SC revives complaint against Maha CM for not disclosing 2 pending criminal cases in poll affidavit

In a setback to Maharashtra Chief Minister Devendra Fadnavis, the Supreme Court Tuesday revived a criminal complaint filed against him for allegedly failing to furnish details of two pending criminal cases in his 2014 election affidavit and asked the trial court to consider it afresh. The apex court verdict would however not come in the way of Fadnavis' contesting the upcoming Assembly election in Maharashtra.

A bench headed by Chief Justice Ranjan Gogoi set aside the Bombay High Court's May 3, 2018 order which had given a clean chit to Fadnavis and had held that the BJP leader did not deserve to be tried for the alleged offences under the provision of the Representation of the People (RP) Act. The bench, also comprising justices Deepak Gupta and Aniruddha Bose, took into account the "clear averment" made in the complaint filed against Fadnavis that he had "knowledge of the two cases against him", which was not mentioned by him in the affidavit filed along with his nomination papers.

"We unhesitatingly arrive at the conclusion that the order of the trial court upheld by the high court by the impugned judgment and order dated May 3, 2018 is legally not tenable and the same deserves to be set aside which we hereby do," the bench said. The top court allowed the appeal by Satish Ukey, an advocate who had filed a criminal complaint against Fadnavis before a magisterial court in Nagpur seeking registration of a case against him under section 125-A of the RP Act.

Section 125-A of the RP Act deals with the penalty for "filing false affidavit" and says that if a candidate or his proposer fails to furnish or gives false or conceals any information in his nomination paper on issues like pending criminal cases then the person may be awarded six months jail term or fine or both. "The complaint of the appellant (Ukey) will be considered afresh by the trial court from the stage where it was interdicted by the order dated May 30, 2016," the bench said in its 28-page judgement.

Ukey had initially moved a magisterial court which had dismissed his complaint against Fadnavis on September 7, 2015. Later, he moved the Sessions court which remanded the matter to magisterial court for a "de novo" (afresh) consideration.

Aggrieved by the Sessions court order, Fadnavis had moved the high court which on May 3, 2018 set it aside. Ukey thereafter approached the apex court challenging the high court's May 2018 order.

In his complaint, he alleged that in the affidavit in Form-26, prescribed by the Conduct of Election Rules, 1961, Fadnavis had not mentioned the details of two pending criminal cases pending against him "despite knowledge of the same". He alleged that the first case of 1996 relates to criminal defamation while the other case of 1998 against Fadnavis is about alleged cheating and forgery. Charges were not framed in these cases.

On the basis of same allegations, Ukey had challenged the election of Fadnavis before the high court by instituting an election petition in 2014 but it was dismissed on August 19, 2015. In its verdict, the apex court noted that a bare perusal of Form-26, a prescribed form of affidavit to be filed by a candidate along with nomination papers, makes it "abundantly clear" that for offences punishable with imprisonment for two years or more, entry (5)(i) mandates disclosure of information by contesting candidate regarding the cases pending against him in which charges have been framed by the court.

It said entry (5)(ii) mandates disclosure of information by the contesting candidate regarding cases that are pending against him in which cognisance has been taken by the court. "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 cognisance has been taken by the court," the bench said.

Referring to the letters written by the Election Commission of India to the Chief Electoral Officer of all the states and the Union Territories, the bench said, "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 cognisance along with the cases in which charges have been framed." It said letters of August 24, 2012, September 26, 2012 and April 26, 2014, make it clear that affidavit mentioned in Section 33-A(2) of the RP Act is prescribed in Form-26 and any false declaration or concealment of information in the said affidavit would attract the provisions of section 125-A.

The bench said that a cumulative reading of Section 33-A of the RP Act, which deals with Right to information, Rule 4-A of the Conduct of Election Rules, 1961 and Form-26 along with these letters make it "amply clear" that information to be furnished by a contesting candidate also includes information about cases in which a competent court has taken cognisance. "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," it said.

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