Representation Of People Act Doesn't Apply To Municipal Elections : Supreme Court

The Supreme Court has held that the penal provisions of the Representation of the People Act, 1951 (RPA) do not apply to municipal elections, clarifying that candidates accused of filing false affidavits in local body polls can instead be prosecuted under the Indian Penal Code where the applicable municipal law does not provide a penal provision.

A Bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh made the observation while deciding an appeal filed by Chandrikaben Kishor Dafda, who challenged criminal proceedings alleging that she had suppressed details of immovable properties owned by her husband while contesting the 2015 municipal elections in Gujarat.

The appellant had been summoned by a Magistrate under Section 125A of the Representation of the People Act, which penalises furnishing false information or concealing material particulars in election affidavits. The Gujarat High Court had refused to quash the proceedings.

Before the Supreme Court, one of the principal contentions raised by the appellant was that the Representation of the People Act governs only elections to Parliament and State Legislatures and has no application to municipal elections, which are regulated by the Gujarat Municipalities Act and the Gujarat Municipalities (Conduct of Elections) Rules.

Accepting this contention, the Supreme Court examined the definition of "election" under Section 2(d) of the Representation of the People Act, which restricts its application to elections for Parliament and State Legislatures.

The Court held that Section 125A of the Representation of the People Act could not have been invoked in relation to a municipal election.

However, the Bench clarified that this did not mean that filing a false affidavit in municipal elections was immune from criminal prosecution.

Examining the Gujarat Municipalities (Conduct of Elections) Rules, 1994, the Court noted that candidates are required to submit affidavits disclosing their assets, liabilities, educational qualifications and other particulars. While the Gujarat Municipalities Act earlier contained provisions penalising false declarations, those provisions were omitted through legislative amendments in 1990.

"In this scenario, since the candidate is required to file an affidavit... the controlling provisions would be under the Indian Penal Code," the Court held.

The Court further observed that although the private complaint had referred to provisions of the IPC relating to false evidence and false declarations, the Magistrate had erroneously taken cognizance only under Section 125A of the Representation of the People Act.

Rejecting the appellant's argument that this jurisdictional error vitiated the proceedings, the Bench held that taking cognizance under a wrong statutory provision is a curable irregularity under Section 465 of the Code of Criminal Procedure, so long as no failure of justice has been caused.

Relying on earlier precedents, the Court reiterated that "cognizance is taken of the offence and not people," and observed that an error in citing the applicable penal provision at the stage of cognizance does not necessarily invalidate the criminal proceedings.

The Court also rejected the appellant's submission that she was not required to disclose properties exclusively owned by her husband.

Interpreting the prescribed affidavit format under the Gujarat Municipalities (Conduct of Elections) Rules, the Bench held that candidates must disclose the assets of "myself, my spouse and dependents." It ruled that the comma after the word "myself" merely separates items in a list and does not limit disclosure only to jointly owned properties.

"The word 'of' applies equally to 'myself', 'my spouse' and 'dependents'," the Court observed while holding that assets solely owned by the spouse must also be disclosed.

Accordingly, the Supreme Court set aside the cognizance order under the Representation of the People Act and remanded the matter to the Magistrate to take fresh cognizance under the appropriate provisions of law and proceed afresh.

Clarifying that it had expressed no opinion on the merits of the allegations, the Court observed that if a false affidavit has been filed during the electoral process, "that is an offence against society at large and has to be investigated."