SC: Non-disclosing conviction for an offence like ‘dharna’ under Kerala Police Act not within purview of S. 102(1)(ca) Kerala Panchayat Raj Act, 1994

 

On 9th November 2022, the Supreme Court in a Division Bench comprising of Justice S. Abdul Nazeer and Justice V. Ramasubramanian observed that offences under the Indian Penal Code or under special enactments such as Prevention of Corruption Act, Arms Act and so on and so forth are substantive offences, the commission of which may make a person a criminal, an offence under certain enactments such as Kerala Police Act are not substantive offences. (Ravi Namboothiri Vs. K.A. Baiju & Ors.)

Facts of the Case:

On 5.11.2015, elections to the Annamanada Gram Panchayath were held. Apart from others, the appellant and respondent No.1 contested from Ward No.5. On 7.11.2015, the appellant was declared as having been elected from Ward No.5. Respondent No.1 filed an Election Petition on the file of the District Munsif Court, on 4.12.2015 challenging the election of the appellant but the same was dismissed because there was no prayer in the petition to declare the election as void on the ground u/s 102 of Kerala Panchayat Raj Act. There was actually a prayer for cancelling the election. Thereafter, the respondent filed an appeal before the ADJ which was allowed and the election was declared void on the grounds that appellant suppressed in his nomination form, his involvement in a criminal case and that therefore he had committed a corrupt practice. Thereafter, a revision petition was filed by the appellant before the HC which was dismissed followed by a petition for review which was also dismissed. Therefore, challenging the order passed in the Revision Petition and the order passed in the Review Petition, the appellant has come up with instant two appeals.

Contentions of the Appellant:

The counsel for the appellant submitted that “non-disclosure of conviction for a petty offence and that too relating to the holding of a dharna on a political issue, cannot be termed as “undue influence” within the meaning of Section 120(2) of the Act and that, therefore, the election of the appellant ought not to have been declared void on the ground that it was vitiated by corrupt practice under Section 102(1)(b) of the Act. Reliance placed by the Appellate Court on the decision of this Court in Krishnamoorthy vs. Sivakumar & Ors. was misplaced. The non-disclosure of criminal antecedents pertaining to heinous or serious offences involving corruption or moral turpitude alone would tantamount to corrupt practice. The requirement of a disclosure in terms of Section 52(1A) relates only to the involvement in a criminal case at the time of submission of the nomination and that therefore, the requirement under Rule 6 cannot be read as enlarging the scope of Section 52(1A). Even the ground under Section 102(1)(ca) of the Act cannot be invoked as the same is concerned with a situation where the details furnished   by   the   elected   candidate were shown to be fake.”

 

Contentions of the Respondents:

The counsel for the respondents submitted that “deliberate suppression by the appellant, in the nomination form filed in Form 2A, of his conviction for a criminal offence, squarely fell within the definition of the expression “undue   influence” under Section 120(2) of the Act. The Court is obliged to keep in mind the fact that Section 33B of the Representation of the People Act, 1951, was brought in by the Parliament to nullify the effect of the decision in Association for Democratic Reforms and Anr. But Section 33B was declared unconstitutional in People’s Union for Civil Liberties.” Relying upon the decision in Resurgence India vs. Election Commission of India and Anr. it was contended that filing of an affidavit with blank particulars has also been held to be a ground to reject the nomination papers.

Observations and Judgment of the Court:

 

The hon’ble court observed that “Once the object behind the provisions of the Kerala Police Act are understood, it would be clear that neither Section 52(1A) read with Rule 6 and Form 2A nor Section 102(1)(ca) of the Act nor the decisions   in  Association for Democratic Reforms, People’s Union for Civil Liberties (PUCL) or Krishnamoorthy can be stretched to such an extent that the failure of the appellant to disclose his conviction for an offence under the Kerala Police Act for holding a  dharna  in front of the Panchayat office, is taken as a ground for declaring an election void. While offences under the Indian Penal Code or under special enactments such as Prevention of Corruption Act, Arms Act and so on and so forth are substantive offences, the commission of which may make a person a criminal, an offence under certain enactments such as Kerala Police Act are not substantive offences. All State enactments such as Kerala Police Act, Madras Police Act etc., are aimed at better regulation of the police force and they do not create substantive offences. The Kerala Police Act, 1960 is actually the successor legislation of certain police enactments of the colonial era, whose object was to scuttle the democratic aspirations of the indigenous population. This aspect should be kept in mind before applying blindfold, the principle ‘what is sauce for the goose is sauce for the gander’.”

The appeals were allowed and it was held that the District Court and the High Court were wrong in declaring the election of the appellant to be void

 

Case: Ravi Namboothiri Vs. K.A. Baiju & Ors.

Citation: CIVIL APPEAL Nos. 8261-¬8262 OF 2022 (Arising out of S.L.P. (Civil) Nos.30849¬30850 of 2018)

Bench: Justice S. Abdul Nazeer and Justice V. Ramasubramanian

 Date: November 09, 2022. 

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