Election Candidates Must Only Disclose Those Cases Of Past Conviction Where Sentence Is Of One Year Or More: Bombay High Court

The Bombay High Court held that the election candidates must only disclose those cases of past conviction where the sentence of imprisonment is of one year or more.

The Court held thus in Applications seeking rejection of the Election Petition under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), as not being maintainable on the ground that the same does not disclose any cause of action.

A Single Bench of Justice R.I. Chagla observed, “I further find much merit in the submission on behalf of the Respondent No.1 that the subordinate legislature cannot travel beyond the main or the parent legislation. The Election Rules, including Rule 4A, must be given a meaning which must correspond to Section 33A (1)(ii). Further, Entry 6 of Form 26 as amended in 2018, which comes under Rule 4A, cannot transgress or breach the provisions of Section 33A (1)(ii). Accordingly, it must be read down to mean only those cases of past conviction, where there is a sentence of imprisonment of one year or more and which must be disclosed by the candidate.”

The Bench further reiterated that a Form must invariably yield to the substantive provision of law i.e., Representation of Peoples Act, 1951 (RP Act) herein.

Senior Advocates Darius Khambata and Pankaj Savant represented the Petitioner while Senior Advocate Vikram Nankani represented the Respondents.

Facts of the Case

The case of the Petitioner in the Election Petition was that in terms of Form 26 as amended by 2018 Notification, the Respondent ought to have disclosed his conviction in a criminal offence in which he has been convicted and his failure to disclose his conviction has rendered his election liable to be set aside. The Respondent was convicted by an Order passed by the Chief Judicial Magistrate (CJM), which was upheld by the Additional District Judge (ADJ).

Despite that, the Respondent put a tick mark against Sr. No.6(i) of Form 26, and stated “Not Applicable” against Sr. No.6(ii), which requires details of cases in which the candidate has been convicted for the offences as required thereunder. The Respondent’s case was that only if his conviction resulted in imprisonment of one year or more, is he required to make a disclosure in Form 26.

Reasoning

The High Court after hearing the arguments of the parties, noted, “Any other meaning or interpretation given to Entry 6 of Form 26 would result in making Entry 6 of Form 26 unconstitutional and violative of not only Section 33A (1)(ii) of the 1951 Act, but also the law laid down by the Supreme Court in PUCL (Supra). The judgments relied upon by the Respondent No.1 in this context are apposite.”

The Court said that in this case, Form 26 must yield to Section 33A (1)(ii) of the RP Act, and hence, the Judgments relied upon by the Respondent on the Form not going beyond the provisions of the statute are apposite.

“I do not find merit in the submission of the Petitioner that Section 33 A(1), which provides that “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…” is required to be given a meaning beyond that provided in Section 33A (1) (ii) of the 1951 Act”, it added.

The Court was of the view that the Respondent was not required to disclose his conviction of a criminal offence, particularly where the conviction had not resulted in imprisonment of one year or more.

“The Election Petition accordingly fails to disclose a cause of action. The Election Petition would suffer from an incurable defect and is barred by law on the face of the Petition. This having considered that the Petitioner’s cause of action being failure on the part of the Respondent No.1 to disclose that he has been convicted of a criminal offence”, it also observed.

Conclusion

The Court remarked that the contention of the Petitioner that the Petition complies with all required pleadings under the RP Act would be irrelevant, particularly when the Election Petition is itself not maintainable on the ground that it fails to disclose a cause of action.

“I also do not find merit in the submission on behalf of the Petitioner that it is always open for the Respondent No.1 to take as defences at the stage of trial, the grounds raised in the present Applications. These grounds i.e. lack of cause of action and / or incurable infirmities can be raised in an Application under Order VII Rule 11 for rejection of Petition as given such grounds it would be an exercise in futility to allow the parties to go to trial”, it concluded.

Accordingly, the High Court rejected the Election Petition and allowed the Applications.

Cause Title- Rajan Baburao Vichare v. Naresh Ganpat Mhaske & Ors. (Neutral Citation: 2025:BHC-OS:14621)

Appearance:

Petitioner: Senior Advocates Darius Khambata, Pankaj Savant, Advocates Shreenandini Mukhopadhyay, Joshna D’Souza, and Sanjay Gawde.

Respondents: Senior Advocate Vikram Nankani, Advocates Chirag Shah, Vishal Acharya, Shyamsundar Jadhav, Bhavya Shah, Mehul Talera, Chirag Shah, and Hare Krishna Mishra.

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