Supreme Court| Election cannot be declared void for non-disclosure of conviction for substantive offences under Kerala Police Act

   

Supreme Court: In an appeal against the judgment passed by the Kerala High Court confirming an order passed by the Additional District Judge setting aside the appellant’s election as Councilor of Gram Panchayat, the division bench of S. Abdul Nazeer and V. Ramasubramanian*, JJ. held that the District Court and the High Court were wrong in declaring the election of the appellant to be void, reasoning that the appellant failed to disclose in Form 2A his conviction under the Kerala Police Act, that amounted to undue influence on the free exercise of the electoral right and a violation of Section 52(1A) read with Section 102(1) (ca) of the Kerala Panchayat Raj Act (‘the Act'),1994.

The Court said that in the Act, 1994, Subsection (1A) in Section 52 via an amendment was inserted in the year 2005. Though the language employed in Section 52 (1A) mandated only the disclosure of the details regarding “the criminal cases in which the candidate 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”.

The Court referred to Section 102 of the Act and said that the election of a candidate can be declared void, under following five contingencies:

(i) The returned candidate was not qualified or was disqualified on the date of his election.

(ii) 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)Any nomination had been improperly rejected.

(iv)The details furnished by the elected candidate under subsection (1A) of Section 52 were fake.

(v) 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.

The Court while examining Section 102(ca), said that 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”. The Statute uses the expression “fake” and not expressions such as “false”, “suppression” etc.

The Court, while interpreting the meaning of “fake”, said that the word “fake” is not defined in the Act and as per the Black's Law Dictionary “fake” means “to make or construct”. Further, 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), Therefore, it was held that the failure to make a true disclosure in Form 2A, regarding the past conviction, will certainly come within the meaning of the word ‘fake', mentioned in clause (ca) of sub­section (1) of Section 102.

The Court disagreed with the respondent that the phrase “involvement in a criminal case” would include past conviction also, especially when Section 52(1A) uses the phrase “at the time of filing of the nomination” and said that 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 or 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, the Court said 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.

The Court observed that 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. As, the appellant admittedly failed to furnish details of his past conviction in Form 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 the conviction of the appellant was for the disobedience of the directions issued by a police officer. Therefore, the question to consider is whether the non-disclosure of the conviction for such offences would also come within the purview of Section 102(1) (ca) of the Act.

The Court said that,

“while offences under the Penal Code or under special enactments, the commission of which may make a person a criminal, an offence under certain enactments such as Kerala Police Act are not substantive offences.”

Therefore, 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.

Thus, it was held that, 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 Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294 , People’s Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399 or Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467 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.

[Ravi Namboothiri v. K.A. Baiju, 2022 SCC OnLine SC 1550, decided on 09-11-2022]

*Judgment by: Justice V. Ramasubramanian


*Apoorva Goel, Editorial Assistant has reported this brief.

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