Satish Ukey v. Devendra Gangadharrao Fadnavis and Anr.
RANJAN GOGOI, CJI.
1. Leave granted.
2. The appellant– Satish Ukey is a practicing Advocate of the
Bombay High Court. The first respondent is an elected member of the
Maharashtra State Legislative Assembly and is presently holding the
post of Chief Minister of the State of Maharashtra.
3. The appellant had filed a criminal complaint before the learned
Judicial Magistrate First Class, Nagpur for registration of a case against
the first respondent under Section 125-A of the Representation of the
People Act, 1951 (hereinafter referred to as “the 19 51 Act”). The
learned Judicial Magistrate First Class, Nagpur by orde r dated 7 th
September, 2015 dismissed the complaint. In Revision, the learned
Sessions Judge, Nagpur remanded the matter to the learned trial Court
for a de novo consideration. Aggrieved, the first respondent moved
the High Court and the High Court having set aside the orde r of the
learned Sessions Judge by its judgment and order dated 3 rd May, 2018,
the present appeals have been filed.
4. The complaint filed by the appellant contains an allegation that
in the affidavit in Form-26, prescribed by the Conduct of Election Rules,
1961 (hereinafter referred to as “the 1961 Rules”), which had
accompanied the nomination papers of the first respondent det ails of
two cases in which cognizance was taken i.e. (i) Summary Case No.231
of 1996 (under Section 500 of IPC) before the Judicial Magistrate First
Class, Nagpur; and (ii) Regular Criminal Case No.343 of 2003 (Old
No.125 of 1998) (under Sections 468, 471, 218, 467, 420 and 34 of IPC)
before the Court of Judicial Magistrate First Class, Nagpur have not
been mentioned by the first respondent despite knowledge of the same.
Consequently, according to the appellant – complainant, an infr action
529
of the provisions of Section 125-A has been committed for which the
first respondent is liable to be prosecuted in a co urt of competent
jurisdiction.
On the very same allegations the appellant had challenge d the
election of the first respondent before the High Court by instituting
Election Petition No.1 of 2014 which has been dismissed by the H igh
Court by its order dated 19 th August, 2015.
5. To determine the correctness of the stand taken b y the
appellant - complainant and the legality of the impugned order of the
High Court holding that the complaint is liable to be dismissed, the Court
would be required to consider the provisions of Sections 33-A and 125-
A of the 1951 Act, Rule 4A of the 1961 Rules read with F orm-26
prescribed under the said Rules. Several letters o f the Election
Commission of India to the Chief Electoral Officers of al l the States
and the Union Territories issued in this regard would also require a close
look.
6. Before setting out the relevant provisions of the law
enumerated above, a brief prologue on the judicial precedents that had
led to the insertion of Sections 33-A and 125-A in the 1951 Act and
the provisions of Rule 4-A of the 1961 Rules read with Form -26 is
considered necessary.
7. In Union of India (UOI) and Ors. v. Association for
Democratic Reforms and Ors. 1this Court while examining the issue
of the Voters right to know relevant particulars of t he contesting
candidates before they are called upon to cast their votes had made
the following observations :
“22. For health of democracy and fair election, whe ther the
disclosure of assets by a candidate, his/her qualifica tion 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 a bout 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
1 (2002) 5 SCC 294
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS
[RANJAN GOGOI, CJI.]
government, voters are of utmost importance. They have right
to elect or re-elect on the basis of the antecedent s and past
performance of the candidate. He has choice of deciding whether
holding of educational qualification or holding of property i s
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 elections and 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 i n 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 .
[underlining is ours]”
Further, this Court issued the following directions to the Election
Commission (para 48, pg. 322):
“48. The Election Commission is directed to call for information
on affidavit by issuing necessary order in exercise of its p ower
under Article 324 of the Constitution of India from each candidate
seeking election to Parliament or a State Legislatu re as a
necessary part of his nomination paper, furnishing therein,
information on the following aspects in relation to his/her
candidature:-
(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 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. If so, the details thereof .
[underlining is ours]”
531
8. Consequent to the above and the directions issued in
Association for Democratic Reforms (Supra) , Section 33-A was
inserted into the 1951 Act vide the ‘Representation of the People (Third
Amendment) Act, 2002’ (Section 2 of the Act 72 of 2002).
9. 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, shal l, at
the time of delivering to the returning officer the nomination paper
under sub-section (1) of section 33, also deliver t o him an
affidavit sworn by the candidate in a prescribed form veri fying
the information specified in sub-section (1).
(3) The returning officer shall, as soon as may be afte r 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 f or
the information of the electors relating to a constituency for which
the nomination paper is delivered.
[underlining is ours]”
It is pertinent to note here that Section 33-A(1), as worded and
drafted, required furnishing of the information of cases where ( i) 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 t he order
of this Court, noticed above, to the effect that details of case(s) of
which cognizance has been taken should also be furnished.
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS
[RANJAN GOGOI, CJI.]
10. The aforesaid discrepancy was addressed by this Court, in
the case of People’s Union for civil Liberties (PUCL) and Ors .
v. Union of India (UOI) and Ors. 2 In the said case, this Court had
examined the import of Sections 33-A and 33-B 3 of the 1951 Act [as
inserted in the 1951 Act through the amendment in 2002 (Supra)] vis-
à-vis the directions issued by this Court in the case of Association for
Democratic Reforms (Supra) and held as under (opinion of M.B. Shah,
J. is quoted. The opinion of P. Venkatarama Reddi a nd D.M.
Dharmadhikari, JJ. on the point is one of concurrence):
“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 alr eady
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 ju dgment
of this Court in Assn. for Democratic Reforms case.
115. As regards the first aspect, namely, criminal record, the
directives in Assn. for Democratic Reforms case are twofold:
(SCC p. 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 (2003) 4 SCC 399
3 Section 33-B was also added through the 2002 Amendm ent. It stated that
notwithstanding anything contained in any judgment of any Court, or any instruction
issued by the Election Commission, no candidate shall be liable to disclose information
not required by the Act or rules made thereunder.
Section 33-B was declared unconstitutional in People’s Union of Civil Liberties
v. Union of India and Ors. ((2003) 4 SCC 399) as violating 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 spe ech and expression enshrined in
Article 19(1)(a) of the Constitution which could on ly be validly limited through the
restrictions conforming with Article. 19(2) of the Constitution of India.
533
(2) Prior to six months of filing of nomination, whethe r the
candidate is an accused in any pending case, of any off ence
punishable with imprisonment for two years or more, and in which
charge is framed or cognizance is taken by the court of la w .”
As regards the second directive, Parliament has substant ially
proceeded on the same lines and made it obligatory f or 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 33-A(I). Parliament having taken the right
step of compelling disclosure of the pendency of cases re lating
to major offences, there is no good reason why it failed to provide
for the disclosure of the cases of the same nature o f which
cognizance has been taken by the Court. It is commo n
knowledge that on account of a variety of reasons such as the
delaying tactics of one or the other accused and inadequacie s
of the prosecuting machinery, framing of formal charges get s
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 Art icle
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 vi tal
aspect. Cases in which cognizance has been taken sh ould
therefore be comprehended within the area of inform ation
accessible to the voters/citizens, in addition to what is provided
for in clause ( i) of Section 33-A .
[underlining is ours]”
Further, the Court held:
“123 . Finally, the summary of my conclusions:
(1) …..
(2) ….
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS
[RANJAN GOGOI, CJI.]
(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 a n
independent assessment in order to evaluate whether the item s
of information statutorily ordained are reasonably adequate to
secure the right of information available to the voter/ci tizen. 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.
…
(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 wh ich
cognizance has been taken by the Court from the amb it of
disclosure .
[underlining is ours]”
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….”
11. Section 125-A of the 1951 Act [Inserted by Section 5 of the
Representation of the People (Third Amendment) Act, 2002’ (A ct 72
of 2002)] reads as under:
“Section 125-A. Penalty for filing false affidavit, etc.- A
candidate who himself or through his proposer, with intent to be
elected in an election,—
(i) fails to furnish information relating to sub-section (1) of
section 33-A; or
(ii) gives false information which he knows or has reason to
believe to be false; or
535
(iii) conceals any information, in his nomination paper delivered
under sub-section (1) of section 33 or in his affidavit which
is required to be delivered under sub-section (2) of section
33-A, as the case may be, shall, notwithstanding anything
contained in any other law for the time being in force, be
punishable with imprisonment for a term which may extend
to six months, or with fine, or with both”
12. Whether the provisions of Section 125-A of the 1951 Act
would be applicable in the present case, as claimed by the appellant –
complainant, to make the first respondent liable in law, would require
the Court to decide on the true meaning and purport of the fo llowing
phrases found in Section 125-A of the 1951 Act.
(a) fails to furnish information relating to sub-section (1)
of Section 33-A;
(b) conceals any information;
(c) in his nomination paper delivered under sub-section (1)
of section 33 or in his affidavit which is required to be
delivered under sub-section (2) of section 33-A.
13. To find out the true meaning and purport of the aforesaid
phrases, the crucial question that has to be answered is whe ther the
word ‘information’ as mentioned in Section 33-A of the 1951 Act means
only such information as mentioned in clause (i) and (ii) of Section 33-
A(1) or whether along with the said information a candidate i s also
required to furnish such other information as required under the Act or
the Rules made thereunder. The consequential question that would arise
is whether in the affidavit required to be filed under sub-section (2) of
Section 33-A information is to be given as required in te rms of the
affidavit which is prescribed by Form-26 of the 1961 Rules or such
information is confined to what is required to be submitted under Section
33-A (1) (i) and (ii). It is at this stage that Rule 4-A of the 1961 Rules
would require to be noticed. Rule 4-A which was ins erted by
S.O.935(E), dated 3.9.2002 with effect from 3.9.2002 is in the following
terms.
“4-A. Form of affidavit to be filed at the time of deliverin g
nomination paper .— The candidate or his proposer, as the case
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS
[RANJAN GOGOI, CJI.]
may be, shall, at the time of delivering to the returning officer
the nomination paper under sub-section (1) of Section 33 of the
Act, also deliver to him an affidavit sworn by the can didate
before a Magistrate of the first class or a Notary in Form 26.”
14. Form 26 is the prescribed form of affidavit to be file d by a
candidate along with his nomination papers as required under Section
33-A (2) of the 1951 Act. The said affidavit in the pres cribed form
reads as hereunder:
“ [FORM 26
(See Rule 4-A)
Please affix your recent
passport size photograph
here
Affidavit to be filed by the candidate along with nomin ation
paper before the returning officer for election to
........................................ .(name of the House) from
................................ constituency (Name of the consti tuency)
PART A
I ........................................ , **son/daughter/wife of
........................................ Aged ............. years, resident of
........................................ (mention full postal address), a
candidate at the above election, do hereby solemnly affirm and
state on oath as under—
(1) I am a candidate set up by ........................................
(**name of the political party)/**am contesting as an Independent
candidate.
(**Strike out whichever is not applicable)
(2) My name is enrolled in ........................................ (Name
of the constituency and the State), at Serial No. .................... ..
in Part No. ............................
[(3) My contact telephone number(s) is/are ................................
and my E-mail ID (if any) is ..................................................
[(4) Details of Permanent Account Number (PAN) and status
of filing of income tax return:
537
Sl.
No.
Names PAN The financial year for
which the last
income-tax return has
been filed.
Total income shown
in income tax return
(in Rupees)
1. Self
2 Spouse
3. Dependent-1
4. Dependent-2
5. Dependent-3
5. I am/am not accused of any offence(s) punishable with
imprisonment for two years or more in a pending case(s) in which
a charge(s) has/have been framed by the court(s) of compete nt
jurisdiction.
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 w hich
charges have been framed by the court for an offenc e
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
(b) Section(s) of the concerned
Act(s) and short description
of the offence(s) for which
charged
(c) Name of the Court, Case
No. and date of Order
taking cognizance:
(d) Court(s) which framed the
charge(s)
(e) Date(s) on which the
charge(s) was/were framed
(f) Whether all or any of the
proceeding(s) have been
stayed by any Court(s) of
competent jurisdiction
(ii) The following case(s) is/are pending against me in which
cognizance has been taken by the Court(other than the cases
mentioned in item (i) above.
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS
[RANJAN GOGOI, CJI.]
(a) Name of the Court, Case No. and
date of order taking cognizance:
(b) The details of cases where the Court
has taken cognizance, section (s) of
the Act(s) and description of the
offence(s) for which cognizance
taken
(c) Details of Appeal(s)/Application(s)
for revision (if any) filed against the
above order(s)
(6) I have been/have not been convicted of an offences(s) other
than any offence(s) referred to in sub-section (1) or sub-section
(2), or covered in sub-section (3), of Section 8 of the
Representation of the People Act, 1951 (43 of 1951) and
sentenced to imprisonment for one year or more.
If the deponent is convicted and punished as aforesaid, he shall
furnish the following information:
In the following cases, I have been convicted and sentenc ed to
imprisonment by a court of law:-
(a) The details of cases,
Section(s) of the concerned
Act (s) and description of
the offence(s) for which
convicted.
(b) Name of the court(s), Case
No. and date(s) of order(s)
(c) Punishment imposed.
(d) Whether any appeal
was/has been filed against
the conviction order. If so,
details and the present
status of the appeal.
(7) That I give hereinbelow the details of the assets (m ovable
and immovable etc.) of myself, my spouse and all dependents:
A. Details of movable assets:
Note:1. Assets in joint name indicating the extent of joint
ownership will also have to be given
Note:2. In case of deposit/investment, the details including serial
number, amount, date of deposit, the scheme, name of the Bank/
Institution and Branch are to be given.
539
Note:3. Value of Bonds/Share Debentures as per current market
value in Stock exchange in respect of listed companies and as
per books in case of non-listed companies should be given.
Note:4. Dependent here has the same meaning as assigned in
Explanation (v) under Section 75-A of the Representation of the
People Act, 1951.
Note:5: Details including amount is to be given separ ately in
respect of each investment.
Sl. No. Description Self Spouse Dependent-
1
Dependent-
2
Dependent-
3
(i) Cash in hand
(ii ) Details of deposit in Bank accounts
(FDRs, Term Deposits and all other
types of deposits including saving
accounts), Deposits with Financial
Institutions, Non-Banking Financial
Companies and Cooperative
societies and the amount in each
such deposit
(iii ) Details of investment in Bonds,
debentures/shares and units in
companies/Mutual funds and others
and the amount
(iv ) Details of investment in NSS, Postal
Saving, Insurance policies and
investment in any Financial
instruments in Post Office or
Insurance Company and the amount
(v) Personal loans/advance given to any
person or entity including firm,
company, Trust etc., and other
receivables from debtors and the
amount
(vi ) Motor
Vehicles/Aircrafts/Yachts/Ships
(Details of Make, registration
number etc. year of purchase and
amount)
(vii ) Jewellery, bullion and valuable
thing(s) (give details of weight and
value)
(viii ) Any other assets such as value of
claims/interest
(ix ) Gross Total Value
B. Details of Immovable Assets:
Note : 1. Properties in joint ownership indicating the extent of joint
ownership will also have to be indicated.
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS
[RANJAN GOGOI, CJI.]
Note : 2. Each land or building or apartment should be mentioned
separately in this format.
Sl.
No.
Description SelfSpouse Dependent-1 Dependent-2 Dependent-3
Agricultural Land Location(s)
Survey number(s)
Area (total measurement in acres)
Whether inherited property (Yes or
No)
Date of Purchase in case of self-
acquired property
Cost of Land (in case of purchase) at
the time of purchase
Any investment on the land by way of
development, construction etc.
(i)
Approximate current market value
Non-Agricultural Land:
Location(s)
Survey number(s)
Area (total measurement in sq. ft.)
Whether inherited property (Yes or
No)
Date of Purchase in case of self-
acquired property
Cost of Land (in case of purchase) at
the time of purchase
Any investment on the land by way of
development, construction etc.
(ii )
Approximate current market value
Commercial Buildings (including
apartments)
—Location(s)
—Survey number(s)
Area (total measurement in sq.ft.)
Built-up Area (total measurement in
sq.ft.)
Whether inherited property (Yes or
No)
Date of purchase in case of self-
acquired property
Cost of property (in case of purchase)
at the time of purchase
Any investment on the property by
way of development, construction etc.
(iii )
Approximate current market value
541
(8) I give herein below the details of liabilities/dues to public
financial institutions and government—
(Note .—Please give separate details of name of bank, institutions,
entity or individual and amount before each item)
Residential Buildings (including
apartments):
—Location(s)
—Survey number(s)
Area (total measurement in sq.ft.)
Built-up area (total measurement in
sq.ft.)
Whether inherited property (Yes or No)
Date of purchase in case of self-acquired
property
Cost of property (in case of purchase) at
the time of purchase
Any investment on the land by way of
development, construction etc.
(iv )
Appropriate current market value
(v) Others (such as interest in property)
(vi ) Total of current market value of ( i) to (v)
above
Sl. No. Description Self Spouse Dependent-
1
Dependent-
2
Dependent-
3
Loan or dues to
Bank/financial
institution(s)
Name of the Bank or
financial institution,
Amount outstanding,
Nature of Loan
Loan or dues to any other
individuals/entity other
than mentioned above
Name(s), Amount
outstanding, nature of
loan
Any other liability
(i)
Grand total of liabilities
(ii) Government Dues
Dues to departments
dealing with government
accommodation
Dues to department
dealing with supply of
water
Dues to department
dealing with supply of
electricity
Dues to department
dealing with supply of
telephones/mobiles
Dues to department
dealing with government
transport (including
aircrafts and helicopters)
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS
[RANJAN GOGOI, CJI.]
(9) Details of profession or occupation:
(a) Self ............................................ .............
(b) Spouse .......................................... ...............
(10) My educational qualification is as under—
................................................... ................................
(Give details of highest School/University education mentioning
the full form of the certificate/diploma/degree course, na me of
the School/College/University and the year in which the course
was completed.)
PART B
(11) Abstract of the details given in (1) to (10) of Part A:
Income Tax dues
Wealth tax dues
Service tax dues
Municipal/Property tax dues
Sales tax dues
Any other dues
(iii) Grand total of all Government dues
(iv) Whether any other liabilities are in
dispute, if so, mention the amount
involved and the authority before which it
is pending
1. Name of the candidate Sh./Smt./Kum.
2. Full postal address
3. Number and name of the constituency and State
4. Name of the political party which set up the candidate
(otherwise write ‘Independent’)
5. (I) Total number of pending cases where charges have
been framed by the court for offences punishable with
imprisonment for two years or more
(ii) Total number of pending cases where the court(s)
have taken cognizance (other than the cases mentioned
in item (i) above
6. Total number of cases in which convicted and
sentenced to imprisonment for one year or more except
for offences referred to in sub-sections(1), (2) or (3) of
Section 8 of Representation of the People Act, 1951.
7. PAN of Year for which
last income tax
return filed
Total income shown
(a) Candidate
(b) Spouse
(d) Dependents]
543
VERIFICATION
I, the deponent, abovenamed, 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 therefrom. 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 of 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 of Part A
and Items 8, 9 and 10 of Part B above.
Verified at…………………………this the…………………day
of………………………………………
DEPONENT
Note : 1. Affidavit should be filed latest by 3.00 PM on the las t
day of filing nominations.
8. [Details of Assets and Liabilities in rupees]
Description Self Spouse Dependent-I Dependent-
II
Dependent-
III
A. Movable Assets (Total Value)
B Immovable Asset
I. Purchase Price of self-acquired
immovable property
II. Development/Construction cost of
immovable property after purchase (if
applicable)
III.Approximate Current market price of—
(a) self-acquired assets (Total Value)
(b) inherited assets (Total Value)
Liabilities
(i) Government dues (Total)
9.
(ii )Loans from Bank, Financial Institutions
and others (Total)
10. Liabilities that are under dispute
(i) Government dues (Total)
(ii )Loans from Bank, Financial Institutions
and others (Total)
11. Highest educational qualification:
(Give details of highest School/University education mentioning th e full form of the
certificate/diploma/degree course, name of the School/College/University and the year in which
the course was completed.)
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS
[RANJAN GOGOI, CJI.]
Note : 2. Affidavit should be sworn before an Oath Commissioner
or Magistrate of the First Class or before a Notary Publi c.
Note : 3. All column 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.
Note : 4. The Affidavit should be either typed or written legib ly
and neatly.”
15. It may be noticed here that Form-26 was substituted by S.O.
1732 (E) dated 1.8.2012 with effect from 1.8.2012.
16. A bare perusal of Form-26 makes it abundantly clear that,
for offences punishable with imprisonment for two years or more, while
entry (5) (i) mandates disclosure of information by the contesting
candidate regarding the case(s) that is/are pending against him in which
charges have been framed by the Court; entry (5)(ii ) mandates
disclosure of information by the contesting candidate regar ding cases
that are pending against him in which cognizance has been t aken by
the Court.
Entry 5(ii) specifically mentions that the candidate is required to
provide information of the case(s) pending in which cogniza nce has
been taken. This is in addition to the information he is r equired to
provide against the column in Entry 5(i) as the words ‘Other than the
cases mentioned in item (i) above’ are specifically used in Entry 5 (ii).
17. The above can leave no element of doubt that, subsequent
to the substitution of Form 26 in 2012, the new Form 26 (as in vogue
at the time of the elections in 2014), mandates the disclosure of
information by the contesting candidate of not only case(s) in w hich
charges have been framed but also case(s) in which c ognizance has
been taken by the Court.
18. The position is made further clear by the letters wri tten by
the Election Commission of India to the Chief Electoral Officer of all
the States and the Union Territories. A reading of the said letters would
go to show that a contesting candidate is mandated to furnish information
concerning the cases in which a Competent Court has taken cognizance
along with the cases in which charges have been framed. T he said
letters also make it clear that the affidavit mentioned in Section 33-
545
A(2) of the 1951 Act is prescribed in Form-26 and tha t any false
declaration or concealment of information in the said affidavit will attract
the provisions of Section 125-A of the 1951 Act. The letters in this
regard are dated 24.8.2012, 26.9.2012 and 26.4.2014, relevant portions
of which are extracted below:
(i) Letter dt. 24-08-2012:
“1. Sub:- Affidavit to be filed by candidates with their nomination
paper-modification of format-regarding.
The candidates at elections to the Parliament and t he State
Legislatures hitherto were required to file two affidavits: one, in
Form-26 appended to Conduct of Elections Rules, 1961 and the
other, in the Form prescribed by the Commission, vide its Order
No. 3/ER/2003 dt. 27-03-2003, as subsequently modified by the
letter of even number dt. 25-02-2011. In the affida vits, the
candidates are required to declare information about their criminal
background, if any, assets, liabilities and educational qualifications.
2.On a proposal moved by the Commission for amalgamating the
two affidavits into one format, the Govt. has amended Form 26
so as to include in it all the information that was sought in the
two separate affidavits. The Ministry of Law and Justice ha ve
notified the revised format 26 in the Gazette of India on 01- 08-
2012. A copy of the said notification dated 1 st August, 2012 is
enclosed herewith.
3.In view of the amendment to Form-26, all candidates shall,
hereafter, file only one affidavit in the revised Form 26 notified
on 01-08-2012 (at elections to the Parliament and S tate
Legislatures). The requirements to be followed while filing t he
affidavit have been mentioned in the notes given at the end of
the format…..
...
5.You are requested to furnish a copy of this letter along wi th
the copy of the enclosed notification to every political party
(including registered unrecognized parties) having headquarters
in your State/UT, including the State Units of recognized National
and State political parties.”[Emphasis is ours].”
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS
[RANJAN GOGOI, CJI.]
(ii). Letter dt. 26-09-2012:
“Sub: Affidavit to be filed by the candidates with their nomination
paper-regarding:
…
2. Item 5 of Part A and Part B of the revised Form 26 relate s
to information regarding criminal antecedentsto be furnished by
the candidates. It is clarified that in item (5)(ii) of the said Part
A & Part B of Form-26, the details of all pending cases in which
cognizance has been taken by the Court, irrespective of the
quantum of punishment or framing of charges will have t o be
disclosed by the candidate . This may be brought to the notice of
all candidates when they file their nomination at all future general/
bye-elections in the State…”
(iii) Letter dt. 26-04-2014:
“Sub: Filing of false affidavit in Form-26.reg.
Sir/Madam,
You are aware that the format of affidavit in Form-26 appended
to the Conduct of Election Rules, 1961, was amended with effect
from 01-08-2012. Now the candidates are required to make
declarations about assets and liabilities including that of spouse
and dependants, candidate’s criminal antecedents and educational
qualifications, in the affidavit in Form 26. The concealing of
information in the affidavit in Form 26 will attract the provisions
of Section 125A. Under Section 125A, furnishing of any false
information or concealing of information in the affidavit in Form
26 is an electoral offence punishable with imprisonment upto six
months, or with fine or both .
2. Prior to amendment to Form 26 in August 2012, the affidavit
regarding declaration about assets, liabilities, criminal antecedents
and educational qualification was given in the format prescribed
by the Commission. In the case of complaints about false
statement in the said affidavit, the Commission, vide its circular
letter No. 3/ER/2004, dated 2/6/2004, had clarified that if
complaints were filed before the Returning Officer raising the
issue of false declaration in the affidavit and if the RO was prima
facie satisfied about the merits of the complaint, then the RO
547
was to file a complaint before the competent Court under Section
177 of IPC read with Section 195 of Cr.P.C.
3. Now that the affidavit is in Form 26 under Section 33A of the
R.P. Act, 1951, making false declaration/concealing of information
in the affidavit would be covered under Section 125A of the Act.
Under Section 125A, there is no stipulation that complaints under
the Section have to be made by the public servant concer ned
(in this case the R.O.). Therefore, it would be open to any
aggrieved person to move petition before the appropriate Cour t
of competent jurisdiction with petition for action under Section
125A in the case of any false declaration or conceal ing of
information in the affidavit in Form 26.
[underlining is ours]”
19. A cumulative reading of Section 33-A of the 1951 Act and
Rule 4-A of the 1961 Rules and Form-26 along with the letters dated
24.8.2012, 26.9.2012 and 26.4.2014, in our considered view, make it
amply clear that the information to be furnished under Section 33-A of
the 1951 Act includes not only information mentioned in clauses (i) and
(ii) of Section 33-A(1), but also information, that the candidate is required
to furnish, under the Act or the Rules made thereun der and such
information should be furnished in Form 26, which includes information
concerning cases in which a competent Court has taken cognizance
(Entry 5(ii) of Form 26). This is apart from and in addition t o cases
in which charges have been framed for an offence punishable w ith
imprisonment for two years or more or cases in which convicti on has
been recorded and sentence of imprisonment for a period of on e year
or more has been imposed (Entries 5(i) and 6 of Form 26 respectively).
20. In the light of the view that we have taken and in vie w of
the clear averment made in the complaint to the effect that the First
Respondent had knowledge of the two cases against him which ha d
not been mentioned in the affidavit filed by the Firs t Respondent
alongwith his nomination papers, we unhesitatingly a rrive at the
conclusion that the order of the learned trial Court upheld by the High
Court by the impugned judgment and order dated 3 rd May, 2018 is legally
not tenable and the same deserves to be set aside which w e hereby
do. The complaint of the appellant will be considered afr esh by the
learned trial Court from the stage where it was interdicted by the order
dated 30.5.2016.
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS
[RANJAN GOGOI, CJI.]
21. Our view as above is in consonance with a similar vi ew
expressed by this Court in paragraph 75 of the repo rt in
Krishnamoorthy v. Sivakumar and others 4. Para 75 of the report
in Krishnamoorthy (supra) reads as under:
“75. On a perusal of the aforesaid format, it is clear as cry stal
that the details of certain categories of the offences in respect
of which cognizance has been taken or charges have been
framed must be given/furnished. This Rule is in consonance with
Section 33-A of the 1951 Act. Section 33(1) envisage s that
information has to be given in accordance with the Rules. This
is in addition to the information to be provided as per Sections
33(1)(i) and (ii ). The affidavit that is required to be filed by the
candidate stipulates mentioning of cases pending against the
candidate in which charges have been framed by the Court for
the offences punishable with imprisonment for two years or more
and also the cases which are pending against him in which
cognizance has been taken by the court other than the cases
which have been mentioned in clause (5)( i) of Form 26. Apart
from the aforesaid, clause (6) of Form 26 deals with conviction.
22. Consequently and in the light of the above, the appeals are
allowed. The order of the High Court dated 3 rd May, 2018 is set aside.
All pending applications including the application for inter vention/
impleadment are disposed of.
Kalpana K. Tripathy Appeals allowed.
4 (2015) 3 SCC 467