BHIM RAO BASWANTH RAO PATIL versus K. MADAN MOHAN RAO AND ORS.

[2023] 9 S.C.R.

BHIM RAO BASWANTH RAO PATIL

K. MADAN MOHAN RAO AND ORS.

(Civil Appeal No. 4632 of 2023)

BJULY 24, 2023

[S. RAVINDRA BHAT AND ARAVIND KUMAR, JJ.]

Code of Civil Procedure, 1908 – Or. VII, r.11, Or. XII, r.6 –Representation of People Act, 1951 – ss. 8, 33A, 33B, 81, 84, 100 –CAppellant was successful candidate in the election – The respondentpreferred an election petition against appellant u/ss. 81 & 84 r/wss. 100(1)(d)(i)(ii)(iii) & (iv) of 1951 Act alleging, inter-alia,furnishing of false information, non-disclosure of cases pendingand those in which appellant was convicted – Appellant filedapplication u/Or. VII, r.11 of CPC for its rejection – It was contendedDthat mandatory requirements u/ss. 81 and 81(3) were not followedand criminal cases did not fall within ss. 8 & 33A of the Act – HighCourt was of the opinion that taking in the overall conspectus offacts available on record did not lead to compelling reason forrejecting petition – Accordingly, application was dismissed – OnEappeal, held: The alleged non-compliance with statutory andElection Commission mandated regulations, and their legal effect,cannot be examined in what are essentially summary proceedingsu/Or. VII, r.11 of CPC, or even Or. XII, r.6 of CPC – Even if theallegations regarding non-disclosure of cases where the appellantFhas been arrayed as an accused, are ultimately true, the effect ofsuch allegations has to be considered after full trial – Theadmission of certain facts by the election petitioner cannot besufficient for the court to reject the petition, wholly – Judgment ofHigh Court cannot be faulted.

GConstitution of India – Right to vote – The right to vote, basedon an informed choice, is crucial component of the essence ofdemocracy – The citizen has an inalienable right to exercise her orhis right to franchise – This finds articulation in Art. 326 of theConstitution.

Dismissing the appeal, the Court

HELD:1. plain look at the election petition reveals thatapart from allegations pertaining to non-disclosure of criminalcases pending against the appellant, or cases where he wasconvicted, other averments and allegations have been maderegarding non-compliance with stipulations regarding informationdissemination and the manner of dissemination throughpublication in newspapers, the font size, the concernednewspapers’ reach amongst the populace, etc. The alleged non-compliance with statutory and Election Commission mandatedregulations, and their legal effect, cannot be examined in whatare essentially summary proceedings under Order VII Rule 11,CPC, or even under Order XII Rule 6, CPC. Even if theallegations regarding non-disclosure of cases where the appellanthas been arrayed as an accused, are ultimately true, the effect ofsuch allegations (in the context of provisions of law and the non-disclosure of all other particulars mandated by the ElectionSymbols orders) has to be considered after full trial. Theadmission of certain facts (and not all) by the election petitionercannot be sufficient for the court to reject the petition, wholly.Even in respect of the undeniable nature of the judicial record,the effect of its content, is wholly inadequate to draw decree inpart. [Para 26][1237-C-F]2. The right to vote, based on an informed choice, is crucialcomponent of the essence of democracy. This right is preciousand was the result of long and arduous fight for freedom, forSwaraj, where the citizen has an inalienable right to exercise heror his right to franchise. This finds articulation in Article 326 ofthe Constitution. The elector or voter’s right to know about thefull background of candidate- evolved through court decisions-is an added dimension to the rich tapestry of our constitutionaljurisprudence. Keeping this in mind, this court is of the opinionthat if the appellant’s contentions were to be accepted, there wouldbe denial of full-fledged trial, based on the acknowledgementthat material facts were not suppressed. Whether the existenceof criminal case, where charge has not been framed, in relationto an offence which does not possibly carry prison sentence, ora sentence for short spell in prison, and whether conviction in

Acase, where penalty was imposed, are material facts, arecontested. This court would be pre-judging that issue becausearguendo if the effect of withholding some such information isseen as insignificant, by itself, that would not negate the possibilityof conclusion based on the cumulative impact of withholding offacts and non-compliance with statutory stipulations (which is toBbe established in trial). For these reasons, this court is of theopinion that the impugned judgment cannot be faulted. [Paras 27and 28][1238-A-B; 1239-D-G]

Public Interest Foundation & Ors v Union of India(UOI) & Ors., [2018] 10 SCR 141; D. RamachandranCv. R.V. Jankiraman [1999] 1 SCR 983; Himani AlloysLtd. v. Tata Steel Ltd. [2011] 7 SCR 60; Virender Nath–Gautam v Satpal Singh & Ors. 2006 Supp SCR 413 relied on.

Saleem Bhai v. State of Maharashtra [2002] 5 Suppl.DSCR 491; Mayar (H.K.) Limited v. Owners and Parties,Vessel M.V. Fortune Express [2006] 1 SCR 860; People’sUnion for Civil Liberties v Union of India (2003) 4 SCC399; Sejal Glass Ltd. vs. Navilan Merchants Pvt. Ltd.[2017] 7 SCR 557; Jyoti Basu v. Debi Ghosal [1982] 3ESCR 318 – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.4632of 2023.

From the Judgment and Order dated 17.03.2023 of the High Courtfor the State of Telangana at Hyderabad in IA No.1 of 2020 in EP No.34of 2019.

Aryama Sundaram, Harin P Raval, Sr. Advs., M Srinivas RRao, N Manohar, Mrs. Nisha Padmanabhan, Abid Ali Beeran P, AbhishekGupta, Zafar Inyat, Ms. Shreya, Advs. for the Appellant.

Dr. Abhishek Manu Singhvi, Salman Khurshid, Sr. Advs., Ms.Azra Rehman, Ms. Vanya Gupta, Siddharth Seem, Ankit Agarwal, Ms.Viyushti Rawat, Advs. for the Respondents.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. Leave granted. The present appeal by special leave questionsa judgment and order of the Telangana High Court[1] dismissing anapplication which sought rejection of the respondent’s election petition.The appellant had contended that the election petition (hereafter “thepetition”) did not disclose any cause of action and was barred in law andwas liable to be rejected.

2. The appellant was successful candidate in the electionconducted for the Zaheerabad Parliamentary Constituency on 11.04.2019.He was declared elected on 23.05.2019, defeating the respondent(hereafter referred to as “the election petitioner”) by margin of 6229votes. The respondent preferred an election petition under Sections 81and 84 read with Sections 100(1)(d)(i)(ii)(iii) & (iv) of the Representationof People Act, 1951 (hereafter “the Act”). The election petition alleged,amongst others, that the appellant had furnished false information inForm 26 (election affidavit); that the Returning Officer had not followedthe Election Commission’s guidelines dated 10.10.2018; that the appellantfiled false information in C-4 report furnished to the District ElectionOfficer and that there was no previous publication of papers, regardingpending cases against the appellant and those in which he was convicted.Other allegations included failure to follow additional requirements suchas the font size mentioned in the form for publication; listing of cases inseparate rows; failure to have the pending cases disclosed in widely

1 Election Petition No.34/2019, rejecting IA 01/2020

Acirculated newspaper/news channels, and disclosure of information withrespect to cases in which the appellant was convicted and lastly that hisname was shown in misleading manner in the newspaper publication.

3. After the election petition was filed, the appellant applied, underOrder VII Rule 11 of the Code of Civil Procedure (hereafter “CPC”)Bfor its rejection. It was contended inter alia that the mandatoryrequirements under Sections 81 and 81 (3) of the Act were not followed;it was alleged that – there was no pleading as to how the nominationpaper was improperly accepted; that there was no need to disclose theso-called criminal cases as they did not fall within Section 8 of the Actand Section 33A of the Act as the appellant had not been sentenced toCimprisonment of more than one year. As result, non-disclosure ofconviction under Payment of Wages Act, 1936 and Minimum WagesAct, 1948 was not required. It was further alleged that the offencespleaded against the appellant were not criminal and other allegationswith respect to publication and font size etc. were not substantial and onDthe other hand, there was substantial compliance with the law and theguidelines. The election petitioner/respondent resisted the application afterwhich the appellant filed rejoinder.

4. During the course of the proceedings, on 15.11.2021, theappellant filed memo[2 ]which stated that he had obtained certified copiesEof the order sheet dated 28.06.2013; regarding seizure of property in CF97/2013, from the file of the Chief Judicial Magistrate Garhwa and relatedcriminal case. Translations of those into English were made available.These documents were filed in the election proceedings to contest theelection petitioner’s assertion. The appellant also applied under Section340 of the Criminal Procedure Code (hereafter “CrPC”) read with SectionF195 of the CrPC, broadly alleging that the documents produced as truecopies along with the election petition and the averments made werefalse, calling for appropriate criminal proceedings to be drawn up againstthe respondent.5. The High Court had earlier heard the application[3] and reservedGorders on 23.12.2021. The judgment was delivered on 15.06.2022,whereby the respondent’s election petition was rejected, and theappellant’s application was allowed. This court, however, set aside thatorder on 12.09.2022[4]. This court observed in its order that even on the2 Registered as USR 69931/2021.

3 I.A. No. 1/2020 in E.P. No. 34/2019H4 SLP(C) 17247/2022

date it disposed of the special leave petition, i.e., 26.09.2022, the reasonsfor allowing the application for rejection had not been given by the learnedJudge.

6. In the present case, the High Court noticed the contentions ofthe parties as well as the pleadings and was of the opinion that havingregard to the terms of Order VII Rule 11 CPC, only the averments inthe petition and the accompanying documents could be considered andnot any other materials brought on record during the course of theproceedings. The court was of the opinion that taking in the overallconspectus of the facts available on the record did not lead to compellingreason for rejecting the election petition. Accordingly, the appellant’sapplication was dismissed, and the contentions were kept open to beagitated during the trial.

7. The appellant’s main contention was that though the appellanthad urged several grounds with respect to its explanation for the allegednon-compliance of what were termed by the election petitioner asmandatory requirements, it was also alleged that Section 81(3) had notbeen complied with. However, during the hearing, the arguments onbehalf of the appellant, by Mr. C.S. Sundaram, Senior Advocate, wereconfined to submissions to the aspect regarding non-disclosure of criminalcases. The first related to criminal case pending before the CJM,Garhwa bearing CR 96P; case No. CF 97/13 dated 20.03.2013 in Form26, i.e., the election affidavit. The second case was with respect to non-disclosure in Form 26 of conviction. It was alleged that the cases referredto in the election petition, i.e., Labour Enforcement Officer v. M/s.Patil Construction represented by (1) Mr. B. B. Patil (partner) and(2) Mr. M. B. Patil (partner) (Case No.20/12), this case pertained tonon-payment of minimum wages to workers under the Payment of WagesAct, 1936 and Payment of Wages (Mines) Rules, 1956. The appellantwas convicted on 30.07.2013; the second case pertained to State throughLabour Enforcement Officer v. M/s. Patil Construction representedby B.B. Patil and M.B. Patil before Sub Divisional Judicial Magistrateregistered under Section 22A of the Minimum Wages Act, 1948 for non-maintenance of records of workers/employers. The appellant wasconvicted on 05.09.2017.

8. It was argued by Mr. Sundaram that the reference to the pendingcase before the CJM Garhwa District, in the documents filed along withthe election petition, was an abuse of process and clear case of

Ainterpolation. Learned counsel pointed out that this aspect has beenacknowledged by the main judgment in para 27, whereby after consideringthe certified copy relating to that case, the court observed that thereappeared to be some interpolation. Learned counsel reiterated thesubmissions and referred to certified copies which were placed on record.He also referred to the original of the complaint which was summonedBby this court during the present proceedings. It was further stated thatthe conclusion of the High Court with respect to the non-disclosure oftwo cases in respect of the Payment of Wages Act and Minimum Wagesrequiring them to be gone into during the trial is in error. Learned counselcontended that even upon conviction, the minimum threshold indicatedCin Section 33A of the Act is not satisfied because, in eitherway, themaximum sanction is penalty.9. Dr. A.M. Singhvi, learned senior counsel for the electionpetitioner, urged that the impugned order correctly appreciated the lawrelating to Order VII Rule 11 and dismissed the appellant’s application.DCounsel reiterated that the suppression of the truth with respect tocriminal cases, i.e.,non-disclosure of cases where the petitioner wasconvicted and of pending cases, in Form- 26 affidavit were in relation tothe following:

a) Pending cases: The appellant did not disclose the criminal caseEpending before the Chief Judicial Magistrate Garhwa relating to ForestDepartment cases.

b) Regarding cases in which the appellant was convicted (insection 6 of Form-26), there was deliberate attempt to suppress thetruth; the appellant had written “not applicable” when there were twoFcasesin which he was convicted: firstly case No.20/2012 Labour Caserelating to Payment of Wages and Minimum Wages Act, and secondly,Case No 1/ 2013, another case relating to Payment of Wages andMinimum Wages Act.

10. It was submitted that going into the merits of whether thosecases actually existed, and related to the provisions of the Act, wouldGamount to mini-trial which is plainly impermissible while consideringan application seeking rejection of the petition. It was submitted that thelaw on the subject is well settled. Counsel stated that the judgments ofthis court, such as Saleem Bhai v. State of Maharashtra[5]and Mayar

5 2002 [5] Suppl. SCR 491H

(H.K.) Limited v. Owners and Parties, Vessel M.V. Fortune Express[6]had, in no uncertain terms, ruled that while considering an applicationunder Order VII Rule 11, CPC, only the averments in the pleadings(i.e., in the suit or petition) and the accompanying documents canbe looked into. Therefore, reference to and reliance on any documentwhich was not part of the petition, but produced as part of the respondent/defendant’s plea, cannot be considered.

11. It was next urged that while it is undoubtedly important torespect popular will and the courts ought to be slow in upsetting them,equally it important to maintain the purity of the election process. Courtsare, hence, duty bound to examine the allegations whenever the sameare raised within the framework of the statute without being undulyhyper-technical in their approach and oblivious of the ground realities.

Analysis and Conclusions

12. Section 33A of the Act, which requires disclosure of pastcriminal antecedents of every candidate, reads as follows:

“33A. Right to information:

(1) candidate shall, apart from any information which he isrequired to furnish, under this Act or the rules made thereunder,in his nomination paper delivered under sub-section (1) ofsection 33, also furnish the information as 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 any offencereferred to in sub-section (1) or sub-section (2), or coveredin sub-section (3), of section 8] and sentenced to imprisonmentfor one year or more.

(2) The candidate or his proposer, as the case may be, shall,at the time of delivering to the returning officer the nominationpaper under sub-section (1) of section 33, also deliver to himan affidavit sworn by the candidate in prescribed formverifying the information specified in sub-section (1).

(3) The returning officer shall, as soon as may be after thefurnishing of information to him under sub-section (1), display

6 2006 [1] SCR 860

Athe aforesaid information by affixing copy of the affidavit,delivered under sub-section (2), at conspicuous place athis office for the information of the electors relating to aconstituency for which the nomination paper is delivered.”

Section 8 provides for disqualification of elected candidates, uponBtheir conviction of specified offences. However, Section 33A, introducedthrough an amendment to the Act, in 2002, compels those holding outtheir candidature to disclose information about their criminalantecedents. The idea behind this provision is to ensure transparencyand enable the voters to make an informed choice while casting theballot. The need for detailed declaration by candidates was underlinedCby this court in Public Interest Foundation & Ors v Union of India(UOI) & Ors.,[7]which required the Election Symbols (Reservation andAllotment) Order, 1968 to be suitably amended. The court observedthat:

“The best available people, as is expected by the democraticDsystem, should not have criminal antecedents and the votershave right to know about their antecedents, assets and otheraspects. We are inclined to say so, for in constitutionaldemocracy, criminalization of politics is an extremelydisastrous and lamentable situation. The citizens in ademocracy cannot be compelled to stand as silent, deaf andEmute spectators to corruption by projecting themselves ashelpless. The voters cannot be allowed to resign to their fate.The information given by candidate must express everythingthat is warranted by the Election Commission as per law.Disclosure of antecedents makes the election fair one andFthe exercise of the right of voting by the electorate also getssanctified. It has to be remembered that such right isparamount for democracy. voter is entitled to have aninformed choice. If his right to get proper information isscuttled, in the ultimate eventuate, it may lead to destructionof democracy because he will not be an informed voter havingGbeen kept in the dark about the candidates who are Accusedof heinous offences. In the present scenario, the informationgiven by the candidates is not widely known in the constituencyand the multitude of voters really do not come to know about

the antecedents. Their right to have information suffers.H7 2018 [10] SCR141

116. Keeping the aforesaid in view, we think it appropriate toissue the following directions which are in accord with thedecisions of this Court:

(i) Each contesting candidate shall fill up the form as providedby the Election Commission and the form must contain all theparticulars as required therein.

(ii) It shall state, in bold letters, with regard to the criminalcases pending against the candidate.

(iii) If candidate is contesting an election on the ticket of aparticular party, he/she is required to inform the party aboutthe criminal cases pending against him/her.

(iv) The concerned political party shall be obligated to putup on its website the aforesaid information pertaining tocandidates having criminal antecedents.

(v) The candidate as well as the concerned political partyshall issue declaration in the widely circulated newspapersin the locality about the antecedents of the candidate andalso give wide publicity in the electronic media. When we saywide publicity, we mean that the same shall be done at leastthrice after filing of the nomination papers.”

13. Section 33-B inserted by the Representation of the People(Third Amendment) Act, 2002, provided inter alia, that “…no candidateshall be liable to disclose or furnish any such information, in respectof his election, which is not required to be disclosed or furnishedunder this Act or the Rules made thereunder”. This court, in its decisionreported as People’s Union for Civil Liberties v Union of India[8 ]heldthat provision to be invalid and unconstitutional. The court ruledthatSection 33B imposed “blanket ban on dissemination ofinformation other than that spelt out in the enactment irrespectiveof the need of the hour and the future exigencies and expedientsand secondly for the reason that the ban operates despite the factthat the disclosure of information now provided for is deficient andinadequate.” This decisively ruled that providing information is vital fora vibrant and functioning democracy.

14. Pursuant to the decision and directions of this court, the ElectionCommission issued guidelines and also framed forms that were part ofguidelines requiring declarations inter alia with respect to disclosure ofpending criminal cases and those in which candidate(s) had beenconvicted. The relevant extract of the guidelines first issued by the ElectionCommission on 10.10.2018 inter alia reads as follows:

“2. In pursuance of the directions in the abovementionedjudgment, the Commission, after due consideration, has giventhe following directors to be complied with by candidates atelections to the Houses of Parliament and Houses of StateLegislatures, who have criminal cases against them, eitherpending cases or cases of conviction in the past, and to thepolitical parties that set up such candidates.

(a) Candidates at elections to the House of the People, Councilof States, Legislative Assembly or Legislative Council whohave criminal cases against them, shall publish declarationabout their criminal cases, for wide publicity in newspaperswith wide circulation in the constituency area. This declarationis to be published in Format C-1, attached hereto, at least onthree different dates from the day following the last date forwithdrawal of candidatures and up to two days before thedate of poll.

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3. The Political parties-recognized parties and registered un-recognized parties, which set up candidates with criminalcases, either pending cases or cases of past conviction, arerequired to publish declaration giving details in this regard,for wide publicity, on their website as well as in TV channelsand newspapers having wide circulation in the Stateconcerned. Declaration in this regard shall be published inFormat C-2, annexed hereto, and should be provided Statewise with separate statements for each State/Union Territory.Publishing of the declaration in newspapers and TV channelsis required to be done at least on three different dates duringthe period mentioned in Para-2(a) above. As specified above,the declaration in newspapers should appear in at least 12font size, and should be placed suitable so that the directionsfor wide publicity are complied with in letter and spirit. In thecase of publishing of declaration in TV channels, the sameshould be completed before the period of 48 hours endingwith the hour fixed for conclusion of poll. All such politicalparties shall submit as report to the Chief Electoral Officerof the State/UT concerned confirming that they have fulfilledthe requirements of these directions and enclosing therewiththe paper cuttings containing the declarations published bythe party in respect of the candidates in the State/UTconcerned. This shall be done within 30 days of completionof election. It may be noted that failure to abide by thesedirections would be treated as failure/refusal to carry out alawful direction of the Commission for the purposes ofparagraph-16A of the Election Symbols (Reservation &Allotment) Order, 1968.

4. It may also be noted that the provisions for the additionalaffidavit in respect of dues against Govt. accommodation, ifany, that may have been allotted to the candidates, have nowbeen incorporated in Form-26 itself under Item (8) relatingto liabilities to Public Financial Institutions and Govt.Therefore, the candidates shall give the requisite declaration/particulars in this regard in Item (8) of Form-26. Accordingly,the candidates are now not required to file the additionalaffidavit prescribed under the Commissioner’s Order No.509/11/2004-JS-1, dated 3rd February, 2016, as the provisionsare not part of Form-26 itself.

5. These directions may be circulated to all formations of yourparty and also brought to the notice of candidates of the Partyin future elections for guidance and for strict compliance ofthese directions.”

15. The other requirements include submission of copies ofnewspapers in which declarations about criminal cases were furnishedto the District Election Officer, publication of declaration on TV Channelsatleast on three different dates but which was to be completed before48 hours, ending with the year fixed for completion of poll. In the case ofcandidates with criminal cases set up by political parties, whetherrecognized parties or registered unrecognized parties, such candidates

1230SUPREME COURT REPORTS

Aare required to declare before the Returning Officer concerned thatthey have informed their political party about the criminal cases againstthem. Provision for such declaration has been made in Form-26 in thenewly inserted item (6A) and other stipulations were framed. The relevantform with respect to publication in newspapers was Form C-1; the reportby the candidate “about publication of declaration regarding criminalBcases” was in Form C-4 and Form 26 in terms of Rule 4A dealt with theelection affidavit disclosing the description and details of income returnsof the candidate. Clause 5 of Form 26 contains the column for disclosureof pending criminal cases and those in which the candidate was convictedfor any offence. In the present instance, the relevant form filed by theCappellant along with the declaration (Clause 6A) of Form 26 reads asfollows:

“FORM 26

(See Rule 4A)

DAffidavit to be filed by the candidate along with nominationpaper before the Returning Officer for Election to the Houseof the People (Lok Sabha) (Name of the House) from 05-Aheerbad Parliamentary Constituency (name of theConstituency)

PART-AEI, BHEEMRAO BASWANTHRAO PATIL son of lateBASWANTHRAO PATIL, aged 63 years, resident of H.No.1-9-, Shirpur village, Madnoor Mandal, Kamareddy District,Telangana-503309 candidate at the above election, doFhereby solemnly affirm and state on oath.

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(5) Pending Criminal cases

i)I declare that there is no pending criminal case against me.

G(Tick this alternative if there is no criminal case pendingagainst the Candidate and write NOT APPLICABLE againstalternative. (ii) below)

ii) The following criminal cases are pending against me:

(if there are pending criminal cases against the candidate,then tick this alternative and score off alternative (i) above,and give details of all pending cases in the Table

(6) Cases of conviction

(i) I declare that I have not been convicted for any criminaloffence.

(Tick this alternative, if the candidate has not been convictedand write NOT

(ii) I have been convicted for the offences mentioned below:NOT APPLICABLE (if the candidate has been convicted, thentick this alternative and score off alternative (i) above, andgive details in the Table below):

16. The election petitioner/respondent contends that the disclosurein this case was false because the appellant was earlier convicted incases concerning violation of the Minimum Wages Act, 1948 and theEPayment of Wages Act, 1936. The appellant counters this and, in hisapplication, contended that no such disclosure was essential by reasonof the fact that under Section 33A, candidate who is accused of anyoffence punishable with imprisonment for two years or more in pendingcase in which charge has been framed by the court of competentjurisdictionhas to furnish such information [Section 33A(1)(i)]. It is alsoFcontended that in cases of conviction, the requirement of disclosure isby reason of Section 33A(1)(ii) only where she or he is convicted of anoffence and sentenced to imprisonment for one year or more, other thanoffences expressly mentioned in Section 8(1) or (2) or (3). It is submittedthat since the provisions of the Act, in fact, mandate disclosure only inGrespect of those classes of offences expressly stated, the non-disclosureof information with respect to criminal cases pending where the accusedcandidate can face punishment for less than two years or has not beenconvicted of an offence and sentenced to imprisonment for one year ormore is not required.

17. The election petitioner had alleged in the election petition thatwith respect to withholding of vital information inasmuch as – asmentioned earlier – particulars of offences under the Minimum WagesAct and Payment of Wages Act where the candidate had been convictedas well as where he was facing criminal trial under the Indian ForestAct, were not disclosed. In support of this allegation, the election petitionerhad annexed copies of complaint and certain proceedings before theMagistrate at Garhwa. Likewise, the proceedings before the concernedCourt in the cases relating to past convictions under the Payment ofWages Act and the Minimum Wages Act were mentioned. The appellant’smain contention is that the election petitioner’s assertions are falseinasmuch as they rely upon document, i.e., copies of certain ordersheets in the pending criminal case relating to offences under the ForestAct before the Court in Garhwa and that so far as the past convictionsunder the Minimum Wages Act and the Payment of Wages Act areconcerned, there was no requirement at all.

18. To clear the air, this court had summoned the file pertaining tothe pending criminal case before the Garhwa Court, the records of whichshow that the following were arrayed as accused:

1. Sri M.B. Patil, Director, M/s. Patil Construction, S/o Unknown,Sarget, Pune, Maharashtra

2. Sri Ramayan Singh, S/o Late Ram Chhabila Singh, Shastri Nagar,P.S.-Garhwa, District-Garhwa. [A.G.M., Patil Construction, KutcheryRoad, P.S.-Garhwa, District-Garhwa.]

3. Santosh Sinha, S/o Radha Prasad Sinha, Bijli Colony, P.S.-Garhwa, District-Garhwa. [Worker, Patil Constrcution].

4. Dharmpal, S/o Unknown, Patil Construction, Sarget, Pune,Maharashtra.

5. Sri Ranjan Das, S/o Chakradhar Das, 1917 Pokhanput, B.B.S.R.

The complaint/intimation by the Forest Department with respectto seizure and the commission of the offences named - M/s. M.B. PatilB.B. Patil Construction Company and four others (Ramayan Singh,Santosh Sinha, Dharampal and Ranjan Das) is dated 19.03.2013. Theorder sheet dated 02.04.2013 named four persons [other than the presentappellant] and stated that there was no need to issue warrants againstthe accused. According to the allegations, the constructions were carried

Aout by the company inside 1/3[rd] portion of the forest area and stoneswere broken and converted into stone chips. The Forest DepartmentReport was to the effect that 5000 cub. Ft of small and big boulderswere seized on 20.03.2013. The order sheet for 28.06.2013 furtherdiscloses that Mr. Santosh Sinha, Ramayan Singh, Dharampal and onlyM.B. Patil were charged with committing the offence. This clearly showsBthe appellant was not chargedfor the offences alleged in the complaintunder the Indian Forest Act.

19. So far as the past convictions are concerned, the allegationsare not per se denied by the appellant, but rather the application forrejection of the petition contended that no disclosure of this kind wasCneeded since they did not answer the description of the class of offencesenumerated in Section 33A of the Act.

20. As far as criminal charges and offences go, the punishmentfor violating provisions of the Minimum Wages Act, 1948, is provided inSection 22, which prescribes maximum prison term of 6 months or fineDupto 500/-. Section 22A prescribes punishment for other offencesimposing fine upto 500/-. As regards the Payment of Wages Act,1936, the penalty provision is Section 20, which prescribes maximumfine of 7500/-. subsequent conviction under the same provisionattracts stiffer punishment: imprisonment of month which may extendEto six months.

21. The impugned order, as noticed earlier, is premised on thereasoning that any material brought on the record by the successfulcandidate who is respondent in the election proceedings, ipso factocannot be considered within the framework of Order VII Rule 11 CPCFto reject the plea altogether. That understanding in this Court’s opinion iscorrect. At the same time, there could be circumstances when there ismaterial on the record, the consideration of which may not be consideredby Order VII Rule 11 CPC but may fall within the ambit of Order XIIRule 6 CPC (decree on admission), which reads as follows:

G“Judgement on admissions-(1) Where admissions of fact havebeen made either in the pleading or otherwise, whether orallyor in writing, the Court may at any stage of the suit, either onthe application of any party or of its own motion and withoutwaiting for the determination of any other question betweenthe parties, make such order or give such judgment as it mayHthink fit, having regard to such admissions.

(2) Whenever judgment is pronounced under sub-rule (1),a decree shall be drawn up in accordance with the judgmentand the decree shall bear the date on which the judgmentwas pronounced.”

22. It has been held by this Court that the expression “otherwise”mentioned in sub-rule 1 of rule 6 of the Order XII, CPC is not confinedto pleadings but also includes documents filed along with the complaintor main pleading or other materials subsequently brought on the recordwhich are admitted by the other party. In other words, the matter ofrecord that is not denied and contains facts that can lead the court todraw decree is sufficient for the court to do so and, by its judgment,direct decree of the suit (in this case, petition) wholly or partly.

23. The appellant’s argument with respect to using document(i.e., photocopy of the court related documents, and orders) in thecase relating to Forest Act offences, not being true copies, but containinginterpolations, as the title involving the appellant’s name (i.e., “B.B. Patil)is merited. The appellant has sought to initiate proceedings before theHigh Court under Section 340 read with Section 195 of the Cr. PC. Thiscourt is loath to express any opinion about whether annexing suchphotocopy amounts to an offence. The High Court indicated (in para 27of the impugned judgment) that the “interpolation” alleged by the appellantappears to be borne out. The original trial court record, which this courthad the benefit of considering, bears out the appellant’s submission. Tothat extent, therefore, the condition in Order XII Rule 6 CPC (i.e.,admission on the basis of pleadings “or otherwise”) is undeniably madeout; which is that the appellant, BB Patil, was not indicted individually;the company of which he was part, as director, was charged. In relationto and for the company, as its representative, Shri M.B. Patil was charged.The trial court record establishes these as undeniable facts. Yet, theconsequence of such admission has to be considered keeping in mindthat several other allegations need trial.

24. It is salutary position in law that there cannot be partialrejection of the plaint (or petition, as in this case) in exercise of powerunder Order VII Rule 11, CPC. This court had stated this principle, inSejal Glass Ltd. vs. Navilan Merchants Pvt. Ltd[9] in the followingmanner:

9 2017 [7] SCR557

A“This cannot elevate itself into Rule of law, that once partof plaint cannot proceed, the other part also cannotproceed, and the plaint as whole must be rejected UnderOrder VII Rule 11. In all such cases, if the plaint survivesagainst certain Defendants and/or properties, Order VII Rule11 will have no application at all, and the suit as wholeBmust then proceed to trial.”

This principle was stated clearly, in D. Ramachandran v. R.V.Jankiraman[10]which, in relation to an election petition, explained theposition as follows:

C“The election petition as such does disclose cause of actionwhich if unrebutted could void the election and the provisionsof Order 7 Rule 11 (a) CPC cannot therefore be invoked inthis case. There is no merit in the contention that some of theallegations are bereft of material facts and as such do notdisclose cause of action. It is elementary that under OrderD7 Rule 11(a) CPC, the Court cannot dissect the pleading intoseveral parts and consider whether each one of them disclosesa cause of action. Under the Rule, there cannot be partialrejection of the plaint or petition.”

25. There is some authority for the proposition, that the court’sEpower under Order XII Rule 6, CPC, is not only discretionary but requiresexercise of caution and that unless an admission is unambiguous, enablingthe court to draw decree, the power would not be exercised. Thus, inHimani Alloys Ltd. v. Tata Steel Ltd.,[11 ]this court held that:

“It is true that judgment can be given on an “admission”Fcontained in the minutes of meeting. But the admissionshould be categorical. It should be conscious and deliberateact of the party making it, showing an intention to be boundby it. Order 12 Rule 6 being an enabling provision, it is neithermandatory nor peremptory but discretionary. The court, onexamination of the facts and circumstances, has to exerciseGits judicial discretion, keeping in mind that judgment onadmission is judgment without trial which permanentlydenies any remedy to the Defendant, by way of an appeal onmerits. Therefore unless the admission is clear, unambiguous101999 [1] SCR 983H11 2011[7] SCR60

and unconditional, the discretion of the Court should not beexercised to deny the valuable right of Defendant to contestthe claim. In short the discretion should be used only whenthere is clear ‘admission’ which can be acted upon. (Seealso Uttam Singh Duggal and Co. Ltd. v. United Bank of India2000 [Supp 2] SCR 187; Karam Kapahi v. Lal Chand PublicCharitable Trust 2010 (4) SCR 422 and Jeevan Diesels andElectricals Ltd. v. Jasbir Singh Chadha 2010) 6 SCC 526"

26. plain look at the election petition reveals that apart fromallegations pertaining to non-disclosure of criminal cases pending againstthe appellant, or cases where he was convicted, other averments andallegations have been made regarding non-compliance with stipulationsregarding information dissemination and the manner of disseminationthrough publication in newspapers, the font size, the concernednewspapers’ reach amongst the populace, etc. The alleged non-compliance with statutory and Election Commission mandated regulations,and their legal effect, cannot be examined in what are essentially summaryproceedings under Order VII Rule 11, CPC, or even under Order XIIRule 6, CPC. Even if the allegations regarding non-disclosure of caseswhere the appellant has been arrayed as an accused, are ultimately true,the effect of such allegations (in the context of provisions of law and thenon-disclosure of all other particulars mandated by the Election Symbolsorders) has to be considered after full trial. The admission of certainfacts (and not all) by the election petitioner cannot be sufficient for thecourt to reject the petition, wholly. Even in respect of the undeniablenature of the judicial record, the effect of its content, is wholly inadequateto draw decree in part. This court has also ruled that the truth orotherwise of anything is ordinarily matter of evidence, in full-blowntrial, in Virender Nath Gautam v Satpal Singh & Ors.[12]:

“52. The High Court, in our considered opinion, stepped intoprohibited area of considering correctness of allegations andevidence in support of averments by entering into the meritsof the case which would be permissible only at the stage oftrial of the election petition and not at the stage ofconsideration whether the election petition was maintainableand dismissed the petition. The said action, therefore, cannotbe upheld and the order deserves to be set aside.”

A27. Lastly, the right to vote, based on an informed choice, is acrucial component of the essence of democracy. This right is preciousand was the result of long and arduous fight for freedom, for Swaraj,where the citizen has an inalienable right to exercise her or his right tofranchise. This finds articulation in Article 326 of the Constitution whichenacts that “every person who is citizen of India and who is notBless than twenty one years of age on such date as may be fixed andis not otherwise disqualified under this Constitution or any law madeby the appropriate Legislature on the ground of non-residence,unsoundness of mind, crime or corrupt or illegal practice, shall beentitled to be registered as voter at any such election”. Article 325Cembeds non-discriminatory principle:

“325. No person to be ineligible for inclusion in, or to claimto be included in special, electoral roll on grounds ofreligion, race, caste or sex. There shall be one generalelectoral roll for every territorial constituency for election toDeither House of Parliament or to the House or either Houseof the Legislature of State and no person shall be ineligiblefor inclusion in any such roll or claim to be included in anyspecial electoral roll for any such constituency on groundsonly of religion, race, caste, sex or any of them.”

EDemocracy has been held to be part of one of the essentialfeatures of the Constitution. Yet, somewhat paradoxically, the right tovote has not been recognized as Fundamental Right yet; it was termedas “mere” statutory right. However, in Jyoti Basu v. Debi Ghosal,[13]this court again pointed out that:

F“a right to elect, fundamental though it is to democracy, is,anomalously enough, neither fundamental right nor acommon law right. It is pure and simple statutory right. Withgreat reverence to the eminent Judges, I would like to clarifythat the right to vote, if not fundamental right, is certainly aconstitutional right. The right originates from the ConstitutionGand in accordance with the constitutional mandate containedin Article 326, the right has been shaped by the statute, namely,R.P. act. That, in my understanding, is the correct legal positionas regards the nature of the right to vote in elections to theHouse of the People and Legislative Assemblies. It is not very

H131982 [3] SCR 318

accurate to describe it as statutory right, pure and simple.Even with this clarification, the argument of the learnedSolicitor General that the right to vote not being afundamental right, the information which at best facilitatesmeaningful exercise of that right cannot be read as an integralpart of any fundamental right, remains to be squarely met....”

Similarly, in para 123 of the judgment, O. Chinnappa Reddi, J.,held that:

“(2) The right to vote at the elections to the House of thePeople or Legislative Assembly is constitutional right butnot merely statutory right; freedom of voting as distinct fromright to vote is facet of the fundamental right enshrined inArticle 19(1)(a). The casting of vote in favour of one or theother candidate marks the accomplishment of freedom ofexpression of the voter.”

28. The elector or voter’s right to know about the full backgroundof candidate- evolved through court decisions- is an added dimensionto the rich tapestry of our constitutional jurisprudence. Keeping this inmind, this court is of the opinion that if the appellant’s contentions wereto be accepted, there would be denial of full-fledged trial, based onthe acknowledgement that material facts were not suppressed. Whetherthe existence of criminal case, where charge has not been framed, inrelation to an offence which does not possibly carry prison sentence,or sentence for short spell in prison, and whether conviction in acase, where penalty was imposed, are material facts, are contested.This court would be pre-judging that issue because arguendo if theeffect of withholding some such information is seen as insignificant, byitself, that would not negate the possibility of conclusion based on thecumulative impact of withholding of facts and non-compliance withstatutory stipulations (which is to be established in trial). For thesereasons, this court is of the opinion that the impugned judgment cannotbe faulted.

29. In view of the foregoing discussion, there is no merit in theappeal; it is accordingly dismissed, with costs.

Ankit Gyan(Assisted by : Aarsh Choudhary, LCRA)

Appeal dismissed.