N.S. Nandiesha Reddy v. Kavitha Mahesh
A. S. BOPANNA, J.
1. The appellants in both these appeals are assailing the ord er
dated 01.06.2012 passed by the learned Single Judge of the High Court
of Karnataka at Bangalore in Election Petition No. 7/2008. By the said
order, the election of the appellant in C.A. No. 4821/2012 (Mr. Nandiesha
Reddy) from 151 K.R. Pura Legislative Assembly constitue ncy in
Bangalore Urban District is held to be void, in terms of Section 100 (1)
(c) of the Representation of People Act 1951. Further, in the course of
the said order the learned Judge has directed the Registra r General of
the High Court to register a complaint against the appella nt in C.A.
No.6171/2012 (Mr. Ashok Mensinkai) before the Competent Court for
proceeding in accordance with law for the purpose of provisions o f
Section 193 Indian Penal Code, 1860. The said direction is issued since
according to the learned Judge, the appellant in the said appeal who was
the Returning Officer for the said election; on being examined as PW.3
in the Election Petition had given false evidence before the Court. In the
above circumstance, the appellant in C.A. No. 4821/2012 (Mr. Nandiesha
Reddy) has assailed the order in its entirety while the appellant in C.A.
No. 6171/2012 (Mr. Ashok Mensinkai) has assailed the order insofar as
directing prosecution against the appellant.
2. In the above background, we have heard Mr. Jayant Mohan,
learned counsel for the appellant in C.A. No. 4821/2012 and Mr. S.N.
Bhat, learned counsel for the appellant in C.A. No. 6171/2012. We have
also heard the respondent who had appeared as a party-in-pe rson in
both these appeals and perused the relevant material, as also the written
submission filed on either side.
3. The issue arises from the election which was held in April/May
2008 to the Karnataka State Legislative Assembly. The present case as
noted earlier, relates to one of the constituencies, namely, 151 K.R. Pura
Legislative Assembly Constituency. The elections wer e notified on
16.04.2008 and as per the calendar of events the publication of result
was fixed on 27.05.2008, soon after which the Karnataka State Legislative
Assembly for that term was constituted. In that background, the term of
the Assembly was up to May, 2013 whereafter the subsequent election
to constitute the Karnataka State Assembly afresh for the next term has
taken place. In that circumstance though by the order impugne d dated
N.S. NANDIESHA REDDY v. KA VITHA MAHESH
01.06.2012, the election of the appellant in C.A. No. 4821/2012 (Mr.
Nandiesha Reddy) was held to be void, immediately thereafter, the instant
appeal was filed and this Court had granted stay of the impugned order
while issuing notice on 11.06.2012. In that view, the app ellant has
completed the term of the Assembly for which he was elected. As such
Mr. Jayant Mohan, learned counsel for the appellant in C.A. No. 4821/
2012 (Mr. Nandiesha Reddy) has submitted that the grievance put forth
in the appeal does not survive for consideration. Having n oted the
sequence it is evident that the prayer in C.A. No. 4821/2012 has rendered
itself infructuous and the appeal does not survive for consideration.
4. Though that be the position, Mr. S.N. Bhat, learned counsel for
the appellant in C.A. No. 6171/2012 submits that the said appeal needs
consideration in view of the direction issued by the learned Judge to
prosecute the appellant Mr. Ashok Mensinkai. In that regard, the learned
counsel has drawn our attention to the manner of consideration made by
the learned Judge presiding over the election tribunal and contends that
there is no proper and definite conclusion reached by the learned Judge
as to the deliberate falsehood uttered in the statement al leged to have
been made by the appellant. It is contended that the appellant in fact
was cited as a witness by the election petitioner herself and in the course
of the examination-in-chief; in answer to the questions put by the learned
Judge and in the cross-examination, the appellant has been consistent in
narrating the facts sequentially as it had occurred on th at day. The
appellant though was initially arrayed as respondent No.4 to the election
petition, he had been deleted and as such the appellant did not have the
opportunity of putting forth his written statement/objection statement to
the Election Petition so as to controvert the allegations made against the
appellant. In any event, the election petitioner had examined the appellant
and in respect of the statements made by the appellant t he election
petitioner did not choose to cross-examine the appellant after seeking to
treat him as a hostile witness if the allegation of tendering false evidence
was to be made. Further, the learned Judge after noticing the two versions,
one by the election petitioner and the other by the appellant, though was
entitled to rely upon one of the versions as probable to a rrive at his
conclusion on the merit of the case, that by itself cannot b e made the
basis to order prosecution. That apart no opportunity was granted to the
appellant in terms of Section 340 of the Criminal Procedure Code, 1973
before forming an opinion to direct the Registrar to lodge a complaint. It
is his further case that the action of the present natur e could not have
303
been initiated unless there was material to indicate that the witness had
uttered falsehood intentionally. The appellant could not have gained either
way if the election petitioner had contested the election or not. In such
situation no purpose would have been served by not accepti ng her
nomination if she had actually complied with the requir ement and
presented the nomination papers. The appellant had accepted 30
nomination papers from 18 different candidates for the same election
and on 23.04.2008 i.e., the last day itself the appellant had received 18
nomination papers and one more would not have made any difference.
In that view he contends that the order is not sustainable.
5. The respondent party-in-person however, contends that the
appellant had by not accepting the nomination, denied an opportunity for
the respondent to contest the elections and in such circumstan ce the
learned Judge had noted the inconsistent statements made by the appellant
in the course of his evidence to justify his illegal acti on. The learned
Judge has therefore rightly arrived at the conclusion to direct prosecution
and such order does not call for interference is her contention.
6. Having noticed the contentions put forth in C.A. No.
6171/2012 and also having noted that the dispute in C.A. No. 4821/2012
has rendered itself infructuous, we restrict our consideration limited to
the question as to whether the appellant in C.A.No. 6171/2012
(Mr. Ashok Mensinkai) should be exposed to criminal prosecution and
whether it is expedient to do so in a matter of the present nature. It is no
doubt true that the election petition itself is predicated on the allegation
against the appellant in C.A. No. 6171/2012 to the effect th at as a
Returning Officer for the said election he had wrongly refused to accept
the nomination papers sought to be submitted by the election petitioner
which amounts to improper rejection of the nomination papers in terms
of Section 100 (1) (c) of the Act. The consequence of the sam e has
befallen on the elected candidate. However, presently the ground of
improper rejection of nomination paper as alleged and the conclusion of
the learned Judge on that aspect fades into insignificance for the reasons
stated earlier.
7. Therefore, the limited aspect we are required to notice i n the
present situation is only with regard to the statements made by the
appellant in his evidence as PW.3 which are considered by the learned
Judge to be inconsistent and, therefore, stated to amount to perjury . In
that regard whether the action initiated by the learned Judge on that
aspect is justified is the issue, if not, it will call f or interference. As
N.S. NANDIESHA REDDY v. KA VITHA MAHESH
[A. S. BOPANNA, J.]
noted, the appellant was examined as PW.3. In the c ourse of his
deposition, he had stated that he can identify the election petitioner as an
intending candidate in 151 K.R. Pura Legislative Assembly Constituency.
He has further stated that he does not remember if the election petitioner
had met him on three occasions on 23.04.2008 which was the last day
for filing nomination papers. He has however stated that he remembers
to have seen the election petitioner on two occasions, on that d ay. He
has also stated that he does not remember the exact time of the election
petitioner meeting him for the first time, but it could be between 3.00 pm
and 3.15 pm. On the second occasion he recollects to have met t he
election petitioner on the same day between 5.30 pm and 6.00 pm while
he was going out from office after work for the day. The request made
by the election petitioner at that stage to accept the nomina tion paper
was declined since the time for acceptance was over. In that context he
states that the nomination paper which was marked as Exhi bit P1 had
not been presented before him between 11.00 am and 3.0 0 pm on
23.04.2008 which was the permitted time for filing. He also states that
he did not refuse to accept Exhibit P1(nomination paper) for the reason
it was not accompanied by other necessary documents but in fact it was
not presented before him.
8. As against what has been stated by the appellant, the election
petitioner who examined herself as PW1 has stated that on 23.04.2008
she had submitted her nomination paper before the appellant f or the
general election. On delivering the nomination papers she had requested
the Returning Officer for extracting the new part numb er and serial
number of the tenproposers to fill in column no. 2B. The Returning Officer
is stated to have told her that he did not have the electoral roll of K.R.
Pura State Assembly Constituency and that she should approach the
revenue officials working in the ground floor of the building. She states
that as per his request she had entrusted the job to her husband and
supporters to collect the details from the ground floor office. Later, she
came to know from her husband and her supporter that everybody in the
revenue office were having lunch break and the details could not b e
secured. She thereafter, states that for the first time at 14.00 hours when
she delivered nomination papers, the Returning Officer directed her to
collect the details but she could not get the details of her ten proposers
who had signed the nomination papers. She states that on realisi ng the
time factor that it was the last day for filing nomination p apers she
submitted her nomination papers by 15.00 hours before the Retur ning
305
Officer once again and stated that she would fill the column subsequently
as she has time upto 24 hours to fill the column. She has further alleged
that the appellant refused to receive the nomination papers . What is
relevant to be noted is that the election petitioner in the course of her
cross-examination recorded in para 37 states that after dep uting her
husband and supporter to get the details and while she was waiting, she
was outside the hall where the Returning Officer was sitting. This would
indicate, what the election petitioner has stated is in tune with the sequence
stated by the appellant except for the variance in the s tand insofar as
actually tendering the nomination paper and pressing for acceptance
and according to election petitioner the same not being accepted.
9. From the two sets of statements, one by the appellant as PW.3
and the other by the election petitioner as PW.1 in the course of
adjudication, the reliability of one of them was to be deduced. The crux
of the matter was to find out as to whether the election pet itioner had
actually submitted her nomination paper and the appellant had declined
to receive the same. Insofar as that aspect, if the concl usion was in
favour of the election petitioner it would be a case of an improper rejection
and, on that aspect, it is not necessary for us to pronounce u pon since
the appeal on that question does not survive. However, only i ssue for
consideration is, from the nature of the statements made above, can the
Court come to a conclusion that the appellant has uttered delibera te or
intentional falsehood in the course of Court proceedings. In that regard,
it is to be noted that the learned Judge during the course of the proceedings
had made certain observations and had extracted the earlier order in the
final impugned order dated 01.06.2012, the same reads as hereunder: -
ORDER PASSED IN THE MORNING SESSION
“The witness is not very sure of what development took
place and the manner of his deposition is inconsistent every second
and minute keeps varying and to support his version that he had
conducted in accordance with rules and regulations and in a proper
manner states that a certain development had taken place around
some time, but goes back on the earlier version that the last
nomination paper was received at 2.58 pm but later mentioned it
was after 3 pm and on being cautioned by the court, goes back to
the earlier version of 2.58 pm etc.
This witness is obviously lying on oath, his deposition is
inconsistent, varying by the second, different version each time.
N.S. NANDIESHA REDDY v. KA VITHA MAHESH
[A. S. BOPANNA, J.]
A person giving different version of the same incident is not merely
uttering falsehood once or the other time, but also committing
perjury.
This witness lacks credibility for deposing before the court
on oath and requires to be dealt with in accordance with law and
being a public servant who has taken oath to depose truth and
only truth before this court has been attempting to depose incorrect
and false statements which per se is not only perjury within the
meaning of section 191 of Indian Penal Code but also committing
contempt of court.
Therefore, no need or occasion for recording furthe r
evidence of this witness and if need be, can be summoned later
by the court for questioning. As of now, the witness is discharged.
Witness is directed to remain present in the court hall. Call
this matter again at 2.30 pm.
ORDER PASSED IN THE AFTERNOON SESSION:
Further cross-examination of the witness is stopped at this
stage to enable the witness to procure relevant necessary, official
records throwing light on the developments that had taken place
during his functioning as the returning officer in the K R Pu ra
assembly constituency.
As the witness states that the records pertaining to conduct
of elections etc. are all now available at the office of the district
election officer, Mahadevapura Zone, BBMP, Bangalore, who is
ex officio holding this post is otherwise functioning as joint
commissioner, BBMP at Mahadevapura and as this officer has to
part with records. The witness to be enabled to secur e these
records and attend court for further cross examination with the
records.
Sri Shashikanth, learned counsel for the respondent submits
that for such purpose, it is necessary for the election petitioner to
make an application listing the documents and records that are
required to be summoned and summons may be issued on such
applications to the officer who is having the custody of such
records.
307
It is said that procedure is the handmaid of justice and
procedure should be given only such importance as is warranted
to ensure fair play, equal opportunity and practical possibilities of
adhering to the procedure.
An election petition though is a creature of the
Representation of People Act 1951 and being a petition at the
instance of an aggrieved persons with regard to the validity of the
declaration of election result, and for questioning a correctness or
otherwise of the declaration of results and may hav e the
characteristics of an adversary litigation, it neverthel ess has a
flavour of public interest imbedded into it as the conduct of free
and fair election is the ‘sine qua non’ of any healthy democratic
process. Records relating to the conduct of elections in a general
election either to an assembly or to the parliament are not private
documents but are public documents or records and if any such
record can throw light on the manner of conduct of elections in
any particular assembly segment, while it is a releva nt record,
familiarity or ignorance of such a record on the part of the election
petitioner cannot come in the way of court scrutinizing the record
for being satisfied or even for being apprised about the manner of
conduct of election.
It is therefore, hereby ordered and the witness who has
appeared before the Court as PW3 today and who had functioned
as the returning officer of the K R Pura assembly constituency is
hereby directed to contact the district election officer with this
order secure the relevant records to enable him to depose before
this court correctly with precision, unambiguity and then appear
with such records before this court on 28.6.2011 as the witness
states that he requires at least seven days’ time to comple te this
exercise.
The district election officer who is also the joint
commissioner, BBMP, Mahadevapura, is hereby directed to ensure
compliance with this order and to hand over such records which
are in his custody relating to the conduct of K R Pura assem bly
election to enable the witness to depose further before this court
in a proper and precise manner as the then returning officer of
the constituency by identifying the record.
N.S. NANDIESHA REDDY v. KAVITHA MAHESH
[A. S. BOPANNA, J.]
The Registrar General of this Court is directed to ensure a
copy of this order is served on the district electio n officer,
Mahadevapura zone, BBMP, Mahadevapura, Bangalore-48.
The witness also be furnished with a copy of this order.
List the petition for further cross-examination of PW3 on
28.6.2011.”
10. As per the version of the election petitioner she had met the
Returning Officer at 2 pm on 23.04.2008 when certain requirements
were indicated due to which she made an effort to secure the same
from the ground floor and after about 45 minutes her husband and the
supporter came back with the information that they were unable to get
the same. She has also stated that at that point she waiting outside the
room where the Returning Officer was seated. If that ver sion of the
election petitioner herself is kept in view, it is not the case of the election
petitioner herself that at 2 pm when she had come, she had met the
Returning Officer and insisted for receiving the nomination paper even
without the details to be filled in column 2B. On the other hand, if the
case that she made efforts to get the details of the proposer s due to
which some time lapsed and then she presented the nomination paper
without the details and if the time spent in that regard as stated by her is
about 45 minutes which is a rough estimate and not precise, the version
of the appellant that he had met the election petitioner around 3.00 pm to
3.15 pm on that day is a probable version. This is more so when the fact
remains that the appellant was taking note of the nomination papers
presented by another independent candidate Smt. Ambujakshi. If in that
context he has stated that the election petitioner had met hi m between
3.00 pm and 3.15 pm, it could only mean that it was after the process of
receiving the nomination paper of Smt. Ambujakshi. In fact, it is in her
own deposition the election petitioner has stated that when she was
unable to get the details and realising the time factor that it was the last
day for filing nomination papers, she submitted her nomination papers by
15.00 hours (i.e. 3 pm) before the Returning Officer. Even in that situation,
if the learned Judge were to come to a conclusion that the el ection
petitioner having already entered the office of the Returnin g Officer
prior to the closing hours for receipt of the nomination papers at 3.00 pm
and in that context due to the guidelines the nomination papers were to
be received, notwithstanding the same being incomplete, it could be an
aspect on the question of improper rejection. But certainl y, the same
309
could not have been made the basis to conclude that the appellant was
not truthful.
11. The extracted portion of the earlier order dated 15.06.2011
indicates an observation made by the learned Judge to indicate that he
has gone back on the version wherein he had stated that the last nomination
paper was received at 2.58 pm but later mentioned it was after 3.00 pm
and on being cautioned by the court he goes back to the earlier version
of 2.58 pm etc. On this aspect also we do not see any deliberate falsehood
uttered by the appellant, much less is there any inconsiste ncy. The
statement made by the appellant was that he received the nomi nation
paper of Smt. Ambujakshi i.e. the last candidate at 2.58 pm and it had
taken him about 7-8 minutes to go through the papers, after which she
had to take an oath as stated in para-40 of his further cross-examination.
If that be the position, the statement would mean that the last nomination
paper of Smt. Ambujakshi was presented at 2.58 pm and when the process
was over it was past 3.00 pm. Only after that he had met the election
petitioner that is between 3 pm and 3.15 pm. Even with regard to the
statement that he had met the General Observer on three occasions and
later stated it was on two occasions are to be noted in the context that
the evidence was being tendered after more than three years and all
inconsequential events cannot be recalled with precision. The further
evidence of the appellant is referred in para 81 to 87 of the or der, but
learned Judge has not pointed out any deliberate or intentional falsehood
arising therefrom. Mere reference to inconsistent statement s alone is
not sufficient to take action unless a definite finding is given that t hey
are irreconcilable; one is opposed to the other so as to make one of them
deliberately false.
12.Therefore, as noticed from the evidence recorded, the appellant
had stated that the nomination papers had not been prese nted to him
before the closing hours and had sought to justify his action. He had also
stated about the procedure followed in all cases and the presenc e of
observers in his office. On the other hand, the election petit ioner had
contended that she had made an attempt to submit the nomination paper
which was not received by the appellant who was the Returning Officer.
When he had received 18 nomination papers on that day there was no
particular reason to refuse the election petitioner’s nomination, nor has
motive been suggested or established. The learned Judge has no doubt
accepted the version put forth by the election petitioner. That by itself
N.S. NANDIESHA REDDY v. KAVITHA MAHESH
[A. S. BOPANNA, J.]
does not indicate that appellant had uttered falsehood intentionally and
deliberately before the court so as to initiate action unde r Section 193
Indian Penal Code. The proceedings of the day in the office of t he
Returning Officer, namely, the appellant was video-recorded and the
same was marked as Exhibit P21 to P24 in the proceedings. The learned
Judge did not choose to refer to the same to come to a definite conclusion
as to whether the election petitioner had actually met the R eturning
Officer, if so, the actual time and in that context a finding was not recorded
that the depiction in the video-recording is quite contrary to the statement
of the Returning Officer so as to indicate that he had uttered deliberate
falsehood.
13. Apart from the factual aspect noted above relating t o the
evidence tendered in the instant case, it is not a case where the appellant
was a party-respondent to the election petition where his written version
was available. On the other hand, he was examined as a witness by the
election petitioner as PW3. No doubt the learned Judge has chose n to
call him as a court witness by interrupting the cross-e xamination and
posing questions to him. Be that as it may, it was also not a situation
where the petitioner had filed an application under Section 340 of Criminal
Procedure Code, 1973 seeking action. If that was the case the appellant
would have had an opportunity to file his version in reply to the application.
That apart, the learned Judge also had not put the appellant on notice on
the allegation of committing perjury and provided him an opportunity nor
has the learned Judge come to the conclusion that one of the versions is
deliberate or intentional falsehood and that therefore, action is necessary
to be taken against him. On the other hand, the learned Judge during the
course of passing the final order has made certain observati ons and
directed that the Registrar General shall file a complaint.
14. It is apposite to refer to the decision of this Court in the case
of KTMS Mohammad and Another vs. Union of India, 1992 3 SCC
178 wherein it is observed as hereunder: -
“37. The mere fact that a deponent has made contradi ctory
statements at two different stages in a judicial proceeding is not
by itself always sufficient to justify a prosecution for perjury under
Section 193 IPC but it must be established that the deponent has
intentionally given a false statement in any stage of the ‘judicial
proceeding’ or fabricated false evidence for the purpose of being
used in any stage of the judicial proceeding. Further, suc h a
311
prosecution for perjury should be taken only if it is expedient in
the interest of justice.”
Further, in the case of Amarsang Nathaji vs. Hardik
Harshadbhai Patel & Ors., 2017 1 SCC 113 relied on by the learned
counsel for the appellant, this Court on referring to the case of KTMS
Mohammad vs. Union of India (supra) has held as hereunder: -
“6. The mere fact that a person has made a contradictory statement
in a judicial proceeding is not by itself always sufficient to justify
a prosecution under Sections 199 and 200 of the Penal Code,
1860 (45 of 1860) (hereinafter referred to as “IPC”); but it must
be shown that the defendant has intentionally given a false
statement at any stage of the judicial proceedings or fabri cated
false evidence for the purpose of using the same at any stag e of
the judicial proceedings. Even after the above position has emerged
also, still the court has to form an opinion that it is expedient in the
interests of justice to initiate an inquiry into the offences of false
evidence and offences against public justice and more specifically
referred to in Section 340 (1) CrPC, having regard to the overall
factual matrix as well as the probable consequences of s uch a
prosecution. The court must be satisfied that such an inquiry is
required in the interests of justice and appropriate in the facts of
the case.”
15.The respondent-election petitioner has referred to the decisions
in the case of Mahavir Singh and Ors. vs. Naresh Chandra & Anr.
(AIR 2001 SC 134) and the case of Jagan Nath vs. Jaswant Singh &
Ors. (AIR 1954 SC 210) in her written submission. We however, do not
find any assistance from the same as they are not relevan t.
16. In the light of the above stated facts, we are of the opinion
that notwithstanding the conclusion reached by the learned Judge on the
aspect of improper rejection of the nomination paper, the correctness of
which was not required to be gone into for the reasons stated supra, the
manner in which the learned Judge has concluded that the appellant in
C.A. No. 6171/2012 was inconsistent in his statements in the course of
his evidence tendered by him as PW3 is not justified. Further the
conclusion reached that he is to be prosecuted, without the findings being
recorded regarding deliberate or intentional falsehood cannot be sustained.
Hence the direction issued to the Registrar General of the High Court to
N.S. NANDIESHA REDDY v. KAVITHA MAHESH
[A. S. BOPANNA, J.]
initiate the proceedings by lodging a criminal complaint also cannot be
sustained in the facts and circumstances arising in this case.
17. As noted from the decision in the case of Amarsang Nathaji
(supra) and the position of law which is well established is that even in a
case where the Court comes to the conclusion on the aspect of intentional
false evidence, still the Court has to form an opinion whether it is expedient
in the interest of justice to initiate an inquiry into the offence s of false
evidence, having regard to the overall factual matrix as well as the probable
consequences of such prosecution. The Court must be satisfied t hat
such an inquiry is required in the interest of justice and is appropriate in
the facts of the case. In that backdrop, insofar as the observation made
by the learned Judge of the election tribunal relating to th e need for
maintaining purity of the election process which is the heart and soul of
democracy and in that situation the role of the Returning Officer being
pivotal, we fully concur with the same. However, it is also to be noted,
merely because of that position the Returning Officer in the instant case
need not be exposed to prosecution.
18. Firstly, from the evidence as tendered, we did not see reason
to permit the prosecution since in our opinion there is no intentional
falsehood uttered. The other relevant facts also indicate that the factual
matrix herein does not indicate that it is expedient in the interest of justice
to initiate an inquiry and expose the appellant to criminal prosecution.
On this aspect it is to be noted that the instant case is not a case where
the nomination paper which was complete in all respect was filed and it
had been improperly rejected in the scrutiny stage. The allegation of the
election petitioner is that the Returning Officer had refused t o receive
the nomination paper, which the learned Judge in the ultimate analysis
has accepted and termed the same as an improper rejection. Even that
be so, to indicate that the non-acceptance alleged by the election petitioner
was a deliberate action by the Returning Officer with a specific purpose,
it has neither been pleaded nor proved in the course of the proceedings
so as to penalise the appellant to face yet another proc eeding. The
Assembly Constituency concerned is a vast constituency which had nearly
four lakh voters on the electoral rolls. The election petit ioner had not
placed material to indicate that she had contested in any earlier election
or had wide support base in the election concerned and it is in that view
she had been shut out from the contest. Further there is no all egation
that the Returning Officer was acting at the instance or b ehest of any
313
other candidate who was feeling threatened by the participation of the
election petitioner in the election process.
19. On the other hand, the election petitioner, as per her own case
was seeking to present the nomination paper which was incomplete and
even in that circumstance, she had come to the office of the Returning
Officer only at 2.00 pm on the last day for filing nomination which was
to close at 3.00 pm. Thereafter she made attempts to com plete the
formalities in filling up the nomination paper and having failed had still
presented the nomination paper since according to her the needful could
have been done within 24 hours. In such a case it cannot be said that the
Returning Officer with an ulterior motive had declined to re ceive the
nomination paper and to cover up his folly was seeking to tender false
evidence before the Court and thereby to justify his illegal action. In
fact, the appellant had received the other nomination papers submitted
to him on the last day even as late as 2.58 pm. It is also the consistent
view of this Court that the success of a candidate who has w on at an
election should not be lightly interfered with. In any event it ought not to
have been made the basis to initiate prosecution by terming the appellant
as unreliable witness. Further, we notice that the appellant was aged 59
years as on 15.06.2011 while recording his deposition and a decade has
passed by and now would be 69 years. As pointed out by the l earned
counsel for the appellant, the appellant has retired from se rvice about
eight years back. For all these reasons also, we find that any proceeding
against the appellant is also not expedient apart from not being justified.
In the result, the following order: -
(i) Civil Appeal No. 4821/2012 is disposed of as infructuous.
(ii) Civil Appeal No. 6171/2012 is allowed. Consequently, the
direction contained in para 175 of the impugned order to the
Registrar General of the High Court to register the complaint
against the appellant, the then Returning Officer before the
competent court for proceeding in accordance with law for
the purpose of provisions of Section 193 of the Indian Penal
Code is set aside.
(iii) Parties to bear their own costs.
(iv) Pending applications, if any, shall stand disposed of.
Nidhi Jain Appeals disposed of.
N.S. NANDIESHA REDDY v. KAVITHA MAHESH
[A. S. BOPANNA, J.]