Civil Appeal No. 1478 of 2015 (Arising out of SLP (C) No. 14918 of 2009). Case: Krishnamoorthy Vs Sivakumar and Ors.. Supreme Court

Case Number:Civil Appeal No. 1478 of 2015 (Arising out of SLP (C) No. 14918 of 2009)
Party Name:Krishnamoorthy Vs Sivakumar and Ors.
Judges:Dipak Misra and Prafulla C. Pant, JJ.
Issue:Tamil Nadu Panchayats Act, 1994 - Sections 175(1), 177(1), 259, 259(1), 259(2), 260, 260(1), 260(2); Representation of People's Act, 1951 - Sections 8, 8(1), 8(2), 8(3), 24, 33(1), 33(2), 33A, 33A(1), 33A(2), 33B, 36, 44A, 62(5), 100, 100(1), 100(2), 123, 123(2), 123(3), 123(3A), 123(7), 125A, 128, 169; General Clauses Act, 1897 - Section 3(3);...
Judgement Date:February 05, 2015
Court:Supreme Court
 
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Judgment:

Dipak Misra, J.

1. In a respectable and elevated constitutional democracy purity of election, probity in governance, sanctity of individual dignity, sacrosanctity of rule of law, certainty and sustenance of independence of judiciary, efficiency and acceptability of bureaucracy, credibility of institutions, integrity and respectability of those who run the institutions and prevalence of mutual deference among all the wings of the State are absolutely significant, in a way, imperative. They are not only to be treated as essential concepts and remembered as glorious precepts but also to be practised so that in the conduct of every individual they are concretely and fruitfully manifested. The crucial recognised ideal which is required to be realised is eradication of criminalisation of politics and corruption in public life. When criminality enters into the grass-root level as well as at the higher levels there is a feeling that 'monstrosity' is likely to wither away the multitude and eventually usher in a dreadful fear that would rule supreme creating an incurable chasm in the spine of the whole citizenry. In such a situation the generation of today, in its effervescent ambition and volcanic fury, smothers the hopes, aspirations and values of tomorrow's generation and contaminate them with the idea to pave the path of the past, possibly thinking, that is the noble tradition and corruption can be a way of life and one can get away with it by a well decorated exterior. But, an intervening and pregnant one, there is a great protector, and an unforgiving one, on certain occasions and some situations, to interdict-"The law', the mightiest sovereign in a civilised society.

2. The preclude, we are disposed to think, has become a necessity, as, in the case at hand, we are called upon to decide, what constitutes "undue influence" in the context of Section 260 of Tamil Nadu Panchayats Act, 1994 (for short 'the 1994 Act') which has adopted the similar expression as has been used Under Section 123(2) of the Representation of People's Act, 1951 (for brevity 'the 1951 Act') thereby making the delineation of great significance, for our interpretation of the aforesaid words shall be applicable to election law in all spheres.

3. The instant case is a case of non-disclosure of full particulars of criminal cases pending against a candidate, at the time of filing of nomination and its eventual impact when the election is challenged before the election tribunal. As the factual score is exposited the Appellant was elected as the President of Thekampatti Panchayat, Mettupalayam Taluk, Coimbatore District in the State of Tamil Nadu in the elections held for the said purpose on 13.10.2006. The validity of the election was called in question on the sole ground that he had filed a false declaration suppressing the details of criminal cases pending trial against him and, therefore, his nomination deserved to be rejected by the Returning Officer before the District Court Coimbatore in Election O.P. No. 296 of 2006. As the factual matrix would unfurl that Tamil Nadu State Election Commission (TNSEC) had issued a Notification bearing S.O. No. 43/2006/TNSEC/EG dated 1.9.2006 which stipulated that every candidate desiring to contest an election to a local body, was required to furnish full and complete information in regard to five categories referred to in paragraph five of the preamble to the Notification, at the time of filing his nomination paper. One of the mandatory requirements of the disclosure was whether the candidate was accused in any pending case prior to six months of filing of the nomination of any offence punishable with imprisonment for two years or more and in which, charges have been framed or cognizance taken by a court of law. It was asserted in the petition that the Appellant, who was the President of a cooperative society, on allegations of criminal breach of trust, falsification of accounts, etc., was arrayed as an accused in complaint case in Crime No. 10 of 2001. During investigation, the police found certain other facets and eventually placed eight different charge-sheets, being C.C. Nos. 3, 4, 5, 6, 7, 8, 9 and 10 of 2004 before the Judicial Magistrate-IV, Coimbatore and the Magistrate had taken cognizance much before the Election Notification. Factum of taking cognizance and thereafter framing of charges in all the eight cases for the offences Under Sections 120-B, 406, 408 and 477-A of the Indian Penal Code, 1860 ('Indian Penal Code' for short) prior to the cut-off date are not in dispute. The Appellant had filed a declaration and the affidavit only mentioning Crime No. 10 of 2001 and did not mention the details of the charge-sheets filed against him which were pending trial. In this backdrop, the Election Petition was filed to declare his election as null and void on the ground that he could not have contested the election and, in any case, the election was unsustainable.

4. In the Election Petition, the Petitioner mentioned all the eight case by way of a chart. It is as follows:

5. After asseverating certain other facts, it was pleaded that the 1st Respondent had deliberately suppressed material facts which if declared would enable his nomination papers being rejected. That apart, emphasis was laid on the fact that the elected candidate had not declared the particulars regarding the criminal cases pending against him.

6. In this backdrop, the election of the first Respondent was sought to be declared to be invalid with certain other consequential reliefs. In the counter-statement filed by the elected candidate, a stand was put forth that the election Petitioner though was present at the time of scrutiny of the nomination papers, had failed to raise any objection and, in any case, he had mentioned all the necessary details in the nomination papers perfectly. It was further set forth as follows:

All the averments stated in the 3rd para of the petition is false and hereby denied. The averment stated that 1st Respondent had deliberately omitted to provide the details of charge sheets having been filed against him which have been on file in eight cases is false and hereby denied. It is humbly submitted that this Respondent has clearly mentioned about the case pending in Cr. No. 10/2001 pending before the JM No. 4 at page No. 2 in details of candidate. Therefore the above said averments are false, misleading and unsustainable.

7. The Principal District Judge of Coimbatore, the Election Tribunal, adverted to the allegations, the ocular and the documentary evidence that have been brought on record and came to hold that nomination papers filed by the Appellant, the first Respondent to the Election Petition, deserved to be rejected and, therefore, he could not have contested the election, and accordingly he declared the election as null and void and ordered for re-election of the post of the President in question. The said order was challenged in revision before the High Court.

8. In revision, the High Court referred to the decisions in Union of India v. Association for Democratic Reforms (2002) 5 SCC 294 People's Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr. (2003) 4 SCC 399, Notification issued by the Election Commission of India and the Notification of the State Election Commission, Sections 259 and 260 of the 1994 Act and adverted to the issues whether there was suppression by the elected candidate and in that context referred to the 'Form' to be filled up by a candidate as per the Notification dated 1.9.2006 and opined that an element of sanctity and solemnity is attached to the said declaration, by the very fact that it is required to be in the form of an affidavit sworn and attested in a particular manner. The High Court emphasised on the part of the verification containing the declaration that "nothing material has been concealed". On the aforesaid analysis, the High Court held that the elected candidate had not disclosed the full and complete information. Thereafter, the High Court referred to the authority in Association for Democratic Reforms (supra), incorporation of Sections 33A and 44A in the 1951 Act, Rule 4A of the Conduct of Election Rules, 1961 and Form 26 to the said Rules, Section 125A of the 1951 Act, the definition of 'Affidavit' as per Section 3(3) of the General Clauses Act, 1897, the conceptual meaning of Oath, Section 8 of The Oaths Act, 1969 and scanned the anatomy of Sections 259 and 260 of the 1994 Act and the principles that have been set out in various decisions of this Court and opined that the non-disclosure of full and complete information relating to his implication in criminal cases amounted to an attempt to interfere with the free exercise of electoral right which would fall within the meaning of 'undue influence' and consequently 'corrupt practice' Under Section 259(1)(b) read with Section 260(2) of the 1994 Act. Being of this view, the High Court agreed with the ultimate conclusion of the tribunal though for a different reason.

9. We have heard Ms. V. Mohana, learned Counsel for the Appellant, Mr. Subramonium Prasad, learned AAG for the State Election Commission, Mr. R. Anand Padmanabhan, learned Counsel for the Respondent No. 1 and Mr. R. Neduamaran, learned Counsel for the Respondent No. 2. Regard being had to the impact it would have on the principle relating to corrupt practice in all election matters as interpretation of the words 'undue influence' due to non-disclosure of criminal antecedents leading to "corrupt practice" under the 1951, Act, we also sought assistance of Mr. Harish N. Salve, learned senior counsel and Mr. Maninder Singh, learned Additional Solicitor General for Union of India.

10. First, we intend, as indicated earlier, to address the issue whether non-disclosure of criminal antecedents would tantamount to undue influence, which is a facet of corrupt practice as per Section 123(2) of the 1951 Act. After our...

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