# Mohhamad Aslam @ Mohhamad Aslam Raeeni v. Shri Ram Feren @ Ram Feren Pandey

- **Citation:** (2024) 1 ILRA 411
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-11
- **Case number:** Election Petition No. 3 of 2022
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohhamad-aslam-mohhamad-aslam-raeeni-v-shri-ram-feren-ram-feren-pandey-51371
- **Pages:** 28

## Headnote

(A) Election - Code of Civil Procedure,
1908 - Order V Rule 20 - Substituted
service ,Order VII Rule 11 CPC - Rejection
of plaint , The Representation of the
People
Act,
1951
-
Section
8
-
Disqualification on conviction for certain
offences, Section 8-A - Disqualification on
ground of corrupt practices, Section 33-A -
Right to information, Section 36 - Scrutiny
of nominations, Section 81 - Presentation
of petitions, Section 82 - Parties to the
petition, Section 83 - Contents of petition,
Section 86 - Trial of election petitions,
Section 117 - Security for costs , Section
125-A - Penalty for filing false affidavit,
etc, The Conduct of Elections Rules, 1961
- Rule 94-A - Form of affidavit to be filed
with election petition.

(B) Election petition - two stages - (i) to
verify whether election petition has been
filed properly - strictly following the
provisions of Section 81 or 82 or 117 of
the
Act
and
without
ignoring
the
requirements of Section 83 of the Act read
with relevant provisions of C.P.C. - cause
of action should be clear and complete (ii)
if the election petition has been filed in
compliance of aforesaid provisions of the
Act and the cause of action is complete,
then it will qualify to the next stage i.e.
the complete trial of election petition on
merits - Section 86 of the Act makes no
reference to Section 83 thereof and so, prima
facie, an election petition cannot be summarily
dismissed under Section 86 of the Act for noncompliance with the provisions of Section 83
thereof but if the affidavit has not been filed
properly or the verification thereof is defective,
then the election petitioner may be given
opportunity to cure the defect, as such defect
cannot be held fatal to the maintainability of the
election petition. (Para - 38,48)

(C) The Representation of the People Act,
1951 - non-compliance with the provisions
of Section 83 of the Act is curable defects
- yet there must be substantial compliance
therewith - if there is total and complete noncompliance with the provisions of Section 83 of
the Act, the petition cannot be described as an
election petition and may be dismissed at the
threshold. (Para -40)

(D) The Allahabad High Court Rules, 1952
- Chapter IV - Rules 11- Form of Affidavit ,
412 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule
12
-
Facts
to
be
within the
deponent's knowledge or source to be
stated , Chapter XV-A - Rule 5 - Issue of
notice to respondent , Rule 6 - Process fee
and charges .
Maintainability of election petition - ground -
non-disclosure of criminal cases - non-disclosure
of complete assets in the nomination paper -
inconsistent
educational
qualification
-
inconsistent age in nomination paper and other
documents - High Court considering whether to
dismiss an election petition that doesn't comply
with Sections 81, 82, or 117 of the Act, or if
Section
83
hasn't
been
fully
complied
with.(Para - 3,34)

HELD:-Election petition has been filed without
proper verification and without the affidavit as
required under the C.P.C. and Rules 11 & 12 of
Chapter IV of the Allahabad High Court Rules as
well as affidavit in Form-25. Election petition
does not qualify first stage in as much as
election petition has not been filed making
compliance of the provisions of Section 83 of
the Act and the cause of action is incomplete. It
cannot go for trial and also it is not necessary to
enter into and examine the merits of other rival
contentions. (Para - 46,49)

Petition dismissed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,744 of 98,231. This is a partial read: ask again with offset=39744 for what follows._

1 All. Mohhamad Aslam @ Mohhamad Aslam Raeeni Vs. Shri Ram Feren @ Ram Feren Pandey
411

26. In view of the above conclusion,
the F.I.R. dated 17.7.2022, lodged by
respondent No.3 in Case Crime No. 162 of
2023, under Section 174-A I.P.C., P.S. Lodha,
District Aligarh, is hereby quashed. However,
it is open to concerned court to file a written
complaint against the petitioners u/s 174-A
I.P.C. as per Section 195(1) Cr.P.C., if there is
no legal impediment.

27. With the aforesaid observation, the
writ petition is allowed.

28. A copy of this judgement be sent to
all District and Sessions Judges in the State of
Uttar Pradesh so as to apprise all judicial
officers as well as copy to the Director, JTRI,
Lucknow to sensitize the trainee judicial
officers about the law laid down by this
judgement.
----------
(2024) 1 ILRA 411
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.01.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Election Petition No. 3 of 2022

Mohhamad Aslam @ Mohhamad Aslam
Raeeni ...Petitioner
Versus
Shri Ram Feren @ Ram Feren Pandey
 ...Respondent

Counsel for the Petitioner:
In
Person,
Mohd.
Altaf
Mansoor,
Tanay
Chaudhary

Counsel for the Respondent:
Rajeiu Kumar Tripathi, Lalta Prasad Misra, Rajeiu
Kumar Tripathi

(A) Election - Code of Civil Procedure,
1908 - Order V Rule 20 - Substituted
service ,Order VII Rule 11 CPC - Rejection
of plaint , The Representation of the
People
Act,
1951
-
Section
8
-
Disqualification on conviction for certain
offences, Section 8-A - Disqualification on
ground of corrupt practices, Section 33-A -
Right to information, Section 36 - Scrutiny
of nominations, Section 81 - Presentation
of petitions, Section 82 - Parties to the
petition, Section 83 - Contents of petition,
Section 86 - Trial of election petitions,
Section 117 - Security for costs , Section
125-A - Penalty for filing false affidavit,
etc, The Conduct of Elections Rules, 1961
- Rule 94-A - Form of affidavit to be filed
with election petition.

(B) Election petition - two stages - (i) to
verify whether election petition has been
filed properly - strictly following the
provisions of Section 81 or 82 or 117 of
the
Act
and
without
ignoring
the
requirements of Section 83 of the Act read
with relevant provisions of C.P.C. - cause
of action should be clear and complete (ii)
if the election petition has been filed in
compliance of aforesaid provisions of the
Act and the cause of action is complete,
then it will qualify to the next stage i.e.
the complete trial of election petition on
merits - Section 86 of the Act makes no
reference to Section 83 thereof and so, prima
facie, an election petition cannot be summarily
dismissed under Section 86 of the Act for noncompliance with the provisions of Section 83
thereof but if the affidavit has not been filed
properly or the verification thereof is defective,
then the election petitioner may be given
opportunity to cure the defect, as such defect
cannot be held fatal to the maintainability of the
election petition. (Para - 38,48)

(C) The Representation of the People Act,
1951 - non-compliance with the provisions
of Section 83 of the Act is curable defects
- yet there must be substantial compliance
therewith - if there is total and complete noncompliance with the provisions of Section 83 of
the Act, the petition cannot be described as an
election petition and may be dismissed at the
threshold. (Para -40)

(D) The Allahabad High Court Rules, 1952
- Chapter IV - Rules 11- Form of Affidavit ,
412 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule
12
-
Facts
to
be
within the
deponent's knowledge or source to be
stated , Chapter XV-A - Rule 5 - Issue of
notice to respondent , Rule 6 - Process fee
and charges .
Maintainability of election petition - ground -
non-disclosure of criminal cases - non-disclosure
of complete assets in the nomination paper -
inconsistent
educational
qualification
-
inconsistent age in nomination paper and other
documents - High Court considering whether to
dismiss an election petition that doesn't comply
with Sections 81, 82, or 117 of the Act, or if
Section
83
hasn't
been
fully
complied
with.(Para - 3,34)

HELD:-Election petition has been filed without
proper verification and without the affidavit as
required under the C.P.C. and Rules 11 & 12 of
Chapter IV of the Allahabad High Court Rules as
well as affidavit in Form-25. Election petition
does not qualify first stage in as much as
election petition has not been filed making
compliance of the provisions of Section 83 of
the Act and the cause of action is incomplete. It
cannot go for trial and also it is not necessary to
enter into and examine the merits of other rival
contentions. (Para - 46,49)

Petition dismissed. (E-7)

List of Cases cited:

1. Jyoti Basu & ors. Vs Debi Ghoshal & ors.,
(1982) 1 SCC 691

2. Mithilesh Kumar Pandey Vs Baidyanath Yadav
& ors., (1984) 2 SCC 1

3. V. Narayanaswamy Vs C.P. Thirunavukkarasu
, (2000) 2 SCC 294

4. Hari Shanker Jain Vs Sonia Gandhi , (2001) 8
SCC 233

5. T. Arivandandam Vs T.V. Satyapal & anr.,
(1977) 4 SCC 467

6. Saritha S. Nair Vs Hibi Eden , (2020) SCC
OnLine SC 1006

7. A. Manju Vs Prajwal Revanna @ Prajwal R &
ors., (2022) 3 SCC 269
8. Amit Yadav Vs Kunwar Jayesh Prasad & ors.,
2016 SCC OnLine All 3013

9. Umesh Challiyill Vs K.P. Rajendran , (2008) 11
SCC 740

10. G.M. Siddeshwar Vs Prasanna Kumar , (2013)
4 SCC 776

11. P.A. Mohd. Riyas Vs M.K. Raghavan & ors. ,
(2012) 5 SCC 511

12. Azhar Hussain Vs Rajiv Gandhi, 1986 AIR 1253

13. F.A. Sapa & ors.Vs Singora & ors., (1991) 3
SCC 375

14. C.P. John Vs Babu M. Palissery & ors., (2014)
10 SCC 547

15. G.M. Siddeshwar Vs Prasanna Kumar, (2013) 4
SCC 776

16. Sardar Harcharan Singh Brar Vs Sukh Darshan
Singh, (2004) 11 SCC 196

17. R.P. Moidutty Vs P.T. Kunju Mohammad &
Anr., (2000) 1 SCC 481

18. Lok Pahari Vs E.C.I & ors.(2018)

19. Brajesh Singh Vs Sunil Arora (2021)

20. Nand Kishore Garg Vs Jitendra Singh Tomar
(2020)

21. P.I.F. & ors. Vs U.O.I. & Anr. (2015)

22. S.H. Singh Brar Vs Sukh Darshan Singh & ors.
,(2004) 11 SCC 196,

23.
G.
Mallikarjunappa
&
Anr.
Vs
S.S.
Ashankarappa & ors. , (2001) 4 SCC 428

24. Ponnala Lakshmaiah Vs Kommuri Pratap
Reddy & ors., (2012) 7 SCC 788

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Dr. L.P. Misra, assisted by
Sri Rajeiu Kumar Tripathi, learned counsel
1 All. Mohhamad Aslam @ Mohhamad Aslam Raeeni Vs. Shri Ram Feren @ Ram Feren Pandey
413
for the respondent on the objections so
raised against the maintainability of the
election petition and Mohd. Altaf Mansoor,
assisted by Sri Tanay Chaudhary, learned
counsel for the election petitioner.

2. Since learned counsel for the
respondent
has
submitted
that
his
application for rejection/dismissal of the
election petition may be considered as an
application filed under Order VII Rule 11
CPC, therefore, that application which is
bearing Civil Misc. Application/ I.A. No.2
of 2022 is being decided by means of the
following order.

3. This is an election petition filed by
Mohhamad Aslam alias Mohhamad Aslam
Raeeni, the petitioner, through his counsel
Mohd. Altaf Mansoor challenging the
declaration of election dated 10.03.2022
issued by Returning Officer of 290Shrawasti Constituency in the General
Elections Uttar Pradesh- 2022 in favour of
the respondent as duly elected Member of
the State Legislative Assembly mainly on
the ground of non-disclosure of criminal
cases, non-disclosure of complete assets in
the
nomination
paper,
inconsistent
educational qualification and inconsistent
age in the nomination paper and other
documents.

4. Notices were issued to the
respondent in terms of Chapter XV-A Rule 5
& 6 of the Allahabad High Court Rules,
1952 on 21.04.2022. As per office report
dated 24.05.2022, the election petitioner had
made compliance of Rules 5 & 6 of the High
Court Rules inasmuch as to serve notice
upon the respondent. Notices through
registered AD post has been issued. The
notice was published in "Dainik Jagran"
Hindi Newspaper. Besides, the notice has
been sent through ordinary post. Hence,
service of notice is sufficient in the light of
Order V Rule 20 of the Code of Civil
Procedure, 1908 (hereinafter referred to as
"CPC")
upon
the
respondent.
On
30.05.2022, Sri Rajeiu Kumar Tripathi has
filed Vakalatnama
on
behalf
of
the
respondent. On 01.08.2022, an application
for rejection/dismissal of the election
petition has been filed by Dr. L.P. Misra
alongwith Sri Rajeiu Kumar Tripathi,
learned counsel for the respondent. On
17.08.2022, Mohd. Altaf Mansoor alongwith
Sri Tanay Chaudhary has filed application
for dismissal of the application filed by the
respondent. On 01.11.2022, Dr. L.P. Misra
has submitted that the application for
rejection/dismissal of the election petition
may be considered as application filed under
Order VII Rule 11 of CPC. He has further
submitted that the election petition is not
maintainable inasmuch as there are some
apparent defects in the election petition and
those defects may be removed, if the
election petitioner files any appropriate
application to that effect. Mohd. Altaf
Mansoor has submitted that he shall not file
any application seeking cure of the defects,
which have been pointed out by Dr. L.P.
Misra.

5. Before adverting to the objections so
raised by learned counsel for the respondent
and reply thereto by learned counsel for the
election petitioner, it would be pertinent to
reproduce some relevant sections of the
Representation of the People Act, 1951
(hereinafter referred to as "the Act" in
short). Sections 8, 8-A, 33-A, 36 (6), 36 (8),
81, 82, 83, 86, 125-A of the Act and Rule
94-A of the Conduct of Elections Rules,
1961 are as under:-

"8. Disqualification on conviction for
certain offences.- [(1) A person convicted
of an offence punishable under-
414 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) section 153A (offence of promoting
enmity between different groups on ground
of religion, race, place of birth, residence,
language, etc., and doing acts prejudicial
to maintenance of harmony) or section
171E (offence of bribery) or section 171F
(offence of undue influence or personation
at an election) or sub-section (1) or subsection (2) of section 376 or section 376A
or section 376B or section 376C or section
376D (offences relating to rape) or section
498A (offence of cruelty towards a woman
by husband or relative of a husband) or
sub-section (2) or sub-section (3) of section
505 (offence of making statement creating
or promoting enmity, hatred or ill-will
between classes or offence relating to such
statement in any place of worship or in any
assembly engaged in the performance of
religious worship or religious ceremonies)
or the Indian Penal Code (45 of 1860); or

(b) the Protection of Civil Rights Act,
1955 (22 of 1955), which provides for
punishment for the preaching and practice
of "untouchability", and for the enforcement
of any disability arising therefrom; or

(c) section 11 (offence of importing or
exporting prohibited goods) of the Customs
Act, 1962 (52 of 1962); or

(d) sections 10 to 12 (offence of being a
member
of
an
association
declared
unlawful, offence relating to dealing with
funds of an unlawful association or offence
relating to contravention of an order made
in respect of a notified place) of the
Unlawful Activities (Prevention) Act, 1967
(37 of 1967); or

(e) the Foreign Exchange (Regulation)
Act, 1973 (46 of 1973); or

(f)
the
Narcotic
Drugs
and
Psychotropic Substances Act, 1985 (61 of
1985); or

(g) section 3 (offence of committing
terrorist acts) or section 4 (offence of
committing disruptive activities) of the
Terrorist
and
Disruptive
Activities
(Prevention) Act, 1987 (28 of 1987); or

(h) section 7 (offence of contravention
of the provisions of section 3 to 6) of the
Religious
Institutions
(Prevention
of
Misuse) Act, 1988 (41 of 1988); or

(i) section 125 (offence of promoting
enmity between classes in connection with
the election) or section 135 (offence of
removal of ballot papers from polling
stations) or section 135A (offence of booth
capturing) or clause (a) of sub-section (2)
of section 136 (offence of Fraudulently
defacing or fraudulently destroying any
nomination paper) of this Act; [or]

[(j) section 6 (offence of conversion of a
place or worship) of the Places of Worship
(Special Provisions) Act 1991], [or]

[(k) section 2 (offence of insulting the
Indian National Flag or the Constitution of
India) or section 3 (offence of preventing
singing
of
National
Anthem)
of
the
Prevention of Insults to National Honour Act,
1971 (69 of 1971);] [or]

[(l) the Commission of Sati (Prevention)
Act, 1987 (3 of 1988); or

(m) the Prevention of Corruption Act,
1988 (49 of 1988); or

(n) the Prevention of Terrorism Act,
2002 (15 of 2002),] 5 [shall be disqualified,
where the convicted person is sentenced to-

(i) only fine, for a period of six years
from the date of such conviction;

(ii) imprisonment, from the date of
such conviction and shall continue to be
disqualified for a further period of six years
since his release.]

(2) A person convicted for the
contravention of-

(a)
any
law
providing
for
the
prevention of hoarding or profiteering; or

(b) any law relating to the adulteration
of food or drugs; or
(c) any provisions of the Dowry Prohibition
Act, 6 [1961 (28 of 1961);],
1 All. Mohhamad Aslam @ Mohhamad Aslam Raeeni Vs. Shri Ram Feren @ Ram Feren Pandey
415

8 [***]

and sentenced to imprisonment for not
less than six months, shall be disqualified
from the date of such conviction and shall
continue to be disqualified for a further
period of six years since his release.

(3) A person convicted of any offence
and sentenced to imprisonment for not less
than two years [other than any offence
referred to in sub-section (1) or sub-section
(2)] shall be disqualified from the date of
such conviction and shall continue to be
disqualified for a further period of six years
since his release.]

[(4)] Notwithstanding anything 2 [in
sub-section (1), sub-section 2 and subsection (3)] a disqualification under either
sub-section shall not, in the case of a
person who on the date of the conviction is
a member of Parliament or the Legislature
of a State, take effect until three months
have elapsed from that date or, if within
that period an appeal or application for
revision is brought in respect of the
conviction or the sentence, until that appeal
or application is disposed of by the court.

Explanation.-In this section-

(a) "law providing for the prevention
of hoarding or profiteering" means any
law, or any order, rule or notification
having the force of law, providing for-

(i) the regulation of production or
manufacture of any essential commodity;

(ii) the control of price at which any
essential commodity may be brought or
sold;
(iii) the regulation of acquisition,
possession, storage, transport, distribution,
disposal, use or consumption of any
essential commodity;

(iv) the prohibition of the withholding
from sale of any essential commodity
ordinarily kept for sale;

(b) "drug" has the meaning assigned
to it in the Drugs and Cosmetics Act, 1940
(23 of 1940);

(c) "essential commodity" has the
meaning assigned to it in the Essential
Commodities Act, 1955 (10 of 1955);

(d) "food" has the meaning assigned
to it in the Prevention of Food Adulteration
Act, 1954 (37 of 1954).

[8A. Disqualification on ground of
corrupt practices.-(1) The case of every
person found guilty of a corrupt practice by
an order under section 99 shall be
submitted, 4 [as soon as may be within a
period of three months from the date such
order takes effect], by such authority as the
Central Government may specify in this
behalf, to the President for determination of
the question as to whether such person
shall be disqualified and if so, for what
period:

Provided that the period for which any
person may be disqualified under this subsection shall in no case exceed six years
from the date on which the order made in
relation to him under section 99 takes
effect.

(2) Any person who stands disqualified
under section 8A of this Act as it stood
immediately before the commencement of
the Election Laws (Amendment) Act, 1975
(40 of 1975), may, if the period of such
disqualification has not expired, submit a
petition to the President for the removal of
such disqualification for the unexpired
portion of the said period.

(3) Before giving his decision on any
question mentioned in sub-section (1) or on
any petition submitted under sub-section
(2), the President shall obtain the opinion
of the Election Commission on such
question or petition and shall act according
to such opinion.]

[33A. Right to information.-(1) A
candidate shall, apart from any information
which he is required to furnish, under this
Act or the rules made thereunder, in his
nomination paper delivered under sub-
416 INDIAN LAW REPORTS ALLAHABAD SERIES
section (1) of section 33, also furnish the
information as to whether-

(i) he is accused of any offence
punishable with imprisonment for two
years or more in a pending case in which a
charge has been framed by the court of
competent jurisdiction;

(ii) he has been convicted of an
offence [other than any offence referred to
in sub-section (1) or sub-section (2), or
covered in sub-section (3), of section 8]
and sentenced to imprisonment for 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
nomination paper under sub-section (1) of
section 33, also deliver to him an affidavit
sworn by the candidate in a prescribed
form verifying the information specified in
sub-section (1).

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

36. Scrutiny of nominations.-
(6) The returning officer shall endorse on
each
nomination
paper
his
decision
accepting or rejecting the same and, if the
nomination paper is rejected, shall record
in writing a brief statement of his reasons
for such rejection.

[(8)
Immediately
after
all
the
nomination papers have been scrutinised
and decisions accepting or rejecting the
same have been recorded, the returning
officer shall prepare a list of validly
nominated candidates, that is to say,
candidates whose nominations have been
found valid, and affix it to his notice
board.]

81. Presentation of petitions.-(1) An
election petition calling in question any
election may be presented on one or more
of the grounds specified in [sub-section (1)]
of section 100 and section 101 to the 8
[High Court] by any candidate at such
election or any elector 9 [within forty-five
days from, but not earlier than the date of
election of the returned candidate or if
there are more than one returned candidate
at the election and dates of their election
are different, the later of those two dates].

Explanation.-In
this
sub-section,
"elector" means a person who was entitled
to vote at the election to which the election
petition relates, whether he has voted at
such election or not.

[Sub-section (2) omitted by Act 47 of
1966, sec 39 (b) (w.e.f. 14-12-1966)]

[(3) Every election petition shall be
accompanied by as many copies thereof as
there are respondents mentioned in the
petition and every such copy shall be
attested by the petitioner under his own
signature to be a true copy of the petition.]

[82.
Parties
to
the
petition.-A
petitioner shall join as respondents to his
petition-

(a) where the petitioner, in addition to
claiming a declaration that the election of
all or any of the returned candidates is
void, claims a further declaration that he
himself or any other candidate has been
duly elected, all the contesting candidates
other than the petitioner, and where no
such further declaration is claimed, all the
returned candidates; and

(b) any other candidate against whom
allegations of any corrupt practice are
made in the petition.]

[83. Contents of petition.-(1) An
election petition-
1 All. Mohhamad Aslam @ Mohhamad Aslam Raeeni Vs. Shri Ram Feren @ Ram Feren Pandey
417

(a) shall contain a concise statement
of the material facts on which the petitioner
relies;

(b) shall set forth full particulars of
any corrupt practice that the petitioner
alleges, including as full a statement as
possible of the names of the parties alleged
to have committed such corrupt practice
and the date and place of the commission
of each such practice; and

(c) shall be signed by the petitioner
and verified in the manner laid down in the
Code of Civil Procedure, 1908 (5 of 1908)
for the verification of pleadings:

[Provided that where the petitioner
alleges any corrupt practice, the petition
shall also be accompanied by an affidavit
in the prescribed form in support of the
allegation of such corrupt practice and the
particulars thereof.]
(2) Any schedule or annexure to the petition
shall also be signed by the petitioner and
verified in the same manner as the
petition].

[86. Trial of election petitions.-(1)
The High Court shall dismiss an election
petition which does not comply with the
provisions of section 81 or section 82 or
section 117.

Explanation.-An order of the High
Court dismissing an election petition under
this sub-section shall be deemed to be an
order made under clause (a) of section 98.

(2) As soon as may be after an election
petition has been presented to the High
Court, it shall be referred to the Judge or
one of the Judges who has or have been
assigned by the Chief Justice for the trial of
election petitions under sub-section (2) of
section 80A.

(3) Where more election petitions than
one are presented to the High Court in
respect of the same election, all of them
shall be referred for trial to the same Judge
who may, in his discretion, try them
separately or in one or more groups.

(4) Any candidate not already a
respondent shall, upon application made by
him to the High Court within fourteen days
from the date of commencement of the trial
and subject to any order as to security for
costs which may be made by the High
Court, be entitled to be joined as a
respondent.

Explanation.-For the purposes of this
sub-section and of section 97, the trial of a
petition shall be deemed to commence on
the date fixed for the respondents to appear
before the High Court and answer the
claim or claims made in the petition.

(5) The High Court may, upon such
terms as to costs and otherwise as it may
deem fit, allow the particulars of any
corrupt practice alleged in the petition to
be amended or amplified in such manner as
may in its opinion be necessary for
ensuring a fair and effective trial of the
petition, but shall not allow any amendment
of the petition which will have the effect of
introducing
particulars
of
a
corrupt
practice not previously alleged in the
petition.

(6) The trial of an election petition
shall, so far as is practicable consistently
with the interests of justice in respect of the
trial, be continued from day to day until its
conclusion, unless the High Court finds the
adjournment of the trial beyond the
following day to be necessary for reasons
to be recorded.

(7) Every election petition shall be
tried as expeditiously as possible and
endeavour shall be made to conclude the
trial within six months from the date on
which the election petition is presented to
the High Court for trial.]

[125A.
Penalty
for
filing
false
affidavit, etc.-A candidate who himself or
418 INDIAN LAW REPORTS ALLAHABAD SERIES
through his proposer, with intent to be
elected in an election,-

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

(ii) give false information which he
knows or has reason to believe to be false;
or (iii) conceals any information, in his
nomination paper delivered under subsection (1) of section 33 or in his affidavit
which is required to be delivered under
sub-section (2) of section 33A, as the
case may be, shall, notwithstanding
anything contained in any other law for
the time being in force, be punishable
with imprisonment for a term which may
extend to six months, or with fine, or with
both.]"

[94A. Form of affidavit to be filed
with election petition.-The affidavit
referred to in the proviso to sub-section
(1) of section 83 shall be sworn before a
magistrate of the first class or a notary or
a commissioner of oaths and shall be in
Form 25.]"

6.

Learned
counsel
for
the
respondent has submitted that an election
petition
must
contain
the
'concise
statement of material facts' capable of
giving rise to a triable issue. He has
further contended that the petitioner did
not
disclose
'concise
statement
of
material facts'. Further, the election
petition
nowhere
discloses
that
the
respondent
had
knowledge
about
pendency of case; "having knowledge of
the pendency of a criminal case is sine-
qua-non of any disclosure if there is any
material". Neither does the election
petition disclose nor state that the
offences mentioned in para 44 of the
election petition falls within the ambit of
Section 33-A (1)(i) of the Act. Offences
mentioned in para 45 of the election
petition does not at all disclose that the
same falls within the ambit of Section 33-A
(1)(ii) of the Act.

7. Learned counsel for the respondent
has further submitted that the election
petition
does
not
contain
"material
particulars" which are mandatory to be
stated as per Section 83(1) of the Act.
There is no particulars about date, time,
place or the victims of offences as
mentioned in paras 44 & 45 of the election
petition. No material particulars regarding
'undue influence' such as name and address
of person so allegedly influenced and day,
date, time and place of such influence is
mentioned in election petition. Further, in
reply to the allegations under Section 123
of the Act of 'undue influence' through
'corrupt practices' by respondent, the
"material
facts"
with
corresponding
"material
particulars"
are
lacking
in
election petition.

8.
 Therefore,
in
nutshell,
the
submission of the respondent's counsel is
that the election petition lacks concise
statement of material facts and full
particulars of corrupt practice have not set
forth as mandated by Section 83 (1) of the
Act, therefore, the same shall be a petition
without cause of action. Further, there was
no factual foundation laid for the alleged
corrupt practice and the election petition is,
therefore, liable to be dismissed. In support
of his aforesaid arguments, learned counsel
for the respondent has placed reliance upon
the judgments of the Apex Court in re;
Jyoti Basu and Others v. Debi Ghoshal
and Others (1982) 1 SCC 691, Mithilesh
Kumar Pandey v. Baidyanath Yadav and
Others,
(1984)
2
SCC
1,
V.
Narayanaswamy
v.
C.P.
Thirunavukkarasu, (2000) 2 SCC 294
and Hari Shanker Jain v. Sonia Gandhi,
(2001) 8 SCC 233.
1 All. Mohhamad Aslam @ Mohhamad Aslam Raeeni Vs. Shri Ram Feren @ Ram Feren Pandey
419

9. In the case of V. Narayanaswamy
(supra), Hon'ble Apex Court observed in
para-23 as under:-

"23. It will be thus seen that an
election petition is based on the rights,
which are purely the creature of a statute,
and if the statute renders any particular
requirement mandatory, the court cannot
exercise dispensing powers to waive noncompliance. For the purpose of considering
a
preliminary
objection
as
to
the
maintainability of the election petition the
averments in the petition should be
assumed to be true and the court has to find
out whether these averments disclose a
cause of action or a triable issue as such.
Sections 81, 83(1)(c) and 86 read with Rule
94-A of the rules and Form 25 are to be
read conjointly as an integral scheme.
When so read if the court finds noncompliance it has to uphold the preliminary
objection and has no option except to
dismiss the petition. There is difference
between "material facts" and "material
particulars". While the failure to plead
material facts is fatal to the election
petition the absence of material particulars
can be cured at a later stage by an
appropriate amendment. "Material facts"
mean the entire bundle of facts, which
would constitute a complete cause of action
and these must be concisely stated in the
election petition, i.e., clause (a) of subsection (1) of Section 83. Then under
clause (b) of sub-section (1) of Section 83
the election petition must contain full
particulars of any corrupt practice. These
particulars are obviously different from
material facts on which the petition is
founded. A petition levelling a charge of
corrupt practice is required by law to be
supported by an affidavit and the election
petitioner is obliged to disclose his source
of
information
in
respect
of
the
commission of corrupt practice. He must
state which of the allegations are true to
his knowledge and which to his belief on
information received and believed by him
to be true. It is not the form of the affidavit
but its substance that matters. To plead
corrupt practice as contemplated by law it
has to be specifically alleged that the
corrupt practices were committed with the
consent of the candidate and that a
particular electoral right of a person was
affected. It cannot be left to time, chance
or conjecture for the court to draw
inference by adopting an involved process
of reasoning. Where the alleged corrupt
practice is open to two equal possible
inferences
the
pleadings
of
corrupt
practice
must
fail.
Where
several
paragraphs
of
the
election
petition
alleging
corrupt
practices
remain
unaffirmed under the verification clause
as well as the affidavit, the unsworn
allegation could have no legal existence
and the court could not take cognizance
thereof. Charge of corrupt practice being
quasi-criminal in nature the court must
always insist on strict compliance with the
provisions of law. In such a case it is
equally essential that the particulars of the
charge of allegations are clearly and
precisely stated in the petition. It is the
violation of the provisions of Section 81 of
the Act which can attract the application
of the doctrine of substantial compliance.
The defect of the type provided in Section
83 of the Act on the other hand can be
dealt with under the doctrine of curability,
on the principles contained in the Code of
Civil Procedure. Non-compliance with the
provisions of Section 83 may lead to
dismissal of the petition if the matter falls
within the scope of Order 6 Rule 16 and
Order 7 Rule 11 of the Code of Civil
Procedure. Where neither the verification
in the petition nor the affidavit gives any
420 INDIAN LAW REPORTS ALLAHABAD SERIES
indication of the sources of information of
the petitioner as to the facts stated in the
petition which are not to his knowledge and
the petitioner persists that the verification
is correct and the affidavit in the form
prescribed does not suffer from any defect
the allegations of corrupt practices cannot
be inquired and tried at all. In such a case
the petition has to be rejected on the
threshold for non-compliance with the
mandatory
provisions
of
law as
to
pleadings. It is no part of the duty of the
court suo motu even to direct furnishing of
better particulars when objection is raised
by the other side. Where the petition does
not disclose any cause of action it has to be
rejected. The court, however, cannot dissect
the pleadings into several parts and
consider whether each one of them
discloses a cause of action. The petition
has to be considered as a whole. There
cannot be a partial rejection of the
petition."

10. Replying the aforesaid contention
of the learned counsel for the respondent,
learned counsel for the election petitioner
highlights that the respondent nowhere
mentioned in his application for rejection/
dismissal of the election petition that he
had no knowledge about the cases, but he
has only stated that the petitioner had not
claimed that respondent has knowledge.
Secondly, he submits that Section 33A
(1)(ii) of the Act does not provide an
exhaustive list of disclosures that are
required to be filled with affidavit. He
further submits that Form-26 as provided
under Rule 4A of the Conduct of Elections
Rules, 1961 which is required to be filed
along with election papers does not refer to
Section 33A of the Act while seeking
disclosure of pending criminal cases
against the petitioner. He submits that
whether offence requires to be disclosed or
not, is a matter of trial and cannot be
decided at this stage. Learned counsel for
the petitioner has stated that cause of action
has been disclosed in para-37 of the election
petition.

11. On that, learned counsel for the
respondent has submitted that the petitioner
has not approached the Court with clean
hands and the election petition contains false
statements and material facts have been
concealed. Case No.2262 of 2003 was not
pending against the respondent at the time of
filling of nomination paper inasmuch as that
as early on 25.06.1996 the case against the
respondent was finalised on the basis of
confession, as is evident from perusal of
page no.358 of the election petition itself.

12. Further, in regard to Case No.65 of
2003, learned counsel for the respondent
submits that it is evident from page no.385
of the election petition that the respondent
was finally sentenced to a fine of Rs.3,000/-
(Rupees
Three
Thousand
only)
vide
judgment and order dated 06.12.2014 ,
hence it cannot be said that the case was
pending at the time of filling of nomination
paper. So far as cases mentioned in para-45
of the election petition for which the
respondent is said to be convicted, the
respondent submits that the petitioner has
not disclosed in the election petition that any
of such cases fall within the purview of
Section 33-A (1) (ii) of the Act. In support of
his contention, learned counsel for the
respondents has referred the judgment of the
Apext Court in re; T. Arivandandam V.
T.V. Satyapal & Another, (1977) 4 SCC
467, to state that the election petition
containing false statement deserves to be
dismissed at threshold.

13. In reply to the aforesaid argument
of learned counsel for the respondent,
1 All. Mohhamad Aslam @ Mohhamad Aslam Raeeni Vs. Shri Ram Feren @ Ram Feren Pandey
421
learned counsel for the petitioner has
submitted that non-disclosure of criminal
antecedents by candidate in itself amounts
to corrupt practice under undue influence.
He submits that respondent has admitted
that there existed a criminal case against
him and he was aware about it. Further,
there is no non-disclosure as the election
petition itself includes the final judgement
of the conviction of the respondent in the
matter. It is pertinent to mention that the
very admission of the conviction in the
matter would reveal that the respondent
was well aware of the existence of such
conviction but has willingly chosen not to
disclose the same in Form-26 filed along
with nomination paper.

14. Further submission of learned
counsel for the respondent is that Section
83 (1) (c) of the Act requires the election
petition to be signed by the petitioner and
verified in the manner specified in the CPC
for the verification of pleadings, but there
is an absence of proper affidavit and
substantial defect in the verification,
therefore, the election petition cannot be
proceeded on merit. Learned counsel also
submits that neither the election petition
alone nor the supplementary affidavit has
been signed and verified by the petitioner
in the manner provided for in Section 83
(1) (c) of the Act read with Order VI Rule
14 and 15(2) of CPC. The petitioner has
verified contents of various paragraphs of
the election petition as "partly"/ verified on
basis of "perusal of record" along with
word "partly" and verified on "legal
advice" again with word "partly". It is
completely unascertainable that which part
of such paragraphs with words "partly" has
been verified on the basis of "personal
knowledge" and which part of such
paragraphs on the basis of "perusal of
records" and which part of such paragraphs
has been verified on the basis of "legal
advice". Similar issue is pointed out for
affidavit, that it is not in conformity with
Form 25 referable to Rule 94-A of the
Conduct of Election Rules, 1961. In
support of his contention, reliance has also
been placed upon the judgments of the
Apex Court in re; Saritha S. Nair v. Hibi
Eden, (2020) SCC OnLine SC 1006 and A.
Manju v. Prajwal Revanna alias Prajwal
R and Others, (2022) 3 SCC 269.

15. So as to strengthen his aforesaid
arguments, Dr. L.P. Mishra has also cited
the judgment of this Court rendered in re:
Amit Yadav vs. Kunwar Jayesh Prasad &
others, 2016 SCC OnLine All 3013,
referring paras-25, 26, 31, 34, 36, 37, 38,
39, 40, 41, 42, 43 & 44 saying that his
objections in the present case are more or
less similar to the aforesaid case, which
read as under:-

"25. The verification of the Election
Petition reads as under :

"I, Amit Yadav, the petitioner in the
above election petition, do hereby verify
that the contents and statements made in
paragraph nos. 1, 2, 3, 4, 5 partly, 6 partly,
7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18,
19, 20, 21, 22 partly, 23 partly, 25 partly,
26 partly, 27 partly, 28 partly, 28 partly, 29,
30, 31, 33, 34, 35 partly, 36 partly, 37, 38
partly, 40, 41, 42, 43, 44, 45 and 46 of the
election petition are true to my knowledge;
and those contained in paragraph nos. 27
partly, 28 partly, 32 and 39 of the election
petition are true on the basis of records and
those contained in paragraph nos. 6 partly,
22 partly, 23 partly, 24, 25 partly, 26, 35
partly, 36 partly and 38 partly of this
election petition are true on the basis of
information received by the petitioner from
his agents, workers and supporters, which
all I believe to be true; and nothing
422 INDIAN LAW REPORTS ALLAHABAD SERIES
material has been concealed and no part of
it is false."

26. Similarly, verification of annexure
no. 1, which is a dummy ballot paper, has
been made by the election petitioner "as
true to my knowledge on the basis of
perusal of records, which all I believe to be
true". Schedule I setting out the details of
the ballot papers which were validly
marked in favour of petitioner but are
alleged to have been rejected by the
returning officer has been verified as "true
to my knowledge which all believe to be
true." The document is in the form of a
chart which contains details of table
number, total number of votes in which the
mark was made in front of petitioner's
name, total number of votes in which the
mark was made above the name of
petitioner, total of column no. 3 and 4 and
names of the petitioner's counting agent.

31. Learned Senior Counsel appearing
for the respondent no. 1, the returned
candidate pointing out the aforesaid
verification contended that the same is not
in accordance with the provisions of subrule (2) of Rule 15 of Order VI which
requires that the person verifying shall
specify, by reference to the numbered
paragraphs of the pleading, what he
verifies of his own knowledge and what he
verifies upon information received and
believed to be true. It was further
contended that the verification of annexure1 as "true to my knowledge on the basis of
perusal of records, which all I believe to be
true" is not in the manner provided by subrule (2) of Rule 15 of Order VI.