Filing a false affidavit by an election candidate is “an offence against society at large” that cannot be allowed to go uninvestigated, the Supreme Court has held.
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A bench of Justices Sanjay Karol and N Kotiswar Singh set aside a Gujarat magistrate’s order taking cognisance solely under Section 125A of the Representation of the People Act, 1951 (RPA), holding that while the provision itself did not apply to municipal elections, the alleged act of filing a false affidavit nevertheless disclosed offences requiring fresh consideration by the trial court.
“If the issue is that a false affidavit has been filed in the electoral process, that is an offence against society at large and has to be investigated,” underlined the bench in its ruling on Wednesday, while remanding the matter to the magistrate for taking cognisance afresh in accordance with law.
The ruling came on an appeal filed by Chandrikaben Kishor Dafda, who challenged the Gujarat High Court’s refusal to quash criminal proceedings arising out of allegations that she suppressed details of properties owned by her husband while contesting the 2015 municipal elections.
The complaint alleged that although the appellant had disclosed certain assets, she failed to declare several immovable properties standing in her husband’s name in the affidavit accompanying her nomination papers. A magistrate had found a prima facie case and issued summons under Section 125A of RPA, which penalises false affidavits by election candidates.
Before the Supreme Court, Dafda’s counsel Namit Saxena argued that RPA governs only parliamentary and assembly elections and not elections to municipalities, which are regulated by the Gujarat Municipalities Act and the Gujarat Municipalities (Conduct of Elections) Rules.
Accepting this contention, the bench held that Section 125A of RPA was indeed inapplicable to municipal elections. However, it refused to quash the proceedings altogether.
The court noted that candidates contesting municipal elections in Gujarat are nevertheless required under the election rules to disclose the assets of themselves, their spouses and dependants while filing nomination papers.
Rejecting Dafda’s argument that only jointly owned properties needed to be disclosed, the bench held that the rules clearly require disclosure of all assets belonging to the candidate, the spouse and dependants.
“The word ‘of’ applies equally to ‘myself’, ‘my spouse’ and ‘dependents’,” said the judgment, adding that the comma separating those expressions merely serves a grammatical purpose and does not exclude properties exclusively owned by the spouse from disclosure.
The court further held that the trial court’s mistake in invoking the wrong statutory provision was only a curable irregularity and not a jurisdictional defect warranting quashing of the proceedings.
Referring to earlier precedents on the law relating to cognisance, the bench reiterated that criminal courts take cognisance of offences and not of individuals. Consequently, an error in mentioning the applicable penal provision would not invalidate the proceedings if the facts disclosed commission of a cognisable offence and the court otherwise possessed jurisdiction to proceed.
The Supreme Court also relied on Section 465 of the Code of Criminal Procedure, which protects criminal proceedings from being invalidated because of procedural irregularities unless they have occasioned a failure of justice.
The bench observed that courts must guard against allowing technical defects to derail prosecutions at the threshold, particularly where allegations concern the purity of the electoral process.
Finding that the magistrate had erroneously confined cognisance to a provision that was inapplicable to municipal elections, the Supreme Court remanded the matter to the trial court to reconsider the complaint and take cognisance afresh under the appropriate provisions of law.
