Supreme Court: The Division Bench comprising of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., held that an election petition cannot be thrown out at the threshold on a plea of that the petition is not supported by an affidavit in Form 25 even though the petition is based on allegations of corrupt practices.
The appellant, a Bharatiya Janata Party candidate from 16 Hassan (General) Parliamentary Constituency in the 2019 elections had secured 5,35,282 votes; while the respondent 1, a Janatha Dal Secular Party candidate had secured 6,76,606 votes. The appellant preferred an election petition stating that respondent 1’s election was liable to be declared void as he had filed a false affidavit and consequently the appellant should be declared as duly elected on account of his having secured the second highest votes.
The aforesaid petition had been resisted by the respondent 1 at the threshold on the following grounds:
- Non-compliance of Section 81(3) of the RP Act on the ground that the election petition was not attested by the appellant under his own signature as a true copy.
- As the appellant had made allegations which would constitute an allegation of “corrupt practice”, the proviso to Section 83(1) of the RP Act mandates that such allegations must be accompanied by an affidavit in accordance with Form 25 as required Section 94A of the Conduct of Election Rules, 1962.
The appellant contended that the question of filing Form 25 would arise only if there was any allegations of corrupt practice as defined by Section 123 of the RP Act but the election petition actually fell within the purview of Section 33A of the RP Act as the allegation dealt with suppression of information which was simply alluding to the observations of this Court in Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467, opining that non-disclosure of assets and income amounts to corrupt practice.
Findings of the High Court
On the issue that the election petition was not duly attested, the High Court noticed that the only issue was about the index and the synopsis not being signed by the appellant. Therefore, the High Court held that the appellant had substantially complied with the requirements as he had attested the election petition with his endorsement that it was a correct copy of the election petition.
However, rejecting the contention of the appellant’s that the allegations were confined only to Section 33A of the RP Act, the High Court held that the use of the phrase “any corrupt practice” in the proviso to Section 83 of the RP Act covers allegations of every manner of corrupt practice envisaged under the RP Act. The High Court was of the view that the appellant had alleged undue influence and improper acceptance of respondent 1’s nomination under Sections 123 and 100 of the RP Act respectively.
Accordingly, the High Court dismissed the petition as not maintainable on the ground that Form 25 was an integral part of the election petition and its complete absence would mean that there was total non-compliance of Section 83 of the RP Act.
Whether non-filing of affidavit in compliance with Section 83(1) of the RP Act fatal to the maintainability of an election petition?
Citing the judgment of the Constitution Bench in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, (1964) 3 SCR 573, the Bench stated that the defect in verification of an affidavit cannot be a sufficient ground for dismissal of the petition summarily and such an affidavit can be permitted to be filed later. The Constitution Bench judgment was also referred to in of G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776, to come to a conclusion that non-compliance with proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition.
Although, the Bench upheld the findings of the High Court that the allegations of the appellant were not confined only to Section 33A of the RP Act, but were larger in ambit as undue influence and improper acceptance of nomination of respondent 1 were also pleaded as violation of the mandate under Sections 123 and 100 of the RP Act, it declined to agree with the conclusion that the non-submission of Form 25 would lead to the dismissal of the election petition.
On the issue of non-compliance with Sect 81 (3) of RP Act, the Bench opined that the hyper-technical view sought to be taken of non-signing and verification of the index and the synopsis had been rightly rejected by the High Court. However, on the issue with regard to non-filing of affidavit, the Bench observed that the prayer clause was followed by verification and there was also a verifying affidavit in support of the election petition. Thus, factually, the Bench was of the view that it would not be appropriate to say that there was no affidavit in support of the petition, albeit not in Form 25. Which, said the Bench, was a curable defect and the High Court ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. The Bench added,
“We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so.”
Consequently, the impugned order of the High Court was aside and the application filed by the respondent 1 under Order 7 Rule 11, S. 151 of the CPC and S. 86(1) of the RP Act was dismissed with liberty to the appellant to file an appropriate affidavit in Form 25 within fifteen (15) days.
[A. Manju v. Prajwal Revanna, 2021 SCC OnLine SC 1234, decided on 13-12-2021]
Kamini Sharma, Editorial Assistant has put this report together
*Judgment by: Justice Sanjay Kishan Kaul