Election | Candidate's Affidavit Need Not Disclose Those Criminal Cases Where Charge Is Not Framed Or Cognizance Not Taken: Karnataka HC

The Karnataka High Court has made it clear that not every criminal case launched against a candidate contesting elections either by way of registering the FIR or by moving private complaint has to be disclosed in the affidavit accompanying the nomination papers.

Court said cases where charges have not been framed or cognizance of the offences alleged has not been taken need not be disclosed in the affidavit.

A single judge bench of Justice Krishna S Dixit made the observation while allowing a petition filed by BG Uday, who was convicted under Section 125A of the Representation of Peoples Act for filing false affidavit. The same was confirmed by the appellate court.

It said “The duty to disclose criminal antecedents becomes choate under the provisions of section 33A of the 1951 Act read with Rule 4A of the 1961 Rules which in turn refers to Form 26, only when charge has been framed or cognizance of the offences alleged against the candidate in the electoral fray has been taken, as the case may be.”

The complainant (respondent herein) had submitted that petitioner failed to disclose pendency of criminal cases against him.

The petitioner submitted that penal provision enacted in Section 125A needs to be construed strictly and if that is done, no offence can be alleged against him. It was argued that the legal requirement to disclose pendency of criminal case arises only when such a case has attained a particular stage and not otherwise.

The bench noted that Section 125A intends to bring in purity and transparency in the election process by providing necessary information to the voters so they can make an 'informed decision' by knowing inter alia the criminal antecedents of the candidate in the electoral fray. It said,

“As the statute now stands, every candidate is obligated to file an affidavit with relevant information with regard to their criminal antecedents, assets and liabilities and educational qualifications in terms of legal prescription, and nothing beyond. The said provision in a way to some extent enacts Right to Information as its very heading shows, in favour of the electoral/voters, keeping it jural correlative that is the duty to disclose on the shoulders of the candidate in the electoral fray.”

Court also noted that in Section 33A of the 1951 Act, the Parliament in its wisdom has employed the expression, 'in a pending case in which a charge has been framed by the court of competent jurisdiction'.

It also referred to Rule 4A of the Conduct of Elections Rules, 1961 which mandates the candidate in the electoral fray to deliver to the Returning Officer a sworn affidavit which, "leaves no manner of doubt that what is required to be disclosed is the pendency of a criminal case in which charges have been framed or cognizance of the offence alleged is taken.”

Rejecting the contention of the complainant that regardless of the stage disclosure of the pendency of the criminal case has to be made in the affidavit accompanying the Nomination Papers, Court said, “It is structured keeping in mind the text of Form 26 divorcing the provisions of section 33A of 1951 Act. Such a sectarian view of law does not augur well to criminal jurisprudence.”

Accordingly it allowed the petition and set aside the trial court orders.

Appearance: Senior Advocate Uday Holla a/w Advocate Santhosh S Nagarale for Petitioner. Advocate Manjunath H for Respondent

Citation No: 2024 LiveLaw (Kar) 197

Case Title: B G Uday AND H G Prashanth

Case No: CRL.RP.NO.1157 OF 2023

Click Here To Read/Download Order