Dr. Nimaichand Luwang vs Th. Shyamkumar & Anr

The present election petition has been filed by the election petitioner namely, Dr. Nimaichand Luwang under Sections 88, 81, 84 of the Representation of People's Act, 1951 (Act of 1951 in short) challenging the election of the respondent No. 1 namely Thounaojam Shyamkumar as member of the 11th Manipur Legislative Assembly from 7-Andro Assembly Constituency.

[2] The election petition has been filed with the following prayers:

"In the light of the above facts and circumstances the present petitioner prayed before the Hon'ble Court for passing the following relief:

a) To declare that the election of the respondent No. 1 to be the returned candidate of 7-Andro Assembly Constituency to the 11th Manipur Legislative Assembly Election, 2017 is null and void.

b) To quash the impugned Election result of the Returning Officer, 7-Andro Assembly Constituency dated 11-03-2017 in respect of the respondent No. 1 of 7-Andro Assembly Constituency of the 11th Manipur Legislative Assembly Election-2017 be declared null and void.

c) To declare that the petitioner is the duly elected member in the 11th Manipur Legislative Assembly Election-2017 from 7-Andro Assembly Constituency.

d) To order for initiation or Criminal Proceeding against the Respondent No. 1under Section 125A and 127 of the RP Act, 1951.

e) And further be pleased to pass any other order or orders as Your Lordship (s) may deem fit and proper in the facts and circumstances of the case.

f) Cost of litigation."

[3] Learned senior counsel appearing for the election petitioner at the outset had dropped the prayer No. (d) and did not argue the same.

[4] Heard Mr. S. S Dey, learned senior counsel assisted by Mr. A. Mohendro, learned counsel and Ms. Ayangleima, learned counsel for the election petitioner. Also heard Mr. H. S Paonam, learned senior counsel assisted by Mr. Gunedhor, learned counsel and Mr. Gunabanta, learned counsel for the respondent No. 1.

[5] Mr. S. S Dey, learned senior counsel for the election petitioner submits that the election to the 11th Manipur Legislative Assemble was notified to be held in 2 (two) phases of Election Commission Press Note No.ECI/PN/1/2017 dated 04-01-2017 (Exhibit P-1) and the Election schedule were as follows:

Sl.

No.

Poll Event

Phase-1 (38 A/Cs)

Phase-2 (22 A/Cs)

1.

Date of Notification

08.02.2017 (Wed)

11/02.2017 (Sat)

2.

Last Date of Making

Nominations

15.02.2017 (Wed)

18.02.2017 (Sat)

3.

Scrutiny          of

Nominations

16.02.2017 (Thu)

22.02.2017 (Mon)

4.

Withdrawal     of

Candidature

17.02.2017 (Sat)

22.02.2017 Wed)

5.

Date of Poll

04.03.2017 (Sat)

22.02.2017 Wed)

6.

Date of Counting

11.03.2017 (Sat)

11.03.2017 (Sat)

7.

Date of Completion

15.03.2017 (Wed)

15.03.2017 Wed)

[6] However, as 11-2-2017 being a 2nd Saturday and 15-2-2017 was a public holiday on account of Luingai Ni, the election schedule was changed by Corrigendum No. 4/56/ELECT/PR/SAE - 2017 dated 04-01-2017 (Exhibit P/2) by the Chief Election Officer, Manipur as under :

Sl.

No.

Poll Event

Phase-1

(38 A/Cs)

Phase-2

(22 A/Cs)

1.

Date of Notification

07.02.2017 (Tue)

09.02.2017

(Thu)

2.

Last Date of Making

Nominations

14.02.2017 (Tue)

16.02.2017

(Thu)

3.

Scrutiny          of

Nominations

16.02.2017 (Thu)

17.02.2017

(Fri)

4.

Withdrawal     of

Candidature

18.02.2017 (Sat)

20.02.2017

(Mon)

5.

Date of Poll

04.03.2017 (Sat)

08.03.2017

(Wed)

6.

Date of Counting

11.03.2017 (Sat)

11.03.2017

(Sat)

7.

Date of Completion

15.03.2017 (Wed)

15.03.2017

(Wed)

[8] The election petitioner filed his nomination paper as a candidate sponsored by the Bharatiya Janata Party (BJP in short) which is a registered and recognized political party and registered with the Election Commission of India. The respondent No. 1 also filed his nomination paper along with affidavit dated 09-02-2017 in Form 26 on 09-02-2017 as a candidate of the Indian National Congress (INC in short). The respondent No. 2 filed his nomination paper as a candidate of the Manipur National Democratic Front (MNDF in short). After scrutiny, the nomination papers of all the 3 (three) candidates were accepted by the Returning Officer to be valid despite objection being raised by the petitioner against the nomination paper of the respondent No. 1 on the ground that his affidavit dated 9-2-2017 as per Form. 26 filed along with the nomination paper were false affidavit inasmuch as the respondent No. 1 falsely deposed at Part A, Clause No. 5 of the affidavit dated 9- 2-2017 that in Form No. 26 that he was not accused of any offence (s) punishable with imprisonment for two years or more in a pending case in which charge(s) has/have been framed by the Court(s) of competent jurisdiction. Further, in the affidavit dated 9-2-2017 in Form 26, that in the requirement for declaration that the deponent is accused of any offences is indicated as under:

"If the deponent is accused of any such offence(s) he shall furnish the following information:

(i) The following case(s) is/are pending against me in which charges have been framed by the court for an offence punishable with imprisonment for two years or more:

(a)

Case/First        information     report  No./Nos.

together           with      complete          details  of concerned Police Station District/State

-Not applicable-

(b)

Section(s) of the concerned Act (s) and short description of the offence (s) for

which charged

-Not applicable-

(c)

Name of the Court Case No. and date of the order taking cognizance

-Not applicable-

(d)

Court(s) which framed the charge (s)

-Not

applicable-

(e)

Date(s) on which charge (s) was/were framed

-Not applicable

(f)

Whether all or any of the proceeding(s)

have been stayed by any Court(s) of competent jurisdiction.

-Not applicable-

(ii) The following Case (s) is/are pending against me in which cognizance has been taken by the Court (other than the case mentioned in the item (i) above:

(a)

Name of the Court, case No. and date of order taking cognizance.

-Not applicable-

(b)

The details of cases where the court has been taken cognizance, section(s) of the

Act(s) and description of the offence(s) for which cognizance taken.

-Not applicable

(c)

Details of Appeal(s)/Application(s) for revision (if any) filed against the above order(s)

-Not applicable.

(c) Details of Appeal(s)/Application(s) for revision (if any) filed against the above order(s) -Not applicable.

[9] Learned senior counsel appearing for the election petitioner submits that with regard to Part No. B, Clause No. 5 of the affidavit dated 9-2-2017 in Form 26, the respondent No. 1 had declared as under:

"PART-B

ABSTRACT OF THE DETAILS GIVEN IN (1) TO (10) ABOVE OF PART-A

1.

Name of the candidate

Shri      Thounaojam Shyamkumar

2.

Full Postal Address

Yairipok Yambem Mathak Leikai, PO Yairipok PS

Andro, Imphal East 795149, Manipur.

3.

Number           and      Name   of            the constituency and state

7-Andro           Assembly Constituency, Manipur

4.

Name   of         the       Political            party which set up the candidate

(otherwise writ „Independent‟)

Indian National Congress

5.

(i) Total number of pending cases where charges has been framed by the Court for offences punishable with

imprisonment for two years or more

-Not applicable-

(ii) Total number of Pending cases where the court(s) have taken cognizance (other than the cases mentioned in item(i)

above)

-Not applicable.

[10]     Learned senior counsel also submits that with regard to the verification of affidavit dated 9-2-2017 in Form 26, the respondent No. 1 had verified as under:

"VERIFICATION

I, the Deponent, above named, do hereby verify and declare that the contents of this affidavit are true and correct to the best of my knowledge and belief and, no part of it is false and nothing material has been concealed there from.

I further declare that:

(a) there is no case of conviction or pending case against me other than those mentioned in items 5 and 6 Part A and B above.

(b) I, my spouse, or my dependents do not have any asset or liability, other than those mentioned in items 7 and 8 Part A and items 8, 9 and 10 10 of Part B above"

Verify at Imphal, this the 9th day of February of 2017

DEPONENT

Note:1. Affidavit should be filed latest by 3.00 PM on the last date of filing nominations.

Affidavit should be sworn before an Oath Commission or Magistrate of the First Class or before a Notary Public.

All columns should be filled up and no column to be left blank. If there is no information to furnish in respect of any item, either "Nil" or "Not applicable", as the case may be, should be mentioned.

The affidavit should be either typed or written legibly and neatly."

[11] Learned senior counsel argues that on the date of swearing the affidavit on 9-2-2017 as well as on the date of filing the nomination paper, the respondent No. 1 was fully aware of the fact that an appeal against acquittal was pending against him before the Hon'ble High Court of Delhi being Crl. L. P No. 142 of 2012 in which prior leave for filing such appeal against acquittal was also granted. He has referred to Exhibit P/20, P/21 and P/6 to bring to the notice of this Court that copies of these Orders dated 29-02-2012, 15-01-2013 and 16- 05-2014 respectively were on record of the proceedings. He submits that the Judicial Orders exhibited by the election petitioner are not disputed by the respondent No. 1 and the same would clearly indicate that the respondent No. 1/returned candidate who is the respondent No. 3 in Crl. L. P No. 142 of 2012 had filed Crl. M.A No. 7181 of 2012 in the pending Crl. L. P No. 142 of 2012 praying for release of his passport. The respondent No. 1 was charged for offences punishable under Section 121/ 121A/ 122/ 123/ 420/ 468/ 471/ 120BIPC read with Sections 18/19/20 of Unlawful Activities(Prevention) Act, 2004) as well as Section 3/ 9 of the Official Secrets Act, 1923. Further, the orders dated 15-1-2013 (Exhibit P/21) is a continuation of the same proceeding wherein, in terms of the application filed by the respondent No. 1, the matter was fixed for further consideration on a future date. Again, the Order dated 16-5- 2014 (Exhibit P/6) clearly indicates that the respondent No. 3 therein/ the present respondent No. 1 in the present election petition had already furnished a Bail Bond before the Registrar of the Hon'ble High Court of Delhi in connection with Crl. L. P No. 142 of 2012.

[12] Learned senior counsel for the election petitioner submits that the respondent No. 1 had suppressed/withdrawn information regarding the pendency of the Crl. L.P No. 142 of 2012 being an appeal against acquittal in respect of the Judgment and Order dated 14-3-2011 passed in Sessions Case No. 230/1/2010 by the Learned Additional Sessions Judge, Delhi (West) wherein, the present respondent No. 1 was acquitted by granting the benefit of doubt while the two other accused persons were convicted for offence under Section 419, IPC individually. He further submits that in spite of having full knowledge of the aforesaid appeal against acquittal pending against him, the respondent No. 1 i.e.,returned candidate in para No. 5 of his affidavit dated 9-2-2017 in Form 26 (Exhibit P/4) did not declare about the pending case against him before the Hon'ble High Court, Delhi. He therefore places reliance in the case of Krishnamoorthy Vs Sivakumar & Others reported in (2015) 3SCC 467 that such commission amounts to corrupt practice of "Undue influence" as per Section 123 (2) of the Act of 1951 by the respondent No. 1 and therefore requires a declaration that the election of the returned candidate/respondent No. 1 is void on the ground that the returned Candidate himself having committed corrupt practice of "Undue Influence".

[13] That on the date of filing the nomination paper as well as on the date of swearing affidavit in Form 26 on 9-2- 2017, the respondent No. 1 was fully aware of the fact regarding the judgment of the Trial Court as well as pendency of the appeal against his acquittal before the Hon'ble High Court of Delhi. The respondent No. 1 did not reveal any information regarding the trial where charges were framed against him and the appeal against acquittal in respect of his acquittal on benefit of doubt which is pending since 2012

[14] Learned senior counsel has also given a summary of the quantum of punishments against each of the section charged against the respondent No. 1 which reads as under:

Section

Period of punishment

121 IPC

Death or Imprisonment for Life

121AIPC

Imprisonment for Life or 10 years

122

Imprisonment for Life or 10 years

123

Upto 10 years

420

Upto 7 years

468

Upto 7 Years

471

Upto 2 Years

120B

Death, imprisonment for life or rigorous imprisonment for a term of 2 years or

upwards

18 UAPA

Not be less than five years, may extend

to imprisonment for life

19 UAPA

Not be less than three years, may

extend to imprisonment for life

20 UAPA

May extend to imprisonment for life

3 OSA

Upto 3 years

9 OSA

Upto 3 years

[15] Learned senior counsel further submits that the respondent No. 1 has not presented himself to be crossed examined by the election petitioner on his Written Statement and therefore, the Written Statements of the respondent No. 1 has no evidentiary value in the eye of law. Even taking the most lenient view on this deliberate lapse of the respondent No. 1 to face cross examination of the election petitioner, it becomes invariably clear that the respondent No. 1 does not dispute and rather admit that the respondent No. 1 have been charged of offences punishable under Section 121, 121A/ 122/ 123/ 420 / 468/ 471/ 120 B IPC read with Section 18/19/20 of Unlawful Activities (Prevention) Act, 2004 as well as Section 3/9 of the Official Secrets Act, 1923 by the competent Court of Law was subjected to trial and was acquitted on benefit of doubt by the Judgment and Order dated 14-3-2011 passed in Sessions Case No. 230/1/2010 by the learned Additional Sessions Judge/Delhi (West) and that an appeal against acquittal as per the Statutory scheme was pending before the High Court of Delhi in Crl. L. P No. 142 of 2012 as on date.

[16] Learned senior counsel submits that this Court by order dated 26-9-2019 had framed 24 issues and on the consideration of all the issues, crux of the matter centers around the legal question as to whether the deliberate non- disclosure of the information regarding pendency of Crl. L.P No. 142 of 2012 amounts to commission of corrupt practice of "Undue Influence" within Section 123(2) of the Act of 1951 in terms of the decision rendered by the Hon'ble Supreme Court in the case of Krishnamoorthy Vs Sivakumar & Ors (supra)and whether in case of an affirmative decision holding that the respondent No. 1 to be guilty of commission of the corrupt practice of "Undue Influence" within Section 123 (2) of the Act of 1951 the election petitioner is entitled to a declaration that he is duly elected from 7-Andro Legislative Assembly Constituency to the 11th Manipur Legislative Assembly Election, 2017 along with a further order recording the commission of corrupt practice of "Undue Influence" by the respondent No. 1 in terms of Section 99 of the Act of 1951.

[17] The crux of the legal proposition or question as to whether the deliberate nondisclosure of the information regarding the pendency of the Crl. L.P No. 142/2012 amounts to commission of the corrupt practice of "Undue Influence" within the Section 123 (2) of the Representation of the People Act, 1951 is answered in affirmative in the case of Union of India Vs Association for Democratic Reforms reported in (2002) 5 SCC 294.

[18] It has been held by the Hon'ble Apex Court in Union of India -V- Association for Democratic Reforms and Another(supra) that Freedom of Speech and expression which is a fundamental right of each and every citizen under Article 19(1)(a) includes casting of votes by the voters as voters speak out or express by casting votes and that for this purpose, information about the candidate to be selected is a must. In the circumstances, the Hon'ble Supreme Court of India held as follows:

"22. For health of democracy and fair election, whether the disclosure of assets by a candidate, his/her qualification and particulars regarding involvement in criminal cases are necessary for informing voters, may be illiterate, so that they can decide intelligently, whom to vote? In our opinion, the decision of even illiterate voter, if properly educated and informed about the contesting candidate, would be based on his own relevant criteria of selecting a candidate. In democracy, periodical elections are conducted for having efficient governance for the country and for the benefit of citizens -- voters. In a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. He has choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in criminal case. For maintaining purity of electionsand healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided--its result, if pending-- whether charge is framed or cognizance is taken by the Court? There is no necessity of suppressing the relevant facts from the voters."

[19] Following the aforesaid Judgment of the Hon'ble Supreme Court of India, the provisions of Section 33A of the RP Act, 1951 has been inserted by amending the RP Act, 1951 which mandates the filing of Affidavit in Form 26 by every candidate along with his Nomination Paper. Further, the Election Commission of India vide various orders directed the candidates to file affidavit which is a complete affidavit in all respect along with Nomination Paper. Further, the Election Commission of India in its letter/order No. 3/ER/2004/J.S.II, dated 01-04-2004 at Instruction SI. No. 4 directedthat even a single column of the affidavit should not be kept/left blank.

[20] This provision under Section 33A, RP Act, 1951 has been upheld by the Hon'ble Supreme Court of India in People's Union for Civil Liberties reported in (2003) 4 SCC 399, wherein it has further been held that a candidate is to file an affidavit duly sworn as prescribed under Rule 4A of the Conduct of Elections Rules, 1961 as provided under Section 33 and 33A of the Representation of the People Act, 1951 along with the Nomination paper.

[21] Further, the purpose of filing affidavit along with the Nomination Paper has exhaustively been discussed by the Hon'ble Supreme Court of India in Resurgence India -V- Election Commission of India and Another reported in (2014) 14 SCC 189 and it has been held at Paragraph No. 29 as follows: -

"29. What emerges from the above discussion can be summarized in the form of the following directions:

The voter has the elementary right to know full particulars of a candidate who is to represent him In Parliament/Assemblies and such right to get information is universally recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution.

The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information.

Filing of affidavit with blank particulars will render the affidavit nugatory.

It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the "right to know" of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of the Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced.

We clarify to the extent that para 73 of People's Union for Civil Liberties case will not come in the way of the Returning Officer to reject the nomination paper when the affidavit is filed with blank particulars.

The candidate must take the minimum effort toexplicitly remark as "NIL" or "Not Applicable" or "Not known" in the columns and not to leave the particulars blank.

Filing of affidavit with blanks will be directly hit by Section 125-A(i) of the RP Act. However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her. "

[22] The Supreme Court of India in Satish Ukey-Vs- Devendra Gangadharrao Fadnavis & Anr reported in (2019) 9 SCC 1 has discussed about the Right to information in Para No. 10 as follows:

"10. The new Section 33-A, which is the bone of contention in the present case, deals with the "Right to Information" and reads as under: 33A. Right to information.

(1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under Sub-section (1) of Section 33, also furnish the information as to whether-

(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction;

(ii) he has been convicted of an offence other than any offence referred to in Sub-section

(1) or Sub-section(2), or covered in Sub- section (3), of section 8 and sentenced to imprisonment for one year or more.

(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of Section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1).

The returning officer shall, as soon as may be after the furnishing of information to him under Sub-section (1),display the aforesaid information by affixing a copy of the affidavit, delivered under Sub- section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered".

It is pertinent to note here that Section 33-A(1), as worded and drafted, required furnishing of the information of cases where the person filing the nomination has been convicted; and (ii) where charges have been framed against the person filing the nomination but excluded cases where cognizance had been taken. This was despite the order of the Apex Court, to the effect that details of case(s) of which cognizance has been taken should also be furnished. ,,

[23] It is also submitted that the aforesaid discrepancy was already addressed by the Supreme Court of India, in the case of People's Union for Civil Liberties (PUCL) supra wherein, it was held as under:

"114. I shall now discuss the specifics of the problem. With a view to promote the right to information/ this Court gave certain directives to the Election Commission which/ as I have already clarified/ were ad hoc in nature. The Election Commission was directed to call for details from the contesting candidates broadly on three points/ namely/ (I) criminal record/ (ii) assets and liabilities/ and (iii) educational qualification. The Third Amendment to the RP Act which was preceded by an ordinance provided for disclosure of information. How far the Third Amendment to the Representation of the People Act/ 2002 safeguards the right of information which is a part of the guaranteed right under Article 19(1)(a)/ is the question to be considered now with specific reference to each of the three points spelt out in the judgment of this Court in Assn. for Democratic Reforms case.

As regards the first aspect/ namely/ criminal record/ the directives in Assn. for Democratic Reforms case are twofold: (SCCp. 322/ para 48)

"(1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past - if any/ whether he is punished with imprisonment or fine.

(2) Prior to six months of filing of nomination whether the candidate is an accused in any pending case/ of any offence punishable with imprisonment for two years or more/ and in which charge is framed or cognizance is taken by the court of law. "

As regards the second directive/ Parliament has substantially proceeded on the same lines and made it obligatory for the candidate to furnish information as to whether he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the competentcourt. However, the case in which cognizance has been taken but charge has not been framed is not covered by clause (i) of Section 33-A(I). Parliament having taken the right step of compelling disclosure of the pendency of cases relating to major offences, there is no good reason why it failed to provide for the disclosure of the cases of the same nature of which cognizance has been taken by the Court. It is common knowledge that on account of a variety of reasons such as the delaying tactics of one or the other accused and inadequacies of the prosecuting machinery, framing of formal charges gets delayed considerably, especially in serious cases where committal procedure has to be gone through. On that account, the voter/citizen shall not be denied information regarding cognizance taken by the Court of an offence punishable with imprisonment for two years or more. The citizen's right to information, when once it is recognized to be part of the fundamental right under Article 19(1)(a), cannot be truncated in the manner in which it has been done. Clause (i) of Section 33-A(I) therefore falls short of the avowed goal to effectuate the right of information on a vital aspect. Cases in which cognizance has been taken should therefore be comprehended within the area of information accessible to the voters/citizens, in addition to what is provided for in clause (i) of Section 33- A. "

Further, the Apex Court also held as under:

"123. Finally, the summary of my conclusions: (3)The directives given by this Court in Union of India v. Assn. for Democratic Reforms were intended to operate only till the law was made by the legislature and in that sense "pro tempore" in nature. Once legislation is made, the Court has to make an independent assessment in order to evaluate whether the items of informationstatutorily ordained are reasonably adequate to secure the right of information available to the voter/citizen. In embarking on this exercise, the points of disclosure indicated by this Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced.

123(6) The right to information provided for by Parliament under Section 33-A in regard to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen. However, there is no good reason for excluding the pending cases in which cognizance has been taken by the Court from the ambit of disclosure. „‟

Eventually, the following direction was issued by the Court to the Election Commission of India:

"123 (9) The Election Commission has to issue revised instructions to ensure implementation of Section 33-A subject to what is laid down in this judgment regarding the cases in which cognizance has been taken "

The Supreme Court of India in People's Union of Civil Liberties supra declared Section 33-B was unconstitutional and violated the fundamental right of citizens to know the antecedents of candidates contesting in the elections, which right was held to be an essential facet of freedom of speech and expression enshrined in Article 19(1)(a) of the Constitution which could only be validly limited through the restrictions conforming with Article 19(2) of the Constitution of India.

Finally, in Krishnamoorthy v. Sivakumar and Others reported in (2015) 3 SCC 467, the Supreme Court of India held that in cases of non disclosure of pending cases in the Form 26, it amounted to commission of corrupt practice of 'undue influence'; the election is to be declared null and void, and the question whether it materially affects the election or not will not arise. In para 60 it was held as under:

"60. The purpose of referring to the same is to remind one that the right to contest in an election is a plain and simple statutory right and the election of an elected candidate can only be declared null and void regard being had to the grounds provided in the statutory enactment. And the ground of 'undue influence' is a part of corrupt practice.

Section 100 of the 1951 Act provides for grounds for declaring election to be void. Section 100(1) which is relevant for the present purpose reads as under:

"100. Grounds for declaring election to be void.-

(1) Subject to the provisions of sub-section (2) if the High Court is of opinion-

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected-

(I) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, The High Court shall declare the election of the returned candidate to be void.

As is clear from the provision, if the corrupt practice is proven, the Election Tribunal or the High Court is bound to declare the election of the returned candidate to be void. The said view has been laid down in M. Narayan Rao V. G. Venkata Reddy & Others (1977) 1 SCC 771 and Harminder Singh Jassi(supra).

At this juncture, it is necessary to elucidate on one essential aspect. Section 100(1)(d)(ii) stipulates that where the High Court is of the opinion that the result of the election has been materially affected by any corrupt practice, committed in the interest of the returned candidate by an agent, other than his election agent, the High Court shall declare the election of the returned candidate to be void. This stands in contra distinction to Section 100(l)(b) which provides that election of a returned candidate shall be declared to be void if corrupt practice has been committed by a returned candidate or his election agent or by any other person with his consent or with the consent of the returned candidate or his election agent. Thus, if the corrupt practice is proven on the foundation of Section 100(l)(b), the High Court is not to advert to the facet whether result of the election has been materially affected, whichhas to be necessarily recorded as a finding of a fact for the purpose of Section 100(1)(d)(ii).

In this context, we may refer to the authority in Samant N. Balkrishna and Anr. V. George Fernandez and Others(1969) 3 SCC 238, wherein Hidayatullah, C.J., speaking for the Court opined thus:

"If we were not to keep this distinction in mind there would be no difference between Section 100(1)(b) and 100(1)(d) insofar as an agent is concerned. We have shown above that a corrupt act per se is enough under Section 100(1)(b) while under Section 100(1)(d) the act must directly affect the result of the election insofar as the returned candidate is concerned. Section 100(l)(b) makes no mention of an agent while Section 100(1)(d) specifically does. There must be some reason why this is so. The reason is that an agent cannot make the candidate responsible unless the candidate has consented or the act of the agent has materially affected the election of the returned candidate. In the case of any person (and he may be an agent) if he does the act with the consent of the returned candidate there is no need to prove the consent of the returned candidate and there is no need to prove the effect on the election."

In Manohar Joshi V. NitinBhauraoPatil and Anr. (1996) 1 SCC 169, a three-Judge Bench reiterated the principle by stating that:

''The distinction between clause (b) of sub-section

(1) and sub- clause (ti) of clause (d) therein is significant. The ground in clause(b) provides that the commission of any corrupt practice by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent by itself is sufficient to declare the election to be void. On the other hand, the commission of any corrupt practice in the interests of the returned candidate by an agent other than his election agent (without the further requirement of the ingredient of consent of a returned candidate or his election agent) is a ground for declaring the election to be void only when it is further pleaded and proved that the result of the election insofar as it concerns a returned candidate has been materially affected.

The distinction between the two provisions as has been explained by this Court is of immense significance. If the corrupt practice, as envisaged under Section 100(1)(b) us established, the election has to be declared void. No other condition is attached to it."

In view of the above, we would like to sum up our conclusions:

As the candidate has the special knowledge of the pending cases where cognizance has been taken or charges have been framed and there is a non-disclosure on his part, it would amount to undue influence and, therefore, the electionis to be declared null and void by the Election Tribunal under Section 100(l)(b) of the 1951 Act.

The question whether it materially affects the election or not will not arise in a case of this nature.

[24] It is also submitted that the crux of the legal proposition or question as to whether the pendency of an appeal against acquittal amounts to a pending case where charges have been framed by competent courts for offences punishable with imprisonment for more than 2 years or more is no more res integraas has been held by the Hon'ble Supreme Court in the case of Kalawati And Another Vs The State Of Himachal Pradesh (reported in AIR 1953 SC 131)wherein, it was held that an appeal against an acquittal is in substance a continuation of the prosecution.

It may be straightway pointed out that an appeal against an acquittal or an appeal against a conviction is in substance a continuation of the proceedings of the trial Court. The learned senior counsel has also relied on the Judgments of the High Court of Madhya Pradesh inThe State of Madhya Pradesh vs Moorat Singh and Ors reported in 1975 Cril.J 989.The High Court of Gujaratin the State Vs Diwanji Gardharji And Ors reported in AIR 1963 Guj 21, the High Court of Patna in the State of Bihar Vs Ramdaras Ahir & Ors reported in 1985 Cril. 584 and also in the Judgment of the Hon'ble Supreme Court of India in the case of Pooja Pal vs Union of India and Ors reported in (2016) 3 SCC 135.

[25] Mr. H.S. Paonam, learned senior counsel for the respondent No.1 on the other hand submits that the Respondent No.1,Thounaojam Shyamkumar Singh, is the winner / returned candidate in the 11th Manipur Assembly General Election from 7-Andro Assembly Constituency which was held on 04/03/2017 andre-poll on 09/03/2017 (for 34- Polling Station). After the expiration of the 10th Manipur Assembly, theElection Commission of India ("ECI")announced the Election Schedule forthe 11th General Election in Manipur vide its Press Note No.ECI/PN/l/2017 dated 04/01/2017. Subsequently, the Chief Electoral Officer ("CEO"), Manipur issued another Press Note No. ECI/PN/2/2017dated 04/01/2017. However, on the same day, the CEO, Manipur alsoissued a Corrigendum being No. 4/56/ELEC/PR/SAE-2017 dated 04/01/2017 scheduling dates for the Poll. Accordingly, the Respondent No.1 submitted his nomination papers before the Returning Officer of 7-Andro Assembly Constituency. The poll of votes in the 7-Andro Assembly Constituency was held on 04/03/2017, Saturday and re-poll/ fresh poll of 34- Polling Stations on 09/03/2017.

The Respondent No.1 was declared as the successful candidate in the said election from 7-Andro Assembly Constituency on 11/03/2017. As per the Final Result sheet, the total votes secured by the Respondent No. 1 and two other candidates are as follows:

Respondent No. 1 (Thounaojam Shyamkumar Singh) :18948

Election Petitioner (Nimaichand Luwang) 10787

Keisham Ningthemjao Singh 162

[26] The Election Petitioner also alleged that, he had filed an objection dated16/02/2017 before the RO, 7-Andro Assembly Constitution raising objection of Nomination Paper filed by the Respondent No. 1 as the Respondent No. 1 failed to file proper affidavit prescribed under Article 173 of the Constitution of India, which amounts to violation of the provisions ofthe Section 33 of the RP Act, 1951.

In the above premises, the above referred Election petition has been filed challenging the election of Respondent No.1 seeking a prayer for quashing the same and consequently declare him as elected candidate.

[27] From the perusal of the averments and pleadings of the Election Petitionand from the grounds taken by the Election Petitioner, it is evidently clear that the Election Petition is filed solely under Section 100(1)(d)(i)of the R.P, Act 1951 i.e. improper acceptance or any nomination.

[28] The Respondent no. 1 by filing the misc. application being M.C. (Election Petition) No.6 of 2017 have prayed for dismissal of the Election petition on the ground of having no cause of action. In the said Misc case, it was also seriously contended that mere pendency of the criminal appeal does not mean that criminal trial is still pending against him. In fact, the Respondent no. 1 had been acquitted by the trial Court and it cannot besaid that on the day of filing the nomination paper he was accused of anyoffence or that any charge sheet was pending against him. He had been acquitted by the Trial Court and accordingly, has to be held to be innocent.This is also an issue to be considered by this Court. The Hon'ble Court while dismissing the said Misc case by holding that cause of action for filing the Election Petition exist, however observed as under:

"[22] Perusal of the election petition would reveal that the election petition had specifically pleaded that the respondent no. 1 had filed a false affidavit about the pendency of the criminal appeal against the respondent no. 1 in the Delhi High Court as he did not mention anything about the pendency of the said criminal appeal before the Delhi High Court. It has been further stated in the election petition that though the petitioner had raised the objection before the Returning Officer for furnishing wrong information in the affidavit by the Respondent No. 1 and for rejecting the same on the day of scrutiny, the same was accepted by the Returning Officer [paragraphs 4(iv) to (vii) of the election petition]. Accordingly, it was contended that wrongful acceptance of nomination of the Respondent No.1 amounts to violation of provisions of Section 33 of the RP Act, 1951 and as such the cause of action arose when the result was declared on 11.3.2017 [paragraphs no. 4(xii) to (xii[i]),5 of the election petition].

[23] As to whether, the allegations of the election petitioner are correct or not has to be proved by the petitioner and further, as to whether, filing of the affidavit by the returned candidate was false or not and whether the alleged false affidavit would amount to violation of the provisions of Section 33 of the RP Act, 1951 so as to render the election of the Respondent No. 1 void, are to be considered by this Court in the course of the election trial.

[24] The issue, as to whether non-disclosure of any pendency of any criminal appeal would amount to giving false affidavit within the meaning of Section 33 of the RP Act or any rules framed thereunder, has to be decided by the Court."

Hence, it is very clear that the present Election Petition was not filed under Section 100(l)(b) of the RP Act, 1951, which is a case of "corrupt practice" committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent.

[29] The main challenge made in the Election Petition is that the RespondentNo. 1 failed to disclose a pending criminal appeal against the acquittal before the Delhi High Court while filing his nomination papers and Affidavit under Form 26 and such non-disclosure amounts to improper filing ofnomination papers and affidavit under Section 33 of the RP, Act and that the RO ought to have rejected the nomination papers filed by the Respondent No.1 for failure to comply with the provisions of Section 33 of the RP, Act. The Election petitioner has laid much emphasis and thrust on undue influence under Section 123(2) of the R.P. Act, 1951 which is not a pleaded case of the petitioner and the manner how undue influence was made to the voters. The Election Petitioner also vehemently contended that since a criminal appeal is a continuation of trial, Respondent No. 1 failed to disclose the fact of the pending appeal againstthe acquittal in the nomination papers. As such, it was contended that thenon-disclosure of pending appeal before' the Delhi High Court while filing the nomination paper amounts to undue influence and, therefore, the Election is to be declared null and void under section 100(l)(b) of the RP Act.Therefore, the crux of the legal proposition or question to be decided in the present Election Petitionis that whether the pendency of criminal appeal against acquittal amounts to a pending case since an appeal is considered as a continuation of trial for the purpose of Form 26.

[30] Learned senior counsel also submits that in criminal jurisprudence as well as under criminal procedural code, the procedure adopted in the case of a trial is always different from Civil Procedure. Article 21 of the Constitution of India, provides that "no person shallbe deprived of his life or personal liberty except according toprocedure established by law". Acquittal in general terms means that theaccused is innocent and has not committed the offence he was accused of. Acquittal is defined in Section 232 of the Code of Criminal Procedure, 1973 which provides that "if, after taking the evidence for the prosecution,examining the accused and hearing the prosecution and the defense on thepoint, the Judge considers that there is no evidence that the accusedcommitted the offence, the Judge shall record an order of acquittal." In the criminal jurisprudence when a person is acquitted, his personal liberty cannot be curtailed until his acquittal by the trial court is interfered with according to the procedure established by law.

[31] The submission made by the counsel of the Election Petitioner that an appeal is the continuation of trial and same to be treated as pending trial finds no place in the case of criminal cases.

In the civil cases, since the Appellate Courts have all the powers and duties as that of original jurisdiction by virtue of Section 107, the appeal is considered as a continuation of the suit. On the other hand, in criminal jurisprudence, a criminal proceeding is initiated when a criminal law is set at motion against a person on the basis of an information to the police that a person has committed a cognizable offence leading to an investigation into the accusation against the person and filing of report under Section 173 of the Cr. P.C where upon an accused is tried of an offence registered leading to the conviction or the acquittal, as the case may be.

[32] Learned Senior counsel for respondent No.1 submits that in Balak Singh Thakur v. State of Madhya Pradesh, 2014 see Online MP 1036, it was held" "with the acquittal the charges of commission of offence gets washed of. A person so acquitted of the charges stand at par with a person who is not being charged and was not subjected to a criminal proceeding. The preferment of a criminal revision or an appeal against an acquittal cannot be regarded as a continuance of the trial and cannot be treated to be pendency of judicial proceedings as the initial presumption of innocence gets re- enforced by the orders of acquittal. After acquittal, which lead to an affirmation of the innocence of the accused, anappeal or revision, as the case may be, being not a continuation of trial, will not amount to a pending of judicial proceedings." In Surinder Kumarv. State of Himachal Pradesh and another, (1985 (3) SLR 254 holding that "the preferment of acquittal appeals cannot however, be regarded as the continuance of the trial. The trials have concluded with judgment of acquittal); [K. Prabhakaran v. P. Kayarajan and Ramesh Singh Dalai v.Nafe Singh, 2005 AIR SCC 313] stating that an order of acquittal wipes off the conviction and sentence for all purposes and as effectively as if it had never been passed.

[33] Moreover, in R.E. Dubey v. M.P. State Electricity Board, 2013 see Online MP 1004, considering the definition of the expression "judicial proceeding" "includes any proceeding in the course of which evidence is or may be legally taken on oath" and after considering the decision in Sheo Ram v. State (AIR 1964 Allahabad 290), the Madhya Pradesh High Court held that "with the acquittal the charges of commission of offence gets washed of. A person so acquitted of the charges stand at par with a person who is not being charged and was not subjected to a criminal proceeding." The Court also held that the contention, therefore, put forth by the respondents that the filing of revision [or appeal] against the judgment of[acquittal] would tantamount to the pending of judicial proceeding does not reason with the provisions as they stand under law."

[34] The Respondent No.1 to negate the case of the Petitioner also relies on the following decisions:

A. (2003) 4 SCC 399, PUCL vs Union of India, para 115, 116:

"115. As regards the first aspect, namely criminal record, the directives in Association for Democratic Reforms case are two fold: "(i) whether the candidate is convicted/ acquitted/discharged of any criminal case in the past-if any, whether he is punished with imprisonment or fine and (ii) prior to six months of filing of nomination, whether the candidate is an accused in any pending case of any offence punishable with imprisonment for two years or more and in which charge is framed or cognizance is taken by the Court of law."

As regards the second directive, the Parliament has substantially proceeded on the same lines and made it obligatory to the candidate to furnish information as to whether he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the competent Court. However, the case in which cognizance has been taken but charge has not been framed is not covered by Clause (i) of Section 33A(I). The Parliament having taken the right step of compelling disclosure of the pendency of cases relating to major offences, there is no good reason why it failed to provide for the disclosure of the case of the same nature of which cognizance has been taken by the Court. It is common knowledge that on account of variety of reasons such as the delaying tactics of one or the other accused and inadequacies of prosecuting machinery, framing of formal charges gets delayed considerably, especially in serious cases where committal procedure has to be gone through. On that account, the voter/citizen shall not be denied information regarding cognizance taken by the Court of an offence punishable with imprisonment for two years or more. The citizen's right to information, when once it is recognized to be part of the fundamental right under Article 19(I)(a), cannot be truncated in the manner in which it has been done. Clause (i) of Section 33(A)(I) therefore falls short of the avowed goal to effectuate the right of information on a vital aspect. Cases in which cognizance has been taken should therefore be comprehended within the area of information accessible to the voters/ citizens, in addition to what is provided for in Clause (i) of Section 33A.

Coming to Clause (ii) of Section 33A(I), the Parliament broadly followed the pattern shown by theCourt itself. This Court thought it fit to draw a line between major/serious offences and minor / non- serious offences while giving direction No.2 (vide Para 48). If so, the legislative thinking that this distinction should also hold good in regard to past cases cannot be faulted on the ground that the said clause fails to provide adequate information about the candidate. If the Parliament felt that the convictions and sentences of the long past related to petty/non serious offences need not be made available to electorate, it cannot be definitely said that the valuable right to information becomes a casualty. Very often, such offences by and large may not involve moral turpitude. It is not uncommon, as one of the learned senior counsel pointed out that the political personalities are prosecuted for politically related activities such as holding demonstrations and visited with the punishment of fine or short imprisonment. Information regarding such instances may not be of real importance to the electorate in judging the worth of the relative merits of the candidates. At any rate, it is a matter of perception and balancing of various factors, as observed supra. The legislative judgment cannot be faulted merely for the reason that the pro tempore directions of this Court have not been scrupulously followed. As regards acquittals, it is reasonable to take the view that such information will not be of much relevance inasmuch as acquittal prima facie implies that the accused is not connected with the crime or the prosecution has no legs to stand. It is not reasonable to expect that from the factum of prosecution resulting in the acquittal, the voters/ citizens would be able to judge the candidate better. On the other hand, such information in general has the potential to send misleading signals about the honesty and integrity of the candidate."

B. (2013) 200 DLT 402, Nanda Ram Bagri vs Jai Kishan, paras 28-38:

"28. It would thus be noticed that Section 33A and Form 26 prescribed in Rule 4A did away with the requirement as prescribed by the Supreme Court and the Press Note supra, i) of giving all educational qualifications, giving details of -school and university education D and confined it to details of highest school/university education; and; iii) of giving particulars of even those cases in which the candidate though had been charged with a criminal offence but had been acquitted. The said aspect was considered by the Supreme Court in PUCL supra and it was observed that the information of acquittals will not be of much relevance inasmuch as acquittal prima facie implies that the accused is not connected with the crime or the prosecution has no legs to stand and therefore as regards past criminal record, what the Parliament has provided for is fairly adequate.

To complete the chronology, mention may also be made of the order dated 27.03.2003 of the Election Commission pursuant to PUCL, revising the earlier instruction / Press Note dated 28.06.2002. However need is not felt to elaborate further on the same.

I will now proceed to examine the affidavit filed by the respondent no. 1 to gauge whether the same suffers from any falsehood, suppression and mis- declaration.

I will take up the disclosure with respect to the educational qualification first. The respondent no. 1 was as per Form 26 supra required to make disclosure only of the -highest school / university education 0. As per the disclosure made by the respondent no. 1 in his affidavit Ex.PWI/3, the ~highest' school education disclosed was of having passed Class XII from National Open School in the year 2002. Though the respondent no. 1, as aforesaid was required to disclose only the ~highest school / university education' but he also disclosed that he had passed Class X in the year 1981 from C.R.Z. Senior Secondary School, Sonepat, Haryana. The challenge made by the petitioner in the petition is not to the~highest' educational qualification of the respondent no. 1 but to the educational qualification preceding the said ~highest education qualification' and which as per Form 26 was not required to be disclosed. The question which thus arises for consideration is whether there can at all be said to be a defect in the affidavit or falsehood qua disclosure of matters which were not required to be disclosed.

The reason, for the directions issued by the Supreme Court in Association for Democratic Reforms, was that for health of democracy and fair election disclosure inter alia of the candidate's qualification is necessary to enable the voters to decide intelligently for whom to vote and to enable the voters to make a choice. It was held that voters are required to be educated and well informed about the contesting candidates.

I have checked on the website of the National Institute of Open Schooling (NIOS)formerly known as National Open School(NOS) to find out whether for a candidate to appear in a Class XII examination, eligibility of having passed the Class X examinationis essential. The revised syllabus effective from 2008- 2009 of the NIOS as available on its website, provides that for a candidate to be eligible for admission at Senior Secondary level, should have passed Secondary Class (Class X) from any recognized Board. The respondent No.1 in his affidavit has claimed to have passed Class XII examination from the NIOS in the year 2002. Though the Rules of the NIOS for the year 2002 are not available on the website but I have no reason to not reasonably presume that the eligibility condition even then must have been the same. In any case, it is not the case of the petitioner also that the respondent no.1 could have taken the Class XII examination from NIOS without passing the Class X examination.

Be that as it may, even if it were to be the case that the NIOS wrongly allowed the respondent no.1 to take the Class XII examination, without being eligible therefore, this petition cannot take the form of a challenge to the highest school qualification of the respondent no.1.

The purpose as aforesaid, for disclosure of educational qualification is to enable the electorate to make a choice between a candidate with a higher educational qualification and another with a lesser qualification. It is well-nigh possible that the electorate in their wisdom may prefer a candidate with a lesser educational qualification. The respondent no.1 in this context is right to the extent that his qualification of 12th pass is not such a high qualification in comparison to the educational qualification of the petitioner so as to influence the voter. However that is not for this Court to decide. The fact remains that the highest' school qualification disclosed of the respondent no.1 is not under challenge. The challenge as made in this petition to eligibility qualification for such =highest' qualification, is irrelevant. It was for the NIOS to, at the time of allowing the respondent no.1 to appear in the Class XII examination, satisfy itself that the respondent no.1 was eligible therefore. Mention at this stage may also be made of Mark R10W1/PX1 which was shown for the first time to respondent No.10 appearing as R10W1 in his cross examination. The same is purportedly a download from the website of NIOS of Class X examination hall ticket issued in April, 2010 to one Jai Kishan. On the basis thereof it is argued that the respondent No.1 has taken the Class X examination in April, 2010 only. However the said document has not been proved. R10W1 did not accept it to be pertaining to respondent No.1. No such case was in any case built up. Merely because of Mark R10W1/PX1 being in the same name does not prove that it is respondent no.1 who took the Class X examination in 2010. Jai Kishan is a fairly common name. The said argument of counsel for petitioner is meritless.

Thus the challenge to the election of the respondent no. 1 for the reason of falsity in declaration of educational qualification fails. Need is not felt to render any finding on the genuineness or otherwise of the lesser qualification of Class X claimed by the respondent no. 1, the same being not relevant for the matter in controversy.

That brings me to the challenge to the election of the respondent no. 1 on the ground of falsity in disclosure of criminal cases pending against him.

Here again, the requirement as per Form 26 supra is only for disclosure of pending cases "in which charges have been framed" for offences punishable with imprisonment for two years or more and all pending cases in which "cognizance has been taken by the Court" and of the past convictions. Though in pursuance to the direction in Association for Democratic Reforms, the direction of the Election Commission was also for disclosure of acquittals but the same was done away with in Form 26 and the challenge thereto in PUCL failed." C. (2009) 9 SCC 310 Anil Vasudev vs Naresh Kushali. Para10,11,19, 20,51,57, 59 and 61:

"10. The pleadings of the said allegations of corrupt practice are limited to digging of bore wells only and there is no pleading on the material facts whether any water drawing equipment was installed in the said boreholes so dug and that such boreholes became water bore wells and that the water could be drawn from them. Neither have any facts been pleaded nor particulars given to the effect of how and in what manner the voters were influenced in favour of the appellant so as to cast votes in his favour. No particulars of such voters have been given in the election petition. As such there is total absence of material pleadings so as to prove that due to the alleged corrupt practice the election has been vitiated in a manner that but for such boreholes not being dug the appellant would not have been returned as a winning candidate and either the respondent herein or Respondent 2 of the election petition could have been returned as a winning candidate.

There are no averments to the effect whether such boreholes were dug with the consent and/or active knowledge of the appellant.

In the election petition the respondent has mentioned that there was scarcity of water supply in certain villages. However, the respondent has failed to mention the number of houses which face such alleged water scarcity. In the written statement, the appellant also alleged that the respondent in the election petition has also failed to mention about water availability in these villages; the respondent has further failed to mention as to since when has there been water scarcity? The appellant in the written statement further alleged that the respondent has also not mentioned as to how many houses are there in these villages; how many persons are living in each of the houses; and how many persons are voters in these villages. The respondent has also not mentioned as to how many villages have water connections; and when and where the water scarcity had been noticed in these villages. He has also not mentioned as to when this complete breakdown or insufficient water supply had occasioned to these villages nor has he mentioned the date, time, place or any other details of such breakdown and has generally failed to give the details as required under Section 83 of the Act.

In the written statement it was also stated that the drilling machines allegedly owned by 'Tejaswini Bore Wells were being operated at Ambeudok. There is, therefore, no concrete evidence that the boreholes drilled were bore wells to establish the flow of water from the ground table to surface ground.

In the context of a charge of corrupt practice, "material facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (the respondent herein) is bound to substantiate before he can succeed on that charge. It is also well settled that if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient.

D. (2004) 3SCC 609 Basheer vs State of Kerala paras 13,14,16,17and 23:

"13. Nothing much however, turns on this principle as far as the appeals before us are concerned. Notwithstanding the application of the mollifying provisions of the Act retrospectively, by the proviso to Section 41(1), Parliament has expressly declared that the benefit of the retrospective mollificatory provisions would not be available to the cases "pending in appeal". What is crucial is whether this segregation of "cases pending in appeal" and their exclusion from the application of the beneficial effects of the amending Act infringes the equality right guaranteed under Article 14 of the Constitution.

Counsel contend that there may be cases where the trial may have concluded before 2-10-2001; equally, for reasons not within the control of the accused, there may be cases where the trials may have continued beyond 2-10-2001. Therefore, on account of the fortuitous reason of quick, disposal of trials prior to 2-10- 2001, appeals might have been filed and these could be pending on the date on which the amending Act came into force. It isargued that these fortuitous circumstances should not determine the fate of the accused nor whether they should get the benefit of the mollificatiori of the rigour of the law. Counsel contends that persons similarly situate would be subject to discriminative yardsticks of punishment only because of fortuitous circumstances. According to them, the proviso hostilely discriminates against the class of cases pending in appeal, the classification is unsupported by any rational basis or intelligible differentia having nexus with the objective of the amending Act. Thus, according to the appellants, the proviso to sub-section (1) of Section 41 of Act 9 of 2001 infringes Article 14 and is, therefore, unconstitutional.

A careful scrutiny of sub-section (1) of Section 41 of Act 9 of 2001 shows that all cases have been divided into three categories:

(a) cases pending before the trial courts;

(b) cases pending investigation; and

(c) cases where the trials have concluded and which are pending in appeal.

Counsel contends that, barring cases which are pending investigation, there is no rational basis for differentiating cases pending before the court and cases pending in appeal. They submit that a case pending in appeal is nothing but an extension of the trial and, therefore, the two categories of cases (a) and (c) above are identically situated. The validity of this reasoning needs to be critically appraised.

Thus, in our view, the Rubicon indicated by Parliament is the conclusion of the trial and pendency of appeal. In the cases of pending trials, and cases pending investigation, the trial is yet to conclude; hence, the retrospective mollification of the rigour of punishment has been made applicable. In the cases where the trials are concluded and appeals are pending, the application of the amended Act appears to have been excluded so as to preclude the possible contingency of reopening concluded trials. In our judgment, the classification is very much rational and based on clearly intelligible differentia, which has rational nexus with one of the objectives to be achieved by the classification. There is one exceptional situation, however, which may produce an anomalous result. If the trial had just concluded before 2-10-2001, but the appeal is filed after 2-10-2001, it cannot be said that the appeal was pending as on the date of the coming into force of the amending Act, and the amendment would be applicable even in such cases. The observations of this Court in Nallamilli case [(2001) 7 SCC 708] would apply to such a case. The possibility of such a fortuitous case would not be a strong enough reason to attract the wrath of Article 14 and its constitutional consequences. Hence, we are unable to accept the contention that the proviso to Section 41 of the amending Act is hit by Article 14.

E. (2008) 10 SCC 497 Jagdish vs Madhuri Devi; Para 36:

"36. Three requisites should normally be present before an appellate court reverses a finding of the trial court:(l) it applies its mind to reasons given by the trial court;(il) it has no advantage of seeing and hearing the witnesses; and(iil) it records cogent and convincing reasons for disagreeing with the trial court."

[35] In the present case, the Respondent No. 1 has been acquitted by the trial court in the said criminal case. As a result of the acquittal, the Respondent No.1 has been exonerated from all charges. Moreover, the consequences of an acquittal can also go beyond exoneration from all charges as observed by the various judgments cited above. Thus, from the conjoint reading of the requirements under Form- 26, the definitions of acquittal, judicial proceedings and various decisions cited above, it is crystal clear that at the time of filing the nomination papers and the affidavit, there are no charges or cases pending against the Respondent No.1 since the acquittal order of the trial court obliterated/ exonerated the charges framed against him. As such, mere filing of an appeal or pending appeal against the acquittal of the trial court cannot be considered as a pending trial against the present Respondent No.1. The acquittal order holds good until and unless his acquittal is set aside or interfered with by the appellate court or by a competent authority.

[36] Mr. HS. Paonam, learned senior counsel also submits that a bare perusal of Form 26, for offences punishable with imprisonment for two years or more, mandates disclosure of information by contesting candidate regarding the case(s) that is/ are pending against him in which charges have been framed by the court; and also cases that are pending against him in which cognizance has been taken by court. It has also been made mandatory to disclose an appeal, review and revision on conviction, in those offences when cognizance has been taken and charge has been framed. However, in Form 26 there is no column to disclose an appeal against acquittal. The omission of column for furnishing information seems to be intentional in view of the fact that in criminal casea person so acquitted of the charges stand at par with a person who is notbeing charged and was not subjected to a criminal proceeding.

[37] Consequently, the Election Petitioner's contention that an appeal is a continuation of trial is irrelevant and inconsequential in the present case and is not applicable in the present case. Accordingly, under Form 26, the Respondent No.1 was not legally obliged to disclose about pending appeal against the acquittal order preferred by State because the Respondent No.1's acquittal holds good till it is interfered with and acquittal means the criminal case is no longer pending. Therefore, the non-disclosure of the pending criminal appeal against the acquittal in the affidavit does not amount to corrupt practice and does not constitute an act that causes undue influence upon the voters.

[38] The Election Petitioner has also miserably failed to show the material facts concisely that has materially affected the Election by failure to disclose the pending appeal against acquittal. For instance, the Election Petitioner, amongst his suggested issues suggested that:

"Whether the information to be furnished by way of Affidavit provided in Form No. 26 prescribed under Rule 4A of the Conduct of Election Rules,1961 is suffered from defects of substantial characters or not?"

It would be important to point out here that the suggested Issue particularly issue No.2 (from the proposed issue submitted by the Election Petitioner) goes to show that the Election Petitioner is fully aware that one is not required to disclose what is not asked to be disclosed. As such the Election Petitioner has made a suggestion that the Form No. 26 prescribed under Rule 4A of the Conduct of Election Rules, 1961 as defective. It seems that the Election Petitioner has raise the said ground of non-disclosure of pending appeal just as a ground to invite undue influence coming under the category of corrupt practices and not as one for improper acceptance of nomination. Further, in the Election petition particularly Para 4(xii) & (xiii), which are the ground, has not disclosed any facts details and particulars as to how to whom in particular have subjected to under influence for Casting Vote in favour of the Respondent No.1 for sustaining plea of corrupt practice and therefore, submission made on behalf of the petitioner in this regard is misconceived and misplaced. Thereby entailing outright rejection. This submission will find support from an order passed by this Hon'ble Court in M.C. (Election petition) No. 24 of 2017.

[39] Undue influence is an inference which arises on facts pleaded and proved. During the cross-examination of PW1, the Election Petitioner himself was not certain about the charges and allegation made by him against the Respondent No. 1 and also regarding his allegation of non- disclosure of pending appeal before the Delhi High Court and its requirement in terms of Form 26 prescribed by the Election Commission. From the pleadings in the Election Petition and the contentions made by the Election Petitioner, it is quite vivid that the Election Petitioner has utterly and miserably failed to establish that non-disclosure of the said criminal pending appeal against the acquittal amounts to corrupt practice of undue influence. The Election Petitioner failed to prove the failure to disclose the pending appeal against acquittal by the Respondent No. 1 in the affidavit was capable of interfering or influencing the freedom of choice of the voters or carried away by such non-disclosure.

[40] That the election petitioner in his cross examination has categorically stated that he does not understand the meaning of farming of charge, cognizance or pending criminal cases. However, he had instantly filed an application objecting the nomination paper of the Respondent No.1 on the day of the scrutiny just for the sake of it. It is therefore, to be construed that the said election petition has been filed by the election petitioner only for the purpose of advertisement and publication.

[41] Based on the above foregoing, it is evidently clear that the Election Petitioner miserably failed to prove the basic facts which constitute the ingredient of corrupt practice as the Respondent No. 1 is not legally required to disclose the pending appeal against his acquittal in the affidavit. The ground stated in Section 100 (l)(b) of the R.P, Act is not available to the Election Petitioner to question the validity of the election of the Respondent No. 1/ returned candidate. Therefore, the Election Petition deserves to be dismissed.

[42] It is also submitted that the argument advanced by the petitioner on corrupt practice by referring to Section 123 of the R.P. Act being not a ground taken in the election petition, the same is not relevant for the purpose of consideration of the present case inasmuch as election petitioner has not submitted any other submission or contention in respect as to how nomination paper of the Respondent No.1has been improperly accepted by the Returning Officer as required under Section 100(1)(d)(i) of the R.P. Act, 1951 which is a ground taken in the election petition as can be substantiated from the ground in the election petition as well as the objection submitted by the election petitioner before the Returning Officer as at Annexure-A/6 of the Election petition

[43] He, therefore, submits that the submission made by the election petitioner to the effect that there should be disclosure of the pending Criminal Appeal before the Delhi High Court irrespective of omission of column of the information required to be furnished under Form 26 is not acceptable since the present Form 26 which is available has been prepared in term of Article 173 of the Constitution of India r/w Section 33 of the R.P. Act, 1951 in consequence to the Judgment delivered in PUCL case as clearly mentioned in the Government notification which is annexed as Annexure-W /1, W/2 of the written Statement of Respondent No. 1. Thus, election petition being an application not supported by law is liable to be dismissed.

[44] That in respect of prayer no. (a) regarding declaration of the election petitioner as the returned candidate in the event the election of Respondent no.1 is interfered by this Hon'ble Court, the authorities cited by the election petitioner are not legally sustainable in view of the decision in this regard by the Hon'ble Supreme Court of India in the case where there are more than two candidates. In the case of Prakash Khandre Vs Dr. VijayKumar Khandre and others reported in (2002) SCC 568 in para No. 14, the Hon'ble Supreme Court has held as under.

"Para 14: However, in an election where the elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes.If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than the other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected. "

[45] This view is reiterated by the Hon'ble Supreme Court in the Judgment and order dated 13-10-2020 passed in the SLP (C) No. 6787/6788 of 2020 (Maniraju Gowda P.M Vs Shri Munirathna & others) in the said case theHon'ble Supreme Court at Para no. 21 & held as under.

"Para 21,' In D.K. Sharma Vs. ram Sharan Yadav and Others this court followed the dictum in Vishwanatha Reddy (supra) to the effect that where there are more than two candidates in the field, it is not possibleto apply the same ratio as could be applied when there are only two candidates. This principle was also reiterate in Prakash Khandre Vs, Dr. Vijay Kumar Khandre and others, where this Court pointed out (in the present case, for one seat, there were five candidates and it would be impossible to predict or guess in. whose favour the voters would have voted if they were aware that the elected candidate was disqualified to contest election or if he was not permitted to contest election or if he was not permitted to contest the election by rejectinghis nomination paper on the ground of disqualification to contest the election and what would have been the voting pattern. "(Copy of the Judgment order which are not included in the compilation submitted by the Respondent is enclosed as Enclosure-II). Therefore, it is respectfully submitted that relief as prayed for by the election petitioner cannot be granted and in view of the fact and circumstances along with law initiated by the Hon'ble Supreme Court as submitted hereinabove, the election petition being devoid of merit may be dismissed saddling with heavy cost."

[46] In reply, Mr. S.S. Dey, learned senior counsel for the Election Petitioner submits that on the legal proposition of whether a pending appeal. against acquittal amounts to a case pending, and if so, whether the non-disclosure of the same has resulted in commission of the corrupt practice of "Undue Influence"; the Judgment of the Hon'ble High Court of Delhi apart from being per in curium, is no precedence in law in view of the clear judgment of the Hon'ble Apex Court in Kalawati And Another vs The State Of Himachal Pradesh and Pooja Pal vs Union of India and Ors. supra and relied upon consistently by Division Benches of different High Courts from time to time. The reading and interpretation of the requirements of Form 26 thus is also erroneous and not a precedent to be relied on or referred to inasmuch as once a proceeding comes within the definition of pending criminal case, the same has to be mandatorily disclosed in Paragraph 5 of the Affidavit in Form

The interpretation of the Form 26 which is a statutory instrument being a part of the Conduct of Election Rules, 1961 in the light of superseded Press Note itself is erroneous and renders the findings and conclusion of the Hon'ble High Court of Delhi not either a reliable, far less a binding precedent to be followed in the instant case at hand. Further, the law on this point rendering the non-disclosure of information of pending case amounts to commission of the corrupt practice of "Undue Influence" within Section 123 (2) of the Representation of the People Act, 1951 has been rendered by the Hon'ble Apex Court in Krishnamoorthy vs Sivakumar & Others supra. The tone and manner of the Hon'ble Apex Court in rendering the judgment keeping the sanctity of the electoral process supreme and paramount, no dilution thereof can be allowed in the instant case with the aid of the previous superseded Single Bench judgment dated 07.05.2013 passed in Election Petition No. 14/2009 (Nand Ram Bagri vs Jai Kisan and Ors), that too rendered per in curium by the Hon'ble High Court of Delhi.

[47] Further Per Contra the Learned Counsel for the Respondent No. 1 also pressed the Judgment of the Hon'ble Apex Court passed in People's Union of Civil Liberty -Vs- Union of India supra especially paragraphs 115 & 116 thereof to say that in case of acquittal it is reasonable to take a view that such information will not be of much relevance inasmuch as acquittal prima facie it implies that the accused is not connected with the crime or the prosecution has no legs to stand.

He submits that the aforesaid paragraphs 115 & 116 is a part of the Judgment rendered by and for himself per Hon'ble Justice P. Venkatarama Reddy which starts at paragraph 80 of the citation. This Judgment apart from being a minority judgment in a Bench of 3 (three) Hon'ble Judges, is also specifically dissented by Hon'ble Justice Dharmadhikari as may be seen in the conclusions rendered by My Lord Dharmadhikari in Paragraph 132 of the said citation. It is a well settled principle of interpretation of precedent that it is the ratio decidendi and not the obiter dicta which is the binding precedent. The sentences as regards acquittal as recorded in Para 116 by Hon'ble Justice P. Venkatarama Reddy first of all is regarding minor serious offences and not as regards major serious offences involving moral turpitude. It is on this background that the sentences in the Judgment at paragraph 116 were recorded albeit beyond the issues which were decided by the Hon'ble Apex Court in the case. The question before the Hon'ble Court was as to whether Section 33B of the Representation of the People Act, 1951 was illegal and ultra vires of the Constitution. The answer to this issue was rendered uniformly by the Bench, My Lord Justice P. Venkatarama Reddy also concluding that whatever had been provided by the Parliament in Section 33B was fairly adequate. Hence, the parts of the judgement pressed by the Learned Senior Counsel for the Respondent No.1, more so paragraphs 115 and 116, is at best a part of the obiter dicta recorded by the minority judgment of Justice P. Venkatarama Reddy and not a law decided by the Hon'ble Apex Court in its majority Coram of the said Judgment.

[48] Moreover, placing his reliance upon the Judgment of Hon'ble Apex Court in Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar reported in (2009) 9 SCC 310 the Learned Senior Counsel for the Respondent No.1 has contended that Election Petition does not disclose any material fact on which the Election Petitioner relies or that the Election Petition does not disclose any cause of action. Such a contention does not have any legs to stand inasmuch as this Hon'ble Court while deciding the Misc. Election Petition No. 6 of 2017 arising in the instant Election Petition No.4 of 2017 was pleased to observe as follows in the Judgment & Order dated 04.01.2018, especially paragraph 24 thereof:

"24. The issue, as to whether non disclosure of any pendency of any criminal appeal would amount to giving false affidavit within the meaning of Section 33 of the RP Act or any rules framed thereunder, has to be decided by the Court".

[49] The election petitioner has sought for declaration that the election of the Respondent no. 1 to be the returned candidate as null and void. The basis of the said claim is the alleged violation of Section 33 of the RP Act, 1951. Whether, the claim of the election petitioner is to be allowed or not is to be examined by the Court. However, it cannot be said at this stage that the election petition does not disclose any material fact on which the petitioner relies or that the election petition does not disclose any cause of action." The aforesaid view of this Hon'ble Court has been further fortified in view of the Order dated 15.07.2019 passed in Special Leave to Appeal (C) No. 7890/2018 wherein the Hon'ble Apex Court has declined to interfere with the Judgment & Order dated 04.01.2018 passed in the Misc. Election Petition No.6 of 2017 as it did not find any good grounds to entertain the Special Leave Petition filed by the Respondent No.1 i.e. the Returned Candidate.

[50] Finally, the Learned Senior Counsel for the Respondent No. 1 has also placed his reliance upon the Judgment of the Hon'ble Apex Court in Prakash Khandre and Others vs Vijaya Kumar Khandre and Others reported in (2002) 5 see 568, especially paragraph 14 thereof to submit that where there are more than 2 (two) candidates in an election, even if the Returned Candidate is declared to be disqualified to contest election, how the voters would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability and in such a situation, declaring the election of the Returned Candidate on the ground of his initial disqualification to contest the election by itself would not entitle the Election Petitioner or any other candidate to be declared elected. Hence, there being 3 (three) candidates in the instant Election in question, the Election Petitioner cannot be declared to be elected even if the election of the Returned Candidate is declared null and void by this Hon'ble Court.

[51] The legal proposition of the Learned Senior Counsel for the Respondent No. 1 does not merit consideration of this Hon'ble Court inasmuch as the above decision of the Hon'ble Apex Court in Prakash Khandre supra has been rendered in relation to a situation wherein the election of Returned Candidate has been declared null and void for having incurred statutory disqualification under Section 9A of the Representation of the People Act, 1951 and not for having committed any corrupt practice. Further, the Returned Candidate has not filed any Recrimination Petition under Section 97 of the Representation of the People Act, 1951 to challenge the election of the Election Petitioner in the event of the election of the Returned Candidate being declared null and void. Ananalys is of the aforesaid Prakash Khandre supra as well as the authorities discussed therein would go to show that all of the above cases are either in relation to incurring of statutory disqualification under Representation of the People Act, 1951 or in relation to single transferable voting system whereas in the instant case it is a single non-transferable voting system. For ready reference, the case of Prakash Khandre supra and the authorities discussed therein are placed before this Hon'ble Court in tubular form:

Citation

Party Names

Particulars     of

the Case

Reason for not

being

applicable      in the            present

case

(2002)5

SCC 568

Prakash Kandre & Ors Vs. Vijaya Kumar Khandre & Ors

Election was challenged on ground of Returned Candidate having incurred disqualification under Section 9A of the Representation of People Act, 1951. Further, in this case the Returned Candidate i.e. the Respondent had also filed a Recrimination Petition under Section 97 of the Representation of People Act, 1951.

In the present case, the Returned Candidate having committed the corrupt practice of Undue Influence and not hence not a case of disqualification under the Representation of People Act, 1951. In

paragraph 13 of the Prakash Khandre supra it has been clearly held that in case of the votes being obtained by corrupt practices by the Returned Candidate, the Election petitioner or any other candidate who has obtained majority of valid votes could be declared elected.

Further, the Respondent No. 1 in the

present case

has not filed any Recrimination Petition to challenge the election of the

Election Petitioner

AIR 1969

SC 604

Konappa Rudrappa Nadgouda Vs Vishwanath Reddy & Ors

The election of the Returned candidate was declared void on the ground of disqualification under Section 9A of the Representation of People Act, 1051. Further,

only 2 (two) candidates were contesting in this case.

In the present case, the Returned Candidate having committed the corrupt practice of Undue Influence and not hence not a case of disqualification under the Representation of People Act, 1951. Further in

paragraph 12 of Konappa Rudrappa supra, it is clearly held that in case it is found that some votes are obtained by the returned candidate by corrupt practice, the Court is bound to declare the election petitioner or any other candidate who has obtained next

majority of votes and it

does not require proof that the votes whose votes were secured by corrupt practice had notice of corrupt

practice.

(1977)3

SCC 540

Thiru John and Ors vs Eding Officer and Ors

The voting system in the instant case is a single transferable voting system.

Further, election was challenged on the ground that the Returned Candidate did not possessed the requisite qualification as laid down under Article 84 (b) of the Constitution of India to contest the election.

In the present case, the Returned Candidate having committed the corrupt practice of Undue Influence and not hence not a case of not being qualified under Article 84

(b) of the Constitution of India to contest elections. Further, the election in the instant case is on the basis of a single non- transferable

vote.

(1969) 1

SCC 27

R.M Seshadri Vs G. Vasantha Pai

The election in this case is to Madras Legislative Council from the Madras District Graduates' Constituency. Although corrupt practice

has been alleged in this

In the case of

R.M Seshadri supra at paragraph 25 it has been held that "... in a single transferable vote, it is very difficult to say how the voting

would have gone, because

case, it is to be noted that the voting was by single transferable vote.

if all the votes which Seshadri had got, had gone to one of the other candidate who got eliminated at the earlier counts, those candidates would have won.." In the present case, the election being based on single non- transferable vote, the aforesaid case of R.M Seshadri

supra is not applicable.

(1989) 4

SCC 773

Lata Devi (Mali) Vs Haru Rajwar

In this case the election of the returned candidate was challenged on the ground that the allotted symbol of the Election Petitioner was changed by the Returning Officer and it had materially affected for violation of Rule 10(5) of the Conduct of Election Ruled,

1961.

The ratio laid down the case of Lata Devi (Mali) supra not being a case of corrupt practice does not have any probative force in deciding the instant election petition.

1993 Supp (2)SCC 117

D.K Sharma Vs Ram Sharma

Yadav and

In this case, the Returned Candidate has

already incurred

The facts as well as the ratio of case of D.K

Shama supra

Ors

disqualification for a period of 6 (six) years in a previous election petition and the aforesaid period having not expired, he was disqualified from participating in the election in question.

has no application in the instant case inasmuch as the respondent in D.K Shama supra was already disqualified in view of Section 8A of the Representation of People Act, 1951 to participate in any election which is not the case in the instant Election

Petition.

[52] Hence, the submission of the Learned Senior Counsel for the Respondent No. 1 that there being 3 (three) candidates in the instant Election in question, the Election Petitioner cannot be declared to elected even if the election of the Returned Candidate is declared null and void by this Hon'ble Court in view of the law laid down in Prakash Khandre supra is liable to be dismissed.

[53] Thus, in any view of the matter the one and only inevitable conclusion is that the pendency of a statutory appeal against acquittal amounts to a pending case and is in fact continuation of the trial. That being so, the further Inevitable conclusion is that the non-disclosure of the pendency of the entire fact regarding appeal against acquittal in respect of the Judgment & Order dated 14.03.2011 passed in Sessions Case No. 230/1/2010 by Learned Additional Sessions Judge, Delhi (West) acquitting the Respondent no. 1 on benefit of doubt amounts to commission of the corrupt practice of "Undue Influence" within the Section 123 (2) of the Representation of the People Act, 1951 inasmuch as the said non disclosure shall be deemed to have misinformed the voters in course of exercise of their paramount right of participating in the process of Election. Accordingly, it is a fit case for setting aside the result of the Election so far as it concerns Respondent No. 1 i.e. the Returned Candidate recorded vide Result Sheet dated 11.03.2017 (Exhibit P/12) and declared vide Form 21E dated 11.03.2017 (Exhibit P/13) along with a further declaration that on the event of setting aside of the election of the Returned Candidate i.e. the Respondent No.1, the Election Petitioner having scored/secured the next largest number of valid votes (10,787) in the final Result Sheet dated 11.03.2017 (Exhibit P/12) and Form 21E dated 11.03.2017 (Exhibit P/l3) has to be declared duly elected under Section 98(c) read with Section 101(b) of the Representation of the People Act, 1951 from 7- Andro Assembly Constituency to the 11th Manipur Legislative Assembly Election, 2017 with a further consequential order as required under Section 99 of the Representation of the People Act, 1951.

[54] I have heard the learned counsel for the parties.

[55] After hearing the parties, the following issues were framed:

Whether the respondent No. 1 failed to disclose the materials information which ought to be furnished as per provisions of the Representation of the People Act, 1951 or not?

Whether the information to be furnished by way of affidavit provided in Form No. 26 prescribed under Rule 4 A of the Conduct of Election Rules, 1961 is suffered from defects of substantial characters or not?

Whether non-furnishing of material information and concealment of the material information in the prescribed Affidavit by the Respondent No.

1 shall be considered to be violation of the Order of the Hon'ble Supreme Court of India and nomination of the candidate concerned shall be liable to be rejected by the Returning Officer at the time of Scrutiny of nomination for such non-furnishing of proper Affidavit?

Whether the nomination paper along with the relevant documents filed by the Respondent No. 1 is liable to be rejected by the Returning Officer of the 7-Andro Assembly Constituency to the 11th Manipur Legislative Assembly Election under Section 36(2) of the Representation of the People Act, 1951 or not?

Whether the Returning Officer of the 7-Andro Assembly Constituency to the 11th Manipur Legislative Assembly Election had improperly accepted the Nomination Paper of the Respondent No. 1 during the Scrutiny without considering the objection dated 16/02/2017 or not?

Whether the election of the Respondent No. 1 to be the returned Candidate of 7-Andro Assembly Constituency to the 11th Manipur Legislative Assembly Election, 2017 is null and void or not?

Whether the Petitioner is qualified to be declared as duly elected Candidate of 7-Andro Assembly Constituency to the 11th Manipur Legislative Assembly Election, 2017 as per provision of law or not?

Whether election petition is not an election petition in the eyes of law? If so, whether election petition is fit to be dismissed summarily to prevent the abuse of process of law?

Whether the nomination of Sri Shyamkumar, the returned candidate has been improperly accepted by the Returning Officer?

Whether there has been non-compliance with the provision of Constitution or the Representation of the People Act, 1951 or of any rules or order made under this Act in favour of the returned candidate?

Whether the oath and certificate of oath submitted on behalf of the returned candidate, Sri Shyamkumar with his nomination is fake and manipulated one and invalid and objection in this regard has been improperly disposed of?

Whether the nomination of the returned candidate is in improper form and not in accordance with guidelines of Election Commission of India for filing nomination?

Whether the returned candidate has not disclosed in the nomination paper the case in which he is an accused of an offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction?

Whether the mere pendency of appeal in the High Court preferred by the State against acquittal of returned candidate by the trial Court in the case where he was arrayed as party would fall foul of the provisions of clause 5 of notification dated 1-8- 2012 issued by the Central Government in conduct of Election Rules 2012.

Whether the finding on charge that there is no evidence against the returned candidate and also reiterated by High Court would still be determinative of non disclose attracting non compliance with the rules at the date of filing of nomination.

Whether the returned candidate has concealed any information in the nomination paper which he was required to disclose?

Whether the result of the election, in so far as it concerns returned candidate, has been materially affected by such non disclosure?

Whether such alleged non disclosure would tantamount to corrupt practice committed in the interest of the returned candidate?

Whether the filing of the alleged false affidavit which provides for penalty under Section 125 RPA Act would still be corrupt practice as contemplated by 100(d) of RPA Act.

Whether the election of the returned candidate Sri Shyamkumar is fit to be declared void?

Whether the election petitioner is fit to be declared as to have been duly elected?

Whether the petitioner is entitled to any other relief/reliefs in the case?

Whether there is a requirement of disclosure of information which are not sought for in the Format of Affidavit (Form 26) and whether non disclosure of such information amounts to swearing of false affidavit?

Which category of cases are required to be disclosed as mandated by Format of Affidavit (Form) which has been formulated in terms of the Apex Court Judgment in People's Union of Civil Liberty Vs Union of India reported in (2003)4 SCC 399 and whether non-disclosure of pendency of cases which are not the category as required in the Format amount to swearing of false affidavit?"

[56] A Considerations of the submissions made by the learned counsel appearing for the parties would clearly indicate that the main thrust in declaring the election of the respondent No. 1 null and void is based mainly on the fact that the respondent No. 1 has failed to declare in Form No. 26 that there is a pending appeal before the Hon'ble High Court of Delhi. Therefore, despite there being 24 (twenty four) issues framed, this Court proposes to answer to the issue Nos. 13, 14 & 24 first.

[57] Form No. 26 in the affidavit dated 09.02.2017 has already been reproduced hereinabove. It is undisputed that Sessions Case No. 230/1/2010 Under Section 419/468/120 B of the Indian Penal Code, Sections 18/19/20 Unlawful Activities Act and Sections 3 & 9 of Official Secrets Act was filed against the respondent No. 1 and 2 (two) other co-accused in the court of Additional Sessions Judge (West-02), Delhi. The sessions case was disposed of by a Judgment dated 14.03.2011 whereby the respondent No. 1 was acquitted by granting the benefit of doubt. Thereafter, an appeal against the acquittal was filed before the Hon'ble High Court of Delhi, which was registered as Criminal LP No. 142/ 2012 in which prior leave for filing such appeal against the acquittal was also granted. This pendency of the appeal before the Hon'ble High Court of Delhi is also not disputed by the respondent No. 1.

[58] A perusal of Form No. 26 would clearly indicate that the requirement to be filled in by the candidates for contesting the election is whether there are any case where the charge have been framed by the Court for offences punishable with imprisonment for 2 (two) years or more has to be furnished. It is also provided that the details of case whether the court has taken cognizance, Section(s) of the Act(s) and description of the offence(s) for which cognizance has been taken.

The case of Kalawati -vs- State of Himachal Pradesh (supra), which has been strenuously argued by the learned senior counsel appearing for the election petitioner has been considered by this Court. The observations of the Hon'ble Supreme Court is that if there is no punishment for the offences as a result of the prosecution, the Sub-clause (2) of Article 20 has no application and that an appeal against an acquittal wherever such is provided by the procedure is in substance a continuation of the prosecution. The aforesaid observations of the Hon'ble Supreme Court were in contact of construing the scope of Article 20(2) of the constitution and therefore in my humble opinion those observations cannot be pressed into service in the present case in hand.

[59] Further, in the case of People's Union for Civil Liberties & Anr. (supra), the Hon'ble Supreme Court at para Nos. 116 & 117 had held as under:

"116. Coming to clause (ii) of Section 33-A(I), Parliament broadly followed the pattern shown by the Court itself. This Court thought it fit to draw a line between major/serious offences and minor/non-serious offences while giving Direction 2 (vide para 48). If so, the legislative thinking that this distinction should also hold good in regard to past cases cannot be faulted on the ground that the said clause fails to provide adequate information about the candidate. If parliament felt that the convictions and sentences of the long past relating to petty/non-serious offences need not to be made available to the electorate, it cannot be definitely said that the valuable right to information becomes a casualty`. Very often, such offences by and large may not involve moral turpitude. It is not uncommon, as one of the learned Senior Counsel pointed out that the political personalities are prosecuted for politically related activities such as holding demonstrations and visited with the punishment of fine or short imprisonment. Information regarding such instances may not be of real importance to the electorate in judging the worth of the relative merits of the candidates. At any rate, it is a matter of perception and balancing of various factors, as observed supra. The legislative judgment cannot be faulted merely for the reason that the pro tempore directions of this Court have not been scrupulously followed. As regards acquittals, it is reasonable to take the view that such information will not be of much relevance inasmuch as acquittal prima facie implies that the accused is not connected with the crime or the prosecution has no legs to stand. It is not reasonable to expect that from the factum of prosecution resulting in acquittal, the voters/ citizens would be able to judge the candidate better. On the other hand, such information in general has the potential to send misleading signals about the honesty and integrity of the candidate.

I am therefore of the view that as regards past criminal record, what Parliament has provided for is fairly adequate."(emphasis supplied) Again, at para No. 123 (6) of the People's Union for Civil Liberties & Anr. (supra), the Hon'ble Supreme Court has also held as under:

"(6) The right to information provided for by Parliament under Section 33-A in regard to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen. However, there is no good reason for excluding the pending cases in which cognizance has been taken by the Court from the ambit of discloser."(Emphasis supplied)

Therefore, on a consideration of the case in hand, when it is undisputed that the Sessions Case No. 230/1/2010 was disposed of by Judgment dated 14.03.2011 acquitting the respondent No. 1 by granting the benefit of doubt, it can be safely inferred that no case was pending against the petitioner despite an appeal being filed before the Hon'ble Delhi High Court. Further, a perusal of Form No. 26 would clearly indicate that there is no provision in the form with regard to disclosing the appeal that has been filed against the acquittal. In that view of the matter, I see no infirmity in Form No. 26 of the Affidavit dated 09.02.2017 when the respondent No. 1 had failed to declare that there is no pending appeal against his acquittal before the Hon'ble High Court of Delhi. Accordingly, the issue Nos. 13, 14 & 24 is answered against the election petitioner.

[60] In view of the conclusion made by this Court with regard to issue Nos. 13, 14 & 24, the issue Nos. 1, 2, 3 & 10 are also held against the election petitioner inasmuch as there was no concealment of material information in the prescribed affidavit filed by the respondent No. 1. Further, issue Nos. 4, 5, 9 & 20 are also answered in negative against the election petitioner.

[61] Further, issue No. 6 cannot be held against the respondent No. 1 inasmuch as there being no concealment of material facts in Form No. 26, the same would not amount to declaring his election as null and void.

[62] In view of the conclusion being made with regard to issue Nos. 13, 14 & 24 that there was no concealment of material facts, particularly with regard to the appeal being pending before the Hon'ble High Court of Delhi, the question of declaring the election petitioner has qualified to be as duly elected candidate of 7th Andro Assembly Constituency to the 11th Manipur Legislative Assembly Election, 2017 does not arise. Accordingly, issue Nos. 7 & 21 are answered in negative against the election petitioner.

[63] As the election petition has been heard conclusively and a decision being made by this Court, the question of answering the issue No. 8 does not arise.

[64] Further, issue Nos. 11 & 12 are also answered in negative against the election petitioner. As regards issue Nos. 16, 17, 18 & 19 this Court is of the considered opinion that there has been no concealment of any information in the nomination paper and therefore, the same does not materially affect the election of the respondent No. 1 to the 7th Andro Assembly Constituency. The reliance made in the case of Krishnamoorthy (supra) by the learned counsel for the election petitioner would not come into play in the case in hand as this Court has already held that non-furnishing of the appeal pending in the High Court of Delhi does not amount to concealment of material facts.

[65] As the respondent No. 1 is found not to have made any concealment of material facts while filling up Form No. 26, the election petitioner is not entitled to any other relief in the present case in hand and accordingly, issue No. 22 is answered in negative against the election petitioner. As regards the issue Nos. 23 & 24, this Court has already held that there is no requirement under Form No. 26 for declaring the pendency of an appeal against the acquittal of respondent No. 1 and therefore, the pendency of such an appeal is not required to be declared in Form No. 26. This Court is of the considered opinion that no false affidavit has been filed by the respondent No. 1 and accordingly, issue No. 23 is also answered in the negative.

[66] In the result, the election petition is dismissed however with no order as to costs.

Issue copies of this judgment to the learned counsel appearing for the respective parties through their respective e-mails.