Additional Chief Metropolitan Magistrate Samar Vishal has dismissed AAP leader Atishi Marlena's complaint against BJP MP Gautam Gambhir for committing electoral offences under sections 17, 31 and 125A of The Representation of The People Act.
Marlena had submitted before the court that since Gambhir is registered as a voter in two different constituencies, and the same was not declared by him in his election affidavit, he has committed an offence under section 17 read along with section 31 of the RPA which deals with false electoral declaration.
She had also alleged the offence of filing false electoral affidavit under section 125A of the Act read along with section 417 of the Indian Penal Code.
The court dismissed her claim under section 17, which prohibits registration as a voter in more than one constituency, by opining that the said section is directory in nature and a candidate cannot even be disqualified for its violation.
The judge also relied upon the judgment of the Supreme Court in Baburao v. Manikrao And Anr to hold that the nomination of a candidate is not void merely because his name appears in two different constituencies. He noted that:
'the violation of section 17 does not create any penal liability and therefore merely because a person is registered as a voter in more than one constituency, it does not amount to any criminal offence.'
The court also recorded that no evidence was placed on record to show that a false statement or declaration was made by Gambhir to attract an offence under section 31.
Moreover, it was also noted that since the last time the accused had made any representation about his voting constitution was in 2012, and the offence under section 31 is punishable with imprisonment for one year, the complaint is barred by limitation.
Finally, the judge also highlighted that not mentioning the fact that he's registered in two different constituencies as a voter, doesn't make the accused culpable under section 125A of RPA.
The Judge said that since section 17 itself doesn't contemplate a penalty, not mentioning the same in electoral affidavit doesn't amount to false declaration or concealment under section 125A of RPA. He said:
'The purport of section 125A is not to punish those concealments which are not required by law to be given. I am of the view that by giving the information of registration as a voter in Rajinder Nagar constituency, the respondent has complied with the provisions of section 33 (1) and 33A(2) of the Act'
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