Bombay High Court: In the present application, Naresh Ganpat Mhaske (‘Mhaske’), Member of Parliament from the Shiv Sena (Eknath Shinde faction), sought dismissal of the Election Petition filed by Rajan Baburao Vichare (‘Vichare’) of the Shiv Sena (Uddhav Thackeray faction), arguing it lacked a valid cause of action and was not maintainable. Vichare alleged that Mhaske failed to disclose his criminal conviction in Form 26, as required by the amendment notified on 10-10-2018, making his election liable to be set aside.
A Single Judge Bench of R. I. Chagla, J., while allowing the application, held that Mhaske’s conviction had not resulted in imprisonment of one year or more and therefore he was not required to disclose it. Consequently, the Election Petition was found to lack a valid cause of action and was thereby rejected.
Background:
Mhaske was convicted by Order dated 29-02-2016 passed by the Chief Judicial Magistrate, Thane, which was upheld in appeal by Order dated 09-02-2017 passed by the Additional District Judge – II, Thane. Despite this, he had put a tick mark on Sr. No. 6(i) and had stated “Not Applicable” against Sr. No. 6(ii) of Form 26, which required details of cases in which the candidate had been convicted. Mhaske’s case was that only convictions resulting in imprisonment of one year or more required disclosure, and since he had been released under the Probation of Offenders Act, 1958 (‘Probation of Offenders Act’) without imprisonment, his disclosure in Form 26 was true and correct.
Mhaske submitted that Rule 4A of the Election Rules, 1961 (‘Rules’) had been introduced by the Central Government under Section 169 of the Representation of People Act, 1951 (‘1951 Act’), and Form 26 was an Affidavit referred to in Section 33A(2) of the 1951 Act. He had argued that Section 33A(1)(ii) of the 1951 Act required disclosure only if a candidate had been convicted and sentenced to imprisonment of one year or more. Since his conviction had not resulted in such imprisonment, no disclosure had been required. He had contended that Form 26 must be read in harmony with Section 33A(1)(ii) of the 1951 Act, and the 2018 amendment had not expanded the scope of disclosure beyond the statutory requirement.
Mhaske further argued that Vichare had failed to comply with Section 83 of the 1951 Act by not pleading material facts or particulars of the alleged corrupt practice. The Petition had contained vague allegations without supporting documents or a clear chain of events. He had submitted that there had been no averment of undue influence under Section 123(2) of the 1951 Act, nor any pleading of how the alleged non-compliance had materially affected the election result under Section 100(1)(b), (d)(i), (ii), or (iv) of the 1951 Act. He had claimed this had been a fatal defect and the Petition should have been rejected under Order VII Rule 11 of the Civil Procedure Code, 1908 (‘CPC’).
Mhaske also submitted that Form 26 was part of subordinate legislation and could not go beyond the parent statute. Entry 6 of Form 26 had to be interpreted to require disclosure only where the conviction had resulted in imprisonment of one year or more. Any broader interpretation would have rendered it unconstitutional and contrary to Supreme Court rulings.
Contrarily, Vichare submitted that the applications filed by Mhaske and Respondent 14 under Order VII Rule 11(a) and (d) CPC had not shown any incurable defect. He had argued that the Petition had disclosed a clear cause of action under the 1951 Act, alleging that Mhaske had failed to comply with Form 26 requirements during the 2024 Lok Sabha Elections for the 25—Thane Parliamentary Constituency. Despite being convicted under Sections 147, 143, 323, and 506 read with Section 149 of the Penal Code (‘IPC’), and his appeal being rejected, Mhaske had not disclosed this in his Form 26 Affidavit and had falsely declared he had not been convicted.
Vichare contended that the Election Petition had complied with Section 83(1) of the 1951 Act, including pleadings of corrupt practice under Section 100(1)(b), 100(1)(d)(i), (ii), and (iv) of the 1951 Act, supported by an affidavit in Form 25. He had argued that suppression of criminal antecedents had amounted to undue influence under Section 123(2) of the 1951 Act, and that members of Mhaske’s election team had abetted the corrupt practice. The Petition had also pleaded material effect on the election, stating that voters had been misinformed, violating Section 100(1)(d)(ii) and (iv) of the 1951 Act, though under Section 100(1)(b), material effect need not be shown once corrupt practice was proved.
Vichare further alleged that the amended Form 26 had required disclosure of all past convictions and had been in line with the 1951 Act and Rules. He had argued that Section 33A(1) of the 1951 Act had had a broader scope than its sub-clauses, and that the Election Commission under Article 324 of the Constitution had issued formats requiring disclosure of pending offences where cognizance had been taken. He had contended that the 2012 and 2018 amendments had mandated additional disclosures, and Mhaske’s interpretation had been misconceived. He had also submitted that Section 12 of the Probation of Offenders Act had been inapplicable, and that failure to raise objections during scrutiny had not barred the Petition. Vichare had argued that the application had shown full knowledge of the case and had raised defences, not grounds for rejection, and the Petition had been complete and should not have been dismissed.
Analysis and Decision:
The Court found that the Election Petition filed by Vichare did not disclose a valid cause of action under the 1951 Act, since Vichare’s grievance was based on the allegation that Mhaske had failed to disclose his criminal conviction in Form 26, specifically under Entry 6(i), as amended by Notification dated 10-10-2018. However, the Court noted that Section 33A(1)(ii) of the 1951 Act mandated disclosure only where the conviction resulted in imprisonment of one year or more. The Court observed that Mhaske had been released under the Probation of Offenders Act without undergoing any sentence of imprisonment and was thus not legally obligated to disclose the conviction.
The Court emphasised that Form 26, being part of subordinate legislation under Rule 4A of the Rules, could not override or expand the scope of the parent statute. The Court further observed that Entry 6 of Form 26 had to be corresponded with Section 33A(1)(ii) of the 1951 Act, and any broader reading would render it unconstitutional and violative of not only Section 33A (1)(ii) of the 1951 Act.
The Court noted that, following the merger of the two Affidavits i.e. Affidavit prescribed by the Central Government and Affidavit prescribed by the Election Commission into one Form 26 under Rule 4A of the Rules, the disclosure of past convictions was brought in conformity with Section 33A(1)(ii) of the 1951 Act. The Court emphasised that no additional requirement under Section 33A(1)(ii) of the 1951 Act had been imposed by Parliament under Article 102(e) of the Constitution, by the Election Commission under Article 324 of the Constitution, or by Constitutional Courts under Articles 32 and 226 of the Constitution.
The Court reiterated that it was settled law that a Form must yield to the substantive provision of law and therefore Form 26 had to yield to Section 33A(1)(ii) of the 1951 Act. The Court did not find merit in Vichare’s submission that Section 33A (1) of the 1951 Act should be interpreted beyond its sub-clause (ii). The Court further noted that, since Mhaske’s conviction had not resulted in imprisonment of one year or more, therefore he was not required to disclose it.
The Court further noted that the Petition suffered from incurable defects and was barred by law on its face, since Vichare’s claim of compliance with pleading requirements under the 1951 Act was irrelevant, as the Petition itself was not maintainable. The Court rejected the argument that such grounds should be considered only at trial, stating that lack of cause of action and incurable infirmities were valid grounds for rejection under Order VII Rule 11 CPC. The Court concluded that Mhaske had made out a case for dismissal, and the balance of convenience lay in his favour as the successful candidate.
Accordingly, the Court allowed the application and dismissed the Election Petition, holding that permitting the matter to proceed to trial would have been futile in the absence of a legally sustainable cause of action.
[Rajan Baburao Vichare v. Naresh Ganpat Mhaske, Application in E.P. (L) No. 30947 of 2024, decided on 09-09-2025]
Advocates who appeared in this case:
For the Petitioner: Darius Khambata, Senior Counsel, Pankaj Savant, Senior Counsel, Shreenandini Mukhopadhyay, Joshna D’Souza i/b. Sanjay Gawde
For the Respondents: Vikram Nankani, Senior Counsel, Chirag Shah, Vishal Acharya, Shyamsundar Jadhav, Bhavya Shah and Mehul Talera i/b. Chirag Shah, Hare Krishna Mishra i/b. Law Global
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