Gauhati High Court Dismisses Congress Candidate Hafiz Choudhury’s Election Petition Against BJP MP Kripanath Mallah

The Gauhati High Court has dismissed an election petition filed by Congress leader Hafiz Rashid Ahmed Choudhury, who contested the 2024 Lok Sabha elections from Assam’s Karimganj constituency, challenging the victory of BJP MP Kripanath Mallah on the ground of procedural irregularities in the petition's attestation and filing.

The Single Bench of Justice Sanjay Kumar Medhi accepted the preliminary objections raised by Mallah through an interlocutory application (IA), asserting that Choudhury’s election petition was not presented in accordance with the Representation of the People Act, 1951, particularly Sections 81 and 83, which govern the manner of filing and verifying election petitions.

Lack of Proper Attestation Fatal to Election Petition

The Court noted that Choudhury's petition failed to comply with Section 81(3) of the Act, which mandates that every copy of the election petition served must be attested by the petitioner as a true copy. The distinction between the terms "attested to be true copy" and "certified to be true copy" became central to the dispute.

The Single Bench found that in the service copy of the petition, pages 1 to 84 bore the endorsement “attested to be true copy of the petition,” whereas pages 85 to 185 carried only the endorsement “certified to be true copy.” Furthermore, page 215 of the service copy, which corresponded to page 183 of the election petition, lacked any attestation or certification.

“Even if the argument made on behalf of the opposite party that there is no substantial difference between the aforesaid terms is considered, it is seen that so far as the endorsement ‘certified to be true copy’ is concerned, it has not been stated that such certification is pertaining to true copy of the petition, which is the requirement of Section 81(3),” the Court observed.

The Court held that the statutory requirement for attestation was mandatory in nature and that non-compliance carried the consequence of dismissal. It rejected the argument that the discrepancy was a mere technical defect or that no prejudice had been caused to the respondent. “This Court is not able to accept the submission made on behalf of the opposite party regarding substantial compliance and suffering of prejudice inasmuch as, such requirement under the statute is mandatory in nature which is fortified by laying down a consequence of any violation thereof,” the Court further held.

No Substance in Missing Pages Argument

The BJP MP had also argued that four pages were missing from the copy of the petition served on him.

However, the Court declined to accept this contention, noting that Mallah’s counsel did not raise any such issue when he entered appearance on August 28, 2024, or in subsequent applications seeking extension of time to file a written statement. “This Court finds that in the earlier application for extension of time, there was no indication that four pages were missing from the election petition,” the Court noted, dismissing this ground as unsubstantiated.

Challenge Against Alleged Corrupt Practices

Choudhury had filed the election petition under Sections 80, 80A, and 81 of the Representation of the People Act, alleging that Kripanath Mallah engaged in corrupt practices during the 2024 election campaign. The allegations included widespread rigging, booth capturing, intimidation of voters through undue influence, bribery, and other electoral malpractices.

However, the Court did not proceed to examine the merits of the allegations, having found the petition to be procedurally defective and thus not maintainable in law.

Arguments on Verification and Affidavit Also Considered

Mallah had further submitted that the petition lacked proper verification as required under Section 83 of the Act and that the affidavit required under Rule 94A of the Conduct of Election Rules, 1961, was not notarized. It was also submitted that while pleadings are required to be attested, the annexed documents in the petition had only been certified.

The Court observed that all pages of the service copy, whether part of the petition or annexures, are required to be attested under Section 81(3). The use of inconsistent“ endorsements, “attested to be a true copy” and “certified to be true copy”, failed to meet this statutory requirement.

Choudhury’s counsel had attempted to argue that no specific format or manner of self-attestation was prescribed under the Act and that no prejudice had been caused to the respondent. However, the Court rejected these arguments, reiterating the mandatory nature of the procedural rules under the ROP Act.

Petition Dismissed at Threshold

Conclusively, the Gauhati High Court allowed Kripanath Mallah’s application seeking dismissal of the election petition and accordingly dismissed Choudhury’s petition at the threshold, without entering into the substantive electoral allegations.

"This Court is not able to accept the submission made on behalf of the opposite party regarding substantial compliance and suffering of prejudice inasmuch as, such requirement under the statute is mandatory in nature which is fortified by laying down a consequence of any violation thereof. In that view of the matter, the IA stands allowed for the reasons indicated above. The Election Petition accordingly stands dismissed," the Court ordered.

Cause Title: Kripanath Mallah v. Hafiz Rashid Ahmed Choudhury [Neutral Citation No. GAHC010227202024]

Appearance:-

Appellant: Senior Advocate D Saikia, Advocate P. Nayak

Respondent: Senior Advocate KP Pathak, Advocate M Dutta

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