Supreme Court: The appeal challenged the Gujarat High Court’s order refusing to quash proceeding and Chief Judicial Magistrate’s summoning order dated 8 November 2017, arising from a complaint alleging that the appellant had failed to disclose the full extent of landed property owned by herself and her spouse while contesting for the post of Councillor, while holding that the disclosure obligation extended to the spouse’s independently owned assets, the Division Bench of Sanjay Karol* and Nongmeikapam Kotiswar Singh, JJ., found that the Representation of the People Act, 1951 (RP Act) did not govern municipal elections. The Court nevertheless treated the erroneous cognizance taken by the Magistrate under the RP Act as a curable irregularity and remanded the matter for fresh cognizance under the appropriate law, without deciding the merits of the allegations.
Factual Matrix
In the instant matter, the appellant contested the 2015 municipal election for the office of Councillor. In her election affidavit, she disclosed certain immovable properties belonging to her husband, including agricultural land in Village Anjar and in Gandhidham.
A complaint was made alleging that she had failed to disclose several other immovable properties standing in her husband’s name, including properties at Ratadiya, Radha and Gundala villages in Mundra Taluka. The complainant asserted that the non-disclosure was contrary to the applicable election rules and amounted to a misuse of public trust.
After an earlier representation did not result in further action, the complainant filed a private complaint before the Additional Chief Judicial Magistrate, Gandhidham. By order dated 8 November 2017, the Magistrate issued summons against the appellant under Section 125-A, RP Act, holding that a prima facie case of suppression of material particulars in the election affidavit had been made out.
The appellant approached the Gujarat High Court seeking quashing of the complaint and the summoning order. The High Court rejected the petition on 22 August 2025. Aggrieved, the appellant approached the Supreme Court by special leave petition (SLP).
Issues for Determination
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Whether Rule 7-A, Gujarat Municipalities (Conduct of Elections) Rules, 1994 (Gujarat Municipalities Rules), as amended in 2005, required disclosure of properties solely owned by the candidate’s spouse?
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Whether the offence contemplated by Section 125-A, RP Act existed in an equal or similar measure under the Gujarat Municipalities Act, 1963?
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Whether the error in taking cognizance under the RP Act was a curable irregularity under Section 465, Criminal Procedure Code, 1973 (CrPC)?
Analysis
At the outset, the Court examined Section 2(d), RP Act which defines “election” as “an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State” and noted that the statutory scheme of the RP Act was distinct from the scheme governing municipal elections.
The Court then referred to Section 277, Gujarat Municipalities Act, 1963 (Gujarat Municipalities Act) which empowers the State Government to frame rules. Pursuant to that power, the Gujarat Municipalities Rules were framed and later amended in 2005. Rule 7-A was introduced through the amendment and required a candidate to file an affidavit disclosing specified information.
The Court noted that the prescribed affidavit required a candidate to provide the details of the assets (immovable, movable, bank balance, etc.) of “myself, my spouse and dependents”. The Court held that a plain reading of Rule 7-A made it clear that the candidate was required to disclose property held by herself, her spouse and her dependents, including jointly held property. The Rule did not state, “in any manner whatsoever”, that property held solely by the spouse was exempt from disclosure.
The Court specifically rejected the appellant’s grammatical argument based on the comma after the word “myself”. It held that the comma was merely a listing comma separating “myself”, “my spouse” and “dependents”. The word “of” applied equally to all 3 categories. The comma did not create a separate meaning, distinction or exclusion; it merely served a grammatical and structural function. Therefore, the appellant was required to disclose the properties owned by her spouse as well.
Examining the question of cognizance under RP Act, the Court referred to State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728, wherein it was stated that dictionary meaning of the word “cognizance” is — “judicial hearing of a matter”. The Court reiterated the principle stated in R.R. Chari v. State of U.P., 1962 SCC OnLine SC 124, that taking cognizance occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Reference was also made to State of W.B. v. Mohd. Khalid, (1995) 1 SCC 684, which explained that cognizance indicates the point at which a Magistrate or Judge first takes judicial notice of an offence. It is a condition precedent to the initiation of proceedings and is taken of cases and not of persons.
The Court noted the settled legal position is that “error in taking cognizance under the wrong Section is, in fact a curable defect so long as the Court that has taken cognizance has the power to take cognizance of the other Sections”.
The Court found that the Gujarat Municipalities Act had originally penalised false declarations under Section 9, particularly Section 9-I and its related provisions. However, those provisions had been omitted around 1990. Since a candidate was nevertheless required to file an affidavit under Rule 7-A, the controlling provisions in a case of false affidavit would be under Penal Code, 1860 (IPC).
The Court noted that the private complainant had indeed referred to certain provisions of the IPC. However, the Magistrate had taken cognizance only under the RP Act. The appellant had contended that this was a jurisdictional error going to the root of the matter. However, the State argued that Section 465 CrPC saved the order despite the incorrect provision being invoked.
The Court agreed with the State and stated that Section 465 CrPC provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered merely because of any error, omission or irregularity in a complaint, summons, warrant, proclamation, order, judgment or other proceeding, unless a failure of justice has in fact been occasioned.
The Court relied on Pradeep S. Wodeyar v. State of Karnataka, (2021) 19 SCC 62, wherein it was explained that cognizance is part of the pre-trial or inquiry stage. Since trial begins after framing of charge, an irregularity in an order taking cognizance falls within the scope of Section 465 CrPC. The test for determining whether there has been a failure of justice is whether the irregularity has caused prejudice to the accused. No straitjacket formula can be applied. Relevant considerations include the stage at which the challenge is made, the seriousness of the offence charged, and whether the proceedings appear to be challenged with the intention of prolonging them.
Decision
The Court held that even though cognizance had been taken under a single and erroneous provision, the error did not warrant quashing of the proceedings as the cognizance is taken of the offence and not of persons. Where the allegation is that a false affidavit was filed during the electoral process, the matter concerns an offence against society at large and therefore requires investigation.
Consequently, the Court remanded the matter to the Magistrate concerned for taking cognizance afresh and proceeding in accordance with law. It clarified that it had not expressed any opinion on the merits of the allegations.
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[Chandrikaben Kishor Dafda v. State of Gujarat, 2026 INSC 665, decided on 1-7-2026]
*Judgment by Justice Sanjay Karol
Advocates who appeared in this case :
For the Petitioner: Mr. Namit Saxena, AOR
For the Respondents: Ms. Swati Ghildiyal, AOR and Mr. Sumant Datt, AOR with Mr. Jitendra Kumar Singh, Mr. Saurav Kumar, Mr. Satya Prakash Narain Tripathi, Mr. Shiv Ram Pandey, Mrs. Sandhya Pandey, Ms. Rashi Agnihotri and Ms. Rehana Begam, Advs.
