false
declaration or concealing of information in the affidavit in
Form-26. Further Article 173 of the Constitution of India
mandates that any person, who wants to be a Member of
Legislature of a State, must bear true faith and allegiance to the
Constitution of India as by law established and undertake to
uphold the sovereignty and integrity of India, and to ensure this,
he must make an oath or affirmation and once such an oath or
affirmation is made before a competent authority, he becomes
bound by that oath/affirmation.
17. The Election Commission of India had also issued a
handbook for Returning Officers for the Elections of the
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Councils of the State and State Legislative Councils which has
been updated in the month of February, 2019 and Clause 5.16 to
5.20 of the said handbook deals with the provisions of affidavit
and the manner of making oath. Clause 5.17.8 of the handbook
lays down that “….the oath of affirmation has first to be made
and then signed by the candidate before the authorized
person….”, which impliedly bourn’s in mind that mere signing
on the paper on which the form of oath is written is not
sufficient, the candidate must make the oath before the
authorized person. The latter should ask the candidate to read
aloud the oath and then to sign and give the date on the paper on
which it is written, if the candidate is illiterate or unable to read
the form the authorized person should read out the oath and ask
the candidate to repeat the same and, thereafter, take his
signatures or thumb impression, as the case may be, on the form.
In all cases, the authorized person should endorse on the form
that the oath of affirmation has been made and subscribed by the
candidate on that day and hour….” The said clause makes it clear
that the affidavit has to state correct and true particulars of each
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and every fact including the criminal antecedents of the
candidates and since Respondent No.1 has willfully concealed
the information, he has violated the law of the land.
18. As the Respondent No.1 has been declared elected on
19.06.2020, therefore, the present petition on the basis of the
aforementioned facts came to be filed on 25.07.2020 alleging
the cause of action for filing the present petition arisen on
13.03.2020 when the Respondent No. 1 had filed his nomination
form along with affidavit before Returning Officer, with a
further cause of action stating to have arose when the Returning
Officer accepted the nomination form of Respondent No.1 on
17.03.2020. The cause of action further arose when the
Respondent No.1 was declared elected on the same day i.e. on
19.06.2020 by the Returning Officer, as Respondent No.1 had
filed the false affidavit before the Returning Officer while
intentionally/knowingly concealing his criminal antecedents and
got elected on the basis of false affidavit, therefore as the cause
of action still continued, on the aforesaid premise the present
election petition came to be filed.
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19. A written statement has been filed on behalf of
Respondent No.1 wherein apart from para wise reply to the
election petition, preliminary objections have been taken,
alleging the filing of the said election petition to be an abuse of
process of law, thus, prayed for its dismissal with exemplary
costs.
20. It was admitted by Respondent No.1 that in pursuance to
the directions issued by learned Special Judge (MP and MLA)
Bhopal vide order dated 26.09.2018 one F.I.R was registered
against the respondents at Police Station, Shyamla Hills, Bhopal
vide Crime No.176/2018 under Sections 465, 468, 469, 471,
472, 474 and 120-B of IPC, but was averred that firstly mere
issuance of directions to register F.I.R under the provisions of
Section 156(3) of Cr.P.C does not amount to taking cognizance
as while dealing with an application under Section 156 (3) of
Cr.P.C the Magistrate may either straightway direct registration
of F.I.R or may take cognizance and proceed to record pre-
summoning evidence under Section 200 of Cr.P.C and if the
Magistrate takes cognizance at that stage, then he is required to
20
proceed to record pre-summoning evidence of the complainant
and his witnesses and it is only, thereafter, it would/could either
issue summons under Section 204 or reject the complaint under
Section 203, as the case may be and since the Magistrate in the
present case had simply directed the police for registration of
F.I.R under Section 156 (3) and to investigate the matter in
terms of chapter XII of Cr.P.C, then such an order does not
amount to taking cognizance under Section 190 and/or Section
200 of Cr.P.C., and would not amount to pendency of a criminal
case.
21. In the reply it was further averred that since the order
dated 26.09.2018 does not amount to taking cognizance, the
present FIR does not fall under the category of ‘Pending
Criminal Case’ and the disclosure of a mere F.I.R under the
prescribed Form-26 is neither necessitated, nor mandated by
law. Further it was averred that registration of F.I.R under
Section 154 of the Cr.P.C. is the mere inception point of an
investigation under Chapter XII of the Cr.P.C. It may or may not
culminate into a Final Report as prescribed under Section 173 of
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the Code, thus mere registration of F.I.R by itself does not
constitute a ‘Pending Criminal Case’ as neither has any criminal
court taken cognizance at that stage, nor has any process or
summons been issued to the accused person under Section 204
and it may be possible that the investigation may culminate into
a Closure Report and no cognizance is taken by the court at all.
Further, it was averred that assuming (without conceding) that
an order directing registration of F.I.R amounts to taking
cognizance, registration of such F.I.R by way of such order still
does not amount to a ‘Pending Criminal Case’, in as much as no
process or summons have been issued by the Court under
Section 204 at this stage and the term ‘Pending criminal case”
for the purposes of disclosure under Form 26 has to be
understood in terms of Section 33-A the Representation of
People Act 1951. Secondly, without prejudice, in any event the
Respondent No.1 had no knowledge of either the order dated
26.09.2018 passed by learned Special Judge (MP and MLA),
Bhopal while hearing an application u/s 156(3) of Cr.P.C. or of
F.I.R No.176/2018 registered at P.S. Shyamla hills, Bhopal, in
22pursuance to the said order, as no notice/ summons were issued
to him by the Court directing registration of F.I.R. and even no
notice under Section 41A of the Cr.P.C was ever issued to him at
the relevant point of time by the Police and Respondent No.1
had no knowledge of the F.I.R No.176/2018 registered at P.S.
Shyamla hills, Bhopal, thus, there was no occasion for him to
disclose the same.
22. It was further averred therein that all the allegations of the
petitioners are based upon the contentions and arguments solely
on the basis of his concocted and mis-construed interpretation of
phrase “Pending Criminal Case” which significantly is the
heading of point 5 (i) (ii) of Form-26, wherein a potential
candidate is required to disclose his criminal antecedents to the
electorate and one entry in Form-26 has been singled out and is
being relied, out of context, only to create a legal illusion that
details of every FIR, known or unknown, registered against any
potential candidate in any corner of the country in which
cognizance has not been taken, is also required to be
mandatorily disclosed under the applicable laws, whereas, the
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true and only context in which the said details are required are
criminal cases which are “pending” in a court of law and if the
said contention of the petitioner is accepted then a political
candidate may be harassed by anyone merely by lodging an F.I.R
at some far-off distant place of the country of which such
political candidate may not even have knowledge.
23. It was further averred that Form-26 was required to be
read in consonance with Section 33A of the Act of 1951, as
Section 33A makes it clear that disclosure is required of pending
cases in which a charge has been framed by the Court of
competent jurisdiction, but in the present case, admittedly, the
charge-sheet has not been filed pursuant to an investigation and
when charges have not been framed by a competent Court it
does not amount to pending of criminal case. On the basis of the
aforesaid averments, para wise reply had been submitted to the
election petition and the aforesaid averments had been reiterated
in detail and it was thus, prayed that the present election petition
be dismissed with exemplary cost.
24. Vide I.A. No.1400/2023 various issues were proposed by
24
the Election petitioner. This Court while disposing of the said
I.A. on the basis of the pleadings of the parties and looking to
the crux of the controversy, vide order dated 17.03.2023 had
framed a legal preliminary issue which goes to the root of the
matter and reads as under:
“Whether registration of FIR vide Crime
No.176 of 2018 against the respondent No.1 at
Police Station Shyamla Hills, Bhopal for
commission of offences punishable under
Sections 465, 468, 469, 471, 472, 474 and 120-
B of IPC comes within the purview of
“pendency of criminal case” or not, as per
Form 26 under Rule 4-A of the Act, 1951?”
Arguments:
25. Learned senior counsel Shri Anoop G. Chaudhary along
with Shri Kuber Bodh, Senior Advocate (through VC) and Shri
Manas Dubey, who is present in the Court, had vehemently
canvassed before this Court that the Election Commission of
India in pursuance to the judgment of the Hon’ble Supreme
Court in the case of Public Interest Foundation and Ors vs.
Union of India and another reported in 2019 (3) SCC 224 had
25
issued various directions with respect to furnishing of all the
details required to be mentioned in the Form-26. While referring
to para 116.1 of the Judgment, it was contended that each
contesting candidate was mandatorily required to fill up the
form as provided by the Election Commission and the form was
to contain all the particulars as required therein.
26. It was further contended that Form-26 was amended vide
Ministry of Law and Justice notification no. S.O.5196 (E) dated
10.10.2018 and a missive (an official letter) was sent by the
Election Commission to the Chief Electoral Officers of all the
States and Union Territories instructing that “…the candidates at
all elections are required to file affidavit in Form-26, along with
nomination paper, declaring information about their criminal
cases, assets, liabilities and educational qualifications. The said
Form-26 has now been amended vide Ministry of law Justice
Notification No. H.11019(4)/2018-Leg.II, dated 10th October,
2018. The amendments made in Form-26 are in pursuance of the
directions in the judgments of the Hon’ble Supreme Court in
Writ Petition (C) No. 784/2015 (Lok Prahari vs. Union of
26
India Others) and Writ Petition (C) No. 536/2011 (Public
Interest Foundation Ors. vs. Union of India Anr.)and the
candidates are now required to file the affidavit in the amended
Form-26 as per the directions given in the judgment Public
Interest Foundation (supra).
27. It was further submitted that in pursuance to the
aforementioned judgments, the Commission after due
consideration had given directions to be followed by the
candidates at elections to the Houses of Parliament and Houses
of State Legislatures who have criminal cases against them,
either pending cases or cases of conviction in the past, with
further directions to circulate the said letter to all the DEOs,
ROs in the State/Union Territory for necessary action on their
part and shall also be circulated to all the political parties based
in the State, i.e. the State Units of the recognized parties and
recognized State parties of other States and all registered un-
recognized political parties with headquarters based in the
respective State/Union Territory, with instructions to take note
of the above directions and the amendments in Form- 26…”.
27
28. It was further submitted that on 05.11.2018 another
missive was issued by Election Commission of India to the
Chief Electoral Officers of Madhya Pradesh and to all
recognized National and State political parties in that regard and
again on 28.02.2019 another missive was issued. It was further
submitted that on 19.03.2019 in a missive issued by the Election
Commission to Chief Electoral Officers of all the State and
Union Territories, attention was invited to the earlier directions
issued vide letter dated 10.10.2018 that in pursuance to the
judgment of the Hon’ble Supreme Court in W.P. (c) No.536 of
2011 and also FAQs, clarifications, in view of the various
queries raised in this regard were forwarded in which the FAQ
No.8 which supplied “Whether FIR cases have to be published
by the concerned candidate and political parties?” was
answered as “Yes” under the heading “Case No. and Status of
Case” and therefore, details regarding F.I.Rs mentioned in Item
no.5 of Form-6, was required to be mentioned.
29. It was further submitted that time and again the Hon’ble
Supreme Court has observed that the information to be furnished
28
under Section 33A of the Act of 1951 includes not only
information mentioned in Clause (i) (ii) of Section 33A(1), but
also information, that the candidate is required to furnish, under
the Act or Rules made there under and such information should
be furnished in Form-26 and the said intention of the legislature
as expressed in Section 33A of the Act, 1951 is in tune with the
judgment of the Hon’ble Supreme Court in the case of Public
Interest Foundation (supra).
30. Further learned senior counsel had placed reference in the
matter of Brajesh Singh vs Sunil Arora case reported in 2021
(10) SCC 241, wherein it has been held that the purpose of
disclosure of criminal antecedents makes the election a fair one
and the exercise of the right of voting by the electorate also gets
sanctified and it has to be remembered that such a right is
paramount for a democracy. A voter is entitled to have an
informed choice and if his right to get proper information is
scuttled, in the ultimate eventuate, it may lead to destruction of
democracy because he will not be an informed voter having
been kept in the dark about the candidates who are accused of
29
heinous offences. Further reliance was placed in the matter of
Satish Ukey vs. Devendra Gangadhar Rao Fadnavis, (2019)
9 SCC 1, wherein it has been held that, “…A cumulative reading
of Section 33A of the 1951 Act and Rule 4-A of the 1961 Rules
and Form 26 along with the letters dated 24.08.2012, 26.09.2012
and 26.04.2012, in our considered view, makes it ample clear
that the information to be furnished under Section 33A of the
1951 Act includes not only information mentioned in clause (i)
and (ii) of Section 33A(1), but also information, that the
candidate is required to furnish, under the Act or the Rules made
there under and such information should be furnished in Form-
26, which includes information concerning cases in which a
competent court has taken cognizance. This is apart from and in
addition to cases in which charges have been framed for an
offence punishable with imprisonment for two years or more or
cases in which conviction has been recorded and sentence of
imprisonment for a period of one year or more has been
imposed…”.
31. In the aforesaid regard reliance was further placed in the
30
matter of People’s Union for Civil Liberties vs. Union of India
reported in 2013 (10) SCC 1 and the in the matter of
Resurgence India vs. Election Commission of India and
another reported in 2014 (14) SCC 189.
32. Learned Senior counsel also referred to one of the
judgments of the Delhi High Court in the matter of Yogender
Chandolia vs. Vishesh Ravi and Ors passed in Election
Petition No.10/2020 decided on 24.12.2021, wherein while
dealing with the similar issue of non-disclosure by the
concerning about the pendency of the F.I.R registered at Police
Station, Paharganj, Delhi in Form-26, it was observed that
disclosure of FIR is in addition to the disclosure of information
qua pending criminal case, therefore, the assertions made in the
election petition have to be viewed in the broad framework of
law, as enunciated by the Supreme Court and thus, it was
incumbent upon Respondent No.1 to have disclosed the
registration of F.I.R.
33. While taking this Court through the unamended Form-26
and amended Form-26, learned Senior Counsel asserted this
31
Court to appreciate that after insertion of Section 33A of the Act
1951, the Election Commission from time to time has changed
the Form -26 after considering the needs for disclosure of
criminal antecedents of the candidates which also includes
disclosure of F.I.R if the candidate is having full/special
knowledge of its registration. The reference made by the learned
Senior Counsel of the Forms makes it necessary for this Court to
quote the unamended Form-26 and amended Form-26 which are
quoted herein below:
34- Unamended Form-26:-
5. I am/am not accused of any offence(s) punishable with
imprisonment for two years or more in a pending case(s)
in which a charge(s) has/have been framed by the Court(s)
of competent jurisdiction.
If the deponent is accused of any such offence(s), he shall
furnish the following information-
(i) The following case(s) is/are pending against me in
which charges have been framed by the Court for an
offence punishable with imprisonment for two years or
32
more-
(a) Case/First Information Report No./Nos together with
complete details of police station/district/state
concerned.
(b) Section(s) of the Act(s) concerned and short
description of the offence(s) for which charged.
(c) Name of the Court, Case No. date of order taking
cognizance.
(d) Court(s) which framed the charge(s).
(e) Date(s) on which the charge(s) was/were framed.
(f) Whether all or any of the proceeding(s) have been
stayed by any court(s) of competent jurisdiction.
(ii)The following case(s) is/are pending against me in
which cognizance has been taken by the Court (other than
the cases mentioned in Item (i) above.
(a) Name of the Court No, and date of order taking
cognizance.
(b) The details of cases where the Court has taken
cognizance, section(s) of the Act(s) and description
of the offence(s) for which cognizance taken.
(c) Details of appeal(s)/application(s) for revision (if
any) filed against the above order(s).
35. Amended Form 26:-
(5) Pending Criminal Cases:-
(i) I declare that there is no pending criminal case against
me. (Tick this alternative if there is no criminal case
33pending against the Candidate and write NOT
APPLICABLE against alternative (ii) below)
(ii) The following criminal cases are pending against
me. (If there are pending criminal cases against the
candidate, then tick this alternative cad score off
alternative (i) above, and give details of all pending cases
in the Table below)
(a) FIR No. with name and address of police
station concerned.
(b) Case No. with name of the Court
(c) Section(s) of Concerned Acts/Codes involved
(give no. of the Section, e.s. Section of IPC,
etc.)
(d) Brief description of Offence.
(e) Whether charges have been framed (mention
YES or NO)
(f) If answer against (e) above is Yes, then give
the date on which charges were framed
(g) Whether any Appeal/Application for revision
has been filed against the proceedings
(Mention YES or NO)
36. Referring to the amended Form 26, learned Senior counsel
argued that the legislature intended for all the contesting
candidates to disclose all the information/special knowledge
34
which the candidates have in his/her personal capacity with
regard to criminal antecedents and for that a separate column of
F.I.R, with name and address of police station had been inserted
in the table, which is required to be filled by the contesting
candidates, thus, when the Constitution Bench of the Hon’ble
Apex Court has mandated the requirement of filing of affidavit
in Form-26 along with nomination paper declaring information
about criminal cases, qualifications etc. and in view of the
amended Form 26 it was required for the Respondent No.1 to
have mentioned the F.I.R number, name and address of the
police station concerned etc. and in absence thereof it would
tantamount to undue influence and as fall out to corrupt practice.
37. With regard to the preliminary issue framed by this Court
on 17.03.2023 learned Senior Counsel while criticizing the same
had argued that it is per-incuriam as it has been framed in
ignorance of law laid down by the Constitution Bench of
Hon’ble Supreme Court in the case Public Interest Foundation
(supra) and against the mandatory directions issued by the
Election Commission of India vide notification no.S.O.5196 (E)
35
dated 10.10.2018. The reasons for the applicability of per-
incuriam doctrine to the present case was assailed on the ground
that the Constitution Bench had in clear terms laid down the
requirements to be filled up in the form as provided by the
Election Commission and it is amust to contain all the
particulars as required therein and as the said order dated
17.03.2023 is against the aforesaid law as laid down by the
Hon’ble Apex Court it is per-incuriam and therefore, issues as
proposed by the Election Petitioner are required to be framed
and the matter is required to be put to trial on those issues.
38. It was further contended that the preliminary issue has
been framed in total ignorance of the fact that pursuance to the
law laid down by the Constitution Bench of Supreme Court in
the case of Public Interest Foundation (supra), the nomination
Form-26 was amended on 10.10.2018 and as a consequence of
the said amendment, the Election Commission had issued a
Notification to all Returning Officers, directing them that it
would be mandatory for all the candidates to give all
information as sought in Form-26 and from the bare perusal of
36
the said preliminary issue, it appears that it has been framed on
the basis of the requirements of Form- 26 that existed prior to its
amendment and as the preliminary issue is interpretative in
nature and without mentioning the consequences of its
interpretation i.e. if it is in favour of Respondent No.1 the
consequence and if it is against him, whether would he be held
guilty of corrupt practice/or is it that whatever the interpretation
it will be followed by the trial of the Election Petition.
39. It was further submitted that there is clear distinction of
the un-amended Form-26 and the amended Form-26 which came
into force w.e.f. 10.10.2018 and cumulative reading of the
judgment of Hon’ble Supreme Court in Public Interest
Foundation case (supra), the amended Form-26 and the
directions sent by the Election Commission of India vide
missive dated 05.11.2018 and 19.03.2019 makes it crystal clear
that the Preliminary issue framed in the present form is per
incuriam and thus non-est and further the information required
to be given in the present form i.e. in relation to any F.I.R and its
details registered against the candidate filing this nomination
37
form.
40. It was further submitted that respondent no.1 had not
furnished the details of the F.I.R because as per his pleadings
‘he was not aware’ of the lodging of the said F.I.R or else he
would have furnished it,leading to a question of interpretation of
the preliminary issue “whether registration of FIR comes
under the purview of pendency of criminal case or not”, which
does not arise at all, as it’s only about his knowledge and the
same can be discovered only through trial. It was further
submitted that the preliminary issue which is interpretative in
nature cannot be framed, moreover, when from the clarification
given by the Election Commission vide its letters dated
05.11.2018 and 19.03.2019, it was made very much clear that it
is mandatory to mention the details of F.I.R cases in the
nomination Form-26. Thus, on the pretext it was argued that
since the preliminary issue framed by this Hon’ble Court on
17.03.2023 was inadvertently framed overlooking the law laid
down by the Hon’ble Apex Court in the Public Interest
Foundation (supra) and directions of the Election Commission
38
which were and are binding precedent makes the preliminary
issue per-incuriam, therefore, this Court is required to frame the
issues which has been proposed by the Election petitioner and
the said election petition is required to be put to trial on said
issues. In support of the aforesaid contention reliance was
placed by the Learned Senior Counsel in the matter State of
Madhya Pradesh vs. Narmada Bachao Andolan reported in
2011 (7) SCC 639 and in the matter of Subhash Chandra and
another vs. Delhi Subordinate Services Selection Board and
Ors reported in 2009 (15) SCC 458.
41. In furtherance of his arguments Learned Senior Counsel
submitted that the elementary principal of interpreting and
construing a statute is to gather the mens or sententia legis of the
legislature and the interpretation postulates the search for the
true meaning of the words used in the statute as a medium of
expression to communicate a particular thought, which this
Court had not done while framing the issue. To support his
contentions he placed reliance in the matter of Commissioner of
Income Tax, Kerala vs. Tara Agencies reported in 2007 (6)
39
SCC 429, wherein the Hon’ble Apex Court has held that “…..the
Court rightly observed that in seeking legislative intention
judges not only listen to the voice of the legislature but also
listen attentively to what the legislature does not say….The legal
position seems to be clear and consistent that it is the bounden
duty and obligation of the Court to interpret the statute as it is. It
is contrary to all rules of construction to read words into a
statute which the legislature in its wisdom has deliberately not
incorporated…..”.
42. Further reliance was placed in the matter of J.P. Bansal
vs. State of Rajasthan, (2003) 5 SCC 134, wherein Apex Court
has held that, “…where, therefore, the “language” is clear, the
intention of the legislature is to be gathered from the language
used. What is to be borne in mind is as to what has been said in
the statute as also what has not been said….”.
43. Ld. Senior Counsel further relied onState of Kerala vs.
Mathai Verghese and Ors, (1986) 4 SCC 746, wherein it is
observed by the Court that, “…the court can merely interpret the
section, it cannot re-write, recast or redesign the section. In
40
interpreting the provision, the exercise undertaken by the Court
is to make explicit the intention of the legislature which enacted
the legislation. It is not for the court to reframe the legislation
for the very good reason that the powers to ‘legislate’ have not
been conferred on the Court. A Court can make a purposeful
interpretation so as to ‘effectuate’ the intention of the legislature
and not a purposeless one in order to ‘defeat’ the intention of the
legislators wholly or in part…”.
44. It was further contended that in the case of A.R. Antulay
vs. Ramdas Sriniwas Nayak, 1984 (2) SCC 500, the
Constitution Bench has observed that, “…it is well-established
canon of construction that the court should read the section as it
is and cannot rewrite it to suit its convenience, nor does any
canon of construction permit the court to read the section in
such manner as to render it to some extent otiose…”.
45. Further in the matter of Grasim Industries vs. Collector
of Customs, 2002 (4) SCC 297 and in the matter of Apex
Laboratories Pvt. Ltd. vs. Deputy Commissioner of Income
Tax, 2022 (7) SCC 98, it has been held that “…No words or
41
expression used in any statute can be said to be redundant or
superfluous. In matters of interpretation, one should not
concentrate too much on one word and pay too little attention to
other words. Every provision and every word must be looked at
generally and in the context in which it is used. Merely because
the provision could have been differently worded, does not in
any way affect the meaning of the expression used as it is clear
and unambiguous…”. Further “…interpretation of law has two
essential purposes: one is to clarify to the people governed by it,
the meaning of the letter of the law; the other is to shed light and
give shape to the intent of the lawmaker. And, in this process the
courts’ responsibility lies in discerning the social purpose which
the specific provision sub-serves. Thus, the cold letter of the law
is not an abstract exercise in semantics which practitioners are
want to indulge in. So viewed the law has birthed various ideas
which as implied conditions, un-spelt but entirely logical and
reasonable obligations, implied limitations, etc. The process of
continuing evolution, refinement and assimilation of these
concepts into binding norms (within the body of law as is
42
understood and enforced) injects vitality and dynamism to
statutory provisions. Without this dynamism and
contextualization, laws become irrelevant and state”.
46. On the basis of the aforesaid arguments and the citations,
Learned Senior Counsel had tried to emphasize that the very
conduct of Respondent No.1 in not disclosing the factum of the
pending criminal cases in the nomination Form-26 expressly and
impliedly amounts to corrupt practice and also since the
preliminary issue framed by this Court is per-incuriam as the
same has been framed in ignorance of the statutory and legal
position as envisaged by the Hon’ble Apex Court in the matter of
Public Interest Foundation (supra) and the guidelines issued by
the Election Commission, therefore, apart from the preliminary
issue, other issues which has been proposed by the petitioner be
framed and the trial be proceeded with.
47. Per contra, Shri Naman Nagrath, Learned Senior Counsel
along with Shri Jubin Prasad and Shri Soumya Pawaiya, on
behalf of the Respondent No.1 has vehemently opposed the
contentions of the petitioner with regard to framing of the
43
preliminary issue by this Court on 17.03.2023 being per-
incuriam as the same has been framed in ignorance of the
statutory and legal position as envisaged by the Hon’ble Apex
Court in the matter of Public Interest Foundation (supra) and the
guidelines issued by the Election Commission, and had
contended that firstly since the said order dated 17.03.2023 has
been put to test before the Hon’ble Apex Court in SLP
No.13267/2023 which got dismissed on 07.07.2023, after
having considered the basis for the aforesaid impugned order
and finding no scope to interfere with the same, the very framing
of the legal preliminary issue, now cannot be said to be per-
incuriam.
48. It was further submitted that, though the framing of the
preliminary issue was upheld by the Supreme Court, even
thereafter, the petitioner tried to whisk the said aspect once
again while moving I.A. No.3718/2023, which was an
application under Order XIV Rule 2 r/w Section 151 of CPC for
pronouncement of Judgment on all the issues and along with it
another I.A. No.3719/2023 was filed, which was an application
44
under Section 114 r/w Order XLVII Rule 1 and r/w Section 151
of CPC for review of the order dated 17.03.2023 and the said
order dated 17.03.2023 was sought to be reviewed on the ground
that while passing of the said order, this Court has not
considered the relevant provisions of Cr.P.C and has passed the
order, which is an error apparent on the face of the record, but
this Court vide order dated 13.07.2023 had rejected both the
I.As against which the petitioner has once again preferred an
SLP No.15745/2023 which was withdrawn as not pressed,
thereafter, again another I.A. No.4200/2023 for reviewing of the
order dated 13.07.2023 was filed which was also dismissed by
the order of this Court dated 26.10.2023 and now again under
the garb of repeated, old and over ruled arguments, in a way is
seeking review which is not permissible. It was further argued
that a decision is given per-incuriam when the Court’s previous
decision of its own or of a Court of its coordinate jurisdiction,
which covered the case before it, in which case it must decide
which case to follow or in other words the rule of per-incuriam
can be applied where the Court omits to consider the binding
45
proceeding of the same Court or superior Court rendered on the
same issue where a Court omits to consider any statute while
deciding said issue, but herein neither is the case. The
Constitution Bench in the case of Public Interest Foundation
(supra) had laid down that each contesting candidate shall fill up
the form as provided by Election Commission and the form must
contain the particulars as required therein and so also the
amended Form-26 (amended as on 10.10.2018 by the Election
Commission), whereby it was made mandatory for all the
candidates to give all the information as sought in Form-26 is
not in dispute. The dispute as narrowed down by this Court is as
to whether registration of FIR vide Crime No.176/2018 against
Respondent No.1 comes within the purview of “pendency of
criminal case” or not, which would make it obligatory to be
mentioned in the Form-26.
49. It was further submitted that as per Form-26 outlined
under Rule 4A of Rules of 1961, framed under Representation of
People’s Act, 1951, clause 5 provided two sets of declarations in
either/or form. Clause 5 (i) provides declaration as to pendency
46
of criminal case against the candidate, with a remark mentioned
that “Tick this alternative if there is no criminal case pending
against the candidate and write NOT Applicable against
alternative (ii) below. Further Clause 5 (ii) provides for
mentioning about criminal cases which are pending against the
candidate, with further mentioning that if there are pending
criminal case against a candidate, he had to tick this alternative
and had to score off alternative (i) above, and give details of all
pending cases in the table below. Thus, the above amended
Form-26 clearly revealed that a candidate has to declare about
the pendency of criminal case, in case, if there are any and if
there are no criminal cases pending, then he has to tick column 5
(i) and the rest of the columns as provided under Clause 5 (ii) he
has to mention “N.A.”. Thus, question whether there is any
criminal case pending against the present Respondent No.1 is
the sole question, which crops up after due scrutiny of the
pleadings and as mere registration of the F.I.R does not amounts
to pendency of a criminal case, the preliminary issue had rightly
been framed and Respondent No1. had rightly ticked column 5
47
(i) of Form-26 and for column 5 (ii) has rightly mentioned
“N.A”
50. Learned Senior counsel further contended that in light of
the aforesaid there is no inconsistency between the controversy
involved and the preliminary issue framed by this Court as
firstly it is required to be determined as to whether there was’
pendency of criminal cases’ against him and if answer is in
“YES’ then the question of it’s mentioning in Form-26 would
arise and secondly, for the aforesaid purpose, it is required to be
ascertained whether mere registration of F.I.R would amount to
“pendency of criminal case” and the answer to the said fact
whether in negative or affirmative, would qualify the question of
mentioning or non-mentioning of the pendency of the criminal
case in Form-26, therefore, the contention of the counsel for the
petitioner appears to be misconceived and has no applicability to
the present matter.
51. Learned Senior Counsel further submitted that registration
of the F.I.R vide crime no.176/2018 is pursuant to an order dated
26.09.2018 passed by Learned Special Judge (MP and MLA) on
48
an application u/s 156(3) of Cr.P.C and it is a settled law that
direction to register an F.I.R under Section 156 (3) does not
amount to taking cognizance, and thus would not amount to
pendency of a criminal case, as while dealing with the
application under Section 156 (3) the Magistrate (in the present
case Special Judge (MP MLA) may either direct registration
of F.I.R. under the provisions of Section 156 (3) or may take
cognizance by recording pre-summoning evidence under Section
200 of Cr.P.C and if he were to take cognizance at the stage of
deciding the application under Section 156 (3) then he has to
record pre-summoning evidence, if any and, therefore, is
required to issue summons under Section 204 or 203 as the case
may be and mere issuance of directions by the Magistrate to the
police to register F.I.R and to investigate the matter in terms of
Chapter XII of the Cr.P.C. does not amount to taking cognizance
under Section 190 and/or Section 200 of Cr.P.C and since the
order dated 26.09.2018 passed by Special Judge (MP and MLA)
Bhopal does not amount to taking cognizance, the present F.I.R
does not fall under the category of ‘Pending Criminal Case’ and,
49
therefore, its disclosure in the Form-26 in Column 5 (ii) was not
necessitated, nor mandated by law.
52. To bolster his submissions he had placed reliance in the
matter of Satish Uekey vs. Devendra Gangadhar Rao
Fadnavis and another reported in 2019 (9) SCC 1, wherein the
Hon’ble Apex Court while analyzing the provisions of Section
33A of the Act of 1951, Rule 4-A of the Rules of 1961 and
Form-26 had held that a cumulative reading of Section 33A of
the 1951 Act and Rule 4-A of the 1961 Rules and Form-26 along
with the letters dated 24.8.2012, 26.9.2012 and 26.4.2014, in our
considered view, make it amply clear that the information to be
furnished under Section 33A of the 1951 Act includes not only
information mentioned in clauses (i) and (ii) of Section 33A (1),
but also information, that the candidate is required to furnish,
under the Act or the Rules made there under and such
information should be furnished in Form-26, which includes
information concerning cases in which a competent Court has
taken cognizance (Entry 5(ii) of Form-26). This is apart from
and in addition to cases in which charges have been framed for
50
an offence punishable with imprisonment for two years or more
or cases in which conviction has been recorded and sentence of
imprisonment for a period of one year or more has been imposed
(Entries 5(i) and 6 of Form 26 respectively).
53. He further placed reliance in the matter of Supreme
Bhiwandi Wada Manor Infrastructure Private Limited vs.
State of Maharashtra and another reported in 2021 (8) SCC
753 and contended that any judicial Magistrate before taking
cognizance of the offence can order investigation under Section
156 (3) of the Code and if he does so, he is not to examine the
complainant on oath because he was not taking cognizance of
any offence therein. For the purpose of enabling the police to
start investigation it is open to the Magistrate to direct the police
to register an F.I.R. There is nothing illegal in doing so. After all
registration of an F.I.R involves only the process of entering the
substance of the information relating to the commission of the
cognizable offence in a book kept by the officer in charge of the
police station as indicated in Section 154 of the Code. Even if a
Magistrate does not say it in so many words while directing
51
investigation under Section 156 (3) of the Code that an F.I.R
should be registered, it is the duty of the officer in charge of the
police station to register the F.I.R regarding a cognizable offence
disclosed by the complaint because that police officer could take
further steps contemplated in Chapter XII of the Code only
thereafter.
54. Further placing reliance in the matter of R.R. Chari vs.
State of Uttar Pradesh reported in 1951 SCC 250, it was
contended that the word “cognizance” is used in the Code to
indicate the point when the Magistrate or Judge first take
judicial notice of an offence and it is different thing from the
initiation of proceedings. It is the condition precedent for
initiation of proceedings by the Magistrate. Further the court
noticed that the word ‘cognizance’ is a word of somewhat
indefinite import and it is perhaps not always used in exactly the
same sense. It seems clear however that before it can be said that
any magistrate has taken cognizance of any offence under
Section 190 (1) (a), Criminal Procedure Code, he must not only
have applied his mind to the contents of the petition but he must
52
have done so for the purpose of proceeding in a particular way
as indicated in the subsequent provisions of the Chapter i.e.
proceeding under section 200 and thereafter sending it for
inquiry and report under section 202 and when the magistrate
applies his mind not for the purpose of proceeding under the
subsequent sections of this Chapter, but for taking action of
some other kind, i.e. ordering investigation under section 156
(3), or issuing a search warrant for the purpose of the
investigation, he cannot be said to have taken cognizance of the
offence.” Learned Senior Counsel has also relied in the matter of
Jayant and Ors. Vs State of Madhya Pradesh reported in
2021 (2) SCC 670 and had contended that the word
“cognizance” has a wider connotation and is not merely
confined to the stage of taking cognizance of the offence. When
a Special Judge refers a complaint for investigation under
Section 156 (3) CrPC, obviously, he has not taken cognizance of
the offence and, therefore, it is a pre-cognizance stage and
cannot be equated with post-cognizance stage, when a Special
Judge takes cognizance of the offence on a complaint presented
53
under Section 200 CrPC and the next step to be taken is to
follow up under Section 202 CrPC. Consequently, a Special
Judge referring the case for investigation under Section 156(3)
is at pre- cognizance stage.”
55. Lastly, reliance was placed in the matter of Laddoo Ram
Kori vs. Jajpal Singh Jajii passed in Election Petition
No.08/2019 by Coordinate Bench of this Court on 08.11.2023,
wherein while relying on the matter of Krishna Murthy vs.
Shiv Kumar and Ors. reported in 2015 (3) SCC 467it had been
held that no cognizance of offence/crime should be taken by the
competent Court and mere registration of FIR is not sufficient to
disqualify the candidate to contest the election and since there
was no pleading or evidence that competent court has taken
cognizance on the F.I.R registered against Respondent No.1,
therefore, it cannot be said that election of Respondent No. 1 is
vitiated on account of violation of Section 33A of
Representation of People Act.
56. On the basis of the aforesaid, it was contended that the
defense of the Respondent No.1 of not suppressing any material
54
information while filling up the Form regarding mentioning of
the F.I.R No.176/2018 at P.S. Shyamla Hill, Bhopal cannot be
disbelieved as there is no evidence of the fact that he was ever
summoned by the Police or the Court. Thus, it was submitted
that preliminary issue framed by this Court is in consonance
with the pleadings and in the light of the arguments advanced, it
is to be answered in negative i.e. mere registration of an F.I.R.
doesn’t amounts to ‘pendency of a criminal case’ and the
Election petition be dismissed being filed in total abuse of
process of Law.
Discussion and Conclusion
57. Learned Senior counsel for the petitioner while criticizing
the preliminary issue framed by this court on 17.3.2023 had
argued that it is per-incuriam as it has been framed in ignorance
of law laid down by the Constitution bench of the Supreme
Court in the case of Public interest foundation (supra) and is
also against the mandatory directives issued by the Election
Commission of India, vide notification number S.O.5196(E)
dated 10.10.2018.
55
58. To analyze the aforesaid aspect this Court deems it fit to
understand first the meaning of per-incuriam and its
significance. Per-incuriam literally translated would mean
“through lack of Care”, and refers to a judgement of the Court,
which has been decided without reference to a statutory
provision or earlier judgement which could have been relevant.
The significance of the judgement having been decided per-
incuriam is that it does not then have to be followed as a
precedent by the Lower Court. Ordinarily in the common law,
the rationes of a judgment must be followed thereafter by lower
courts while hearing similar cases, though the court is free to
depart from an earlier judgement of a superior court where that
earlier judgement was decided as per-incuriam and the said
doctrine is an exception to the Article 141 of the Constitution of
India, which embodies the doctrine of precedent as a matter of
law. In other words, a decision is not binding if it was rendered
in ignorance of a statute or a rule having the force of a statute or
delegated legislation.
59. Sir John Salmond in his book “Treaties on Jurisprudence”
56
has aptly stated the circumstances under which the precedent
can be treated as per-incuriam. It is stated that the precedent is
not binding if it was rendered in ignorance of a statute or a rule
having the force of statute or delegated Legislation.
60. C. C. K. Alien in the book ‘Law in The Making’ (page
246) analyzed the concept of ‘Per Incuriam’. According to him,
‘Incuria’ means literally ‘carelessness’ which apparently is
considered less uncomplimentary than ignorantia; but in practice
‘Per Incuriam’ applies to mean ‘Per Ignorantiam’. It would almost
seem that ‘Ignorantia Juris Neminem Excusat’ meaning except a
Court of Law, ignorance of what? Ignorance of a Statute, or of a
Rule having statutory effect which would have affected the
decision if the Court had been aware of it.
61. The Court of Appeal in Morelle Ltd v Wakeling [1955] 2
QB 379 stated that as a general rule the only cases in which
decisions should be held to have been given per incuriam are
those decisions given in ignorance or forgetfulness of some
inconsistent statutory provision or of some authority binding on
the court concerned: so that in such cases some part of the
57
decision or some step in the reasoning on which it is based is
found, on that account, to be demonstrably wrong.
62. By Lord Godard, C.J. In Huddersfield Police Authority v.
Watson (1947) 2 All ER 193 it was observed that: “Where a case
or statute had not been brought to the court’s attention and the
court gave the decision in ignorance or forgetfulness of the
existence of the case or statute, it would be a decision rendered
in per incuriam.”.
63. Apex court in Siddharam Satlingappa Mhetre v. State
of Maharashtra reported inCriminal Appeal No. 2271 of 2010
(Arising out of SLP (Crl.) No. 7615 of 2009) refused to follow
the decision of co-ordinate benches, which was opposed to the
decision of an earlier Constitutional Bench. The Hon’ble
Supreme Court explained the concept of “per incuriam” as
follows. “Now we deem it imperative to examine the issue of per
incuriam raised by the learned counsel for the parties. In Young
v. Bristol Aeroplane Company Limited (1994) All ER 293 the
House of Lords observed that ‘Incuria’ literally means
‘carelessness’. In practice per incuriam appears to mean per
58
ignoratium. English courts have developed this principle in
relaxation of the rule of stare decisis. The ‘quotable in law’ is
avoided and ignored if it is rendered, ‘in ignoratium’ of a statute
or other binding authority. The same has been accepted,
approved and adopted by this court while interpreting Article
141 of the Constitution which embodies the doctrine of
precedents as a matter of law.
64. Further Apex Court in Government of A.P. and Another
v. B. Satyanarayana Rao (dead) by LRs. and Others (2000) 4
SCC 262 observed as under: “The rule of per incuriam can be
applied where a court omits to consider a binding precedent of
the same court or the superior court rendered on the same issue
or where a court omits to consider any statute while deciding
that issue.”
65. In a Constitution Bench judgment of this Court in Union
of India v. Raghubir Singh (1989) 2 SCC 754, it was observed
that “The doctrine of binding precedent has the merit of
promoting a certainty and consistency in judicial decisions, and
enables an organic development of the law, besides providing
59
assurance to the individual as to the consequence of transactions
forming part of his daily affairs. And, therefore, the need for a
clear and consistent enunciation of legal principle in the
decisions of a court.”
66. The analyses of the English and the Indian law clearly
leads to an irresistible conclusion that when a lower court
ignores the decision of a higher court, the decision passed by
such court can be discarded as being per incuriam of the
decision of the higher court.
67. In context of the above inunciations, if the arguments of
the learned Senior Counsel for the petitioner are analyzed, the
Honorable Supreme Court in Public Interest Foundation (Supra)
had observed that the contesting candidate shall fill up the form
as provided by the Election Commission and the form must
contain all the particulars as required there in and, it shall state
in bold letters, with regard to the criminal cases pending against
the candidate. The aforesaid observation has been made while
relying another Constitutional bench judgement in the matter of
People’s Union or Civil Liberties vs Union of India (supra)
60
wherein it has been observed that the information given by a
candidate must express everything that is warranted by the
Election Commission as per law, as the disclosure of antecedents
makes the election a fair one.
68. The Honorable Supreme Court has further observed that
the complete information about the criminal antecedents of the
candidate forms the bedrock of wise decision making and
informed choice by the citizenry.
69. Earlier unamended form-26 provided for disclosure of the
information of an offence punishable with imprisonment for two
years or more in a pending case(s) or charge(s) which has/ have
been framed by the Court(s) of competent jurisdiction and if the
deponent was an accused of any such offence(s) he was required
to furnish the information regarding the cases is/are pending
against him in which charges have been framed by the court for
an offence punishable with imprisonment for two years or more
and also of the cases which are pending against him in which
cognizance has been taken by the court (other than the cases
mentioned above). Thus, earlier the candidate’s were required to
61
mention the decided or pending cases in which charges had been
framed by the Court for an offence punishable with
imprisonment for two years or more or in which the Courts have
taken cognizance. But with the advent of Section 33A of the Act
of 1951, the said Form-26 was amended and in column no.5,
which related to pending criminal cases, two eventualities were
inserted. In column 5(i) the candidate is required to declare that
there is no pending criminal case against him and if the answer
is in ‘YES’ and there are no criminal cases pending, he/she has
to Tick this alternate and he/she had to write not applicable to
the alternate given in column 5(ii), but if the answer is ‘NO’ to
the first alternate, then he/she has to tick the second alternate
and had to disclose the pending cases against him and has to
score of the first alternate and in the eventuality of the candidate
scoring of Clause 5(i), then he has to provide the information as
provided under Clause 5(ii).
70. The aforesaid analysis of the unamended Form-26 and
amended Form-26 reveals that in the unamended Form-26 firstly
the candidate was required to disclose whether he/shewas an
62
accused of an offence punishable with imprisonment for two
years or more in pending cases in which the charges have been
framed by the court of competent jurisdiction or not and if the
answer is not in affirmative and is ‘YES’ then he has to furnish
the information of the cases which are/were pending against him
in which charges have been framed by the court for an offence
punishable with imprisonment for two years or more and further
he/she was also required to disclose the cases in which the
courts have taken cognizance. Thus, there were only specific
cases which were required to be disclosed in the unamended
form-26, but in the amended Form-26, the said distinction was
not limited to pendency of any specific type of cases rather the
candidate is now required to disclose whether criminal case(s)
is/are pending against him or not and only in case if any criminal
case(s) is/are pending, then he/she has to furnish the details
thereof. Thus, according to this Court there is apparently a clear
distinction between the two Forms i.e. un-amended Form-26 and
amended Form-26.
71. In the light of the aforesaid, the very crux of the matter
63
would be “pendency of a criminal case” and answer to the
preliminary issue framed by this Court as to whether mere
registration of F.I.R under the provisions of IPC comes within
the purview of “pendency of criminal case” or not as per Form-
26 framed under Rule 4A of the Rule of 1961, would decide the
fate of the matter, whether further issues are required to be
framed and whether the information of the registration of F.I.R
was required to be furnished in Form-26 and its non-furnishing
whether amounts to corrupt practice.
72. Thus, according to this Court furnishing all the details as
provided by the Election Commission and mentioning of all the
particulars as required in the Form would arise only when the
said preliminary issue is decided either way. This court therefore
finds that the contention of the petitioner that the preliminary
issue framed is per-incuriam to the decision of the Honorable
Apex Court in Public Interest Foundation (supra) is devoid of
any substance and accordingly is here by rejected.
73. Now coming to the issue framed by this court, a bare
perusal of Form-26 makes it apparently clear that entry 5(i)
64
mandates disclosure of pending criminal cases, if any, and entry
5(ii) specifically mentions that if there are pending criminal
cases against the candidate, then he has to furnish the details
mentioned in the table appended along with entry 5(ii). Thus,
pendency of criminal case is Sinequa non for furnishing its
details.
74. Now, whether mere registration of FIR would amount to
pendency of criminal case or not, is required to be seen. For that
it is necessary to discuss certain relevant legal provisions of
chapter XII of the Code of Criminal Procedure, which includes
Section 154 and Section 156(3). Section 154 deals with the
information relating to the commission of cognizable offence
and feats the procedure to be adopted when prima facie
commission of cognizable offence is made out. Section 156,
authorizes, a police officer in charge of the police station to
investigate any cognizable offence without the order of
Magistrate. Sub-section 3 of Section 156 provides for the
Magistrate empowered under Section 190 to order an
investigation as mentioned in Section 156(1). Thus, the operandi
65
for registration of information in a cognizable offence and
eventually investigation is not limited to police, sub-Section 3 of
Section 156, subject to legal stipulations, gives the emulating
power to a Magistrate empowered under Section 190 to order an
investigation in a cognizable offence. The power of Magistrate
to direct investigation falls under two limbs of the Court: One is
“Pre-cognizance” stage under section 156(3) and another on
cognizance under chapter XIV (Conditions requisite for
Initiation of proceedings and deals with Sections 190 to 199)
read with Chapter XV (Complaints to Magistrates, Sections 200
to 210). These two powers are different, and there also lies a
procedure of discretion between the two.
75. A three-judge bench decision of the Hon’ble Apex Court
in Ramdev Food Products Private Limited vs State of
Gujarat reported in 2015, (6) SCC 439 had examined the
discretion between powers of the Magistrate to direct
registration of an F.I.R under Section 156(3) and powers of the
Magistrate to proceed under Section 202 of the Code. It was
observed that the power under the former Section is to be
66
exercised on receiving a complaint or a police report or
information from any person other than the police officer or
upon whose knowledge, before it takes cognizance under
Section 190.
76. Once, the Magistrate takes cognizance, the Magistrate has
discretion to recourse to his powers under Section 202, which
provides for postponement of the issue or process and enquire
into the case himself or direct investigation to be made by a
police officer, or by such other person as he thinks fits for the
purpose of deciding whether or not there are sufficient grounds
for proceedings. The proviso to Section 202 states that no
direction for investigation shall be made where a complaint has
not been made by a Court, unless the complainant and the
witnesses present, if any, are examined on own under Section
200. When it appears to the Magistrate that the
offence/complaint of is triable exclusively by Court of sessions,
he shall call upon the complainant to produce all his witnesses
and examine them on oath. However, in such cases the
Magistrate cannot issue directions for investigation of an
67
offence. Thus, the magistrate has powers, when a written
complaint is made, to issue directions under Section 156(3), but
this power is to be exercised before the magistrate takes
cognizance of offence under Section 190. However, in both the
cases whether under Section 156(3) or Section 202 of the Code,
the person accused as a perpetrator, when the proceedings are
pending before the Magistrate remains unrepresented. Under
Section 203 the Magistrate after considering the statements of
the complainant and the witnesses, if any, on oath and the result
of an enquiry, if any, under Section 202 can dismiss the
complaint, if he is of the opinion that there is no sufficient
ground for proceedings and in every such case briefly records
his reasons. If the Magistrate taking cognizance of the offence is
of the opinion that there is sufficient ground for proceeding, he
will issue the process to the accused for appearance as the
procedure and mode specified under Section 204 of the Code.
Process to the accused under section 204 falls under chapter
XVI of the Code and is issued post the cognizance, and
enquiry/investigation/evidence recorded in a private complaint
68
in terms of Section 202 of the code.
77. The Honorable Apex court in the matter of Mohd. Yousuf
vs Smt. Afaq Jahan Anr reported in 2006 (1) SCC 627 has
opined that
“The clear position therefore is that any
Judicial Magistrate, before taking
cognizance of the offence, can order
investigation under Section 156(3) of the
Code. If he does so, he is not to examine the
complainant on oath because he was not
taking cognizance of any offence therein.
For the purpose of enabling the police to
start investigation it is open to the
Magistrate to direct the police to register an
F.I.R. There is nothing illegal in doing so.
After all registration of an FIR involves
only the process of entering the substance
of the information relating to the
commission of the cognizable offence in a
book kept by the officer in charge of the
police station as indicated in Section 154 of
the Code. Even if a Magistrate does not say
in so in many words while directing
investigation under Section 156(3) of the
69
Code that an F.I.R should be registered, it is
the duty of the officer in charge of the
police station to register the F.I.R regarding
the cognizable offence disclosed by the
complaint because that police officer could
take further steps contemplated in Chapter
XII of the Code only thereafter. It is,
therefore necessary to determine when the
magistrate took cognizance of the offence.”
78. A Magistrate when can take cognizance is provided u/s
190 of Cr.P.C. The relevant part of section 190 of the Code runs
as follows:
190. (1)”Except as hereinafter provided, any
Presidency Magistrate, District Magistrate or Sub-
divisional Magistrate and any other Magistrate
specially empowered in this behalf, may take
cognizance of any offence–
(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a report in writing of such facts made by
any police officer;
(c) upon information received from any person
other than a police officer, or upon his own
knowledge or suspicion, that such offence has been
committed…”
79. It is clear from the wording of the section that the
70
initiation of the proceedings against a person commences on the
cognizance of the offence by the Magistrate under one of the
three contingencies mentioned in the section. The first
contingency evidently is in respect of non-cognizable offences
as defined in the Criminal Procedure Code on the complaint of
an aggrieved person, the second is on a police report, which
evidently is the case of a cognizable offence when the police
have completed their investigation and comes to the Magistrate
for the issue of a process and the third is when the Magistrate
himself takes notice of an offence and issues the process.
80. The term”taking cognizance” has not been defined in the
criminal procedure code, however, it seems to be clear that when
any magistrate takes a judicial notice of an offence under
Section 190 (1) (a) of Criminal Procedure Code that it could be
said that cognizance of an offence had been taken, the Court
must not only have applied his mind to the contents of the
petition, but he must have done so for the purpose of proceeding
in a particular way as indicated in the subsequent provisions of
the Chapter i.e. proceeding under Section 200 and thereafter
71
sending it for inquiry and report under Section 202. When the
magistrate applies his mind not for the purpose of proceeding
under the subsequent sections of this Chapter, but for taking
action of some other kind, e.g., ordering investigation under
Section 156 (3), or issuing a search warrant for the purpose of
the investigation, he cannot be said to have taken cognizance of
the offence.”
81. The word cognizance is used in the code to indicate the
point when the Magistrate or judge first takes judicial notice of
an offence and it is different from initiation of the proceedings.
It is the condition precedent to the initiation of the proceedings
by the magistrate. Thus, it can very well be said that mere
registration of the F.I.R cannot be said to be initiation of the
criminal proceedings and the same would be said to have
commenced as and when the cognizance is taken by the
Magistrate and only, thereafter, it could be said that a criminal
case is pending against a person, else the registration of the F.I.R
would only for the purpose of further investigation.
82. In the present matter, admittedly, the FIR was registered
72
pursuant to an order dated 26.9.2018 passed by learned Special
Judge (MP MLA), Bhopal on an application under Section
156(3) of Cr.P.C and as per the legal position which has been
culled out, direction to register F.I.R under Section 156(3) does
not amount to take cognizance as the Special Judge (MP
MLA)at that stage had not applied his mind for the purpose of
proceeding under subsequent Sections of chapter XIV, but had
taken action of some other kind i.e.for investigation or issuing a
search warrant for the purpose of the investigation. Therefore, it
cannot be said that he had taken cognizance of the offence, and
once the cognizance of the matter has not been taken by it, it
cannot be said that there was any pending criminal case against
Respondent No.1.
83. Further the contention forwarded on behalf of petitioner
that since Respondent No.1 has pleaded that he was not aware of
lodging of the said F.I.R or else he would have furnished the
information leads to interpretation of the preliminary issue,
which issue does not arise at all as it was within his knowledge
and the same could be discovered only through conducting of
73
the trial is concerned, the said arguments appears to be
misconceived, as the said ground by Respondent No.1 was taken
as an alternate, that too without prejudice to his contention that
registration of F.I.R does not amount to pendency of criminal
case. It was raised for the fact that after registration of the F.I.R,
in pursuance to the order passed by the Special Judge (MP
MLA), no process was either issued by the Court nor any notice
under section 41A of the Cr.P.C was issued to him by the Police,
which could have brought the factum of registration of F.I.R.to
his knowledge and merely on the basis of some paper cuttings it
could not be said that it was within his knowledge. Therefore, it
could be said that the factum of registration of F.I.R and the
pending investigation was not within his knowledge and, thus,
there was no occasion for him to disclose the same, even if
required. Thus, this court does not find any force in the
arguments of learned counsel for the petitioner, accordingly it is
negatived and the Judgments cited in this regard are held not
applicable to the fact situation.
84. So far as the ground of contention of the petitioner that it
74
is bounden duty and obligation of Court to interpret the statue as
it is, and it is contrary to all the rules of construction to read
words into a statute, which the legislature in its wisdom has
deliberately not incorporated and where there the language is
clear, the intention of the legislator is to be gathered from the
language used,to this Court there appears to be no ambiguity or
misreading of the statutory provisions or even there is no
occasion for this court to interpret the statutes in a particular
way, as the preliminary issue framed clearly stipulates whether
registration of the F.I.R comes within the purview of pendency
of a criminal case or not, as per Form-26 postulated under Rule
4A of the Rules of 1961 and in that regard there is no necessity
of interpreting the legal position as laid down by the Honorable
Apex Court in the matter of Public Interest Foundation (supra),
thus, the case laws which has been cited on behalf of the
petitioners in this regard are of no help.
85. Thus, a cumulative reading of Section 33A of Act of 1951
and Rule 4A of Rules of 1961 and amended Form-26 makes it
amply clear that the information to be furnished under Section
75
33A of 1951 Act includes not only information mentioned in
Clause (i) and (ii) of Section 33(A), but also the information that
the candidates are required to furnished under the Act or the
Rules made there under and such information should be
furnished in Form-26, but so far as the present case is
concerned, non-furnishing of registration of F.I.R. against
Respondent No.1 was not required to be furnished in the form-
26, as in the preceding paragraphs it has been held by this court,
that mere registration of F.I.R does not come within the purview
of “pendency of criminal case”, thus, non-disclosure of the
factum of registration of F.I.R in the nomination Form-26
expressly and impliedly cannot be said to amount corrupt
practice as provided under Section 123 of the act of 1951.
86. In a very recent decision of the Coordinate Bench of this
Court in the matter of Laddoo Ram Kori vs. Jajpal Singh Jajii
(supra) similar issue as to whether the election of Respondent
No.1 (i.e. the return candidate therein) was vitiated on account
of violation of Sections 33 or 125 of Representation of Peoples
Act, 1951 was answered in negative, while holding that since
76
there was no evidence led by the election petitioner that any
charge sheet has been filed or cognizance has been taken by a
competent court, therefore, it cannot be said to be proved that
the election of Respondent No.1 (returned candidate therein) is
vitiated on account of violation Sections 33 or 125A of The
Representation of People Act. The Coordinate Bench while
relying on the decision of the Hon’ble Apex Court in the matter
of Krishnamoorthy vs Sivakumar Ors reported in 2015 (3)
SCC 467, wherein it has been observed that it is only when
cognizance of offence /crime had been taken by the competent
court and not mere registration of F.I.R is sufficient to disqualify
the candidate to contest the election and on the aforesaid basis it
was held that section 33A of the Act of 1951 would not be
attracted and, therefore, question of punishment under Section
125A would be frustrated.
87. In view of the forgoing discussions and reasons, this court
answers the preliminary issue in “Negative”and helds that mere
registration of F.I.R vide crime number 176/2018 against
Respondent No.1 at police station, Shyamla Hills, Bhopal for
77
commission of offence punishable under sections 465, 468, 469,
471, 472, 474 and 120-B of IPC doesn’t come within the
purview of pendency of criminal case and, therefore, the
information regarding the registration of the F.I.R was not
required to be furnished in Form-26 postulated under Rule 4A of
Rules of 1961.
88. The Election Petition accordingly hereby fails and is
accordingly dismissed.
(Milind Ramesh Phadke)
Judge
Chandni/- 15.02.2024CHANDNI
NARWARIYA
2024.02.16
17:12:24
+05'30'
