# Pallavi Singh Patel v. E.C.I. & Ors

- **Citation:** (2022) 9 ILRA 1232
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-16
- **Case number:** Writ-C No. 17250 of 2022
- **Bench:** Mrs. Sunita Agarwal, Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pallavi-singh-patel-v-e-c-i-ors-49042
- **Pages:** 17

## Headnote

Civil Law- The Constitution of India,1950-
Article 324-The Representation of Peoples
Act, 1951- Sections 33A & 125A- Clause
5(v) of The circular dated 24th August,
2021 issued by the Election Commission of
India providing procedure to deal with the
complaint of violation of Section 33-A -
Post election Inquiry into complaints by
the Returning Officer/the Sub-Divisional
Magistrate- Any complaint of false
affidavit received by any other officer
after the nomination exercise is over, is
required to be referred to the Chief
Electoral Officer, if such a complaint is
supported by some document/evidence.
The Chief Electoral Officer further shall be
required to make a scrutiny of the
supporting evidence/documents and shall
ask for the affidavit of the complainant
before forwarding the complaint to the
Election Commission. Clause 5(v) of the
circular dated 24th August, 2021 (which is
statutory in character), clearly provides
that such forwarded complaints shall be
dealt by the Election Commission on caseto-case basis and the Commission may
seek comments of the appropriate officer
while dealing with the complaint.

The circular dated 24th August, 2021 issued by
the Election Commission of India is statutory in
nature and provides the procedure to deal with
the complaint of violation of Section 33-A and
mandates that the Chief Electoral Officer shall
forward the complaints received after the
nomination process to the Election Commission.
9 All. Pallavi Singh Patel Vs. E.C.I. & Ors.
1233
Civil Law- The Representation of Peoples
Act, 1951- Sections 33A & 125A- Clause
5(v) of The circular dated 24th August, 2021 -
The Sub-Divisional Magistrate, who was
the Returning Officer in the elections to
the Member of Legislative Assembly held
in February and March, 2022, had no
jurisdiction to deal with the complaints
after the nomination exercise much less
after the election was over. The action of
the District Election Officer/the District
Magistrate, Kaushambi in forwarding the
complaints to the Returning Officer/the
Sub-Divisional
Magistrate,
Sirathu,
Kaushambi
instead
of
referring
the
complaints to the Chief Electoral Officer,
U.P., is in clear violation of Clause 5(ii) of
the circular dated 24th August, 2021
issued by the Election Commission of
India. Both the notices dated 18th May,
2022 and 25th May, 2022 are, thus, liable
to be set aside being outcome of an illegal
action of the District Election Officer/the
District Magistrate, Kaushambi-Once the
complaint was sent to the Chief Electoral
Officer, U.P., he was required to follow the
procedure prescribed in Clause '5' of the
aforesaid circular, only after completion of
these three steps in the scrutiny of the
genuineness of the complaint, at the ends
of the Chief Electoral Officer, the matter
was required to be forwarded to the
Election Commission with his report in
accordance
with
Clause
5(iv)-In
the
process of scrutiny of the complaint in
accordance with Clause '5' of the circular
issued by the Election Commission, the
Sub-Divisional
Magistrate,
Sirathu,
Kaushambi or the Returning Officer had
no
role
to
play-
The
District
Magistrate/the District Election Officer
has, thus, committed a glaring illegality in
directing the Returning Officer/the SubDivisional Officer, Sirathu, Kaushambi to
deal with the complaint. The notice dated
3rd June, 2022 issued by the SubDivisional
Officer,
Sirathu,
Kausuambi
being the result of illegal action of the
District Magistrate/the District Election
Officer, Kaushambi is liable to be set
aside.

It was incumbent upon the District Electoral
Officer/ District Magistrate to forward the
complaints after the election was over, to the
Chief Electoral Officer and the Returning Officer/
Sub-Divisional Officer had no role to play in the
process mandated in the circular dated 24th
August, 2021-thus the notices issued by the
Returning
Officer/the
Sub-Divisional
Officer
were wholly without jurisdiction.

Writ Petition allowed. (E-

## Text

_Characters 0–39,989 of 59,736. This is a partial read: ask again with offset=39989 for what follows._

1232 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, in the absence of any chargesheet
and the enquiry report, procedure followed
to impose major penalty of dismissal from
service cannot be approved of under any
circumstances. Thus conclusion drawn by
Mr. Mushir Ahmad in his report dated
06.04.2021 does not amount to a finding as
an
outcome
of
any
formal
enquiry
proceeding and cannot be treated an
enquiry report as such and so resultant
action by the disciplinary authority under
the order impugned in the matter is
unsustainable and deserves to be quashed.

25. In view of the above, writ petition
succeeds and is allowed and the order of
dismissal from service dated 05.08.2021 is
hereby quashed.

26. As I have already observed that
records do reveal that nothing proceeded
further in the matter of enquiry pursuant to
the chargesheet dated 05.11.2019, and that
enquiry proceeding stood actually dropped
vide
enquiry
officer's
report
dated
06.04.2021 (supra), petitioner cannot be
retained under suspension and, therefore,
order of suspension of the petitioner dated
22.10.2019 is also set aside.

27. Petitioner shall be reinstated in
service with all consequential benefits.
Liberty rests with the respondents to
proceed afresh, if they so desire, strictly in
accordance with law.
----------
(2022) 9 ILRA 1232
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Writ-C No. 17250 of 2022

Pallavi Singh Patel ...Petitioner
Versus
E.C.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Saroj Kumar Yadav, Sri Anil Kishore
Sharma (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Ashutosh Mishra, Sri Rakesh
Pande (Sr. Advocate)

Civil Law- The Constitution of India,1950-
Article 324-The Representation of Peoples
Act, 1951- Sections 33A & 125A- Clause
5(v) of The circular dated 24th August,
2021 issued by the Election Commission of
India providing procedure to deal with the
complaint of violation of Section 33-A -
Post election Inquiry into complaints by
the Returning Officer/the Sub-Divisional
Magistrate- Any complaint of false
affidavit received by any other officer
after the nomination exercise is over, is
required to be referred to the Chief
Electoral Officer, if such a complaint is
supported by some document/evidence.
The Chief Electoral Officer further shall be
required to make a scrutiny of the
supporting evidence/documents and shall
ask for the affidavit of the complainant
before forwarding the complaint to the
Election Commission. Clause 5(v) of the
circular dated 24th August, 2021 (which is
statutory in character), clearly provides
that such forwarded complaints shall be
dealt by the Election Commission on caseto-case basis and the Commission may
seek comments of the appropriate officer
while dealing with the complaint.

The circular dated 24th August, 2021 issued by
the Election Commission of India is statutory in
nature and provides the procedure to deal with
the complaint of violation of Section 33-A and
mandates that the Chief Electoral Officer shall
forward the complaints received after the
nomination process to the Election Commission.
9 All. Pallavi Singh Patel Vs. E.C.I. & Ors.
1233
Civil Law- The Representation of Peoples
Act, 1951- Sections 33A & 125A- Clause
5(v) of The circular dated 24th August, 2021 -
The Sub-Divisional Magistrate, who was
the Returning Officer in the elections to
the Member of Legislative Assembly held
in February and March, 2022, had no
jurisdiction to deal with the complaints
after the nomination exercise much less
after the election was over. The action of
the District Election Officer/the District
Magistrate, Kaushambi in forwarding the
complaints to the Returning Officer/the
Sub-Divisional
Magistrate,
Sirathu,
Kaushambi
instead
of
referring
the
complaints to the Chief Electoral Officer,
U.P., is in clear violation of Clause 5(ii) of
the circular dated 24th August, 2021
issued by the Election Commission of
India. Both the notices dated 18th May,
2022 and 25th May, 2022 are, thus, liable
to be set aside being outcome of an illegal
action of the District Election Officer/the
District Magistrate, Kaushambi-Once the
complaint was sent to the Chief Electoral
Officer, U.P., he was required to follow the
procedure prescribed in Clause '5' of the
aforesaid circular, only after completion of
these three steps in the scrutiny of the
genuineness of the complaint, at the ends
of the Chief Electoral Officer, the matter
was required to be forwarded to the
Election Commission with his report in
accordance
with
Clause
5(iv)-In
the
process of scrutiny of the complaint in
accordance with Clause '5' of the circular
issued by the Election Commission, the
Sub-Divisional
Magistrate,
Sirathu,
Kaushambi or the Returning Officer had
no
role
to
play-
The
District
Magistrate/the District Election Officer
has, thus, committed a glaring illegality in
directing the Returning Officer/the SubDivisional Officer, Sirathu, Kaushambi to
deal with the complaint. The notice dated
3rd June, 2022 issued by the SubDivisional
Officer,
Sirathu,
Kausuambi
being the result of illegal action of the
District Magistrate/the District Election
Officer, Kaushambi is liable to be set
aside.

It was incumbent upon the District Electoral
Officer/ District Magistrate to forward the
complaints after the election was over, to the
Chief Electoral Officer and the Returning Officer/
Sub-Divisional Officer had no role to play in the
process mandated in the circular dated 24th
August, 2021-thus the notices issued by the
Returning
Officer/the
Sub-Divisional
Officer
were wholly without jurisdiction.

Writ Petition allowed. (E-3)

Judgements/Case law relied upon:-

1. Kamlesh Vs Mukhya Nirwachan Ayukt, 2006
(3) ILR (All) 1157

2. Shambhu Singh Vs State, AIR 2001 Allahabad
39

3. B. Ramamoorthy Vs The Chief Election
Commission of India & ors., W.P. No. 14260 of
2021

4. U.O.I. Vs Association for Democratic Reforms
& anr., (2002) 5 SCC 294

5. Resurgence India Vs Election Commission of
India & anr., (2014) 14 SCC 189

6. Dubbaka Narsimha Reddy Vs Election
Commission of India & ors. (W.P No. 12066 of
2014)

7. People's Union For Civil Liberties (PUCL) &
anr. Vs U.O.I. & anr., (2003) 4 SCC 399

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Sri Anil Kishore Sharma
learned Senior Advocate assisted by Sri
Saroj Kumar Yadav learned counsel for the
petitioner, Sri Rakesh Pande learned Senior
Advocate assisted by Sri Ashutosh Mishra
learned
counsel
for
the
Election
Commission of India and Sri J.N. Maurya
learned Chief Standing Counsel for the
State respondents.
1234 INDIAN LAW REPORTS ALLAHABAD SERIES

2. By means of the present writ
petition, the petitioner herein seeks to
challenge the notice dated 18.5.2022 issued
by the respondent no. 4 namely the SubDivisional Magistrate, Sirathu, Kaushambi
as
also
the
reminder
notices
dated
25.5.2022 and 3.6.2022 issued by him. The
prayer is to quash the entire proceedings
initiated by the respondents with the
aforesaid notices.

3. The brief facts of the case are that
the
petitioner
herein
is
an
elected
representative of the people to the State
assembly,
Member
of
Legislative
Assembly
of
the
State,
from
the
Constituency No. 251, Sirathu, District
Kaushambi. In the elections notified on
1.2.2022, the petitioner herein had filed her
nomination paper on 8.2.2022, polling took
place on 27.2.2022 and in the result
declared on 10.3.2022, the petitioner herein
was returned as a winner.

4. It is stated in the writ petition that
during the nomination process, certain
objections were raised alleging suppression
of material facts by the petitioner as
required to be declared in Form-26, the
affidavit
submitted
along
with
the
nomination paper, describing her criminal
antecedents. The contention is that the
Returning Officer had examined the
documents filed by the petitioner in light of
the complaint and turning down the
complaint, accepted the nomination papers
as valid. The petitioner having won the
election, took oath of the Member of
Legislative Assembly in the house of
Legislature and participated in the Budget
Session in the fall of May, 2022.

5. It seems that an undated complaint
was filed by a resident of the constituency
namely Sirathu, alleging that the right of
the ordinary voter of the constituency has
been infringed as the petitioner did not
disclose the criminal cases lodged against
her in the affidavit appended with the
nomination paper. The undated complaint
filed by one Dileep Singh Patel was
followed by another complaint of one
Omkar Nath Gautam. Both the complaints
are appended as Annexure '4' to the writ
petition.

On these complaints, the notices
impugned have been issued by the SubDivisional Magistrate, Sirathu, District
Kaushambi. It is stated that two previous
notices issued in the month of May were
not served upon the petitioner and only
after the service of the third notice dated
3.6.2022, she came to know about the said
complaints. It is also stated in the writ
petition that the Sub-Divisional Magistrate,
Sirathu, District Kaushambi made an
enquiry about the genuineness of the
complaint and in the report submitted by
the Revenue Lekhpal, Kshetra Nara,
Sirathu, it was indicated that three persons
in the name of Dileep Patel were met in the
village. They were Dileep Singh Patel son
of Indra Pal Singh, Dileep Singh son of late
Ram Sewak Singh and Dileep Kumar
Singh son of Sri Ram Singh, all residents of
village Udahin Khurd, Sirathu, District
Kaushambi and these three persons filed
notarized affidavits before the District
Magistrate/the District Election Officer that
they did not file any complaint. The
affidavits are appended as Annexure '7' to
the writ petition.

A perusal of the copy of the
complaint made by the complainant Sri
Dileep Patel indicates that he did not
disclose his parentage and it is not possible
to identify him from the description therein.

6. It is brought on record of the writ
petition that the Election Commission of
9 All. Pallavi Singh Patel Vs. E.C.I. & Ors.
1235
India by a communication dated 17th May,
2022 had forwarded the complaint lodged
by Dileep Patel with the direction that
appropriate proceeding be initiated in the
matter in light of the circular dated 24th
August, 2021 issued by it. On receipt of the
same, by the letter dated 26th May, 2022,
the Chief Electoral Officer, U.P. forwarded
the complaint to the District Election
Officer, Kaushambi with the direction to
submit a report by making an enquiry on
the
point-wise
issues
raised
in
the
complaint,
in
accordance
with
the
Circular/letter of the Election Commission
of India dated 24.8.2021.

7. A perusal of the impugned notices
issued by the Sub-Divisional Magistrate,
Sirathu, Kaushambi makes it evident that the
notice dated 18th May, 2022 was directly
issued by the Sub-Divisional Magistrate,
Sirathu, Kaushambi on the complaint of Sri
Dileep Patel, an elector/voter received in the
office of the District Election Officer/the
District Magistrate, Kaushambi and reminder
was also sent on 25th May, 2022 on the
same. Further, the District Magistrate,
Kaushambi with his letter dated 1.6.2022 has
forwarded the complaint with the letter dated
26.5.2022 sent by the Chief Electoral Officer,
U.P. to the Sub-Divisional Magistrate,
Sirathu, Kaushambi. Another complaint
which was submitted by Sri Omkar Nath
Gautam
to
the
District
Magistrate,
Kaushambi was also sent alongwith the said
letter and direction was issued to the SubDivisional Magistrate, Sirathu, Kaushambi to
make an enquiry. The third notice dated 3rd
June, 2022, as a reminder to the previous two
notices dated 18.5.2022 and 25.5.2022, was
then served upon the petitioner.

8. At this juncture, it is relevant to
note that the record placed alongwith the
writ petition makes it clear that the SubDivisional Magistrate, Sirathu, Kaushambi
had issued two previous notices on the
directions of the District Magistrate,
Kaushambi, who is the District Election
Officer,
Kaushambi,
on
the
undated
complaint of Sri Dileep Patel, addressed to
the
District
Election
Officer/District
Magistrate, Kaushambi, U.P. It further
shows that the complaint made to the
Election Commission of India by Dileep
Patel was later forwarded to the Chief
Electoral Officer, who in turn, had directed
the District Election Officer, Kaushambi to
make enquiry. The second complaint of
Omkar Nath Gautam was also directly
entertained
by
the
District
Election
Officer/the District Magistrate, Kaushambi
and on all these complaints, directions were
issued by the letter dated 1.6.2022 to the
Sub-Divisional
Magistrate,
Sirathu,
Kaushambi to make enquiry, pursuant to
which he had issued the third notice dated
3rd June, 2022.

9. The learned Senior Counsel for the
Election Commission of India and the
Chief Standing Counsel appearing for the
State-respondents do not dispute the
sequence of events as narrated in the writ
petition and noted above, leading to
issuance of three notices which are subject
matter of challenge herein.

10. The dispute in the present writ
petition as raised by the learned Senior
Counsel for the petitioner is that the Chief
Electoral Officer, U.P., the District Election
Officer/the District Magistrate, Kaushambi
and
the
Returning
Officer/the
SubDivisional Magistrate, Sirathu, Kaushambi
have no jurisdiction to inquire into the
complaint relating to the election as they
have
become
functus
officio
after
declaration of the result of the election on
10.3.2022.
1236 INDIAN LAW REPORTS ALLAHABAD SERIES

11. It is argued by the learned Senior
Counsel for the petitioner that these
authorities
had
transgressed
their
jurisdiction
in
instituting
proceedings
against the petitioner who is an elected
representative of the people of the State.
After election, any dispute relating to
election can only be raised by way of an
election petition, to be filed in accordance
with the provisions of Section 80 of the
Representation of the People Act, 1951 (In
short as "the R.P. Act, 1951"), framed in
the spirit of Article 329(b) of the
Constitution of India. Three notices issued
by respondent no. 4, the Returning
Officer/the
Sub-Divisional
Magistrate,
Sirathu, Kaushambi are liable to be
quashed as such and the entire proceeding
initiated by the District Election Officer,
Kaushambi at his own ends and on the
direction of the Chief Electoral Officer,
U.P. are liable to set aside.

Reliance
is
placed
on
the
decisions of this Court in Kamlesh vs.
Mukhya Nirwachan Ayukt and Shambhu
Singh vs. State to substantiate the above
submissions.

Sri Rakesh Pande learned Senior
Advocate assisted by Sri Ashutosh Mishra
learned Advocate, has put in appearance on
behalf of the Election Commission of India,
the respondent no. 1. The State respondent
nos. 2 to 4 are represented by Sri J.N.
Maurya learned Chief Standing Counsel.

Both
the
counsels
for
the
respondents are in sync in their arguments
that the notices were issued by respondent
no. 4 in light of the directions issued by the
Election Commission of India to make an
enquiry
in
accordance
with
its
circular/letter
dated
24.8.2021.
The
allegations in the complaints are of
concealment/non-disclosure of the criminal
antecedents of the petitioner in Form-26
prescribed under the Rule 4A of the
Conduct of Elections Rules, 1961, the
Form of affidavit to be filed at the time of
delivering nomination paper in accordance
with sub-section (1) of Section 33 of the R.
P. Act, 1951. It is urged that it is mandatory
for the candidate to provide correct and
complete information in Form-26 while
filling the details in all relevant columns
including the details of pending criminal
cases against the candidate. Any column of
Form-26, if left blank, would result in
rejection of the nomination paper by the
Returning Officer.

In order to address the dispute
with regard to the jurisdiction of the
Returning Officer, the District Election
Officer and the Chief Electoral Officer,
U.P.
in
the
matter
of
entertaining
complaint, it is argued by the learned
Senior
Counsel
for
the
Election
Commission of India that the Election
Commission of India had issued a circular
dated 24th August, 2021 to the Chief
Electoral Officers of all States, with
reference
of
its
earlier
letter
dated
26.4.2014 that the complaints of false
declaration or concealment in the affidavit
in Form-26 by a candidate shall be
entertained by the Returning Officer and
enquiry on case-to-case basis shall be
conducted. The reference has been given to
the Press Note dated 16.6.2020 issued by
the Election Commission of India in the
aforesaid circular dated 24th August, 2021
that in the matter of lodging of complaint
under Section 125A of the R.P. Act, 1951,
equal opportunity should be provided to all
concerned and each complaint of the
elector shall be examined and the case
would be referred to the concerned
Investigating Officer on case-to-case basis.
It is argued that the said circular dated 24th
August, 2021 also referred to the order
dated 14.7.2021 passed by the Division
Bench of the Madras High Court in B.
9 All. Pallavi Singh Patel Vs. E.C.I. & Ors.
1237
Ramamoorthy vs. the Chief Election
Commission of India and others, wherein
it was directed that all complaints of
violation of Section 33-A of the Act shall
be examined by the Election Commission
of India and the notice to the relevant
candidate is to be issued before closing the
matter by a reasoned order, if the
explanation
is
found
suitable
or
satisfactory.

The observations in paragraph
'13' of the judgment and order dated
14.7.2021 passed by the Madras High
Court in B. Ramamoorthy (supra) has
been placed before us to argue that the
Election Commission of India is bound to
pursue the matter for lodging complaint
under Section 125A of the R.P. Act, 1951
against the candidate, if the explanation of
the relevant candidate is not found
satisfactory.

The submission, thus, is that the
impugned notices were issued by the
Returning
Officer/the
Sub-Divisional
Magistrate, Sirathu, Kaushambi under the
directions
issued
by
the
Election
Commission of India to make an enquiry in
accordance with the circular dated 24th
August, 2021. No exception, therefore, can
be taken to the jurisdiction of respondent
no. 4, the Returning Officer/the SubDivisional Magistrate, Sirathu, Kaushambi
to issue notice to the petitioner calling her
explanation in the enquiry to be conducted,
under the direction of the District Election
Officer/the District Magistrate, Kaushambi,
who in turn, was directed by the Chief
Electoral Officer to submit a report in light
of the directions issued by the Election
Commission of India by the letter dated
17.5.2022 forwarding the complaint.

It is further vehemently argued by
the learned Senior Counsel for the Election
Commission of India that Section 33A and
Section 125A were introduced by the Act
No. 72 of 2002 w.e.f. 24.8.2002 in light of
the decision of the Apex Court in Union of
India vs. Association for Democratic
Reforms and another, wherein it was held
by the Apex Court that to maintain the
purity of elections and in particular to bring
transparency in the process of election, the
Commission has to ask for a disclosure by
a candidate with regard to his criminal
antecedents,
assets,
liabilities
and
educational qualification, in order to
strengthen the voters in taking appropriate
decision of casting their votes. It is argued
that it was held therein that the citizen's
right to know about the candidate who
represent him in Parliament/Assembly will
constitute a fundamental right under the
Constitution of India. The voter's right to
know
about
the
antecedents
of
his
candidate
has
been
held
to
be
a
fundamental right under Article 19(1)(a) of
the Constitution, akin to the right to
freedom of speech and expression. It was
held therein that release of the information
about the candidate to be selected is must
as casting of vote by misinformed and noninformed voter or a voter having one-sided
information only, is bound to affect the
democracy seriously.

The decision of the Apex Court in
Resurgence
India
vs.
Election
Commission of India and another has
been placed before us to argue that the
ultimate purpose of filing of the affidavit
along with the nomination paper is to
effectuate the fundamental right of the
citizens under Article 19(1)(a) of the
Constitution. The citizens are supposed to
have the necessary information at the time
of filing of nomination paper and for that
purpose, the Returning Officer can very
well compel a candidate to furnish the
relevant information. Filing of affidavit
with blank particulars, by concealment of
material
particulars,
will
render
the
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
affidavit nugatory. It is, therefore, the duty
of the Returning Officer to check whether
the information required is fully furnished
at the time of filing of affidavit with the
nomination paper since such information is
very vital for giving effect to the "right to
know" of the citizens. It was held therein
that if a candidate fails to fill the blanks
even after the reminder by the Returning
Officer, the nomination paper is fit to be
rejected. The Apex Court in the said case
has held that filing of the affidavit with
blanks will be directly hit by Section
125A(i) of the R.P. Act, 1951.

Section 125A(i) of the R.P. Act,
1951 was then placed before us to
vehemently argue that failure to furnish
information
relating
to
her
criminal
antecedents by the petitioner as mandated
by Section 33A of the R.P. Act, 1951
would entail the punishment provided
therein, the penalty of filing false affidavit,
an imprisonment for a term extended to six
months or with fine or with both.

The decision of the Andhra
Pradesh
High
Court
in
Dubbaka
Narsimha
Reddy
vs.
Election
Commission of India & others (Writ
Petition No. 12066 of 2014) dated
9.7.2014 has been placed before us to argue
that it is the duty of the Election Officer to
take steps for initiating criminal proceeding
under Section 125A on the complaint
received by him while disposing of the
same in light of the circular issued by the
Election Commission of India to all the
Chief Electoral Officer of all States and
Union Territories in the matter of filing of
false affidavit in Form-26.

12. With the aid of the said decision,
it is argued by Sri Rakesh Pande learned
Senior
Counsel
for
the
Election
Commission of India that the guidelines
issued by the Election Commission of India
have got statutory force and have to be
followed by all concerned officials as the
statue does not require expressly, an officer
appointed thereunder, as to who has duty or
power coupled with duty to take action and
the Court has no power to mandate as to
who can do so.

It is vehemently argued by the
learned Senior Counsel for the Election
Commission of India that Section 125A
clearly provides penal measure for filing
affidavit
giving
false
information
or
concealing information. The circular dated
24th August, 2021 issued by the Election
Commission of India providing procedure
to deal with the complaint of violation of
Section 33-A, shall, therefore, prevail and
the concerned officer of the district
concerned
namely
the
Sub-Divisional
Magistrate, Sirathu, Kaushambi would be
justified in making enquiry.

The contention is that the District
Election Officer of the District concerned
and the Chief Electoral Officer of the State
are the officers designated or nominated by
the
Election
Commission
India
in
accordance with Section 13A and Section
13AA of the Representation of People Act,
1950 (In short as "the R.P. Act, 1950") and
they are the officers permanently deputed
by the Election Commission of India to
coordinate and supervise all work in
connection with the preparation, revision
and correction of all electoral rolls in the
State, all parliamentary, assembly and
council constituencies within the district;
respectively. Sub-section (4) of Section
13AA has been placed before us to argue
that the District Election Officer is
authorized to perform such other functions
as entrusted to him by the Election
Commission and the Chief Electoral
Officer. It is urged that the Returning
Officer/the Sub-Divisional Officer, Sirathu,
Kaushambi
had
initiated
enquiry
by
9 All. Pallavi Singh Patel Vs. E.C.I. & Ors.
1239
issuance of the notices under challenge,
calling upon the petitioner to submit his
explanation under the directions issued by
the District Election Officer. No plausible
objection with regard to the jurisdiction of
the Returning Officer/the Sub-Divisional
Magistrate, Sirathu, the respondent no. 4
can be taken in view of the circular dated
24th August, 2021 issued by the Election
Commission of India.

13. It is argued by the learned
counsels for the respondents that in view of
the direction issued by the Madras High
Court in B. Ramamoorthy (supra), the
explanation of the candidate/petitioner
herein against whom the complaint was
filed was required to be called, in order to
complete the enquiry, to decide as to
whether the criminal complaint under
Section 125A of the R.P. Act, 1951 is to be
lodged against the candidate/petitioner
herein.

It is further argued that the
notices under challenge are merely show
cause notices which do not threaten or
contemplate any penal action. They are the
notice
simplicitor
calling
for
the
explanation of the petitioner failing which
ex-parte action will be taken. No prejudice
has been caused to the petitioner nor any
legal right of the petitioner has been
violated by issuance of the notices. Nothing
has been stated by the petitioner in the writ
petition about the merits of the allegations
made in the complaint. In view of the
decision of the Apex Court on the subject,
the disclosure on affidavit was important
and needed to be there. It was made
important to see that no person having
criminal antecedents escape the notice of
the voters who have a right to take an
informed decision having knowledge of the
background of the candidate. It is argued
that in the enquiry instituted by the Election
Commission, the petitioner was called upon
to submit her explanation with a view to
avoid harassment and prejudice to her
because of any exparte decision. The mode
of enquiry adopted by the Election
Commission of India, in any case, cannot
be challenged.

14. The submissions made by Sri
Rakesh Pande learned Senior Counsel for
the Election Commission of India about the
power and jurisdiction of the SubDivisional Magistrate, Sirathu, Kaushambi
as also the District Election Officer and the
Chief Electoral Officer to conduct enquiry
in the matter have been adopted by the
learned Chief Standing Counsel appearing
on their behalf.

15. In sum and substance, the
arguments of both the learned counsel for
the respondents are that the impugned
notices cannot be quashed for the reason
that it is mandated by the R.P. Act, 1951
that in case of any false affidavit within the
meaning of Section 125A(i) to (iii), penal
action has to be initiated against the
candidate concerned.

16. Considering the submissions of
the learned counsel for the parties and
perused the record, we find that the
controversy revolves around Section 33A
and Section 125A of the R.P. Act, 1951
which had been introduced by Act No. 72
of 2002 w.e.f. 24.8.2002. Sub-section (1) of
Section 33A casts an obligation upon a
candidate to furnish the information as
required under Clause (i) and (ii), as the
case may be, in his nomination paper
delivered under sub-section (1) of Section
33, about his criminal antecedents, if any.
Section 125A provides for penal action for
failure on the part of the candidate in
1240 INDIAN LAW REPORTS ALLAHABAD SERIES
furnishing information relating to subsection (1) of Section 33-A, for giving a
false information which he knows or has a
reason
to
believe
to
be
false;
or
concealment of 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 33-A, as the case
may be.

17. Before proceeding further, we
would like to go, in brief, to the legislative
history for insertion of the aforesaid two
provisions in the Representation of People
Act, 1951.

A question arose before the Apex
Court in Union of India vs. Association
for Democratic Reforms (supra) as to
whether, before casting votes, voters have a
right to know relevant particulars of their
candidates. While deliberating on the issue,
it was held therein that the right to get
information in democracy is recognised all
throughout and it is natural right flowing
from the concept of democracy. Under our
Constitution, Article 19(1)(a) provides for
freedom of speech and expression. Voters'
speech or expression in case of election
would include casting of votes, that is to
say that voter speaks out or expresses by
casting
his
vote.
For
this
purpose,
information about the candidate to be
selected is a must. Voter's right to know
antecedents including criminal past of his
candidate
contesting
election
for
representation of people in the Parliament
or Legislative Assembly is much more
fundamental and basic for survival of
democracy.

18. Considering the legal and
constitutional position with regard to
elections and the role of the Election
Commission of India, it was held therein
that the jurisdiction of the Election
Commission of India is wide enough to
include all powers necessary for smooth
conduct
of
elections
and
the
word
"elections" is used in a wide sense to
include the entire process of election which
consists of several stages and embraces
many steps. The limitation on plenary
character of power is when the Parliament
or State Legislature has made a valid law
relating to or in connection with elections,
the Commission is required to act in
conformity with the said provisions. In case
where law is silent, Article 324 is a
reservoir of power to act for the avowed
purpose of having free and fair election.
The Constitution has taken care of leaving
scope for exercise of residuary power by
the Commission in its own right as a
creature of the Constitution in its infinite
variety of situations that may emerge from
time to time in a large democracy, as every
contingency could not be foreseen or
anticipated by the enacted laws or the rules.
By
issuing
necessary
directions,
the
Commission can fill the vacuum till there is
legislation on the subject.

The Election Commission of
India was directed therein to call for
information
on
affidavit
by
issuing
necessary order in exercise of its power
under Article 324 of the Constitution of
India from each candidate seeking election
to Parliament or a State Legislature as a
necessary part of his nomination paper,
furnishing therein information on the
following aspects:-

"(1) Whether the candidate is
convicted/acquitted/discharged
of
any
criminal offence in the past, if any, whether
he is punished with imprisonment or fine.

(2) Prior to six months of filing of
nomination, whether the candidate is
accused in any pending case, of any offence
9 All. Pallavi Singh Patel Vs. E.C.I. & Ors.
1241
punishable with imprisonment for two
years or more, and in which charge is
framed or cognizance is taken by the Court
of law. If so, the details thereof.

(3)
The
assets
(immovable,
movable,
bank
balances
etc.)
of
a
candidate and of his/her spouse and that of
dependants.

(4) Liabilities, if any, particularly
whether there are any over dues of any
public financial institution or Government
dues.

(5) The educational qualifications
of the candidate."

It was concluded that the Election
Commission of India has from time to time
issued instructions/orders to meet the
situation where the field is unoccupied by
the legislation. Hence, the norms and
modalities to carry out and give effect to
the aforesaid directions should be drawn up
properly by the Election Commission as
early as possible.

After the said decision of the
Apex Court dated 2nd May, 2022, the Act
No. 72 of 2002 for insertion of Section 33A
and Section 125A of the R.P. Act, 1951
was promulgated.

19. The validity of the Representation
of the People (Amendment) Ordinance,
2002 promulgated by the President of India
on 24.8.2002 was subjected to challenge
before the Apex Court in People's Union
For Civil Liberties (PUCL) and another
vs. Union of India and another. It was
observed therein that the foundation of a
healthy democracy is to have wellinformed citizens-voters. The reason to
have right of information with regard to the
antecedents of the candidate is that voter
can judge and decide in whose favour he
should cast his vote. It is voter's discretion
whether to vote in favour of an illiterate or
literate candidate. It is his choice whether
to elect a candidate against whom criminal
cases for serious or non-serious charges
were filed but is acquitted or discharged.
He is to consider whether his candidate
may or may not have sufficient assets so
that he may not be tempted to indulge in
unjustified means for accumulating wealth.
In any case, for having free and fair
election, information to voters is a
necessity. It was further held that the right
to information provided for by Parliament
under Section 33A in regard to the pending
criminal cases and past involvement in
such cases is reasonably adequate to
safeguard the right to information vested in
the voters/citizen. However, there is no
good reason for excluding the pending
cases in which cognizance has been taken
by the Court from the ambit of disclosure.

It was finally held that the Apex
in the case of Union of India vs.
Association for Democratic Reforms
(supra) has determined the ambit of
fundamental right of information to a voter.

In
Resurgence
India
vs.
Election Commission of India and
another (supra), the prayer was to issue
specific directions to effectuate meaningful
implementation of the judgments rendered
by this Court in Union of India vs.
Association for Democratic Reforms
(supra) and People's Union for Civil
Liberties (PUCL) (supra) by issuing
directions to the respondents/Commission
to make it compulsory for the Returning
Officers to ensure that the affidavits filed
by the contestants are complete in all
respects and to reject the affidavits having
blank particulars.

While deliberating, the Apex
Court had noted the observations made in
its earlier judgment in Union of India vs.
Association for Democratic Reforms
(supra) about the right of voter and
information which could be asked by the
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
Commission
from
the
candidates
to
maintain the purity of elections and in
particular to bring transparency in the
process of election. It was noted that in
order to recognize the ultimate right of the
voter to know full particulars of a candidate
who is to represent him in the Parliament or
the State Legislature, Section 33A of the
R.P. Act was enacted by Act no. 72 of 2002
with effect from 24.08.2002. The purpose
of the Act no. 72 of 2002 was to effectuate
the right contemplated in Union of India
vs. Association for Democratic Reforms
(supra). It was mandated for all the
candidates
to
disclose
their
criminal
antecedents under Section 33A by filing an
affidavit as prescribed along with the
nomination paper filed under Section 33(1)
of the R.P. Act so that the citizens must be
aware of the criminal antecedents of the
candidate before they can exercise their
freedom of choice by casting of votes as
guaranteed under the Constitution of India.
As a result, at present, every candidate is
obligated to file an affidavit with relevant
information with regard to his criminal
antecedents, assets and liabilities and
educational qualifications. The ultimate
purpose of filing of affidavit along with the
nomination paper is to effectuate the
fundamental right of the citizen under
Article 19(1)(a) of the Constitution of
India. It was held that when a candidate
files affidavit with blank particulars, it
renders the affidavit itself nugatory.

While dealing with the power of
the
Returning
Officer
to
reject
the
nomination paper at the time of scrutiny, it
was held that paragraph '73' of the decision
in the judgment of People's Union For
Civil Liberties (PUCL) (supra) nowhere
contemplates a situation where it bars the
Returning Officer to reject the nomination
paper on account of filing affidavit with
particulars left blank. It was clarified that
the observations made in the said paragraph
will not come in the way of the Returning
Officer to reject the nomination paper if the
said affidavit is filed with blank columns.
Noticing Section 125A of the R.P. Act, it
was further held that filing of affidavit with
blank space will be directly hit by Section
125A(i) of the R.P. Act. It was finally held
that it is the duty of the Returning Officer
to check whether the information required
is fully furnished at the time of filing of
affidavit with the nomination paper since
such information is very vital for giving
effect to the right to know of the citizens. If
a candidate fails to fill the blanks even after
the reminder by the Returning Officer, the
nomination paper is fit to be rejected. It
was further observed that the power of the
Returning Officer to reject the nomination
papers must be exercised very sparingly but
the bar should not be laid so high that the
justice itself is prejudiced.

20. Noticing the above decisions, we
may record that the Representation of
People Act, 1951 is a complete Code for
the conduct of elections by the Election
Commission of India in accordance with
Article 324 of the Constitution which
provides for superintendence, direction,
control of the Commission for conduct of
elections
to
Parliament
and
to
the
Legislature of every State. The jurisdiction
of the Election Commission of India is
wide
enough
to
issue
directions/orders/circulars,
whether
by
specific or a general order, for smooth
conduct of elections, in its plenary
character of power under Article 324 of the
Constitution of India for the avowed
purpose of having free and fair election.
There is no limitation on the power of the
Election Commission of India except in
case of a valid law in relation to or in
connection with election made by the
9 All. Pallavi Singh Patel Vs. E.C.I. & Ors.
1243
Parliament or the State Legislature where
in such cases, the Commission is required
to act in conformity with the said
provisions. The Commission in its own
right as a creature of the Constitution may
issue orders/directions to deal with variety
of situations that may emerge from time to
time in the conduct of elections as every
contingency
cannot
be
foreseen
or
anticipated by the enacted law or the
Rules.

21. In its own right and having
jurisdiction to deal with the complaint
relating to filing of false affidavit in
Form-26, the Election Commission of
India had issued the Circular dated 24th
August, 2021 addressed to the Chief
Electoral Officers of all States/Union
Territories reiterating the Press Note
dated 16.6.2020 that each complaint
received for filing a false affidavit by the
candidate in Form-26, shall be dealt with
on case-to-case basis and the matter be
referred to the competent Investigating
Officer for further action after taking
cognizance of the said complaint.

Paragraph '3' of the said circular
extracts para 6.6.1 of the Returning
Officer handbook, which contains the
directions as to how the Returning
Officer
would
deal
with
the
objections/complaints
while
making
scrutiny of the nomination paper.