# RAVI NAMBOOTHIRI v. K.A. BAIJU & ORS

- **Citation:** [2022] 18 S.C.R. 273
- **Court:** Supreme Court of India
- **Decided:** 2022-11-09
- **Case number:** Civil Appeal Nos. 8261-8262 of 2022
- **Bench:** S. Abdul Nazeer, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ravi-namboothiri-v-k-a-baiju-ors-35816
- **Pages:** 38

## Headnote

Kerala Panchayat Raj Act, 1994 - ss.52(1A), 102(1)(ca),
120(2) - Kerala Panchayat Raj (Conduct of Election) Rules, 1995
- r.6 - Kerala Police Act, 1960 - ss.38, 52 - Election of the appellant
as Councilor of Ward No.5 of Annamanada Gram Panchayath was
set aside - Correctness of - Held: Appellant admittedly failed to
furnish details of his past conviction in Form No.2A - Therefore,
the ground on which his election was sought to be declared void,
falls squarely within s.102(1)(ca) of the 1994 Act - However, the
offences for which the appellant was convicted were u/s.38 r/w s.52
of the Kerala Police Act - Thus, conviction of the appellant was
actually for the disobedience of the directions issued by a police
officer in connection with holding a dharna in front of the Panchayat
office - Kerala Police Act is actually the successor legislation of
certain police enactments of the colonial era, whose object was to
scuttle the democratic aspirations of the indigenous population -
Once the object behind the provisions of the Kerala Police Act are
understood, it would be clear that neither s.52(1A) r/w r.6 and Form
2A nor s.102(1)(ca) of the Act nor the decisions in Association for
Democratic Reforms, People's Union for Civil Liberties (PUCL) or
Krishnamoorthy case can be stretched to such an extent that the
failure of the appellant to disclose his conviction for an offence
under the Kerala Police Act for holding a dharna in front of the
Panchayat office, is taken as a ground for declaring an election
void - District Court and the High Court were wrong in declaring
the election of the appellant to be void on the ground that the failure
of the appellant to disclose in Form 2A, his conviction under the
Kerala Police Act amounted to 'undue influence on the free exercise
of the electoral right' and also a violation of ss.52(1A) r/w s.102(1)
(ca) of the 1994 Act - Representation of the People Act, 1951 -
ss.33A, 33B.
 [2022] 18 S.C.R. 273
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Words and Phrases - "fake", "forgery" - Discussed.
Allowing the appeals, the Court
HELD: 1.1 As seen from sub--section (1) of Section 102,
the election of a candidate can be declared void, under five
different contingencies. They are: (i) that the returned candidate
was not qualified or was disqualified on the date of his election;
(ii) that any corrupt practice has been committed by the returned
candidate or his election agent or by any other person with the
consent of the returned candidate or his agent; (iii) that any
nomination had been improperly rejected; (iv) that the details
furnished by the elected candidate under sub-section (1A) of
Section 52 were fake; and (v) that the result of the election, insofar
it concerns the returned candidate, has been materially
affected either by the improper acceptance of any nomination
or by any corrupt practice committed in the interest of the
returned candidate by an agent other than his election agent or
by the improper reception, refusal or rejection of any vote or the
reception of any vote which is void or by any non-compliance
with the provisions of this Act or of any Rules or orders made
thereunder. Interestingly, sub--section (1) of Section 102 places
the first four contingencies listed in the preceding paragraph,
{which are relatable to clauses (a), (b), (c) and (ca) of sub--section
(1)} on a different footing than the fifth contingency {relatable to
clause (d)}. The difference between clauses (a), (b), (c) and (ca)
on the one hand and clause (d) of sub--section (1) of Section 102
on the other hand is this. For setting aside an election under any
one or more of the contingencies mentioned in clauses (a), (b),
(c) and (ca), it is not necessary for the Court to find if the result of
the election, insofar as it concerns the returned candidate, has
been materially affected or not. In contrast, for holding an election
to be void on the ground of improper acceptance of any
nomina

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RAVI NAMBOOTHIRI
v.
K.A. BAIJU & ORS.
(Civil Appeal Nos. 8261-8262 of 2022)
NOVEMBER 09, 2022
[S. ABDUL NAZEER AND V. RAMASUBRAMANIAN, JJ.]
Kerala Panchayat Raj Act, 1994 - ss.52(1A), 102(1)(ca),
120(2) - Kerala Panchayat Raj (Conduct of Election) Rules, 1995
- r.6 - Kerala Police Act, 1960 - ss.38, 52 - Election of the appellant
as Councilor of Ward No.5 of Annamanada Gram Panchayath was
set aside - Correctness of - Held: Appellant admittedly failed to
furnish details of his past conviction in Form No.2A - Therefore,
the ground on which his election was sought to be declared void,
falls squarely within s.102(1)(ca) of the 1994 Act - However, the
offences for which the appellant was convicted were u/s.38 r/w s.52
of the Kerala Police Act - Thus, conviction of the appellant was
actually for the disobedience of the directions issued by a police
officer in connection with holding a dharna in front of the Panchayat
office - Kerala Police Act is actually the successor legislation of
certain police enactments of the colonial era, whose object was to
scuttle the democratic aspirations of the indigenous population -
Once the object behind the provisions of the Kerala Police Act are
understood, it would be clear that neither s.52(1A) r/w r.6 and Form
2A nor s.102(1)(ca) of the Act nor the decisions in Association for
Democratic Reforms, People's Union for Civil Liberties (PUCL) or
Krishnamoorthy case can be stretched to such an extent that the
failure of the appellant to disclose his conviction for an offence
under the Kerala Police Act for holding a dharna in front of the
Panchayat office, is taken as a ground for declaring an election
void - District Court and the High Court were wrong in declaring
the election of the appellant to be void on the ground that the failure
of the appellant to disclose in Form 2A, his conviction under the
Kerala Police Act amounted to 'undue influence on the free exercise
of the electoral right' and also a violation of ss.52(1A) r/w s.102(1)
(ca) of the 1994 Act - Representation of the People Act, 1951 -
ss.33A, 33B.
 [2022] 18 S.C.R. 273
273
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Words and Phrases - "fake", "forgery" - Discussed.
Allowing the appeals, the Court
HELD: 1.1 As seen from sub--section (1) of Section 102,
the election of a candidate can be declared void, under five
different contingencies. They are: (i) that the returned candidate
was not qualified or was disqualified on the date of his election;
(ii) that any corrupt practice has been committed by the returned
candidate or his election agent or by any other person with the
consent of the returned candidate or his agent; (iii) that any
nomination had been improperly rejected; (iv) that the details
furnished by the elected candidate under sub-section (1A) of
Section 52 were fake; and (v) that the result of the election, insofar
it concerns the returned candidate, has been materially
affected either by the improper acceptance of any nomination
or by any corrupt practice committed in the interest of the
returned candidate by an agent other than his election agent or
by the improper reception, refusal or rejection of any vote or the
reception of any vote which is void or by any non-compliance
with the provisions of this Act or of any Rules or orders made
thereunder. Interestingly, sub--section (1) of Section 102 places
the first four contingencies listed in the preceding paragraph,
{which are relatable to clauses (a), (b), (c) and (ca) of sub--section
(1)} on a different footing than the fifth contingency {relatable to
clause (d)}. The difference between clauses (a), (b), (c) and (ca)
on the one hand and clause (d) of sub--section (1) of Section 102
on the other hand is this. For setting aside an election under any
one or more of the contingencies mentioned in clauses (a), (b),
(c) and (ca), it is not necessary for the Court to find if the result of
the election, insofar as it concerns the returned candidate, has
been materially affected or not. In contrast, for holding an election
to be void on the ground of improper acceptance of any
nomination or the commission of a corrupt practice by any other
agent, but in the interest of the returned candidate or the improper
reception, refusal or rejection of any vote or the reception of any
vote which is void or non- compliance with the provisions of the
Act, the Rules or orders, the Court must be satisfied that the
result of the election has been materially affected. [Paras 1517][288-G-H; 289-A-E]
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1.2 In other words sub-section (1) of Section 102 places, (i)
non- qualification/disqualification of the returned candidate; (ii)
commission of any corrupt practice by the returned candidate or
his election agent or any other person with the consent of the
returned candidate or his election agent; (iii) the improper
rejection of any nomination; and (iv) the furnishing of details under
Section 52(1A) which are fake, on a much higher pedestal. If a
challenge is made to the election of a candidate on any one of
these four grounds, it is not necessary to show that the result of
the election has been materially affected. Sub--section (1) of
Section 102 places, (i) improper acceptance of any nomination;
(ii) commission of any corrupt practice in the interest of the
returned candidate, but by any agent other than his own election
agent; (iii) the improper reception, refusal or rejection of any
vote or the reception of any vote which is void; and (iv) the
non-compliance with the provisions of the Act or any Rules or
orders made thereunder, in one group or class, where the Court
is obliged to look into an additional factor namely whether the
result of the election was materially affected due to any of these
factors. The expression "corrupt practice" is defined in Section
120 of the Act. [Paras 18-20][289-F-H; 290-A-B]
1.3 The argument of respondent No.1 is that the case would
fall squarely under Section 102(1)(ca), which deals with the
furnishing of details under Section 52(1A), but which are fake.
Alternatively, it is suggested that the case would fall under Section
102(1)(b) which deals with the commission of any corrupt practice
by the returned candidate. Since the expression "corrupt
practice" is defined in Section 120(2) to include 'undue influence
with the free exercise of any electoral right', it is argued by the
respondent No.1 that the case may fall under Section 102(1)(b)
also, in view of the law laid down in Krishnamoorthy. This Court
has its own doubts about the second limb of the argument of the
senior counsel for respondent No.1. The second limb of his
argument is that the failure to disclose correct information in
Form 2A would tantamount to 'undue influence on the free
exercise of the electoral right', which comes within the definition
of the expression "corrupt practice" under section 120 of the
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Act. Inspiration for this argument arises from the decision of this
Court in Krishnamoorthy. [Paras 21, 22][295-C-F]
1.4 In so far as the Kerala Panchayat Raj Act is concerned,
there is no necessity, after the amendment under Act 30 of 2005
to take a circuitous route. Non-disclosure and false disclosure
can straight away be traced to Section 52(1A) and 102(1)(ca) of
the Act. Coming back to Section 102(1)(ca), it enables a Court to
declare the election of a returned candidate to be void, if the
details furnished by him under Section 52(1A) are found to be
"fake". Interestingly the Statute uses the expression "fake" and
not expressions such as "false", "suppression" etc. The word
"fake" is not defined in the Act. Black's Law Dictionary defines
the word "fake" to mean "to make or construct". In P. Ramanatha
Aiyar's Advanced Law Lexicon, (Volume 2, 5th Edition, 2017),
the entry relating to the word "fake" simply directs the reader to
the entry relating to the word "forgery". Therefore, one has to
go to the entry relating to the word "forgery" to understand the
meaning of the word "fake". The entry relating to the word
"forgery" is quite long and it begins with a reference first to
Section 463 of the IPC, 1860 which defines "forgery". [Paras 2830][303-B-F]
1.5 A reading of the above entry in the Law Lexicon shows
that the word "forgery" has its origin in French, signifying "the
framing or fashioning of a thing as the smith doth his work upon
the anvil." Essentially "forgery" appears to include the false
making of any writing. Thus, it appears from the above that the
elements of forgery are also identified as the ingredients of faking
something. If the false making of an instrument is a common
ingredient of "faking" and "forgery", the non-disclosure in Form
No.2A of the conviction suffered by the appellant in the past, may
certainly come within Section 102(1)(ca). The reason for this is
that a person having criminal antecedents, poses himself to be
one without any such antecedent, when he fails to make a true
disclosure. In law, he passes off or comes out as a person without
any criminal antecedent. Therefore, the failure to make a true
disclosure in Form 2A, regarding the past conviction, will certainly
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come within the meaning of the word 'fake', mentioned in clause
(ca) of sub-section of Section 102. [Paras 31-33][306-C-F]
1.6 It may be true, as contended by the counsel for the
appellant that Rule 6, in terms of which Form No.2A has been
drafted, is a subordinate legislation, which cannot go beyond the
scope of Section 52(1A). But unfortunately for the appellant, Rule
6 is not under challenge on the ground that it is ultra vires the
Act. Therefore, the appellant cannot now be heard to contend
that Rule 6 cannot travel beyond or enlarge the scope of Section
52(1A). If not for Rule 6 and Form No.2A, it is possible to accept
the argument that the requirement under Section 52(1A) is
limited to "the disclosure of involvement in a criminal case at
the time of filing of the nomination". At the time of filing of the
nomination, the appellant was not involved in any criminal case.
We do not agree with the argument of the learned senior counsel
for respondent No.1 that the phrase "involvement in a criminal
case" would include past conviction also, especially when Section
52(1A) uses the rider "at the time of filing of the nomination".
[Paras 34-36][306-G-H; 307-A-B]
1.7 The words "involvement in a criminal case at the
time of filing of the nomination" would only mean (i) cases where
a criminal complaint is pending investigation/trial; (ii) cases where
the conviction and/or sentence is current at the time of filing of
the nomination; and (iii) cases where the conviction is the
subject matter of any appeal or revision pending at the time of
the nomination. Therefore, in the absence of Rule 6 and Form
No.2A we could have easily concluded that the case of the
appellant will not be covered by Section 52(1A) as he was not
involved in any criminal case on the date of the nomination. But
Rule 6 and Form No.2A taken together with what the law means
to be "fake", makes things difficult for the appellant. Column
No.1 in Form 2A requires the details not only of the criminal
cases pending trial before the Court but also the criminal cases
in which the contestant was convicted. The contestant is required
to furnish in Form No.2A, details regarding the cases in which he
is punished, the case number, the Court, the offences for which
punishment was awarded, the nature of the punishment and the
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details regarding appeal or revision etc. Therefore, Form No.2A
goes far beyond the requirement of Section 52(1A). The appellant
admittedly failed to furnish details of his past conviction in Form
No.2A. Therefore, the ground on which his election was sought
to be declared void, falls squarely within Section 102(1)(ca) of
the Act. But that is not all. The offences for which the appellant
was eventually convicted, were under Section 38 read with
Section 52 of the Kerala Police Act, 1960 (Act 5 of 1961).
[Paras 37-40][307-C-H]
1.8 It could be seen from both the above provisions that
the conviction of the appellant was actually for the disobedience
of the directions issued by a police officer. This was admittedly in
connection with a dharna which the appellant staged in front of
the Panchayat office, along with a group of his supporters.
Therefore, the question that we are obliged to consider is as to
whether the non-disclosure of the conviction for such offences
would also come within the purview of Section 102(1)(ca) of the
Act. While offences under the Indian Penal Code or under special
enactments such as Prevention of Corruption Act, Arms Act and
so on and so forth are substantive offences, the commission of
which may make a person a criminal, an offence under certain
enactments such as Kerala Police Act are not substantive
offences. Just as strike is a weapon in the hands of the workmen
and lock-out is a weapon in the hands of the employer under
Labour Welfare legislations, protest is a tool in the hands of the
civil society and police action is a tool in the hands of the
Establishment. All State enactments such as Kerala Police Act,
Madras Police Act etc., are aimed at better regulation of the police
force and they do not create substantive offences. This is why
these Acts themselves empower the police to issue necessary
directions for the maintenance of law and order and the violation
of any of those directions is made a punishable offence under
these Acts. Once the object behind the provisions of the Kerala
Police Act are understood, it would be clear that neither Section
52(1A) read with Rule 6 and Form 2A nor Section 102(1)(ca) of
the Act nor the decisions in Association for Democratic Reforms,
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People's Union for Civil Liberties (PUCL) or Krishnamoorthy
can be stretched to such an extent that the failure of the
appellant to disclose his conviction for an offence under the
Kerala Police Act for holding a dharna in front of the Panchayat
office, is taken as a ground for declaring an election void. [Paras
43, 45 and 46][308-D-F; 309-F-H; 310-A-C]
1.9 It may be of interest to note that the Kerala Police Act,
1960 repealed (i) the Travancore-Cochin Police Act, 1951; and
(ii) the Madras District Police Act, 1859 as applied to the Malabar
District referred to in Section 5(2) of the States Reorganisation
Act, 1956. It also repealed the provisions of (i) the Police Act,
1861; and (ii) the Madras City Police Act, 1888, which were earlier
extended to the Malabar District. Thus Kerala Police Act, 1960
is actually the successor legislation of certain police enactments
of the colonial era, whose object was to scuttle the democratic
aspirations of the indigenous population. This aspect should be
kept in mind before applying blindfold, the principle 'what is sauce
for the goose is sauce for the gander'. The District Court and the
High Court were wrong in declaring the election of the appellant
to be void on the ground that the failure of the appellant to disclose
in Form 2A, his conviction under the Kerala Police Act amounted
to 'undue influence on the free exercise of the electoral right'
and also a violation of Section 52(1A) read with Section 102(1)
(ca) of the Kerala Panchayat Raj Act. Hence, the appeals are
allowed, the impugned orders are set aside and the Election
Petition filed by respondent No.1 is dismissed. No costs.
[Paras 47, 48][310-C-F]
Union of India vs. Association for Democratic
Reforms and Anr (2002) 5 SCC 294: [2002] 3 SCR
696; People's Union for Civil Liberties (PUCL) and Anr.
vs. Union of India and Anr (2003) 4 SCC 399: [2003]
2 SCR 1136; Krishnamoorthy vs.Sivakumar & Ors
(2015) 3 SCC 467 : [2015] 4 SCR 987; Resurgence
India vs. Election Commission of India and Anr (2014)
14 SCC 189: [2013] 9 SCR 360 - referred to.
RAVI NAMBOOTHIRI v. K.A. BAIJU & ORS.
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Case Law Reference
[2002] 3 SCR 696
referred to
Para 10
[2003] 2 SCR 1136
referred to
Para 10
[2015] 4 SCR 987
referred to
Para 11
[2013] 9 SCR 360
referred to
Para 12
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 82618262 of 2022.
From the Judgment and Order dated 30.10.2018 of the High Court
of Kerela at Ernakulam in C.R.P. No.513 of 2018 and Order dated
19.11.2018 in R.P. No.932 of 2018 in C.R.P. No.513 of 2018.
Ragenth Basant, Krishna Dev Jagarlamudi, Roopali Lakhotia, Ajay
Krishna, Advs. for the Appellant.
P. V. Surendranath, Sr. Adv., Subhash Chandran K. R., Sawan
Kumar Shukla, Ms. Krishna L. R., Ms. Resmitha R. Chandran, Advs.
for the Respondents.
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
Leave granted.
2. Aggrieved by the Judgment passed by the High Court of Kerala,
confirming an order passed by the Additional District Judge setting aside
his election as Councilor of Ward No.5 of Annamanada Gram Panchayath,
in the elections held in November-2015, the elected candidate has come
up with the above appeals.
3. We have heard the learned counsel for the respective parties.
4. The brief facts essential for the disposal of the above appeals
are as follows:-
(i)
On 5-11-2015, elections to the Annamanada
Gram Panchayath were held. Apart from
others, the appellant and respondent No.1
contested from Ward No.5.
(ii)
On 7.11.2015, the appellant was declared as
having been elected from Ward No.5.
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(iii)
Respondent No.1 filed an Election Petition on
the file of the District Munsif Court, on 4.12.2015
challenging the election of the appellant.
(iv)
By a Judgment dated 19.11.2016, the Election
Petition was dismissed by the District Munsif
Court, primarily on the ground that there was
no prayer in the Election Petition to declare the
election of the appellant as void, on the grounds
stipulated in Section 102 of the Kerala
Panchayat Raj Act. There was actually a prayer
for cancelling the election held on 5.11.2015.
(v)
Aggrieved by the dismissal of the Election
Petition, respondent No.1 filed an appeal in the
Court of the Additional District Judge. The
appeal was allowed by a Judgment dated
18.06.2018 and the election of the appellant was
declared as void on the ground that the appellant
suppressed in his nomination form, his
involvement in a criminal case and that therefore
he had committed a corrupt practice.
(vi)
Aggrieved by the said judgment of the District
Court, the appellant filed a revision petition
before the High Court. The Revision Petition
was dismissed by an Order dated 30.10.2018.
The appellant filed a petition for review, but the
same was also dismissed by the High Court.
Therefore, challenging the order passed in the
Revision Petition and the order passed in the
Review Petition, the appellant has come up with
two appeals.
5. The allegation that the appellant suppressed his involvement in
a criminal case and thereby adopted a corrupt practice, arose under
very peculiar circumstances, which are as follows:-
(i)
On the allegation that on 20.09.2006, a group
of about 40 persons, which included the
appellant herein, formed themselves into an
unlawful assembly and committed criminal
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trespass into the office compound of the
Annamanada Gram Panchayath and put up a
temporary shed for conducting a dharna, 22
persons were prosecuted before the Judicial
First Class Magistrate Court, Chalakudy, for
alleged offences under Sections 143, 283 and
447 read with Section 149 of the Indian Penal
Code. The appellant herein was cited as
accused No.1 and he was also prosecuted
additionally for an offence under Section 38 read
with Section 52 of the Kerala Police Act.
(ii)
By a Judgment dated 07.06.2010 passed in CC
No.1606 of 2006, the trial Court convicted only
A-1 and A-2. The appellant herein who was
A-1, was convicted for the offence under
Section 143 IPC and sentenced to simple
imprisonment for a period of three months
together with a fine of Rs.2000/-. He was also
convicted for the offence under Section 283 and
sentenced to pay a fine of Rs.200/-. For the
offence under Section 447, the appellant was
ordered to undergo simple imprisonment for a
period of one month and also to pay a fine of
Rs.500/-. Additionally, the appellant was
convicted for the offence under Section 52 of
the Kerala Police Act and sentenced to pay a
fine of Rs.200/-.
(iii)
The appellant as well as A-2 filed a statutory
appeal before the Sessions Court, Thrissur. By
a Judgment dated 17.01.2012, the appeal was
partly allowed and the conviction of the appellant
for the offences under Sections 143, 447 and
283 read with Section 149 IPC was set aside.
However, the conviction of the appellant herein
for the offence under Section 38 read with
Section 52 of the Kerala Police Act and the
sentence of a fine of Rs.200/- imposed upon
him, was upheld by the First Appellate Court.
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(iv)
Since the appellant is involved in active electoral
politics and his conviction by the criminal Court
related to a dharna organized by him, the
appellant did not pursue the matter further before
the High Court against a mere conviction under
Section 38 read with Section 52 of the Kerala
Police Act.
(v)
However, while filing his nomination in the
elections to the Panchayat held in November2015, the appellant failed to disclose, in Form
No.2A, under Rule 6 of the relevant Rules, his
conviction under Section 38 read with Section
52 of the Kerala Police Act, 1961. Therefore,
his election was challenged by respondent No.1
and the matter has now landed up before this
Court.
6. In the Kerala Panchayat Raj Act, 1994 (hereinafter referred to
as "the Act"), an amendment was made in the year 2005, by Act 30 of
2005 with effect from 22.08.2005. One of the amendments introduced
by the said Act, was the insertion of sub-section (1A) in Section 52.
Section 52 (1A) reads as follows:-
"52. Presentation of nomination paper and
requirements for a valid nomination.-
(1A) Every candidate submitting nomination under subsection (1) shall not be deemed to be qualified to be
elected to fill that post unless he submits, along with
such nomination, the details regarding his
educational qualification, criminal cases in which
he is involved at the time of submission of
nomination, property owned by him and other members
of his family, liabilities including arrears due from him to
any Public Sector Undertaking or Government or Local
Self Government Institutions and whether disqualifies
for defection under the Kerala Local Authorities
(Prohibition of Defection) Act, 1999 in the form and
manner as may be prescribed."
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7. Though the language employed in sub-section (1A) of Section
52 mandated only the disclosure of the details regarding "the criminal
cases in which he is involved at the time of submission of nomination",
the High Court invoked Rule 6 of the Kerala Panchayat Raj (Conduct of
Election) Rules, 1995 to hold that the suppression of any information
relating to past conviction may also amount to suppression of
"involvement in a criminal case".
8. Rule 6 of the Kerala Panchayat Raj (Conduct of Election)
Rules, 1995 reads as follows:-
"6. Nomination of candidates.- (1) A candidate shall
be nominated by means of a nomination paper in Form
No.2 and on an application in that behalf of an elector
in the electoral roll of any constituency of concerned
Panchayat, the Returning Officer shall provide him Form
NO. 2 free of cost.
(2) Every candidate shall make and subscribe an oath
or affirmation before the Returning Officer or the person
authorized by the State Election Commission in the Form
specified in the First Schedule of the Act.
(2a) Every candidate shall submit before the Returning
officer, the details in form No. 2A along with the
nomination paper.
(3) The Returning Officer shall, immediately on receipt
of the nomination paper, number them serially in the
order of their presentation and shall note the date and
time of its presentation in each nomination paper and
shall issue a receipt attached to Form No. 2."
9.
The relevant column of Form No. 2A referred to in Rule
6 reads as follows:
"1. The following criminal cases are pending against
me for trial before the court/I have been convicted by
the court in criminal cases.
a.
XXXX
(b)
Those in which punished
(i)
Case number
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(ii)
Name and place of court
(iii)
Description of the offence for
which punishment was awarded
(iv)
Sections of the concerned Act
under which punishment was
awarded
(v)
Punishment awarded (period of
imprisonment/quantum of fine
imposed) etc.
(vi)
Date of sentence
(vii)
Details regarding appeal, revision
etc. filed against the sentence."
10. The reasoning of the High Court was that any failure to disclose
the correct information regarding the past conviction by a criminal court,
would tantamount to suppression of information relating to "involvement
in a criminal case". The High Court reasoned (i) that insofar as elections
to the State Assemblies and Parliament are concerned, Section 33A of
the Representation of the People Act, 1951 requires the disclosure of
only those convictions where a sentence of imprisonment for one year
and more had been imposed; and (ii) but that the rules framed in Kerala
relating to the elections to Panchayats are more stringent, as they require
the disclosure of any involvement in any criminal case. The High Court
opined that the Court was obliged to keep in mind the object of such
requirement, in the light of the principles laid down by this Court in Union
of India vs. Association for Democratic Reforms and Anr.1 and
People's Union for Civil Liberties (PUCL) and Anr. vs. Union of
India and Anr.2.
11. Assailing the Judgment of the High Court, it was argued by
Shri Ragenth Basant, learned counsel appearing for the appellant that
the non-disclosure of the conviction for a petty offence and that too
relating to the holding of a dharna on a political issue, cannot be termed
as "undue influence" within the meaning of Section 120(2) of the Act
and that, therefore, the election of the appellant ought not to have been
declared void on the ground that it was vitiated by corrupt practice under
1 (2002) 5 SCC 294
2 (2003) 4 SCC 399
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Section 102(1)(b) of the Act. It was also contended by the learned counsel
that the reliance placed by the First Appellate Court on the decision of
this Court in Krishnamoorthy vs. Sivakumar & Ors.3 was misplaced.
According to the learned counsel, the non-disclosure of criminal
antecedents pertaining to heinous or serious offences involving corruption
or moral turpitude alone would tantamount to corrupt practice. It is also
further contended by the learned counsel for the appellant that the
requirement of a disclosure in terms of Section 52(1A) relates only to
the involvement in a criminal case at the time of submission of the
nomination and that therefore, the requirement under Rule 6 cannot be
read as enlarging the scope of Section 52(1A). According to the learned
counsel for the appellant, even the ground under Section 102(1)(ca) of
the Act cannot be invoked as the same is concerned with a situation
where the details furnished by the elected candidate were shown to be
fake. Therefore, the learned counsel contended that the First Appellate
Court and the High Court were completely in error in declaring the election
of the appellant to be void.
12. Supporting the judgment of the High Court it was contended
by Shri P.V. Surendranath, learned senior counsel for respondent No.1
(Election Petitioner) that the deliberate suppression by the appellant, in
the nomination form filed in Form 2A, of his conviction for a criminal
offence, squarely fell within the definition of the expression "undue
influence" under Section 120(2) of the Act. According to the learned
senior counsel for respondent No.1, the Court is obliged to keep in mind
the fact that Section 33B of the Representation of the People Act, 1951,
was brought in by the Parliament to nullify the effect of the decision in
Association for Democratic Reforms and Anr (supra). But Section
33B was declared unconstitutional in People's Union for Civil Liberties
(supra). Relying upon the decision in Resurgence India vs. Election
Commission of India and Anr.4, it was contended by the learned senior
counsel for respondent No.1 that the filing of an affidavit with blank
particulars has also been held to be a ground to reject the nomination
papers.
13. We have carefully considered the rival contentions. Before
we proceed to consider the rival contentions, we must point out that the
case on hand relates to an election to the Panchayat held in November3 (2015) 3 SCC 467
4 (2014) 14 SCC 189
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2015. The term of office of the appellant is already over. But if the
Judgment of the High Court is found to be correct, the appellant might
have incurred a disqualification. Therefore, a decision on merits in this
case is not a mere academic exercise and hence we have to deal with
the rival contentions.
14. To test the correctness of the decision of the High Court, we
may have to begin our discussion from Section 102 of the Act. Section
102 of the Act reads as follows:-
"102. Grounds for declaring election to be void. -
(1) Subject to the provisions of sub-section (2) if the
Court is of opinion -
(a) that on the date of his election a returned
candidate was not qualified, or was disqualified,
to be chosen to fill the seat under this Act; or
(b) that any corrupt practice has been committed
by a returned candidate or his election agent or
by any other person with the consent of a
returned candidate or his election agent; or
(c) that any nomination has been improperly rejected;
or
(ca) that the details furnished by the elected
candidate under sub-section (1A) of section 52
were fake; or
(d) that the result of the election, in so far as it
concerns a returned candidate, has been
materially affected -
(i)
by the improper acceptance of
any nomination, or
(ii) by any corrupt practice committed in
the interests of the returned
candidate by an agent other than
his election agent; or
(iii)
by the improper reception,
refusal or rejection of any vote or
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the reception of any vote which is
void; or
(iv) by any non-compliance with the
provisions of this Act or of any rules
or orders made thereunder, the
Court shall declare that the election
of the returned candidate to be
void.
(2) If in the opinion of the Court a returned candidate
has been guilty by an agent, other than his election agent,
of any corrupt practice but the Court is satisfied. -
(a) that no such corrupt practice was committed
at the election by the candidate or his election
agent, and every such corrupt practice was
committed contrary to the orders, and without
the consent, of the candidate or his election
agent;
(b) that the candidate and his election agent took
all reasonable means for preventing the
commission of corrupt practices at the election;
and
(c) that in all other respects the election was
free from any corrupt practice on the part of
the candidate or any of this agents, then the Court
may decide that the election of the returned
candidate is not void.
Explanation.- In this section the term "agent" has the
same meaning as in section 120."
15. As seen from sub-section (1) of Section 102, the election of a
candidate can be declared void, under five different contingencies. They
are: (i) that the returned candidate was not qualified or was disqualified
on the date of his election; (ii) that any corrupt practice has been
committed by the returned candidate or his election agent or by any
other person with the consent of the returned candidate or his agent;
(iii) that any nomination had been improperly rejected; (iv) that the details
furnished by the elected candidate under sub-section (1A) of Section 52
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were fake; and (v) that the result of the election, insofar it concerns the
returned candidate, has been materially affected either by the improper
acceptance of any nomination or by any corrupt practice committed in
the interest of the returned candidate by an agent other than his election
agent or by the improper reception, refusal or rejection of any vote or
the reception of any vote which is void or by any non-compliance with
the provisions of this Act or of any Rules or orders made thereunder.
16. Interestingly, sub-section (1) of Section 102 places the first
four contingencies listed in the preceding paragraph, {which are relatable
to clauses (a), (b), (c) and (ca) of sub-section (1)} on a different
footing than the fifth contingency {relatable to clause (d)}. The
difference between clauses (a), (b), (c) and (ca) on the one hand and
clause (d) of sub-section (1) of Section 102 on the other hand is this. For
setting aside an election under any one or more of the contingencies
mentioned in clauses (a), (b), (c) and (ca), it is not necessary for the
Court to find if the result of the election, insofar as it concerns the returned
candidate, has been materially affected or not.
17. In contrast, for holding an election to be void on the ground of
improper acceptance of any nomination or the commission of a corrupt
practice by any other agent, but in the interest of the returned candidate
or the improper reception, refusal or rejection of any vote or the reception
of any vote which is void or non-compliance with the provisions of the
Act, the Rules or orders, the Court must be satisfied that the result of
the election has been materially affected.
18. In other words sub-section (1) of Section 102 places, (i) nonqualification/disqualification of the returned candidate; (ii) commission
of any corrupt practice by the returned candidate or his election agent or
any other person with the consent of the returned candidate or his election
agent; (iii) the improper rejection of any nomination; and (iv) the furnishing
of details under Section 52(1A) which are fake, on a much higher
pedestal. If a challenge is made to the election of a candidate on any one
of these four grounds, it is not necessary to show that the result of the
election has been materially affected.
19. Sub-section (1) of Section 102 places, (i) improper acceptance
of any nomination; (ii) commission of any corrupt practice in the interest
of the returned candidate, but by any agent other than his own election
agent; (iii) the improper reception, refusal or rejection of any vote or the
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reception of any vote which is void; and (iv) the non-compliance with
the provisions of the Act or any Rules or orders made thereunder, in one
group or class, where the Court is obliged to look into an additional factor
namely whether the result of the election was materially affected due to
any of these factors.
20. The expression "corrupt practice" is defined in Section 120
of the Act which reads as follows:
"120. Corrupt practices.- The following shall be
deemed to be corrupt practices for the purposes of this
Act -
(1) "Bribery", that is to say, -
(A) any gift, offer or promise by a candidate or
his agent or by any other person with the consent of a
candidate or his election agent of any gratification, to
any person whomsoever, with the object, directly or
indirectly of inducing -
(a) a person to stand or not to stand as, or to
withdraw or not to withdraw from being a candidate
at an election, or
(b) an elector to vote or refrain from voting
at an election, or as a reward to -
 (i) a person for having so stood, or not stood,
or for having withdrawn or not having withdrawn his
candidature; or
 (ii) an elector for having voted or refrained
from voting;
(B) the receipt of, or agreement to receive, any
gratification, whether as a motive or a reward -
 (a) by a person for standing or not
standing as, or for withdrawing or not withdrawing
from being, a candidate; or
 (b) by any person whomsoever for himself
or any other person for voting or refraining from voting,
or inducing or attempting to induce any elector to vote
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or refrain from voting, or any candidate to withdraw
or not to withdraw his candidature.
Explanation.- For the purposes of this clause
the term 'gratification' is not restricted to pecuniary
gratifications or gratifications estimable in money and it
includes all forms of entertainment and all forms of
employment for reward but it does not include the
payment of any expenses bona fide incurred at, or for
the purpose of, any election and duly entered in the
account of election expenses referred to in Section 85.
(2) "Undue influence", that is to say, any direct
or indirect interference or attempt to interfere on the
part of the candidate, or his agent, or of any other person
with the consent of the candidate or his election agent;
with the free exercise of any electoral right:
Provided that -
(a) without prejudice to the generality of the
provisions of this clause any such person as is referred
to therein who -
 (i) threatens any candidate or any elector,
or any person in whom a candidate or an elector is
interested, with injury of any kind including social
ostracism and ex-communication or
e x p u l s i o n
from any caste or community; or
 (ii) induces or attempts to induce a candidate
or an elector to believe that he, or any person in whom
he is interested, will become or will be rendered an
object of divine displeasure or spiritual censure, shall be
deemed to interfere with the free exercise of the
electoral right of such candidate or elector within the
meaning of this clause;
(b) a declaration of public policy; or a promise
of public action, or the mere exercise of a legal right
without intent to interfere with an electoral right shall
not be deemed to be interference within the meaning of
this clause.
RAVI NAMBOOTHIRI v. K.A. BAIJU & ORS.
[V.