SATISH UKEY versus DEVENDRA GANGADHARRAO FADNAVIS AND ANR.

[2019] 15 S.C.R. 524

[2019] 15 S.C.R.

SATISH UKEY

DEVENDRA GANGADHARRAO FADNAVISAND ANR.

(Criminal Appeal Nos. 1515-1516 of 2019)

OCTOBER 01, 2019

[RANJAN GOGOI, CJI., DEEPAK GUPTA ANDANIRUDDHA BOSE, JJ.]

Representation of the People Act, 1951:

ss. 33A and 125A – Rules 4A r/w Form 26 of Conduct ofElection Rules, 1961 – Criminal complaint against MLA – Alleginginfraction of the provision u/s 125-A as the MLA had not mentionedin Form 26 two criminal cases in which cognizance was takenagainst him – Complaint dismissed by trial court – Order affirmedDby High Court – Appeal to Supreme Court – Held: Form 26mandates disclosure of information by the contesting candidate ofnot only case(s) in which charges have been framed but also case(s)in which cognizance has been taken by the Court – Certain Letterswritten by Election Commission of India to the Chief ElectoralEOfficers of all the States and UTs also show that contestingcandidate is mandated to furnish information with regard to casesin which cognizance is taken and that any fake declaration orconcealment in the affidavit prescribed in Form 26 as requiredu/s. 33-A(2), will attract the provision of s. 125-A – Cumulativereading of ss. 33-A and r. 4A and Form 26 alongwith the lettersFfrom the Election Commissioner, makes it clear that information tobe furnished u/s. 33-A includes not only information contained inclauses (i) and (ii) of s. 33-A (1), but also the information madeunder the Act or the rules made thereunder and such informationshould be furnished in Form 26 – As per the averment in thecomplaint, the criminal cases were deliberately not mentioned inGForm 26 – Hence, orders of courts below dismissing the complaintis not tenable – Complaint to be considered afresh by trial court.

Allowing the appeals, the Court

HELD: 1. Consequent to the directions issued in*Association for Democratic Reforms case, Section 33-A was

inserted into Representation of the People Act, 1951 vide theRepresentation of the People (Third Amendment) Act, 2002.Section 33-A(1), as worded and drafted, required furnishing ofthe information of cases where (i) the person filing thenomination has been convicted; and (ii) where charges have beenframed against the person filing the nomination but excludedcases where cognizance had been taken. This was despite theorder of this Court, to the effect that details of case(s) of whichcognizance has been taken should also be furnished. [Paras 8and 9] [531-A-G-H]

People’s Union for civil Liberties (PUCL) and Ors. v.Union of India (UOI) and Ors. (2003) 4 SCC 399 :[2003] 3 SCR 75 ; *Union of India (UOI) and Ors.v. Association for Democratic Reforms and Ors. (2002)5 SCC 294 : [2002] 3 SCR 696 – relied on.

2. Whether the provisions of Section 125-A of the 1951Act would be applicable in the present case, to make the firstrespondent liable in law, would require the Court to decide onthe true meaning and purport of the following phrases found inSection 125-A of the 1951 Act i.e. (a) fails to furnish informationrelating to sub-section (1) of Section 33-A; (b) conceals anyinformation; (c) in his nomination paper delivered under sub-section (1) of section 33 or in his affidavit which is required tobe delivered under sub-section (2) of section 33-A. To find outthe true meaning and purport of the aforesaid phrases, the crucialquestion that has to be answered is whether the word‘information’ as mentioned in Section 33-A of the 1951 Actmeans only such information as mentioned in clause (i) and (ii)of Section 33-A(1) or whether along with the said information acandidate is also required to furnish such other information asrequired under the Act or the Rules made thereunder. Theconsequential question that would arise is whether in theaffidavit required to be filed under sub-section (2) of Section 33-A information is to be given as required in terms of the affidavitwhich is prescribed by Form-26 of the Conduct of Election Rules,1961 or such information is confined to what is required to besubmitted under Section 33-A (1) (i) and (ii). [Paras 12 and 13][535-C-G]

3. Rule 4-A of 1961 Rules which was inserted byS.O.935(E), dated 3.9.2002 with effect from 3.9.2002 provides

EFG

Afor form of affidavit to be filed at the time of delivering nominationpaper. Form 26 is the prescribed form of affidavit to be filed bya candidate along with his nomination papers as required underSection 33-A (2) of the 1951 Act. [Paras 13 and 14] [535-G; 536-B]

B4. Form-26 was substituted by S.O. 1732 (E) dated1.8.2012 with effect from 1.8.2012. bare perusal of Form-26makes it abundantly clear that, for offences punishable withimprisonment for two years or more, while entry (5)(i) mandatesdisclosure of information by the contesting candidate regardingthe case(s) that is/are pending against him in which charges haveCbeen framed by the Court; entry (5)(ii) mandates disclosure ofinformation by the contesting candidate regarding cases that arepending against him in which cognizance has been taken by theCourt. Entry 5(ii) specifically mentions that the candidate isrequired to provide information of the case(s) pending in whichDcognizance has been taken. This is in addition to the informationhe is required to provide against the column in Entry 5(i) as thewords ‘Other than the cases mentioned in item (i) above arespecifically used in Entry 5(ii). This would leave no element ofdoubt that, subsequent to the substitution of Form 26 in 2012,the new Form 26 (as in vogue at the time of the elections inE2014), mandates the disclosure of information by the contestingcandidate of not only case(s) in which charges have been framedbut also case(s) in which cognizance has been taken by the Court.[Paras 15, 16 and 17] [544-C-F]

5. The position is made further clear by the letters datedF24.8.2012, 26.9.2012 and 26.4.2014 written by the ElectionCommission of India to the Chief Electoral Officer of all theStates and the Union Territories. reading of the said letterswould go to show that contesting candidate is mandated tofurnish information concerning the cases in which Competent

GCourt has taken cognizance along with the cases in whichcharges have been framed. The said letters also make it clearthat the affidavit mentioned in Section 33-A(2) of the 1951 Actis prescribed in Form-26 and that any false declaration orconcealment of information in the said affidavit will attract theprovisions of Section 125-A of the 1951 Act. [Para 18] [544-G-HH; 545-A]

6. cumulative reading of Section 33-A of the 1951 Actand Rule 4-A of the 1961 Rules and Form-26 along with theletters of Election Commission dated 24.8.2012, 26.9.2012 and26.4.2014, make it amply clear that the information to befurnished under Section 33-A of the 1951 Act includes not onlyinformation mentioned in clauses (i) and (ii) of Section 33-A(1),but also information, that the candidate is required to furnish,under the Act or the Rules made thereunder and suchinformation should be furnished in Form 26, which includesinformation concerning cases in which competent Court hastaken cognizance (Entry 5(ii) of Form 26). This is apart fromand in addition to cases in which charges have been framed foran offence punishable with imprisonment for two years or moreor cases in which conviction has been recorded and sentenceof imprisonment for period of one year or more has beenimposed (Entries 5(i) and 6 of Form 26 respectively). [Para 19][547-D-F]

7. Therefore, in view of the fact that clear averment wasmade in the complaint to the effect that the First Respondenthad knowledge of the two cases against him which had not beenmentioned in the affidavit filed by the First Respondentalongwith his nomination papers, the order of the trial Courtupheld by the High Court is legally not tenable and the samedeserves to be set aside. The complaint of the appellant willbe considered afresh by the trial Court from the stage where itwas interdicted. [Para 20] [547-F-H]

Krishnamoorthy v. Sivakumar and others (2015) 3SCC 467 : [2015] 4 SCR 987 – relied on.

Case Law Reference

From the Judgment and Order dated 03.05.2018 of the HighCourt of Judicature at Bombay, Nagpur Bench at Nagpur in CriminalRevision Application No. 94 of 2016 and Criminal Application (APPR)No. 101 of 2018.

AVivek Tankha, Mukul Rohatgi, Sunil Manohar, Sanjay Parikh,Sr. Advs., Vaibhav Srivastava, Akshay C. Srivastava, PrashantSivaragan, Pranav Gupta, Shashi Bhushan Wahane, Sanjay Patil, BalrajDewan, Satish Veke, Sameer Rohatgi, Ms. Ranjeeta Rohatgi, SidharthDharmadhikari, Nishant Ramakantrao Katneshwarkar, Anoop Kandari,Abhimanue Shrestha, Ms. Sanjana Srikumar, Ritwik Parikh, JatinderpalBSingh, Ms. Rani Mishra, Randhir Kumar Ojha, Advs. for the appearingparties.

The Judgment of the Court was delivered by

RANJAN GOGOI, CJI.

1. Leave granted.

2. The appellant– Satish Ukey is practicing Advocate of theBombay High Court. The first respondent is an elected member of theMaharashtra State Legislative Assembly and is presently holding thepost of Chief Minister of the State of Maharashtra.

3. The appellant had filed criminal complaint before the learnedJudicial Magistrate First Class, Nagpur for registration of case againstthe first respondent under Section 125-A of the Representation of thePeople Act, 1951 (hereinafter referred to as “the 1951 Act”). Thelearned Judicial Magistrate First Class, Nagpur by order dated 7[th]ESeptember, 2015 dismissed the complaint. In Revision, the learnedSessions Judge, Nagpur remanded the matter to the learned trial Courtfor de novo consideration. Aggrieved, the first respondent movedthe High Court and the High Court having set aside the order of thelearned Sessions Judge by its judgment and order dated 3[rd] May, 2018,the present appeals have been filed.

4. The complaint filed by the appellant contains an allegation thatin the affidavit in Form-26, prescribed by the Conduct of Election Rules,1961 (hereinafter referred to as “the 1961 Rules”), which hadaccompanied the nomination papers of the first respondent details oftwo cases in which cognizance was taken i.e. (i) Summary Case No.231Gof 1996 (under Section 500 of IPC) before the Judicial Magistrate FirstClass, Nagpur; and (ii) Regular Criminal Case No.343 of 2003 (OldNo.125 of 1998) (under Sections 468, 471, 218, 467, 420 and 34 of IPC)before the Court of Judicial Magistrate First Class, Nagpur have notbeen mentioned by the first respondent despite knowledge of the same.HConsequently, according to the appellant – complainant, an infraction

of the provisions of Section 125-A has been committed for which thefirst respondent is liable to be prosecuted in court of competentjurisdiction.

On the very same allegations the appellant had challenged theelection of the first respondent before the High Court by institutingElection Petition No.1 of 2014 which has been dismissed by the HighCourt by its order dated 19[th] August, 2015.

5. To determine the correctness of the stand taken by theappellant - complainant and the legality of the impugned order of theHigh Court holding that the complaint is liable to be dismissed, the Courtwould be required to consider the provisions of Sections 33-A and 125-A of the 1951 Act, Rule 4A of the 1961 Rules read with Form-26prescribed under the said Rules. Several letters of the ElectionCommission of India to the Chief Electoral Officers of all the Statesand the Union Territories issued in this regard would also require closelook.

6. Before setting out the relevant provisions of the lawenumerated above, brief prologue on the judicial precedents that hadled to the insertion of Sections 33-A and 125-A in the 1951 Act andthe provisions of Rule 4-A of the 1961 Rules read with Form-26 isconsidered necessary.

7. In Union of India (UOI) and Ors. v. Association forDemocratic Reforms and Ors.[1]this Court while examining the issueof the Voters right to know relevant particulars of the contestingcandidates before they are called upon to cast their votes had madethe following observations :

“22. For health of democracy and fair election, whether thedisclosure of assets by candidate, his/her qualification andparticulars regarding involvement in criminal cases are necessaryfor informing voters, may be illiterate, so that they can decideintelligently, whom to vote? In our opinion, the decision of evenilliterate voter, if properly educated and informed about thecontesting candidate, would be based on his own relevant criteriaof selecting candidate. In democracy, periodical elections areconducted for having efficient governance for the country andfor the benefit of citizens — voters. In democratic form of

Agovernment, voters are of utmost importance. They have rightto elect or re-elect on the basis of the antecedents and pastperformance of the candidate. He has choice of deciding whetherholding of educational qualification or holding of property isrelevant for electing or re-electing person to be hisrepresentative. Voter has to decide whether he should cast voteBin favour of candidate who is involved in criminal case. Formaintaining purity of elections and healthy democracy, voters arerequired to be educated and well informed about the contestingcandidates. Such information would include assets held by thecandidate, his qualification including educational qualification andCantecedents of his life including whether he was involved in acriminal case and if the case is decided—its result, if pending—whether charge is framed or cognizance is taken by the Court?There is no necessity of suppressing the relevant facts from thevoters.

[underlining is ours]”

Further, this Court issued the following directions to the ElectionCommission (para 48, pg. 322):

“48. The Election Commission is directed to call for informationEon affidavit by issuing necessary order in exercise of its powerunder Article 324 of the Constitution of India from each candidateseeking election to Parliament or State Legislature as anecessary part of his nomination paper, furnishing therein,information on the following aspects in relation to his/hercandidature:-

(1) Whether the candidate is convicted/acquitted/ dischargedof any criminal offence in the past-if any, whether he ispunished with imprisonment or fine?

(2) Prior to six months of filing of nomination, whether theGcandidate is accused in any pending case, of any offencepunishable with imprisonment for two years or more, andin which charge is framed or cognizance is taken by theCourt of law. If so, the details thereof.

[underlining is ours]”

8. Consequent to the above and the directions issued inAssociation for Democratic Reforms (Supra), Section 33-A wasinserted into the 1951 Act vide the ‘Representation of the People (ThirdAmendment) Act, 2002’ (Section 2 of the Act 72 of 2002).

9. The new Section 33-A, which is the bone of contention in thepresent case, deals with the ‘Right to Information’ and reads as under:

“33A. Right to information.—(1) candidate shall, apart fromany information which he is required to furnish, under this Actor the rules made thereunder, in his nomination paper deliveredunder sub-section (1) of section 33, also furnish the informationas to whether –

(i) he is accused of any offence punishable with imprisonmentfor two years or more in pending case in which chargehas been framed by the court of competent jurisdiction;

(ii) he has been convicted of an offence other than anyoffence referred to in sub-section (1) or sub-section(2), orcovered in sub-section (3), of section 8 and sentenced toimprisonment for one year or more.

(2) The candidate or his proposer, as the case may be, shall, atthe time of delivering to the returning officer the nomination paperunder sub-section (1) of section 33, also deliver to him anaffidavit sworn by the candidate in prescribed form verifying-the information specified in subsection (1).

(3) The returning officer shall, as soon as may be after thefurnishing of information to him under sub-section (1),display theaforesaid information by affixing copy of the affidavit, deliveredunder sub-section (2), at conspicuous place at his office forthe information of the electors relating to constituency for whichthe nomination paper is delivered.

[underlining is ours]”

It is pertinent to note here that Section 33-A(1), as worded anddrafted, required furnishing of the information of cases where (i) theperson filing the nomination has been convicted; and (ii) where chargeshave been framed against the person filing the nomination but excludedcases where cognizance had been taken. This was despite the orderof this Court, noticed above, to the effect that details of case(s) ofwhich cognizance has been taken should also be furnished.

A10. The aforesaid discrepancy was addressed by this Court, inthe case of People’s Union for civil Liberties (PUCL) and Ors.v. Union of India (UOI) and Ors.[2] In the said case, this Court hadexamined the import of Sections 33-A and 33-B[3 ]of the 1951 Act [asinserted in the 1951 Act through the amendment in 2002 (Supra)] vis-à-vis the directions issued by this Court in the case of Association forBDemocratic Reforms (Supra) and held as under (opinion of M.B. Shah,J. is quoted. The opinion of P. Venkatarama Reddi and D.M.Dharmadhikari, JJ. on the point is one of concurrence):“114. I shall now discuss the specifics of the problem. With aview to promote the right to information, this Court gave certainCdirectives to the Election Commission which, as I have alreadyclarified, were ad hoc in nature. The Election Commission wasdirected to call for details from the contesting candidates broadlyon three points, namely, (i) criminal record, (ii) assets andliabilities, and (iii) educational qualification. The Third AmendmentDto the RP Act which was preceded by an ordinance providedfor disclosure of information. How far the Third Amendment tothe Representation of the People Act, 2002 safeguards the rightof information which is part of the guaranteed right under Article19(1)(a), is the question to be considered now with specificreference to each of the three points spelt out in the judgmentEof this Court in Assn. for Democratic Reforms case.

115. As regards the first aspect, namely, criminal record, thedirectives in Assn. for Democratic Reforms case are twofold:(SCC p. 322, para 48)

“(1) Whether the candidate is convicted/acquitted/discharged ofFany criminal offence in the past — if any, whether he is punishedwith imprisonment or fine.

2 (2003) 4 SCC 399

3 Section 33-B was also added through the 2002 Amendment. It stated thatnotwithstanding anything contained in any judgment of any Court, or any instructionGissued by the Election Commission, no candidate shall be liable to disclose informationnot required by the Act or rules made thereunder.

Section 33-B was declared unconstitutional in People’s Union of Civil Libertiesv. Union of India and Ors. ((2003) 4 SCC 399) as violating the fundamental right ofcitizens to know the antecedents of candidates contesting in the elections, which rightwas held to be an essential facet of freedom of speech and expression enshrined inArticle 19(1)(a) of the Constitution which could only be validly limited through theHrestrictions conforming with Article. 19(2) of the Constitution of India.

(2) Prior to six months of filing of nomination, whether thecandidate is an accused in any pending case, of any offencepunishable with imprisonment for two years or more, and in which”charge is framed or cognizance is taken by the court of law.

As regards the second directive, Parliament has substantiallyproceeded on the same lines and made it obligatory for thecandidate to furnish information as to whether he is accused ofany offence punishable with imprisonment for two years or morein pending case in which charge has been framed by thecompetent court. However, the case in which cognizance hasbeen taken but charge has not been framed is not covered byclause (i) of Section 33-A(I). Parliament having taken the rightstep of compelling disclosure of the pendency of cases relatingto major offences, there is no good reason why it failed to providefor the disclosure of the cases of the same nature of whichcognizance has been taken by the Court. It is commonknowledge that on account of variety of reasons such as thedelaying tactics of one or the other accused and inadequaciesof the prosecuting machinery, framing of formal charges getsdelayed considerably, especially in serious cases where committalprocedure has to be gone through. On that account, the voter/citizen shall not be denied information regarding cognizance takenby the Court of an offence punishable with imprisonment for twoyears or more. The citizen’s right to information, when once it isrecognized to be part of the fundamental right under Article19(1)(a), cannot be truncated in the manner in which it has beendone. Clause (i) of Section 33-A(I) therefore falls short of theavowed goal to effectuate the right of information on vitalaspect. Cases in which cognizance has been taken shouldtherefore be comprehended within the area of informationaccessible to the voters/citizens, in addition to what is providedfor in clause (i) of Section 33-A.

[underlining is ours]”

Further, the Court held:

“123. Finally, the summary of my conclusions:(1) …..

A(3) The directives given by this Court in Union of India v. Assn.for Democratic Reforms were intended to operate only till thelaw was made by the legislature and in that sense “pro tempore”in nature. Once legislation is made, the Court has to make anindependent assessment in order to evaluate whether the itemsof information statutorily ordained are reasonably adequate toBsecure the right of information available to the voter/citizen. Inembarking on this exercise, the points of disclosure indicated bythis Court, even if they be tentative or ad hoc in nature, shouldbe given due weight and substantial departure therefrom cannotbe countenanced.

(6) The right to information provided for by Parliament underSection 33-A in regard to the pending criminal cases and pastinvolvement in such cases is reasonably adequate to safeguardthe right to information vested in the voter/citizen. However, thereis no good reason for excluding the pending cases in whichcognizance has been taken by the Court from the ambit ofdisclosure.

[underlining is ours]”

Eventually, the following direction was issued by the Court to theEElection Commission of India:

“123 (9) The Election Commission has to issue revisedinstructions to ensure implementation of Section 33-A subject towhat is laid down in this judgment regarding the cases in which

cognizance has been taken….”F

11. Section 125-A of the 1951 Act [Inserted by Section 5 of theRepresentation of the People (Third Amendment) Act, 2002’ (Act 72of 2002)] reads as under:

“Section 125-A. Penalty for filing false affidavit, etc.- AGcandidate who himself or through his proposer, with intent to beelected in an election,—

(i) fails to furnish information relating to sub-section (1) ofsection 33-A; or

(ii) gives false information which he knows or has reason toHbelieve to be false; or

(iii) conceals any information, in his nomination paper deliveredunder sub-section (1) of section 33 or in his affidavit whichis required to be delivered under sub-section (2) of section33-A, as the case may be, shall, notwithstanding anythingcontained in any other law for the time being in force, bepunishable with imprisonment for term which may extendto six months, or with fine, or with both”

12. Whether the provisions of Section 125-A of the 1951 Actwould be applicable in the present case, as claimed by the appellant –complainant, to make the first respondent liable in law, would requirethe Court to decide on the true meaning and purport of the followingphrases found in Section 125-A of the 1951 Act.

(a) fails to furnish information relating to sub-section (1)of Section 33-A;

(b) conceals any information;

(c) in his nomination paper delivered under sub-section (1)of section 33 or in his affidavit which is required to bedelivered under sub-section (2) of section 33-A.

13. To find out the true meaning and purport of the aforesaidphrases, the crucial question that has to be answered is whether theword ‘information’ as mentioned in Section 33-A of the 1951 Act meansonly such information as mentioned in clause (i) and (ii) of Section 33-A(1) or whether along with the said information candidate is alsorequired to furnish such other information as required under the Act orthe Rules made thereunder. The consequential question that would ariseis whether in the affidavit required to be filed under sub-section (2) ofSection 33-A information is to be given as required in terms of theaffidavit which is prescribed by Form-26 of the 1961 Rules or suchinformation is confined to what is required to be submitted under Section33-A (1) (i) and (ii). It is at this stage that Rule 4-A of the 1961 Ruleswould require to be noticed. Rule 4-A which was inserted byS.O.935(E), dated 3.9.2002 with effect from 3.9.2002 is in the followingterms.

“4-A. Form of affidavit to be filed at the time of deliveringnomination paper.— The candidate or his proposer, as the case

536SUPREME COURT REPORTS

Amay be, shall, at the time of delivering to the returning officerthe nomination paper under sub-section (1) of Section 33 of theAct, also deliver to him an affidavit sworn by the candidatebefore Magistrate of the first class or Notary in Form 26.”

14. Form 26 is the prescribed form of affidavit to be filed by aBcandidate along with his nomination papers as required under Section33-A (2) of the 1951 Act. The said affidavit in the prescribed formreads as hereunder:

“ [FORM 26

(See Rule 4-A)

Please affix your recentpassport size photographhere

Affidavit to be filed by the candidate along with nominationpaper before the returning officer for election toD........................................ .(name of the House) from................................ constituency (Name of the constituency)

PART

I ........................................, **son/daughter/wife of........................................ Aged ............. years, resident of

........................................ (mention full postal address), acandidate at the above election, do hereby solemnly affirm andstate on oath as under—

(1) I am candidate set up by ........................................F(**name of the political party)/**am contesting as an Independentcandidate.

(**Strike out whichever is not applicable)

(2) My name is enrolled in ........................................ (Nameof the constituency and the State), at Serial No. ......................Gin Part No. ............................

[(3) My contact telephone number(s) is/are ................................

and my E-mail ID (if any) is ..................................................

[(4) Details of Permanent Account Number (PAN) and statusof filing of income tax return:H

SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS[RANJAN GOGOI, CJI.]

Sl. Names PAN The financial year for Total income shown ANo. which the last in income tax return income-tax return has (in Rupees) been filed. 1. Self 2 Spouse 3. Dependent-1 B4. Dependent-2 5. Dependent-3

5. I am/am not accused of any offence(s) punishable withimprisonment for two years or more in pending case(s) in whicha charge(s) has/have been framed by the court(s) of competentjurisdiction.

If the deponent is accused of any such offence(s) he shall furnishthe following information-

(i) The following case(s) is/are pending against me in whichcharges have been framed by the court for an offencepunishable with imprisonment for two years or more-

(a) Case/First Information Report No./Nos. together with complete details of concerned Police Station/District/State (b) Section(s) of the concerned Act(s) and short description of the offence(s) for which charged (c) Name of the Court, Case No. and date of Order takingcognizance:(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 whichcognizance has been taken by the Court(other than the casesmentioned in item (i) above.

(6) I have been/have not been convicted of an offences(s) otherthan any offence(s) referred to in sub-section (1) or sub-section(2), or covered in sub-section (3), of Section 8 of theCRepresentation of the People Act, 1951 (43 of 1951) andsentenced to imprisonment for one year or more.

If the deponent is convicted and punished as aforesaid, he shallfurnish the following information:

DIn the following cases, I have been convicted and sentenced toimprisonment by court of law:-

(7) That I give hereinbelow the details of the assets (movableand immovable etc.) of myself, my spouse and all dependents:

A. Details of movable assets:

Note:1. Assets in joint name indicating the extent of jointownership will also have to be given

Note:2. In case of deposit/investment, the details including serialnumber, amount, date of deposit, the scheme, name of the Bank/HInstitution and Branch are to be given.

Note:3. Value of Bonds/Share Debentures as per current marketvalue in Stock exchange in respect of listed companies and asper books in case of non-listed companies should be given.

Note:4. Dependent here has the same meaning as assigned inExplanation (v) under Section 75-A of the Representation of thePeople Act, 1951.

Note:5: Details including amount is to be given separately inrespect of each investment.

Sl. No.Description Self SpouseDependent-Dependent-Dependent-1 2 3 C(i)Cash in hand (ii) Details of deposit in Bank accounts (FDRs, Term Deposits and all other types of deposits including saving accounts), Deposits with Financial Institutions, Non-Banking Financial Companies and Cooperative societies and the amount in each Dsuch deposit (iii) Details of investment in Bonds, debentures/shares and units in companies/Mutual funds and others and the amount (iv) Details of investment in NSS, Postal Saving, Insurance policies and investment in any Financial Einstruments in Post Office or Insurance Company and the amount(v) Personal loans/advance given to any person or entity including firm, company, Trust etc., and other receivables from debtors and the amount (vi) Motor FVehicles/Aircrafts/Yachts/Ships (Details of Make, registration number etc. year of purchase and amount)(vii) Jewellery, bullion and valuable thing(s) (give details of weight and value)(viii) Any other assets such as value of Gclaims/interest (ix)Gross Total Value

B. Details of Immovable Assets:

Note: 1. Properties in joint ownership indicating the extent of jointownership will also have to be indicated.

ANote: 2. Each land or building or apartment should be mentionedseparately in this format.

Sl. Description SelfSpouseDependent-1Dependent-2Dependent-3No.(i) Agricultural Land Location(s) BSurvey number(s)Area (total measurement in acres)Whether inherited property (Yes or No)Date of Purchase in case of self-acquired propertyCost of Land (in case of purchase) at Cthe time of purchase Any investment on the land by way of development, construction etc. Approximate current market value (ii)Non-Agricultural Land: Location(s) DSurvey number(s)Area (total measurement in sq. ft.)Whether inherited property (Yes or No)Date of Purchase in case of self-acquired propertyCost of Land (in case of purchase) at Ethe time of purchase Any investment on the land by way of development, construction etc. Approximate current market value (iii)Commercial Buildings (including apartments) F—Location(s) —Survey number(s)Area (total measurement in sq.ft.)Built-up Area (total measurement in sq.ft.)Whether inherited property (Yes or No)GDate of purchase in case of self-acquired propertyCost of property (in case of purchase) at the time of purchase Any investment on the property by way of development, construction etc.HApproximate current market value

SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS[RANJAN GOGOI, CJI.]

(iv)Residential Buildings (including Aapartments): —Location(s) —Survey number(s)Area (total measurement in sq.ft.)Built-up area (total measurement in sq.ft.)BWhether inherited property(Yes or No)Date of purchase in case of self-acquired propertyCost of property (in case of purchase) at the time of purchase Any investment on the land by way of development, construction etc. CAppropriate current market value (v)Others (such as interest in property)(vi)Total of current market value of (i) to (v) above (8) I give herein below the details of liabilities/dues to publicfinancial institutions and government—

(Note.—Please give separate details of name of bank, institutions,entity or individual and amount before each item)

8. [Details of Assets and Liabilities in rupees]ADescription SelfSpouseDependent-I Dependent-Dependent-II III A. Movable Assets (Total Value)B Immovable Asset I. Purchase Price of self-acquired immovable propertyII.Development/Construction cost of Bimmovable property after purchase (if applicable)III.Approximate Current market price of—(a) self-acquired assets (Total Value)(b) inherited assets (Total Value)9. Liabilities C(i)Government dues (Total)(ii)Loans from Bank, Financial Institutions and others (Total)10.Liabilities that are under dispute (i)Government dues (Total)(ii)Loans from Bank, Financial Institutions and others (Total)D11. Highest educational qualification: (Give details of highest School/University education mentioning the full form of thecertificate/diploma/degree course, name of the School/College/University and the year in whichthe course was completed.)

VERIFICATION

I, the deponent, abovenamed, do hereby verify and declare thatthe contents of this affidavit are true and correct to the best ofmy knowledge and belief and no part of it is false and nothingmaterial has been concealed therefrom. I further declare that—

(a) there is no case of conviction or pending case against meother than those mentioned in Items 5 and 6 of Part and BFabove;

(b) I, my spouse, or my dependents do not have any asset orliability, other than those mentioned in Items 7 and 8 of Part Aand Items 8, 9 and 10 of Part above.

Verified at…………………………this the…………………dayof………………………………………

DEPONENT

Note: 1. Affidavit should be filed latest by 3.00 PM on the lastday of filing nominations.

ANote: 2. Affidavit should be sworn before an Oath Commissioneror Magistrate of the First Class or before Notary Public.

Note: 3. All column should be filled up and no column to be leftblank. If there is no information to furnish in respect of any item,either “Nil” or “Not applicable”, as the case may be, should beBmentioned.Note: 4. The Affidavit should be either typed or written legiblyand neatly.”

15. It may be noticed here that Form-26 was substituted by S.O.1732 (E) dated 1.8.2012 with effect from 1.8.2012.C

16. bare perusal of Form-26 makes it abundantly clear that,for offences punishable with imprisonment for two years or more, whileentry (5) (i) mandates disclosure of information by the contestingcandidate regarding the case(s) that is/are pending against him in whichcharges have been framed by the Court; entry (5)(ii) mandatesDdisclosure of information by the contesting candidate regarding casesthat are pending against him in which cognizance has been taken bythe Court.

Entry 5(ii) specifically mentions that the candidate is required toprovide information of the case(s) pending in which cognizance hasEbeen taken. This is in addition to the information he is required toprovide against the column in Entry 5(i) as the words ‘Other than thecases mentioned in item (i) above’ are specifically used in Entry 5 (ii).

17. The above can leave no element of doubt that, subsequentto the substitution of Form 26 in 2012, the new Form 26 (as in vogueFat the time of the elections in 2014), mandates the disclosure ofinformation by the contesting candidate of not only case(s) in whichcharges have been framed but also case(s) in which cognizance hasbeen taken by the Court.

18. The position is made further clear by the letters written byGthe Election Commission of India to the Chief Electoral Officer of allthe States and the Union Territories. reading of the said letters wouldgo to show that contesting candidate is mandated to furnish informationconcerning the cases in which Competent Court has taken cognizancealong with the cases in which charges have been framed. The saidHletters also make it clear that the affidavit mentioned in Section 33-

SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS[RANJAN GOGOI, CJI.]

A(2) of the 1951 Act is prescribed in Form-26 and that any falsedeclaration or concealment of information in the said affidavit will attractthe provisions of Section 125-A of the 1951 Act. The letters in thisregard are dated 24.8.2012, 26.9.2012 and 26.4.2014, relevant portionsof which are extracted below:

(i) Letter dt. 24-08-2012:

“1. Sub:- Affidavit to be filed by candidates with their nominationpaper-modification of format-regarding.

The candidates at elections to the Parliament and the StateLegislatures hitherto were required to file two affidavits: one, inForm-26 appended to Conduct of Elections Rules, 1961 and theother, in the Form prescribed by the Commission, vide its OrderNo. 3/ER/2003 dt. 27-03-2003, as subsequently modified by theletter of even number dt. 25-02-2011. In the affidavits, thecandidates are required to declare information about their criminalbackground, if any, assets, liabilities and educational qualifications.

2.On proposal moved by the Commission for amalgamating thetwo affidavits into one format, the Govt. has amended Form 26so as to include in it all the information that was sought in thetwo separate affidavits. The Ministry of Law and Justice havenotified the revised format 26 in the Gazette of India on 01-08-2012. copy of the said notification dated 1[st] August, 2012 isenclosed herewith.

3.In view of the amendment to Form-26, all candidates shall,hereafter, file only one affidavit in the revised Form 26 notifiedon 01-08-2012 (at elections to the Parliament and StateLegislatures). The requirements to be followed while filing theaffidavit have been mentioned in the notes given at the end ofthe format…..

5.You are requested to furnish copy of this letter along withthe copy of the enclosed notification to every political party(including registered unrecognized parties) having headquartersin your State/UT, including the State Units of recognized Nationaland State political parties.”[Emphasis is ours].”

(ii). Letter dt. 26-09-2012:

“Sub: Affidavit to be filed by the candidates with their nominationpaper-regarding:

2. Item 5 of Part and Part of the revised Form 26 relatesto information regarding criminal antecedentsto be furnished bythe candidates. It is clarified that in item (5)(ii) of the said PartA & Part of Form-26, the details of all pending cases in whichcognizance has been taken by the Court, irrespective of thequantum of punishment or framing of charges will have to bedisclosed by the candidate. This may be brought to the notice ofall candidates when they file their nomination at all future general/bye-elections in the State…”

(iii) Letter dt. 26-04-2014:

“Sub: Filing of false affidavit in Form-26.reg.

Sir/Madam,

You are aware that the format of affidavit in Form-26 appendedto the Conduct of Election Rules, 1961, was amended with effectfrom 01-08-2012. Now the candidates are required to makedeclarations about assets and liabilities including that of spouseand dependants, candidate’s criminal antecedents and educationalqualifications, in the affidavit in Form 26. The concealing ofinformation in the affidavit in Form 26 will attract the provisionsof Section 125A. Under Section 125A, furnishing of any falseinformation or concealing of information in the affidavit in Form26 is an electoral offence punishable with imprisonment upto sixmonths, or with fine or both.

2. Prior to amendment to Form 26 in August 2012, the affidavitregarding declaration about assets, liabilities, criminal antecedentsand educational qualification was given in the format prescribedby the Commission. In the case of complaints about falsestatement in the said affidavit, the Commission, vide its circularletter No. 3/ER/2004, dated 2/6/2004, had clarified that ifcomplaints were filed before the Returning Officer raising theissue of false declaration in the affidavit and if the RO was primafacie satisfied about the merits of the complaint, then the RO

was to file complaint before the competent Court under Section177 of IPC read with Section 195 of Cr.P.C.

3. Now that the affidavit is in Form 26 under Section 33A of theR.P. Act, 1951, making false declaration/concealing of informationin the affidavit would be covered under Section 125A of the Act.Under Section 125A, there is no stipulation that complaints underthe Section have to be made by the public servant concerned(in this case the R.O.). Therefore, it would be open to anyaggrieved person to move petition before the appropriate Courtof competent jurisdiction with petition for action under Section125A in the case of any false declaration or concealing ofinformation in the affidavit in Form 26.

[underlining is ours]”

19. cumulative reading of Section 33-A of the 1951 Act andRule 4-A of the 1961 Rules and Form-26 along with the letters dated24.8.2012, 26.9.2012 and 26.4.2014, in our considered view, make itamply clear that the information to be furnished under Section 33-A ofthe 1951 Act includes not only information mentioned in clauses (i) and(ii) of Section 33-A(1), but also information, that the candidate is requiredto furnish, under the Act or the Rules made thereunder and suchinformation should be furnished in Form 26, which includes informationconcerning cases in which competent Court has taken cognizance(Entry 5(ii) of Form 26). This is apart from and in addition to casesin which charges have been framed for an offence punishable withimprisonment for two years or more or cases in which conviction hasbeen recorded and sentence of imprisonment for period of one yearor more has been imposed (Entries 5(i) and 6 of Form 26 respectively).

20. In the light of the view that we have taken and in view ofthe clear averment made in the complaint to the effect that the FirstRespondent had knowledge of the two cases against him which hadnot been mentioned in the affidavit filed by the First Respondentalongwith his nomination papers, we unhesitatingly arrive at theconclusion that the order of the learned trial Court upheld by the HighCourt by the impugned judgment and order dated 3[rd] May, 2018 is legallynot tenable and the same deserves to be set aside which we herebydo. The complaint of the appellant will be considered afresh by thelearned trial Court from the stage where it was interdicted by the orderdated 30.5.2016.

A21. Our view as above is in consonance with similar viewexpressed by this Court in paragraph 75 of the report inKrishnamoorthy v. Sivakumar and others[4]. Para 75 of the reportin Krishnamoorthy (supra) reads as under:

“75. On perusal of the aforesaid format, it is clear as crystalBthat the details of certain categories of the offences in respectof which cognizance has been taken or charges have beenframed must be given/furnished. This Rule is in consonance withSection 33-A of the 1951 Act. Section 33(1) envisages thatinformation has to be given in accordance with the Rules. Thisis in addition to the information to be provided as per SectionsC33(1)(i) and (ii). The affidavit that is required to be filed by thecandidate stipulates mentioning of cases pending against thecandidate in which charges have been framed by the Court forthe offences punishable with imprisonment for two years or moreand also the cases which are pending against him in whichDcognizance has been taken by the court other than the caseswhich have been mentioned in clause (5)(i) of Form 26. Apartfrom the aforesaid, clause (6) of Form 26 deals with conviction.

22. Consequently and in the light of the above, the appeals areallowed. The order of the High Court dated 3[rd] May, 2018 is set aside.EAll pending applications including the application for intervention/impleadment are disposed of.

Kalpana K. Tripathy

Appeals allowed.