Rajmani Patel Mishrilal vs The State Of Madhya Pradesh & Ors.

“31.

Nomination of candidates. (1) Any person may be nominated as a candidate for election to fill a seat if he is qualified to be elected to fill that seat under the provisions of the Act : Provided that in the case of a seat reserved for the Scheduled Castes or Scheduled Tribes or Other Backward Classes or a woman, no person who is not a member of the Scheduled Castes or Scheduled Tribes or Other Backward Classes or is not a woman, as the case may be, shall be qualified to be elected lo such a seal.

(2)

Every nomination paper presented under Rule 32 shall be-

(i)

in the case of election of a panch, in Form 4-A;

(ii)

in the case of election of a Sarpanch, in Form 4-B;

(iii)

in case of election of member of Janpad Panchayat, in Form 4-C; and

(iv)

in case of election of member of Zila Panchayat, in Form 4-D.

(3)

A nomination paper shall he supplied by the Returning Officer, to any voter on demand.”

“31A. Information of criminal record, properties,

liabilities and educational qualifications etc. of

candidates.- (1) Every candidate for the post of Panch shall submit a declaration in a form as prescribed by the State Election Commission along with nomination p a p e r which shall include information about his educational qualification, criminal cases pending/decided, his/her assets and liabilities and that of his/her spouse and dependents, his/her number of living children and information about whether he/she is an encroacher on Government Land.

(2)

Every candidate for the post of Sarpanch, member of Janpad Panchayat and Zila Panchayat shall submit an affidavit, in a form as prescribed by the State Election Commission along with nomination paper which shall include information about educational qualifications, criminal cases pending/decided, his/her assets and liabilities and that of his/her spouse and dependents, the number of his/her living children and whether he/she is an encroacher on Government Land. The affidavit shall be sworn before competent Notary, Magistrate or Oath Commissioner.

(3)

A copy of affidavit/declaration of candidates for the post of Panch, Sarpanch, Member of Janpad Panchayat and Zila Panchayat shall he exhibited on the notice board in the office of the Returning Officer. Its copy shall he made available to any citizen on demand on payment of prescribed fee.”

“35.

Scrutiny of nomination papers.- (1) On the date fixed for the scrutiny of nomination papers under Rule 28, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but not other person, may attend at the time and place appointed in this behalf under Rule 28 and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of till candidates which have been delivered as required by Rule 32.

(2)

The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objections or his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination paper on any of the following grounds, that is to say-

(a)

that the candidate is disqualified for being elected to fill the scat by or under the Act;

(b)

that the proposer is disqualified from subscribing a nomination paper;

(c)

that the provisions of Rule 31, 31-A, 32 or 33 have not been complied with. [Substituted by Notification No. F-1-3-2004-XXII-P-2, dated 20-9-2004. Prior to substitution it was as under: '(c) that there has been a failure to comply with any of the provisions of Rule 31, 32 or 33'.]

(d)

that the signature of the candidate or the proposer on the nomination paper is not genuine.

(3)

Nothing contained in clause (c) or (d) of sub rule (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.

(4)

The Returning Officer shall not reject any nomination paper on the ground of mere clerical or printing error or any defect which is not of a substantial character.

(5)

The Returning Officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of Rule 28 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control :

Provided that in case any objection is raised by the Returning Officer or is made by any other person, the candidate may be allowed time to rebut it not later than the next day, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned.

(6)

The Returning Officer shall endorse on each nomination paper his decision regarding accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. The order passed by the Returning Officer shall, subject to the result of revision, if any under Rule 36, be final.

(7)

For the purposes of this rule, the production of a certified copy of an entry made in the voters' list of the relevant Gram Panchayat shall be conclusive evidence of the right of any voter named in that entry to stand for election, unless it is proved that the candidate is disqualified.

(8)

Immediately alter all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the Returning Officer shall prepare ward wise or constituency-wise lists of candidates whose nominations have been accepted in Form 5 and affix the lists on the notice board of his office, duly recording the date and time of affixture below his signature.

(9)

If nomination of a candidate has been accepted by the Returning Officer for more than one ward of constituency through oversight or for want of objection or for any other reason whatsoever, the Returning Officer shall alter giving an opportunity of hearing to such candidate or his election agent, recognise the nomination tendered first in point of time and delete or cause to he deleted from the list of validity nominated candidates in Form 5, the name of such candidate from every other ward or constituency and record this fact in writing.

The Returning Officer shall also affix a copy of the revised list of validly nominated candidates in Form 5 on the notice board in his office, duly recording the date and time of such affixture below his signature.”

"21.

Grounds for declaring election to be void.- (1) Subject to the provisions of sub-rule (2) if the specified officer is of opinion-

(a)

that on the date of his election the returned candidate who was not qualified or was disqualified to be chosen to fill the seat under the Act; or

(b)

that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c)

that any nomination paper has been improperly rejected; or

(d)

that the result of the election in so far as it concerns returned candidate has been materially affected

(i)

by the improper acceptance of any nomination; or

(ii)

by a corrupt practice having been committed in the interest of the returned candidate by a person acting with the consent of the candidate or his agent; or

(iii)

by the improper acceptance, refusal or rejection of any vote or the reception of any vote which is void; or

(iv)

by any non-compliance with the provisions of the Act or of any rules or orders made thereunder;

the specified officer shall declare the election of the returned candidate to be void.

(2)

If in the opinion of the prescribed authority a returned candidate has been guilty by an agent of any corrupt practice, but the prescribed authority is satisfied-

(a)

that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the instructions and without the consent of the candidate;

(b)

that the candidate took all reasonable means for preventing the commission of corrupt practice at the election; and

(c)

that in all other respect the election was free from any corrupt practice on the part of the candidate or any of his agent;

then the prescribed authority may decide that the election of the returned candidate is not void."

“12.

From a perusal of the aforesaid it is clear that the present case is one of wrongful acceptance of the nomination papers of respondent No.1 and, therefore, the ground for declaring the election of respondent No.1 as void was clearly made out by the petitioner under Rule 21 of the M.P. (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as “the Rules of 1995”) as the result of which the election, insofar as the returned candidate is concerned, i.e. respondent no.1, is materially affected by the improper acceptance of his nomination papers. I am compelled to say so as hand the nomination paper of the respondent been rejected as required by law, he would not have been a contesting candidate and would not have been declared the returned candidate.”

“6.

Non-disclosure of offence while submitting nomination papers has serious consequences. The Hon’ble Supreme Court in the matter of Krishnamoorthy Vs. Sivakumar and Others {(2015) 3 SCC 467} has observed that such non-disclosure amounts to undue influence. The relevant paragraphs are 82, 83 & 84 which read thus:-

“82.

Having stated about the need for vibrant and healthy democracy, we think it appropriate to refer to the distinction between disqualification to contest an election and the concept or conception of corrupt practice inhered in the words "undue influence". Section 8 of the 1951 Act stipulates that conviction under certain offences would disqualify a person for being a Member either of House of Parliament or the Legislative Assembly or Legislative Council of a State. We repeat at the cost of repetition unless a person is disqualified under law to contest the election, he cannot be disqualified to contest. But the question is when an election petition is filed before an Election Tribunal or the High Court, as the case may be, questioning the election on the ground of practising corrupt practice by the elected candidate on the foundation that he has not fully disclosed the criminal cases pending against him, as required under the Act and the Rules and the affidavit that has been filed before the Returning Officer is false and reflects total suppression, whether such a ground would be sustainable on the foundation of undue influence. We may give an example at this stage. A candidate filing his nomination paper while giving information swears an affidavit and produces before the Returning Officer stating that he has been involved in a case under Section 354 IPC and does not say anything else though cognizance has been taken or charges have been framed for the offences under Prevention of Corruption Act, 1988 or offences pertaining to rape, murder, dacoity, smuggling, land grabbing, local enactments like MCOCA, U.P. Goonda Act, embezzlement, attempt to murder or any other offence which may come within the compartment of serious or heinous offences or corruption or moral turpitude. It is apt to note here that when an FIR is filed a person filling a nomination paper may not be aware of lodgement of the FIR but when cognizance is taken or charge is framed, he is definitely aware of the said situation. It is within his special knowledge. If the offences are not disclosed in entirety, the electorate remain in total darkness about such information. It can be stated with certitude that this can definitely be called antecedents for the limited purpose, that is, disclosure of information to be chosen as a representative to an elected body.

83.

The sanctity of the electoral process imperatively commands that each candidate owes and is under an obligation that a fair election is held. Undue influence should not be employed to enervate and shatter free exercise of choice and selection. No candidate is entitled to destroy the sacredness of election by indulging in undue influence. The basic concept of "undue influence" relating to an election is voluntary interference or attempt to interfere with the free exercise of electoral right. The voluntary act also encompasses attempts to interfere with the free exercise of the electoral right. This Court, as noticed earlier, has opined that legitimate canvassing would not amount to undue influence; and that there is a distinction between "undue influence" and "proper influence". The former is totally unacceptable as it impinges upon the voter's right to choose and affects the free exercise of the right to vote. At this juncture, we are obliged to say that this Court in certain decisions, as has been noticed earlier, laid down what would constitute "undue influence". The said pronouncements were before the recent decisions in PUCL (supra), PUCL (NOTA) (supra) and Association of Democratic Reforms (supra) and other authorities pertaining to corruption were delivered. That apart, the statutory provision contained in Sections 33, 33A and Rules have been incorporated.

84.

In this backdrop, we have to appreciate the spectrum of "undue influence". In PUCL (supra) Venkattarama Reddi, J. has stated thus:

"Freedom of voting as distinct from right to vote is thus a [pic]species of freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom."

7 . In the said matter, it has also been concluded that when the candidate has special knowledge of the pending case cognizance of which has been taken or charges have been framed and there is non-disclosure on his part, it would amount to undue influence and, therefore, election is to be declared null and void.”

“9.

ANSWER TO POINT NO.1:-Whether in the nomination form filed by a candidate, the candidate would have to disclose criminal proceedings in which the candidate has been acquitted or not ? 9.1. The Hon'ble Apex Court in the case of Democratic Union of India v. Association for NC: 2024:KHC-D:627 Democratic Reforms and another with Peoples Union for Civil Liberties and another v. Union of India and another1 has categorically held that all details of the candidate include those relating to criminal proceedings would have to be disclosed by a candidate in his nomination papers. 9.2. Though there was no particular requirement under law at that point of time for disclosure of criminal proceedings, it is by way of an order of the Hon'ble Apex Court that it was mandated for a candidate to disclose the details of the criminal proceedings. The distinction that is now sought to be drawn by Sri. Shivaraj S.Balloli, learned counsel for the petitioner that what is required to be disclosed is only where there was a conviction and or the proceedings were pending is a distinction in futility in as much as what the Hon'ble Apex Court has directed is for disclosure of all criminal proceedings filed against the candidate which in my considered opinion also includes criminal proceedings where the candidate has been acquitted since what is important is that disclosure of information by a candidate is to be made and for the electorate to be aware of all relevant information as relating to the candidate contesting in the election. The aspect of conviction or otherwise and the period of sentence may be relevant for disqualification of the candidate, in so far as filing of nomination forms what is required is full disclosure of all aspects relating the candidate and his/her immediate family. Thus, the distinction now sought to be drawn between conviction and acquittal or pendency and acquittal is a distinction without any difference when the aspect of disclosure being required to be made is considered. 9.3. I answer point No.1 by holding that whenever any nomination forms are filed by any candidate, the candidate would have to disclose all criminal proceedings filed against the said candidate irrespective of whether the candidate had been acquitted or not, whether it is been quashed or not. 9.4. The mere fact of filing of complaint and criminal proceedings would suffice for such candidate to disclose the same in his nomination form. If there is no particular row or column in the said application to enable disclosure or if the space available is less than what is required, such candidate could always make use of additional sheets to disclose of particulars like crime number, provisions under which allegations have been made, who are all other co-accused, who is de-facto complainant, the stage of the case if pending, nature of disposal, date of disposal, if an appeal is filed and the details as regards appeal, if proceedings have been quashed, set aside etc.”

“12.

The learned counsel for the respondents concedes that the burden of proving that the improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the question can arise in one of three ways: (1) where the candidate whose nomination was improperly accepted had secured less votes than the difference between the returned candidate and the candidate securing the next highest number of votes, (2) where the person referred to above secured more votes, and (3) where the person whose nomination has been improperly accepted is the returned candidate himself.

It is agreed that in the first case the result of the election is not materially affected because if all the wasted votes are added to the votes of the candidate securing the highest votes, it will make no difference to the result and the returned candidate will retain the seat. In the other two cases it is contended that the result is materially affected. So far as the third case is concerned it may be readily conceded that such would be the conclusion. But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 100(1)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the' Court to find in his favour on this point, the inevitable result would be that the Tribunal -would not interfere, in his favour and would allow the election to stand.”

“12.

This does not prevent the election petitioner from raising the plea in the election petition that the nomination paper of the elected candidate (present petitioner) was properly accepted. This is being observed in the light of Rule 21 of the election petition rules which empowers a specified officer to declare the election void on the ground that any nomination paper has been improperly accepted. Distinction between Rule 35 of Nirvachan Niyam and Rule 21 of Election Petition Rules is that while at the of scrutiny, nomination paper may be rejected even on the sole ground of non-compliance of Rule 31-A whereas under Rule 21 of the election petition rules, an election of a candidate whose nomination paper was accepted even in the absence of compliance of Rule 31-A may be declared void if result of the election has been materially affected. At the stage of scrutiny of nomination paper, an objector is in order to succeed is merely required to establish that the provision of Rule 31-A has not been complied with by the candidate who submitted nomination paper. If the objector fails to raise objection at the time of such scrutiny, he may take the plea in the election petition that the nomination paper was improperly accepted. However, in order to succeed in the election petition he is further required to establish that due to improper acceptance of the nomination paper, result of the election insofar as it concerns returned candidate has been materially affected.

19.

This Court has already dealt with the nature of the provision contained in Rule 31-A. Admittedly, the petitioner has been elected on the post of member of Janpad Panchayat, Ajaygarh. He is found to have submitted nomination paper in breach of mandatory provision of Rule 31-A. His nomination paper was liable to be rejected had there been an objection at the time of scrutiny of nomination paper. His nomination paper was accepted despite non-compliance of Rule 31-A. Obviously, it was an improper acceptance of his nomination paper. Had his nomination paper been not accepted on account of violation of Rule 31-A, he could not have contested the election and further could not have succeeded in the election. In this view of the matter, it is quite clear that his result (being the result of the returned candidate) has been affected by the improper acceptance of his nomination paper. In the various decisions of the Supreme Court cited hereinabove nomination paper of a candidate other than a returned candidate was found to have been improperly accepted. Therefore, it was rightly found that in the absence of a proof that the result of the returned candidate was materially affected, election of a returned candidate could not have been declared void. In the case in hands, the nomination paper of a returned candidate itself is found to have been improperly accepted. Therefore, his result has been obviously materially affected inasmuch as had the nomination paper been not accepted he would not have been declared as elected. Thus, it is further held that if a nomination paper of a returned candidate is found to have been improperly accepted, it would be inferred that the result of such returned candidate has been materially affected.”

"17.

On consideration of the statutory provisions as well as the documentary material on record it becomes clear that under Rule 24-A(1) of the 1994 Rules, every candidate contesting elections is required to furnish information which includes declaration of criminal antecedents, etc. The information required to be furnished is with regard to any pending criminal case in which the candidate is charged or any criminal case that has been disposed of and has resulted in his conviction. Failure to furnish such affidavit can result in rejection of the nomination paper.

18.

The Returning Officer is required to display the nomination furnished by each candidate by affixing a copy of the affidavit at a conspicuous place at his office so as to provide information to the electors from the ward concerned. He is also required to publicise the information received through the media. Similarly, contents of the affidavit required to be filed under Rule 24-A(1) are also required to be displayed in the aforesaid manner.

19.

The object behind disclosing such information is to enable the voters to get knowledge about the criminal antecedents, assets, liabilities and educational qualifications of the candidates contesting the elections. That such information is required to be furnished in furtherance of the right to information available to the electorate under Article 19(1)(a) of the Constitution of India is now well-settled.

20.

In this context, it would be necessary to refer to the three-Judge Bench decision in Union of India v. Assn. for Democratic Reforms [Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294]. While considering the question whether a voter had a right to get relevant information including that with regard to involvement in an offence, this Court while recognising such right to get information in the context of Article 19(1)(a) of the Constitution of India held as under : (SCC p. 317, para 38)

“38.

… In our view, democracy cannot survive without free and fair election, without free and fairly informed voters. Votes cast by uninformed voters in favour of X or Y candidate would be meaningless. As stated in the aforesaid passage, one-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Therefore, casting of a vote by misinformed and non-informed voter or a voter having one-sided information only is bound to affect the democracy seriously. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions. Entertainment is implied in freedom of “speech and expression” and there is no reason to hold that freedom of speech and expression would not cover right to get material information with regard to a candidate who is contesting election for a post which is of utmost importance in the democracy.”"

5- *मुझे किसी आपराधिक मामले में न तो सिद्धदोष ठहराया गया है और न ही कारावास का दण्डादेश दिया गया है. अथवा *मुझे निम्नलिखित आपराधिक मामलों में सिद्धदोष ठहराया गया है:-(*जो लागू न हो उसे विलोपित कर दें)

क्रमांक	न्यायालय का नाम, प्रकरण क्रमांक एवं आदेश की तारीख	उन मामलों के ब्यौरें, अधिनियम की धारा और अपराध का संक्षिप्त विवरण जिसके (जिनके) लिए सिद्धदोष ठहराया गया है	अधिरोपित दण्ड	क्या सिद्धदोष ठहराने के आदेश के विरुद्ध कोई अपील फाइल की गई थी/है, यदि हाँ तो अपील के ब्यौरें और वर्तमान प्रस्थिति
1	निरंक	निरंक	निरंक	निरंक
2	निरंक	निरंक	निरंक	निरंक
3	निरंक	निरंक	निरंक	निरंक

6- *मेरे विरुद्ध कोई भी आपराधिक मामला लंबित नहीं है. अथवा *मेरे विरुद्ध आपराधिक मामलों का विवरण निम्नानुसार है:-(*जो लागू न हो उसे विलोपित कर दें)