1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO S.1515-1516 OF 2019

[Arising out of Special Leave Petition (Criminal) Nos. 19-20 of 2019]

SATISH UKEY APPELLANT(S)

VERSUS

DEVENDRA GANGADHARRAO FADNAVIS

AND ANR. RESPONDENT(S)

J U D G M E N T

RANJAN GOGOI, CJI

1. Leave granted.

2. The appellant– Satish Ukey is a practicing Advocate of

the Bombay High Court. The first respondent is an elected

member of the Maharashtra State Legislative Assembly and is

presently holding the post of Chief Minister of the State of

Maharashtra.

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3. The appellant had filed a criminal complaint before the

learned Judicial Magistrate First Class, Nagpur for registration

of a case against the first respondent under Section 125-A of the

Representation of the People Act, 1951 (hereinafter referred to as

“the 1951 Act”). The learned Judicial Magistrate First Class,

Nagpur by order dated 7

th September, 2015 dismissed the

complaint. In Revision, the learned Sessions Judge, Nagpur

remanded the matter to the learned trial Court for a de novo

consideration. Aggrieved, the first respondent moved the High

Court and the High Court having set aside the order of the

learned Sessions Judge by its judgment and order dated 3

rd May,

2018, the present appeals have been filed.

4. The complaint filed by the appellant contains an

allegation that in the affidavit in Form-26, prescribed by the

Conduct of Election Rules, 1961 (hereinafter referred to as “the

1961 Rules”), which had accompanied the nomination papers of

the first respondent details of two cases in which cognizance was

taken i.e. (i) Summary Case No.231 of 1996 (under Section 500

of IPC) before the Judicial Magistrate First Class, Nagpur; and (ii)

Regular Criminal Case No.343 of 2003 (Old No.125 of 1998)

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(under Sections 468, 471, 218, 467, 420 and 34 of IPC) before

the Court of Judicial Magistrate First Class, Nagpur have not

been mentioned by the first respondent despite knowledge of the

same. Consequently, according to the appellant – complainant,

an infraction of the provisions of Section 125-A has been

committed for which the first respondent is liable to be

prosecuted in a court of competent jurisdiction.

On the very same allegations the appellant had challenged

the election of the first respondent before the High Court by

instituting Election Petition No.1 of 2014 which has been

dismissed by the High Court by its order dated 19

th August,

2015.

5. To determine the correctness of the stand taken by the

appellant - complainant and the legality of the impugned order

of the High Court holding that the complaint is liable to be

dismissed, the Court would be required to consider the

provisions of Sections 33-A and 125-A of the 1951 Act, Rule 4A

of the 1961 Rules read with Form-26 prescribed under the said

Rules. Several letters of the Election Commission of India to the

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Chief Electoral Officers of all the States and the Union Territories

issued in this regard would also require a close look.

6. Before setting out the relevant provisions of the law

enumerated above, a brief prologue on the judicial precedents

that had led to the insertion of Sections 33-A and 125-A in the

1951 Act and the provisions of Rule 4-A of the 1961 Rules read

with Form-26 is considered necessary.

7. In Union of India (UOI) and Ors. v. Association for

Democratic Reforms and Ors.

1 this Court while examining the

issue of the Voters right to know relevant particulars of the

contesting candidates before they are called upon to cast their

votes had made the following observations :

“22. For health of democracy and fair election,

whether the disclosure of assets by a candidate,

his/her qualification and particulars regarding

involvement in criminal cases are necessary for

informing voters, may be illiterate, so that they can

decide intelligently, whom to vote? In our opinion,

the decision of even illiterate voter, if properly

educated and informed about the contesting

candidate, would be based on his own relevant

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(2002) 5 SCC 294

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criteria of selecting a candidate. In democracy,

periodical elections are conducted for having

efficient governance for the country and for the

benefit of citizens -- voters. In a democratic form of

government, voters are of utmost importance. They

have right to elect or re-elect on the basis of the

antecedents and past performance of the

candidate. He has choice of deciding whether

holding of educational qualification or holding of

property is relevant for electing or re-electing a

person to be his representative. Voter has to decide

whether he should cast vote in favour of a

candidate who is involved in criminal case. For

maintaining purity of elections and healthy

democracy, voters are required to be educated and

well informed about the contesting candidates.

Such information would include assets held by the

candidate, his qualification including educational

qualification and antecedents of his life including

whether he was involved in a criminal case and if

the case is decided--its result, if pending-- whether

charge is framed or cognizance is taken by the

Court? There is no necessity of suppressing the

relevant facts from the voters.

[underlining is ours]”

Further, this Court issued the following directions to the Election

Commission (para 48, pg. 322):

“48. The Election Commission is directed 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

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following aspects in relation to his/her

candidature:-

(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 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.

[underlining is ours]”

8. Consequent to the above and the directions issued in

Association for Democratic Reforms (Supra), Section 33-A was

inserted into the 1951 Act vide the ‘Representation of the People

(Third Amendment) Act, 2002’ (Section 2 of the Act 72 of 2002).

9. The new Section 33-A, which is the bone of contention

in the present case, deals with the ‘Right to Information’ and

reads as under:

“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-section (1) of section 33,

also furnish the information as to whether –

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(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.

[underlining is ours]”

It is pertinent to note here that Section 33-A(1), as worded and

drafted, required furnishing of the information of cases where (i)

the person filing the nomination has been convicted; and (ii)

where charges have been framed against the person filing the

nomination but excluded cases where cognizance had been

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taken. This was despite the order of this Court, noticed above,

to the effect that details of case(s) of which cognizance has been

taken should also be furnished.

10. The aforesaid discrepancy was addressed by this

Court, in the case of People's Union for civil Liberties (PUCL)

and Ors. v. Union of India (UOI) and Ors.

2

In the said case, this

Court had examined the import of Sections 33-A and 33-B

3 of the

1951 Act [as inserted in the 1951 Act through the amendment in

2002 (Supra)] vis-à-vis the directions issued by this Court in the

case of Association for Democratic Reforms (Supra) and held

as under (opinion of M.B. Shah, J. is quoted. The opinion of P.

Venkatarama Reddi and D.M. Dharmadhikari, JJ. on the point

is one of concurrence):

“114. I shall now discuss the specifics of the

problem. With a view to promote the right to

information, this Court gave certain directives

2

(2003) 4 SCC 399

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Section 33-B was also added through the 2002 Amendment. It stated that

notwithstanding anything contained in any judgment of any Court, or any instruction

issued by the Election Commission, no candidate shall be liable to disclose

information not required by the Act or rules made thereunder.

Section 33-B was declared unconstitutional in People’s Union of Civil Liberties v.

Union of India and Ors. ((2003) 4 SCC 399) as violating the fundamental right of

citizens to know the antecedents of candidates contesting in the elections, which

right was held to be an essential facet of freedom of speech and expression

enshrined in Article 19(1)(a) of the Constitution which co uld only be validly

limited through the restrictions conforming with Article. 19(2) of the Constitution

of India.

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to the Election Commission which, as I have

already clarified, were ad hoc in nature. The

Election Commission was directed to call for

details from the contesting candidates broadly

on three points, namely, (i) criminal record, (ii)

assets and liabilities, and (iii) educational

qualification. The Third Amendment to the RP

Act which was preceded by an ordinance

provided for disclosure of information. How far

the Third Amendment to the Representation of

the People Act, 2002 safeguards the right of

information which is a part of the guaranteed

right under Article 19(1)(a), is the question to be

considered now with specific reference to each

of the three points spelt out in the judgment of

this Court in Assn. for Democratic Reforms

case.

115. As regards the first aspect, namely,

criminal record, the directives in Assn. for

Democratic Reforms case are twofold: (SCC p.

322, para 48)

“(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 an

accused in any pending case, of any offence

punishable with imprisonment for two years

or more, and in which charge is framed or

cognizance is taken by the court of law.”

As regards the second directive, Parliament has

substantially proceeded on the same lines and

made it obligatory for the candidate to furnish

information as to whether he is accused of any

offence punishable with imprisonment for two

years or more in a pending case in which a

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charge has been framed by the competent court.

However, the case in which cognizance has been

taken but charge has not been framed is not

covered by clause (i) of Section 33-A(I).

Parliament having taken the right step of

compelling disclosure of the pendency of cases

relating to major offences, there is no good

reason why it failed to provide for the disclosure

of the cases of the same nature of which

cognizance has been taken by the Court. It is

common knowledge that on account of a variety

of reasons such as the delaying tactics of one or

the other accused and inadequacies of the

prosecuting machinery, framing of formal

charges gets delayed considerably, especially in

serious cases where committal procedure has to

be gone through. O n that account, the

voter/citizen shall not be denied information

regarding cognizance taken by the Court of an

offence punishable with imprisonment for two

years or more. The citizen's right to information,

when once it is recognized to be part of the

fundamental right under Article 19(1)(a), cannot

be truncated in the manner in which it has been

done. Clause (i) of Section 33-A(I) therefore falls

short of the avowed goal to effectuate the right

of information on a vital aspect. Cases in which

cognizance has been taken should therefore be

comprehended within the area of information

accessible to the voters/citizens, in addition to

what is provided for in clause (i) of Section 33-

A.

[underlining is ours]”

Further, the Court held:

“123. Finally, the summary of my conclusions:

(1) …..

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(2) ….

(3) The directives given by this Court in Union of

India v. Assn. for Democratic Reforms were

intended to operate only till the law was made by

the legislature and in that sense “pro tempore” in

nature. Once legislation is made, the Court has to

make an independent assessment in order to

evaluate whether the items of information

statutorily ordained are reasonably adequate to

secure the right of information available to the

voter/citizen. In embarking on this exercise, the

points of disclosure indicated by this Court, even

if they be tentative or ad hoc in nature, should be

given due weight and substantial departure

therefrom cannot be countenanced.

…

(6) The right to information provided for by

Parliament under Section 33-A 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 voter/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.

[underlining is ours]”

Eventually, the following direction was issued by the Court

to the Election Commission of India:

“123 (9) The Election Commission has to issue

revised instructions to ensure implementation

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of Section 33-A subject to what is laid down in

this judgment regarding the cases in which

cognizance has been taken….”

11. Section 125-A of the 1951 Act [Inserted by Section 5

of the Representation of the People (Third Amendment) Act, 2002’

(Act 72 of 2002)] reads as under:

“Section 125-A. Penalty for filing false affidavit,

etc.- A candidate who himself or through his

proposer, with intent to be elected in an

election,—

(i) fails to furnish information relating to

sub-section (1) of section 33-A; or

(ii) gives false information which he knows

or has reason to believe to be false; or

(iii) conceals any information,

in his nomination paper delivered under sub-

section (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, shall,

notwithstanding anything contained in any

other law for the time being in for ce, be

punishable with imprisonment for a term which

may extend to six months, or with fine, or with

both”

12. Whether the provisions of Section 125-A of the 1951

Act would be applicable in the present case, as claimed by the

appellant – complainant, to make the first respondent liable in

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law, would require the Court to decide on the true meaning and

purport of the following phrases found in Section 125-A of the

1951 Act.

(a) fails to furnish information relating to sub-section (1)

of Section 33-A;

(b) conceals any information;

(c) in his nomination paper delivered under sub-section

(1) of section 33 or in his affidavit which is required to

be delivered under sub-section (2) of section 33-A.

13. To find out the true meaning and purport of the

aforesaid phrases, the crucial question that has to be answered

is whether the word ‘information’ as mentioned in Section 33-A

of the 1951 Act means only such information as mentioned in

clause (i) and (ii) of Section 33-A(1) or whether along with the said

information a candidate is also required to furnish such other

information as required under the Act or the Rules made

thereunder. The consequential question that would arise is

whether in the affidavit required to be filed under sub-section (2)

of Section 33-A information is to be given as required in terms of

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the affidavit which is prescribed by Form-26 of the 1961 Rules or

such information is confined to what is required to be submitted

under Section 33-A (1) (i) and (ii). It is at this stage that Rule 4-

A of the 1961 Rules would require to be noticed. Rule 4-A which

was inserted by S.O.935(E), dated 3.9.2002 with effect from

3.9.2002 is in the following terms.

“4-A. Form of affidavit to be filed at the time

of delivering nomination paper .— 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 of the Act, also deliver to him

an affidavit sworn by the candidate before a

Magistrate of the first class or a Notary in Form

26.”

14. Form 26 is the prescribed form of affidavit to be filed

by a candidate along with his nomination papers as required

under Section 33-A (2) of the 1951 Act. The said affidavit in the

prescribed form reads as hereunder:

" [FORM 26

(See Rule 4-A)

Please affix your recent

passport size photograph

here

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Affidavit to be filed by the candidate along with nomination paper before the returning officer for

election to ………………………… .(name of the House) from……………………………constituency (Name

of the constituency)

PART A

I ……………………………………., **son/daughter/wife of…………………………………………

Aged…………………………..years, resident of ………………………………………………… (mention full

postal address), a candidate at the above election, do hereby solemnly affirm and state on oath as

under—

(1) I am a candidate set up by……………………….(**name of the political party)/**am contesting

as an Independent candidate.

(**Strike out whichever is not applicable)

(2) My name is enrolled in ………………………………………….(Name of the constituency and the

State), at Serial No. …………………in Part No. ……………….

[(3) My contact telephone number(s) is/are………………………… and my E -mail ID (if any) is

…………………… ..

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

Sl.

No.

Names PAN The financial year for

which the last

income-tax return

has been filed.

Total income shown in income tax return (in

Rupees)

1. Self

2 Spouse

3. Dependent-1

4. Dependent-2

5. Dependent-3

5. I am/am not accused of any offence(s) punishable with imprisonment for two years or more in a

pending case(s) in which a charge(s) has/have been framed by the court(s) of competent jurisdiction.

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

(i) The following case(s) is/are pending against me in which charges have been framed by the court

for an offence punishable with imprisonment for two years or more-

(a) Case/First Information Report No./Nos.

together with complete details of

concerned Police Station/District/State

(b) Section(s) of the concerned Act(s) and

short description of the offence(s) for

which charged

(c) Name of the Court, Case No. and date of

Order taking cognizance:

(d) Court(s) which framed the charge(s)

(e) Date(s) on which the charge(s) was/were

framed

(f) Whether all or any of the proceeding(s)

have been stayed by any Court(s) of

competent jurisdiction

(ii) The following case(s) is/are pending against me in which cognizance has been taken by the

Court(other than the cases mentioned in item (i) above.

(a) Name of the Court, Case No. and date of

order taking cognizance:

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(b) The details of cases where the Court has

taken cognizance, section (s) of the Act(s)

and description of the offence(s) for which

cognizance taken

(c) Details of Appeal(s)/Application(s) for

revision (if any) filed against the above

order(s)

(6) I have been/have not been convicted of an offences(s) other than any offence(s) referred to in

sub-section (1) or sub-section (2), or covered in sub-section (3), of Section 8 of the Representation of

the People Act, 1951 (43 of 1951) and sentenced to imprisonment for one year or more.

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

In the following cases, I have been convicted and sentenced to imprisonment by a court of

law:-

(a) The details of cases, Section(s) of the

concerned Act (s) and description of the

offence(s) for which convicted.

(b) Name of the court(s), Case No. and date(s)

of order(s)

(c) Punishment imposed.

(d) Whether any appeal was/has been filed

against the conviction order. If so, details

and the present status of the appeal.

(7) That I give hereinbelow the details of the assets (movable and immovable etc.) of myself, my

spouse and all dependents:

A. Details of movable assets:

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

Note:2. In case of deposit/investment, the details including serial number, amount, date of deposit,

the scheme, name of the Bank/Institution and Branch are to be given.

Note:3. Value of Bonds/Share Debentures as per current market value in Stock exchange in respect

of listed companies and as per books in case of non-listed companies should be given.

Note:4. Dependent here has the same meaning as assigned in Explanation (v) under Section 75-A of

the Representation of the People Act, 1951.

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

Sl. No. Description Self Spouse Dependent-

1

Dependent-

2

Dependent-

3

(i) Cash in hand

(ii) Details of deposit in Bank accounts (FDRs,

Term Deposits and all other types of

deposits including saving accounts),

Deposits with Financial Institutions, Non-

Banking Financial Companies and

Cooperative societies and the amount in

each such deposit

(iii) Details of investment in Bonds,

debentures/shares and units in

companies/Mutual funds and others and

the amount

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(iv) Details of investment in NSS, Postal

Saving, Insurance policies and investment

in any Financial instruments in Post Office

or Insurance Company and the amount

(v) Personal loans/advance given to any

person or entity including firm, company,

Trust etc., and other receivables from

debtors and the amount

(vi) Motor Vehicles/Aircrafts/Yachts/Ships

(Details of Make, registration number etc.

year of purchase and amount)

(vii) Jewellery, bullion and valuable thing(s)

(give details of weight and value)

(viii) Any other assets such as value of

claims/interest

(ix) Gross Total Value

B. Details of Immovable Assets:

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

indicated.

Note: 2. Each land or building or apartment should be mentioned separately in this format.

Sl.

No.

Description Self Spouse Dependent-

1

Dependent-

2

Dependent-

3

(i) Agricultural Land Location(s)

Survey number(s)

Area (total measurement in acres)

Whether inherited property (Yes or No)

Date of Purchase in case of self-

acquired property

Cost of Land (in case of purchase) at the

time of purchase

Any investment on the land by way of

development, construction etc.

Approximate current market value

(ii) Non-Agricultural Land:

Location(s)

Survey number(s)

Area (total measurement in sq. ft.)

Whether inherited property (Yes or No)

Date of Purchase in case of self -

acquired property

Cost of Land (in case of purchase) at the

time of purchase

Any investment on the land by way of

development, construction etc.

Approximate current market value

(iii) Commercial Buildings (including

apartments)

—Location(s)

—Survey number(s)

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Area (total measurement in sq.ft.)

Built-up Area (total measurement in

sq.ft.)

Whether inherited property (Yes or No)

Date of purchase in case of self -

acquired property

Cost of property (in case of purchase) at

the time of purchase

Any investment on the property by way

of development, construction etc.

Approximate current market value

(iv) Residential Buildings (including

apartments):

—Location(s)

—Survey number(s)

Area (total measurement in sq.ft.)

Built-up area (total measurement in

sq.ft.)

Whether inherited property (Yes or No)

Date of purchase in case of self -

acquired property

Cost of property (in case of purchase) at

the time of purchase

Any investment on the land by way of

development, construction etc.

Appropriate current market value

(v) Others (such as interest in property)

(vi) Total of current market value of (i) to (v)

above

(8) I give herein below the details of liabilities/dues to public financial institutions and

government—

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

before each item)

Sl.

No.

Description Self Spouse Dependent-

1

Dependent-

2

Dependent-

3

(i) Loan or dues to Bank/financial institution(s)

Name of the Bank or financial institution,

Amount outstanding, Nature of Loan

Loan or dues to any other individuals/entity

other than mentioned above Name(s),

Amount outstanding, nature of loan

Any other liability

Grand total of liabilities

(ii) Government Dues

Dues to departments dealing with

government accommodation

Dues to department dealing with supply of

water

Dues to department dealing with supply of

electricity

Dues to department dealing with supply of

telephones/mobiles

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Dues to department dealing with

government transport (including aircrafts

and helicopters)

Income Tax dues

Wealth tax dues

Service tax dues

Municipal/Property tax dues

Sales tax dues

Any other dues

(iii) Grand total of all Government dues

(iv) Whether any other liabilities are in dispute,

if so, mention the amount involved and the

authority before which it is pending

(9) Details of profession or occupation:

(a) Self ………………………………………………………………….

(b) Spouse ……………………………………………………………..

(10) My educational qualification is as under—

……………………………………………………………………………………..

(Give details of highest School/University education mentioning the full form of the

certificate/diploma/degree course, name of the School/College/University and the year in which the

course was completed.)

PART B

(11) Abstract of the details given in (1) to (10) of Part A:

1. Name of the candidate Sh./Smt./Kum.

2. Full postal address

3. Number and name of the constituency and State

4. Name of the political party which set up the candidate

(otherwise write ‘Independent’)

5. (I) Total number of pending cases where charges have

been framed by the court for offences punishable with

imprisonment for two years or more

(ii) Total number of pending cases where the court(s)

have taken cognizance (other than the cases

mentioned in item (i) above

6. Total number of cases in which convicted and

sentenced to imprisonment for one year or more

except for offences referred to in sub-sections(1), (2) or

(3) of Section 8 of Representation of the People Act,

1951.

7.

PAN of Year for which

last income

tax return

filed

Total income shown

(a) Candidate

(b) Spouse

(d) Dependents]

8. [Details of Assets and Liabilities in rupees]

Description Self Spouse

Dependent-I Dependent-

II

Dependent-

III

A. Movable Assets (Total Value)

B

Immovable Asset

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I. Purchase Price of self -acquired

immovable property

II. Development/Construction cost of

immovable property after purchase (if

applicable)

III. Approximate Current market price of—

(a) self-acquired assets (Total Value)

(b) inherited assets (Total Value)

9.

Liabilities

(i) Government dues (Total)

(ii) Loans from Bank, Financial Institutions

and others (Total)

10.

Liabilities that are under dispute

(i) Government dues (Total)

(ii) Loans from Bank, Financial Institutions

and others (Total)

11. Highest educational qualification:

(Give details of highest School/University education mentioning the full form of the

certificate/diploma/degree course, name of the School/College/University and the year in

which the course was completed.)

VERIFICATION

I, the deponent, abovenamed, do hereby verify and declare that the contents of this affidavit are

true and correct to the best of my knowledge and belief and no part of it is false and nothing material

has been concealed therefrom. I further declare that—

(a) there is no case of conviction or pending case against me other than those mentioned in

Items 5 and 6 of Part A and B above;

(b) I, my spouse, or my dependents do not have any asset or liability, other than those

mentioned in Items 7 and 8 of Part A and Items 8, 9 and 10 of Part B above.

Verified at…………………………this the…………………day of………………………………………

DEPONENT

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

Note: 2. Affidavit should be sworn before an Oath Commissioner or Magistrate of the First Class or before

a Notary Public.

Note: 3. All column should be filled up and no column to be left blank. If there is no information to

furnish in respect of any item, either “Nil” or “Not applicable”, as the case may be, should be

mentioned.

Note: 4. The Affidavit should be either typed or written legibly and neatly.”

15. It may be noticed here that Form-26 was substituted

by S.O. 1732 (E) dated 1.8.2012 with effect from 1.8.2012.

16. A bare perusal of Form-26 makes it abundantly clear

that, for offences punishable with imprisonment for two years or

21

more, while entry (5) (i) mandates disclosure of information by

the contesting candidate regarding the case(s) that is/are

pending against him in which charges have been framed by the

Court; entry (5)(ii) mandates disclosure of information by the

contesting candidate regarding cases that are pending against

him in which cognizance has been taken by the Court.

Entry 5(ii) specifically mentions that the candidate is

required to provide information of the case(s) pending in which

cognizance has been taken. This is in addition to the information

he is required to provide against the column in Entry 5(i) as the

words ‘Other than the cases mentioned in item (i) above’ are

specifically used in Entry 5 (ii).

17. The above can leave no element of doubt that,

subsequent to the substitution of Form 26 in 2012, the new Form

26 (as in vogue at the time of the elections in 2014), mandates

the disclosure of information by the contesting candidate of not

only case(s) in which charges have been framed but also case(s)

in which cognizance has been taken by the Court.

22

18. The position is made further clear by the letters

written by the Election Commission of India to the Chief Electoral

Officer of all the States and the Union Territories. A reading of

the said letters would go to show that a contesting candidate is

mandated to furnish information concerning the cases in which

a Competent Court has taken cognizance along with the cases in

which charges have been framed. The said letters also make it

clear that the affidavit mentioned in Section 33-A(2) of the 1951

Act is prescribed in Form-26 and that any false declaration or

concealment of information in the said affidavit will attract the

provisions of Section 125-A of the 1951 Act. The letters in this

regard are dated 24.8.2012, 26.9.2012 and 26.4.2014, relevant

portions of which are extracted below:

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

“1. Sub:- Affidavit to be filed by candidates with

their nomination paper-modification of format-

regarding.

The candidates at elections to the Parliament

and the State Legislatures hitherto were

required to file two affidavits: one, in Form-26

appended to Conduct of Elections Rules, 1961

23

and the other, in the Form prescribed by the

Commission, vide its Order No. 3/ER/2003 dt.

27-03-2003, as subsequently modified by the

letter of even number dt. 25-02-2011. In the

affidavits, the candidates are required to declare

information about their criminal background, if

any, assets, liabilities and educational

qualifications.

2. On a proposal moved by the Commission

for amalgamating the two affidavits into one

format, the Govt. has amended Form 26 so as

to include in it all the information that was

sought in the two separate affidavits. The

Ministry of Law and Justice have notified the

revised format 26 in the Gazette of India on 01-

08-2012. A copy of the said notification dated

1

st August, 2012 is enclosed herewith.

3. In view of the amendment to Form-26, all

candidates shall, hereafter, file only one

affidavit in the revised Form 26 notified on 01-

08-2012 (at elections to the Parliament and

State Legislatures). The requirements to be

followed while filing the affidavit have been

mentioned in the notes given at the end of the

format…..

...

5. You are requested to furnish a copy of this

letter along with the copy of the enclosed

notification to every political party (including

registered unrecognized parties) having

headquarters in your State/UT, including the

State Units of recognized National and State

political parties.”[Emphasis is ours].”

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

24

“Sub: Affidavit to be filed by the candidates

with their nomination paper-regarding:

…

2. Item 5 of Part A and Part B of the revised

Form 26 relates to information regarding

criminal antecedentsto be furnished by the

candidates. It is clarified that in item (5)(ii) of

the said Part A & Part B of Form-26, the details

of all pending cases in which cognizance has

been taken by the Court, irrespective of the

quantum of punishment or framing of charges

will have to be disclosed by the candidate. This

may be brought to the notice of all candidates

when they file their nomination at all future

general/bye-elections in the State…”

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

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

Sir/Madam,

You are aware that the format of affidavit in

Form-26 appended to the Conduct of Election

Rules, 1961, was amended with effect from 01-

08-2012. Now the candidates are required to

make declarations about assets and liabilities

including that of spouse and dependants,

candidate’s criminal antecedent s and

educational qualifications, in the affidavit in

Form 26. The concealing of information in the

affidavit in Form 26 will attract the provisions of

Section 125A. Under Section 125A, furnishing

of any false information or concealing of

information in the affidavit in Form 26 is an

electoral offence punishable with imprisonment

upto six months, or with fine or both.

25

2. Prior to amendment to Form 26 in August

2012, the affidavit regarding declaration about

assets, liabilities, criminal antecedents and

educational qualification was given in the

format prescribed by the Commission. In the

case of complaints about false statement in the

said affidavit, the Commission, vide its circular

letter No. 3/ER/2004, dated 2/6/2004, had

clarified that if complaints were filed before the

Returning Officer raising the issue of false

declaration in the affidavit and if the RO was

prima facie satisfied about the merits of the

complaint, then the RO was to file a complaint

before the competent Court under Section 177

of IPC read with Section 195 of Cr.P.C.

3. Now that the affidavit is in Form 26 under

Section 33A of the R.P. Act, 1951, making false

declaration/concealing of information in the

affidavit would be covered under Section 125A

of the Act. Under Section 125A, there is no

stipulation that complaints under the Section

have to be made by the public servant

concerned (in this case the R.O.). Therefore, it

would be open to any aggrieved person to move

petition before the appropriate Court of

competent jurisdiction with petition for action

under Section 125A in the case of any false

declaration or concealing of information in the

affidavit in Form 26.

[underlining is ours]”

19. A cumulative reading of Section 33-A of the 1951 Act

and Rule 4-A of the 1961 Rules and Form-26 along with the

letters dated 24.8.2012, 26.9.2012 and 26.4.2014, in our

26

considered view, make it amply clear that the information to be

furnished under Section 33-A of the 1951 Act includes not only

information mentioned in clauses (i) and (ii) of Section 33-A(1),

but also information, that the candidate is required to furnish,

under the Act or the Rules made thereunder and such

information should be furnished in Form 26, which includes

information concerning cases in which a competent Court has

taken cognizance (Entry 5(ii) of Form 26). This is apart from and

in addition to cases in which charges have been framed for an

offence punishable with imprisonment for two years or more or

cases in which conviction has been recorded and sentence of

imprisonment for a period of one year or more has been imposed

(Entries 5(i) and 6 of Form 26 respectively).

20. In the light of the view that we have taken and in view

of the clear averment made in the complaint to the effect that the

First Respondent had knowledge of the two cases against him

which had not been mentioned in the affidavit filed by the First

Respondent alongwith his nomination papers, we unhesitatingly

arrive at the conclusion that the order of the learned trial Court

27

upheld by the High Court by the impugned judgment and order

dated 3

rd May, 2018 is legally not tenable and the same deserves

to be set aside which we hereby do. The complaint of the

appellant will be considered afresh by the learned trial Court

from the stage where it was interdicted by the order dated

30.5.2016.

21. Our view as above is in consonance with a similar view

expressed by this Court in paragraph 75 of the report in

Krishnamoorthy v. Sivakumar and others

4. Para 75 of the

report in Krishnamoorthy (supra) reads as under:

“75. On a perusal of the aforesaid format, it is

clear as crystal that the details of certain

categories of the offences in respect of which

cognizance has been taken or charges have

been framed must be given/furnished. This

Rule is in consonance with Section 33-A of the

1951 Act. Section 33(1) envisages that

information has to be given in accordance with

the Rules. This is in addition to the information

to be provided as per Sections 33(1)(i) and (ii).

The affidavit that is required to be filed by the

candidate stipulates mentioning of cases

pending against the candidate in which charges

have been framed by the Court for the offences

punishable with imprisonment for two years or

more and also the cases which are pending

4

(2015) 3 SCC 467

28

against him in which cognizance has been taken

by the court other than the cases which have

been mentioned in clause (5)(i) of Form 26.

Apart from the aforesaid, clause (6) of Form 26

deals with conviction.

22. Consequently and in the light of the above, the appeals

are allowed. The order of the High Court dated 3

rd May, 2018 is

set aside. All pending applications including the application for

intervention/impleadment are disposed of.

……………………, CJI

[RANJAN GOGOI]

…………………….., J.

[DEEPAK GUPTA]

…………………….., J.

[ANIRUDDHA BOSE]

NEW DELHI

OCTOBER 01, 2019