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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NOS.1515-1516 OF 2019  [Arising out of Special Leave Petition (Criminal) Nos. 19-20 of 2019]  

 SATISH UKEY        APPELLANT(S)   

VERSUS   

DEVENDRA GANGADHARRAO FADNAVIS   

AND ANR.                 RESPONDENT(S)   

J U D G M E N T   

RANJAN GOGOI, CJI  

1.  Leave granted.  

 2.  The appellant– Satish Ukey is a practicing Advocate of  

the Bombay High Court. The first respondent is an elected  

member of the Maharashtra State Legislative Assembly and is  

presently holding the post of Chief Minister of the State of  

Maharashtra.     

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3.  The appellant had filed a criminal complaint before the  

learned Judicial Magistrate First Class, Nagpur for registration  

of a case against the first respondent under Section 125-A of the  

Representation of the People Act, 1951 (hereinafter referred to as  

“the 1951 Act”).  The learned Judicial Magistrate First Class,  

Nagpur by order dated 7th September, 2015 dismissed the  

complaint.  In Revision, the learned Sessions Judge, Nagpur  

remanded the matter to the learned trial Court for a de novo  

consideration.  Aggrieved, the first respondent moved the High  

Court and the High Court having set aside the order of the  

learned Sessions Judge by its judgment and order dated 3rd May,  

2018, the present appeals have been filed.   

4.  The complaint filed by the appellant contains an  

allegation that in the affidavit in Form-26, prescribed by the  

Conduct of Election Rules, 1961 (hereinafter referred to as “the  

1961 Rules”), which had accompanied the nomination papers of  

the first respondent details of two cases in which cognizance was  

taken i.e. (i) Summary Case No.231 of 1996 (under Section 500  

of IPC) before the Judicial Magistrate First Class, Nagpur; and (ii)  

Regular Criminal Case No.343 of 2003 (Old No.125 of 1998)

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(under Sections 468, 471, 218, 467, 420 and 34 of IPC) before  

the Court of Judicial Magistrate First Class, Nagpur have not  

been mentioned by the first respondent despite knowledge of the  

same.  Consequently, according to the appellant – complainant,  

an infraction of the provisions of Section 125-A has been  

committed for which the first respondent is liable to be  

prosecuted in a court of competent jurisdiction.    

On the very same allegations the appellant had challenged  

the election of the first respondent before the High Court by  

instituting Election Petition No.1 of 2014 which has been  

dismissed by the High Court by its order dated 19th August,  

2015.  

5.  To determine the correctness of the stand taken by the  

appellant  - complainant and the legality of the impugned order  

of the High Court holding that the complaint is liable to be  

dismissed, the Court would be required to consider the  

provisions of Sections 33-A and 125-A of the 1951 Act, Rule 4A  

of the 1961 Rules read with Form-26 prescribed under the said  

Rules.  Several letters of the Election Commission of India to the

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Chief Electoral Officers of all the States and the Union Territories  

issued in this regard would also require a close look.  

6.  Before setting out the relevant provisions of the law  

enumerated above, a brief prologue on the judicial precedents  

that had led to the insertion of Sections 33-A and 125-A in the  

1951 Act and the provisions of Rule 4-A of the 1961 Rules read  

with Form-26 is considered necessary.    

7.  In Union of India (UOI) and Ors. v. Association for  

Democratic Reforms and Ors.1 this Court while examining the  

issue of the Voters right to know relevant particulars of the  

contesting candidates before they are called upon to cast their  

votes had made the following observations :   

“22. For health of democracy and fair election,  whether the disclosure of assets by a candidate,  his/her qualification and particulars regarding  involvement in criminal cases are necessary for  informing voters, may be illiterate, so that they can  decide intelligently, whom to vote? In our opinion,  the decision of even illiterate voter, if properly  educated and informed about the contesting  candidate, would be based on his own relevant  

 1  (2002) 5 SCC 294

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criteria of selecting a candidate. In democracy,  periodical elections are conducted for having  efficient governance for the country and for the  benefit of citizens -- voters. In a democratic form of  government, voters are of utmost importance. They  have right to elect or re-elect on the basis of the  antecedents and past performance of the  candidate. He has choice of deciding whether  holding of educational qualification or holding of  property is relevant for electing or re-electing a  person to be his representative. Voter has to decide  whether he should cast vote in favour of a  candidate who is involved in criminal case. For  maintaining purity of elections and healthy  democracy, voters are required to be educated and  well informed about the contesting candidates.  Such information would include assets held by the  candidate, his qualification including educational  qualification and antecedents of his life including  whether he was involved in a criminal case and if  the case is decided--its result, if pending-- whether  charge is framed or cognizance is taken by the  Court? There is no necessity of suppressing the  relevant facts from the voters.  

[underlining is ours]”    

Further, this Court issued the following directions to the Election  

Commission (para 48, pg. 322):  

“48. The Election Commission is directed to call  for information on affidavit by issuing necessary  order in exercise of its power under Article 324 of  the Constitution of India from each candidate  seeking election to Parliament or a State  Legislature as a necessary part of his nomination  paper, furnishing therein, information on the

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following aspects in relation to his/her  candidature:-  (1) Whether the candidate is convicted/acquitted/  discharged of any criminal offence in the past-if  any, whether he is punished with imprisonment  or fine?  (2) Prior to six months of filing of nomination,  whether the candidate is accused in any pending  case, of any offence punishable with  imprisonment for two years or more, and in which  charge is framed or cognizance is taken by the  Court of law. If so, the details thereof.  

[underlining is ours]”    

8.  Consequent to the above and the directions issued in  

Association for Democratic Reforms (Supra), Section 33-A was  

inserted into the 1951 Act vide the ‘Representation of the People  

(Third Amendment) Act, 2002’ (Section 2 of the Act 72 of 2002).     

9.  The new Section 33-A, which is the bone of contention  

in the present case, deals with the ‘Right to Information’  and  

reads as under:  

“33A. Right to information.—(1) 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 –   

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(i) he is accused of any offence punishable with  imprisonment for two years or more in a pending  case in which a charge has been framed by the  court of competent jurisdiction;    (ii) he has been convicted of an offence other  than any offence referred to in sub-section (1) or  sub-section(2), or covered in sub-section (3), of  section 8 and sentenced to imprisonment for one  year or more.    (2) The candidate or his proposer, as the case  may be, shall, at the time of delivering to the  returning officer the nomination paper under  sub-section (1) of section 33, also deliver to him  an affidavit sworn by the candidate in a  prescribed form verifying the information  specified in sub-section (1).    (3) The returning officer shall, as soon as may be  after the furnishing of information to him under  sub-section (1),display the aforesaid information  by affixing a copy of the affidavit, delivered under  sub-section (2), at a conspicuous place at his  office for the information of the electors relating  to a constituency for which the nomination  paper is delivered.  

[underlining is ours]”      

It is pertinent to note here that Section 33-A(1), as worded and  

drafted, required furnishing of the information of cases where (i)  

the person filing the nomination has been convicted; and (ii)  

where charges have been framed against the person filing the  

nomination but excluded cases where cognizance had been

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taken.  This was despite the order of this Court, noticed above,  

to the effect that details of case(s) of which cognizance has been  

taken should also be furnished.  

 10.  The aforesaid discrepancy was addressed by this  

Court, in the case of People's Union for civil Liberties (PUCL)  

and Ors. v. Union of India (UOI) and Ors.2  In the said case, this  

Court had examined the import of Sections 33-A and 33-B3 of the  

1951 Act [as inserted in the 1951 Act through the amendment in  

2002 (Supra)] vis-à-vis the directions issued by this Court in the  

case of Association for Democratic Reforms (Supra) and held  

as under (opinion of M.B. Shah, J. is quoted.  The opinion of P.  

Venkatarama Reddi and D.M. Dharmadhikari, JJ. on the point  

is one of concurrence):  

“114. I shall now discuss the specifics of the  problem. With a view to promote the right to  information, this Court gave certain directives  

 2 (2003) 4 SCC 399  3Section 33-B was also added through the 2002 Amendment. It stated that  

notwithstanding anything contained in any judgment of any Court, or any instruction  

issued by the Election Commission, no candidate shall be liable to disclose  

information not required by the Act or rules made thereunder.   

Section 33-B was declared unconstitutional in People’s Union of Civil Liberties v.  

Union of India and Ors. ((2003) 4 SCC 399) as violating the fundamental right of  

citizens to know the antecedents of candidates contesting in the elections, which  

right was held to be an essential facet of freedom of speech and  expression  

enshrined in Article 19(1)(a) of the Constitution which could only be validly  

limited through the restrictions conforming with Article. 19(2) of the Constitution  

of India.

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to the Election Commission which, as I have  already clarified, were ad hoc in nature. The  Election Commission was directed to call for  details from the contesting candidates broadly  on three points, namely, (i) criminal record, (ii)  assets and liabilities, and (iii) educational  qualification. The Third Amendment to the RP  Act which was preceded by an ordinance  provided for disclosure of information. How far  the Third Amendment to the Representation of  the People Act, 2002 safeguards the right of  information which is a part of the guaranteed  right under Article 19(1)(a), is the question to be  considered now with specific reference to each  of the three points spelt out in the judgment of  this Court in Assn. for Democratic Reforms  case.   

115. As regards the first aspect, namely,  criminal record, the directives in Assn. for  Democratic Reforms case are twofold: (SCC p.  322, para 48)  

“(1) Whether the candidate is  convicted/acquitted/discharged of any  criminal offence in the past — if any, whether  he is punished with imprisonment or fine.  

(2) Prior to six months of filing of  nomination, whether the candidate is an  accused in any pending case, of any offence  punishable with imprisonment for two years  or more, and in which charge is framed or  cognizance is taken by the court of law.”  

As regards the second directive, Parliament has  substantially proceeded on the same lines and  made it obligatory for the candidate to furnish  information as to whether he is accused of any  offence punishable with imprisonment for two  years or more in a pending case in which a

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charge has been framed by the competent court.  However, the case in which cognizance has been  taken but charge has not been framed is not  covered by clause (i) of Section 33-A(I).  Parliament having taken the right step of  compelling disclosure of the pendency of cases  relating to major offences, there is no good  reason why it failed to provide for the disclosure  of the cases of the same nature of which  cognizance has been taken by the Court. It is  common knowledge that on account of a variety  of reasons such as the delaying tactics of one or  the other accused and inadequacies of the  prosecuting machinery, framing of formal  charges gets delayed considerably, especially in  serious cases where committal procedure has to  be gone through. On that account, the  voter/citizen shall not be denied information  regarding cognizance taken by the Court of an  offence punishable with imprisonment for two  years or more. The citizen's right to information,  when once it is recognized to be part of the  fundamental right under Article 19(1)(a), cannot  be truncated in the manner in which it has been  done. Clause (i) of Section 33-A(I) therefore falls  short of the avowed goal to effectuate the right  of information on a vital aspect. Cases in which  cognizance has been taken should therefore be  comprehended within the area of information  accessible to the voters/citizens, in addition to  what is provided for in clause (i) of Section 33- A.  

[underlining is ours]”  

 Further, the Court held:  

“123. Finally, the summary of my conclusions:  

(1) …..

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(2) ….  

(3) The directives given by this Court in Union of  India v. Assn. for Democratic Reforms were  intended to operate only till the law was made by  the legislature and in that sense “pro tempore” in  nature. Once legislation is made, the Court has to  make an independent assessment in order to  evaluate whether the items of information  statutorily ordained are reasonably adequate to  secure the right of information available to the  voter/citizen. In embarking on this exercise, the  points of disclosure indicated by this Court, even  if they be tentative or ad hoc in nature, should be  given due weight and substantial departure  therefrom cannot be countenanced.  

…  

(6) The right to information provided for by  Parliament under Section 33-A in regard to the  pending criminal cases and past involvement in  such cases is reasonably adequate to safeguard  the right to information vested in the voter/citizen.  However, there is no good reason for excluding the  pending cases in which cognizance has been taken  by the Court from the ambit of disclosure.  

[underlining is ours]”  

Eventually, the following direction was issued by the Court  

to the Election Commission of India:  

“123 (9) The Election Commission has to issue  revised instructions to ensure implementation

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of Section 33-A subject to what is laid down in  this judgment regarding the cases in which  cognizance has been taken….”  

11.  Section 125-A of the 1951 Act [Inserted by Section 5  

of the Representation of the People (Third Amendment) Act, 2002’  

(Act 72 of 2002)] reads as under:  

 “Section 125-A. Penalty for filing false affidavit,  etc.- A candidate who himself or through his  proposer, with intent to be elected in an  election,—  

(i) fails to furnish information relating to  sub-section (1) of section 33-A; or  (ii) gives false information which he knows  or has reason to believe to be false; or  (iii) conceals any information,  

in his nomination paper delivered under sub- section (1) of section 33 or in his affidavit which  is required to be delivered under sub-section (2)  of section 33-A, as the case may be, shall,  notwithstanding anything contained in any  other law for the time being in force, be  punishable with imprisonment for a term which  may extend to six months, or with fine, or with  both”  

12.  Whether the provisions of Section 125-A of the 1951  

Act would be applicable in the present case, as claimed by the  

appellant – complainant, to make the first respondent liable in

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law, would require the Court to decide on the true meaning and  

purport of the following phrases found in Section 125-A of the  

1951 Act.  

(a) fails to furnish information relating to sub-section (1)  

of Section 33-A;   

(b) conceals any information;   

(c) in his nomination paper delivered under sub-section  

(1) of section 33 or in his affidavit which is required to  

be delivered under sub-section (2) of section 33-A.  

13.  To find out the true meaning and purport of the  

aforesaid phrases, the crucial question that has to be answered  

is whether the word ‘information’ as mentioned in Section 33-A  

of the 1951 Act means only such information as mentioned in  

clause (i) and (ii) of Section 33-A(1) or whether along with the said  

information a candidate is also required to furnish such other  

information as required under the Act or the Rules made  

thereunder. The consequential question that would arise is  

whether in the affidavit required to be filed under sub-section (2)  

of Section 33-A information is to be given as required in terms of

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the affidavit which is prescribed by Form-26 of the 1961 Rules or  

such information is confined to what is required to be submitted  

under Section 33-A (1) (i) and (ii).  It is at this stage that Rule 4-

A of the 1961 Rules would require to be noticed.  Rule 4-A which  

was inserted by S.O.935(E), dated 3.9.2002 with effect from  

3.9.2002 is in the following terms.  

   “4-A. Form of affidavit to be filed at the time  of delivering nomination paper.— The  candidate or his proposer, as the case may be,  shall, at the time of delivering to the returning  officer the nomination paper under sub-section  (1) of Section 33 of the Act, also deliver to him  an affidavit sworn by the candidate before a  Magistrate of the first class or a Notary in Form  26.”  

14.  Form 26 is the prescribed form of affidavit to be filed  

by a candidate along with his nomination papers as required  

under Section 33-A (2) of the 1951 Act.  The said affidavit in the  

prescribed form reads as hereunder:  

" [FORM 26  

(See Rule 4-A)  

  Please affix your recent  

passport size photograph  here

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Affidavit to be filed by the candidate along with nomination paper before the returning officer for  election to ………………………… .(name of the House) from……………………………constituency (Name  

of the constituency)  

PART A  

I ……………………………………., **son/daughter/wife of…………………………………………  Aged…………………………..years, resident of ………………………………………………… (mention full  postal address), a candidate at the above election, do hereby solemnly affirm and state on oath as  under—  

(1) I am a candidate set up by……………………….(**name of the political party)/**am contesting  as an Independent candidate.  

(**Strike out whichever is not applicable)  

(2) My name is enrolled in ………………………………………….(Name of the constituency and the  State), at Serial No. …………………in Part No. ……………….  

[(3) My contact telephone number(s) is/are………………………… and my E-mail ID (if any) is  ……………………..  

[(4) Details of Permanent Account Number (PAN) and status of filing of income tax return:  

Sl.  No.  

Names PAN The financial year for  which the last  

income-tax return  has been filed.  

Total income shown in income tax return (in  Rupees)  

1. Self      

2 Spouse      

3. Dependent-1      

4. Dependent-2      

5. Dependent-3      

5. I am/am not accused of any offence(s) punishable with imprisonment for two years or more in a  pending case(s) in which a charge(s) has/have been framed by the court(s) of competent jurisdiction.  

If the deponent is accused of any such offence(s) he shall furnish the following information-  

(i) The following case(s) is/are pending against me in which charges have been framed by the court  for an offence punishable with imprisonment for two years or more-  

(a) Case/First Information Report No./Nos.  together with complete details of  concerned Police Station/District/State  

(b) Section(s) of the concerned Act(s) and  short description of the offence(s) for  which charged  

(c)  Name of the Court, Case No. and date of  Order taking cognizance:  

(d) Court(s) which framed the charge(s)   

(e) Date(s) on which the charge(s) was/were  framed  

(f) Whether all or any of the proceeding(s)  

have been stayed by any Court(s) of  competent jurisdiction  

(ii) The following case(s) is/are pending against me in which cognizance has been taken by the  Court(other than the cases mentioned in item (i) above.  

(a) Name of the Court, Case No. and date of  order taking cognizance:  

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(b) The details of cases where the Court has  taken cognizance, section (s) of the Act(s)  and description of the offence(s) for which  cognizance taken  

(c) Details of Appeal(s)/Application(s) for  revision (if any) filed against the above  order(s)  

(6) I have been/have not been convicted of an offences(s) other than any offence(s) referred to in  sub-section (1) or sub-section (2), or covered in sub-section (3), of Section 8 of the Representation of  the People Act, 1951 (43 of 1951) and sentenced to imprisonment for one year or more.  

If the deponent is convicted and punished as aforesaid, he shall furnish the following information:  

In the following cases, I have been convicted and sentenced to imprisonment by a court of  law:-  

(a) The details of cases, Section(s) of the  concerned Act (s) and description of the  offence(s) for which convicted.  

(b) Name of the court(s), Case No. and date(s)  of order(s)  

(c) Punishment imposed.   

(d) Whether any appeal was/has been filed  against the conviction order.  If so, details  and the present status of the appeal.  

(7) That I give hereinbelow the details of the assets (movable and immovable etc.) of myself, my  spouse and all dependents:  

A. Details of movable assets:  

Note:1. Assets in joint name indicating the extent of joint ownership will also have to be given  

Note:2. In case of deposit/investment, the details including serial number, amount, date of deposit,  the scheme, name of the Bank/Institution and Branch are to be given.  

Note:3. Value of Bonds/Share Debentures as per current market value in Stock exchange in respect  of listed companies and as per books in case of non-listed companies should be given.  

Note:4. Dependent here has the same meaning as assigned in Explanation (v) under Section 75-A of  the Representation of the People Act, 1951.  

Note:5: Details including amount is to be given separately in respect of each investment.   

Sl. No. Description Self Spouse Dependent- 1  

Dependent- 2  

Dependent- 3  

(i) Cash in hand        

(ii) Details of deposit in Bank accounts (FDRs,  Term Deposits and all other types of  

deposits including saving accounts),  Deposits with Financial Institutions, Non-

Banking Financial Companies and  Cooperative societies and the amount in  each such deposit  

(iii) Details of investment in Bonds,  debentures/shares and units in  companies/Mutual funds and others and  the amount  

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(iv) Details of investment in NSS, Postal  Saving, Insurance policies and investment  in any Financial instruments in Post Office  or Insurance Company and the amount  

(v) Personal loans/advance given to any  person or entity including firm, company,  Trust etc., and other receivables from  debtors and the amount  

(vi) Motor Vehicles/Aircrafts/Yachts/Ships  (Details of Make, registration number etc.  year of purchase and amount)  

(vii) Jewellery, bullion and valuable thing(s)  (give details of weight and value)  

(viii) Any other assets such as value of  claims/interest  

(ix) Gross Total Value        

B. Details of Immovable Assets:  

Note: 1. Properties in joint ownership indicating the extent of joint ownership will also have to be  indicated.  

Note: 2. Each land or building or apartment should be mentioned separately in this format.  

Sl.  No.  

Description Self Spouse Dependent- 1  

Dependent- 2  

Dependent- 3  

(i) Agricultural Land Location(s)  

Survey number(s)  

Area (total measurement in acres)        

Whether inherited property (Yes or No)        

Date of Purchase in case of self- acquired property  

Cost of Land (in case of purchase) at the  time of purchase  

Any investment on the land by way of  development, construction etc.  

Approximate current market value        

(ii) Non-Agricultural Land:  

Location(s)  

Survey number(s)  

Area (total measurement in sq. ft.)        

Whether inherited property (Yes or No)        

Date of Purchase in case of self- acquired property  

Cost of Land (in case of purchase) at the  

time of purchase  

Any investment on the land by way of  development, construction etc.  

Approximate current market value        

(iii) Commercial Buildings (including  apartments)  

—Location(s)  

—Survey number(s)  

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Area (total measurement in sq.ft.)        

Built-up Area (total measurement in  sq.ft.)  

Whether inherited property (Yes or No)        

Date of purchase in case of self- acquired property  

Cost of property (in case of purchase) at  the time of purchase  

Any investment on the property by way  of development, construction etc.  

Approximate current market value        

(iv) Residential Buildings (including  apartments):  

—Location(s)  

—Survey number(s)  

Area (total measurement in sq.ft.)        

Built-up area (total measurement in  sq.ft.)  

Whether inherited property (Yes or No)        

Date of purchase in case of self- acquired property  

Cost of property (in case of purchase) at  the time of purchase  

Any investment on the land by way of  development, construction etc.  

Appropriate current market value        

(v) Others (such as interest in property)        

(vi) Total of current market value of (i) to (v)  above  

(8) I give herein below the details of liabilities/dues to public financial institutions and  government—  

(Note.—Please give separate details of name of bank, institutions, entity or individual and amount  before each item)  

Sl.  No.  

Description Self Spouse Dependent- 1  

Dependent- 2  

Dependent- 3  

(i) Loan or dues to Bank/financial institution(s)  

Name of the Bank or financial institution,  Amount outstanding, Nature of Loan  

Loan or dues to any other individuals/entity  other than mentioned above Name(s),  Amount outstanding, nature of loan  

Any other liability        

Grand total of liabilities        

(ii) Government Dues  Dues to departments dealing with  government accommodation  

Dues to department dealing with supply of  water  

Dues to department dealing with supply of  electricity  

Dues to department dealing with supply of  

telephones/mobiles  

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Dues to department dealing with  government transport (including aircrafts  and helicopters)  

Income Tax dues       

Wealth tax dues       

Service tax dues       

Municipal/Property tax dues       

Sales tax dues       

Any other dues       

(iii) Grand total of all Government dues       

(iv) Whether any other liabilities are in dispute,  if so, mention the amount involved and the  authority before which it is pending  

(9) Details of profession or occupation:  

(a) Self ………………………………………………………………….  

(b) Spouse ……………………………………………………………..  

(10) My educational qualification is as under—  

……………………………………………………………………………………..  

(Give details of highest School/University education mentioning the full form of the  certificate/diploma/degree course, name of the School/College/University and the year in which the  course was completed.)  

PART B  

(11) Abstract of the details given in (1) to (10) of Part A:  

1. Name of the candidate Sh./Smt./Kum.  

2. Full postal address    

3. Number and name of the constituency and State    

4. Name of the political party which set up the candidate  (otherwise write ‘Independent’)  

5. (I) Total number of pending cases where charges have  been framed by the court for offences punishable with  imprisonment for two years or more  

(ii) Total number of pending cases where the court(s)  have taken cognizance (other than the cases  mentioned in item (i) above  

6. Total number of cases in which convicted and  sentenced to imprisonment for one year or more  except for offences referred to in sub-sections(1), (2) or  (3) of Section 8 of Representation of the People Act,  1951.  

7.    

PAN of Year for which  last income  tax return  

filed  

Total income shown  

 (a) Candidate  

(b) Spouse       

 (d) Dependents]   

8.  [Details of Assets and Liabilities in rupees]   Description Self Spouse  

 Dependent-I Dependent-

II  Dependent-

III  

A. Movable Assets (Total Value)         

B    

Immovable Asset        

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 I. Purchase Price of self-acquired  

immovable property  

II. Development/Construction cost of  immovable property after purchase (if  applicable)  

III. Approximate Current market price of—         

 (a) self-acquired assets (Total Value)  

 (b) inherited assets (Total Value)  

9.    

Liabilities         

(i) Government dues (Total)         

(ii) Loans from Bank, Financial Institutions  and others (Total)  

10.    

Liabilities that are under dispute         

 (i) Government dues (Total)  

(ii) Loans from Bank, Financial Institutions  and others (Total)  

11. Highest educational qualification:   

(Give details of highest School/University education mentioning the full form of the  certificate/diploma/degree course, name of the School/College/University and the year in  which the course was completed.)  

VERIFICATION  

I, the deponent, abovenamed, do hereby verify and declare that the contents of this affidavit are  true and correct to the best of my knowledge and belief and no part of it is false and nothing material  has been concealed therefrom. I further declare that—  

(a) there is no case of conviction or pending case against me other than those mentioned in  Items 5 and 6 of Part A and B above;  

(b) I, my spouse, or my dependents do not have any asset or liability, other than those  mentioned in Items 7 and 8 of Part A and Items 8, 9 and 10 of Part B above.  

Verified at…………………………this the…………………day of………………………………………  

DEPONENT  

Note: 1.  Affidavit should be filed latest by 3.00 PM on the last day of filing nominations.  

Note: 2. Affidavit should be sworn before an Oath Commissioner or Magistrate of the First Class or before  a Notary Public.  

Note: 3. All column should be filled up and no column to be left blank. If there is no information to  furnish in respect of any item, either “Nil” or “Not applicable”, as the case may be, should be  mentioned.  

Note: 4. The Affidavit should be either typed or written legibly and neatly.”  

15.  It may be noticed here that Form-26 was substituted  

by S.O. 1732 (E) dated 1.8.2012 with effect from 1.8.2012.  

 16.  A bare perusal of Form-26 makes it abundantly clear  

that, for offences punishable with imprisonment for two years or

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more, while entry (5) (i) mandates disclosure of information by  

the contesting candidate regarding the case(s) that is/are  

pending against him in which charges have been framed by the  

Court; entry (5)(ii) mandates disclosure of information by the  

contesting candidate regarding cases that are pending against  

him in which cognizance has been taken by the Court.  

Entry 5(ii) specifically mentions that the candidate is  

required to provide information of the case(s) pending in which  

cognizance has been taken.  This is in addition to the information  

he is required to provide against the column in Entry 5(i) as the  

words ‘Other than the cases mentioned in item (i) above’ are  

specifically used in Entry 5 (ii).  

17.  The above can leave no element of doubt that,  

subsequent to the substitution of Form 26 in 2012, the new Form  

26 (as in vogue at the time of the elections in 2014), mandates  

the disclosure of information by the contesting candidate of not  

only case(s) in which charges have been framed but also case(s)  

in which cognizance has been taken by the Court.  

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 18.  The position is made further clear by the letters  

written by the Election Commission of India to the Chief Electoral  

Officer of all the States and the Union Territories.   A reading of  

the said letters would go to show that a contesting candidate is  

mandated to furnish information concerning the cases in which  

a Competent Court has taken cognizance along with the cases in  

which charges have been framed. The said letters also make it  

clear that the affidavit mentioned in Section 33-A(2) of the 1951  

Act is prescribed in Form-26 and that any false declaration or  

concealment of information in the said affidavit will attract the  

provisions of Section 125-A of the 1951 Act.  The letters in this  

regard are dated 24.8.2012, 26.9.2012 and 26.4.2014, relevant  

portions of which are extracted below:  

(i) Letter dt. 24-08-2012:      “1. Sub:- Affidavit to be filed by candidates with  their nomination paper-modification of format- regarding.    The candidates at elections to the Parliament  and the State Legislatures hitherto were  required to file two affidavits: one, in Form-26  appended to Conduct of Elections Rules, 1961

23    

and the other, in the Form prescribed by the  Commission, vide its Order No. 3/ER/2003 dt.  27-03-2003, as subsequently modified by the  letter of even number dt. 25-02-2011. In the  affidavits, the candidates are required to declare  information about their criminal background, if  any, assets, liabilities and educational  qualifications.    2. On a proposal moved by the Commission  for amalgamating the two affidavits into one  format, the Govt. has amended Form 26 so as  to include in it all the information that was  sought in the two separate affidavits. The  Ministry of Law and Justice have notified the  revised format 26 in the Gazette of India on 01- 08-2012. A copy of the said notification dated  1st August, 2012 is enclosed herewith.    3. In view of the amendment to Form-26, all  candidates shall, hereafter, file only one  affidavit in the revised Form 26 notified on 01- 08-2012 (at elections to the Parliament and  State Legislatures). The requirements to be  followed while filing the affidavit have been  mentioned in the notes given at the end of the  format…..    ...    5. You are requested to furnish a copy of this  letter along with the copy of the enclosed  notification to every political party (including  registered unrecognized parties) having  headquarters in your State/UT, including the  State Units of recognized National and State  political parties.”[Emphasis is ours].”    (ii). Letter dt. 26-09-2012:  

24    

  “Sub: Affidavit to be filed by the candidates  with their nomination paper-regarding:   …    2. Item 5 of Part A and Part B of the revised  Form 26 relates to information regarding  criminal antecedentsto be furnished by the  candidates. It is clarified that in item (5)(ii) of  the said Part A & Part B of Form-26, the details  of all pending cases in which cognizance has  been taken by the Court, irrespective of the  quantum of punishment or framing of charges  will have to be disclosed by the candidate. This  may be brought to the notice of all candidates  when they file their nomination at all future  general/bye-elections in the State…”      (iii) Letter dt. 26-04-2014:    “Sub: Filing of false affidavit in Form-26.reg.  

Sir/Madam,    You are aware that the format of affidavit in  Form-26 appended to the Conduct of Election  Rules, 1961, was amended with effect from 01- 08-2012. Now the candidates are required to  make declarations about assets and liabilities  including that of spouse and dependants,  candidate’s criminal antecedents and  educational qualifications, in the affidavit in  Form 26. The concealing of information in the  affidavit in Form 26 will attract the provisions of  Section 125A. Under Section 125A, furnishing  of any false information or concealing of  information in the affidavit in Form 26 is an  electoral offence punishable with imprisonment  upto six months, or with fine or both.

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 2. Prior to amendment to Form 26 in August  2012, the affidavit regarding declaration about  assets, liabilities, criminal antecedents and  educational qualification was given in the  format prescribed by the Commission. In the  case of complaints about false statement in the  said affidavit, the Commission, vide its circular  letter No. 3/ER/2004, dated 2/6/2004, had  clarified that if complaints were filed before the  Returning Officer raising the issue of false  declaration in the affidavit and if the RO was  prima facie satisfied about the merits of the  complaint, then the RO was to file a complaint  before the competent Court under Section 177  of IPC read with Section 195 of Cr.P.C.    3. Now that the affidavit is in Form 26 under  Section 33A of the R.P. Act, 1951, making false  declaration/concealing of information in the  affidavit would be covered under Section 125A  of the Act. Under Section 125A, there is no  stipulation that complaints under the Section  have to be made by the public servant  concerned (in this case the R.O.). Therefore, it  would be open to any aggrieved person to move  petition before the appropriate Court of  competent jurisdiction with petition for action  under Section 125A in the case of any false  declaration or concealing of information in the  affidavit in Form 26.  

[underlining is ours]”    

19.  A cumulative reading of Section 33-A of the 1951 Act  

and Rule 4-A of the 1961 Rules and Form-26 along with the  

letters dated 24.8.2012, 26.9.2012 and 26.4.2014, in our

26    

considered view, make it amply clear that the information to be  

furnished under Section 33-A of the 1951 Act includes not only  

information mentioned in clauses (i) and (ii) of Section 33-A(1),  

but also information, that the candidate is required to furnish,  

under the Act or the Rules made thereunder and such  

information should be furnished in Form 26, which includes  

information concerning cases in which a competent Court has  

taken cognizance (Entry 5(ii) of Form 26).  This is  apart from and  

in addition to cases in which charges have been framed for an  

offence punishable with imprisonment for two years or more or  

cases in which conviction has been recorded and sentence of  

imprisonment for a period of one year or more has been imposed  

(Entries 5(i) and 6 of Form 26 respectively).  

 20.  In the light of the view that we have taken and in view  

of the clear averment made in the complaint to the effect that the  

First Respondent had knowledge of the two cases against him  

which had not been mentioned in the affidavit filed by the First  

Respondent alongwith his nomination papers, we unhesitatingly  

arrive at the conclusion that the order of the learned trial Court

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upheld by the High Court by the impugned judgment and order  

dated 3rd May, 2018 is legally not tenable and the same deserves  

to be set aside which we hereby do.  The complaint of the  

appellant will be considered afresh by the learned trial Court  

from the stage where it was interdicted by the order dated  

30.5.2016.  

 21.  Our view as above is in consonance with a similar view  

expressed by this Court in paragraph 75 of the report in  

Krishnamoorthy v. Sivakumar and others4.   Para 75 of the  

report in Krishnamoorthy (supra) reads as under:  

“75. On a perusal of the aforesaid format, it is  clear as crystal that the details of certain  categories of the offences in respect of which  cognizance has been taken or charges have  been framed must be given/furnished. This  Rule is in consonance with Section 33-A of the  1951 Act. Section 33(1) envisages that  information has to be given in accordance with  the Rules. This is in addition to the information  to be provided as per Sections 33(1)(i) and (ii).  The affidavit that is required to be filed by the  candidate stipulates mentioning of cases  pending against the candidate in which charges  have been framed by the Court for the offences  punishable with imprisonment for two years or  more and also the cases which are pending  

 4 (2015) 3 SCC 467

28    

against him in which cognizance has been taken  by the court other than the cases which have  been mentioned in clause (5)(i) of Form 26.  Apart from the aforesaid, clause (6) of Form 26  deals with conviction.  

22.  Consequently and in the light of the above, the appeals  

are allowed.  The order of the High Court dated 3rd May, 2018 is  

set aside.  All pending applications including the application for  

intervention/impleadment are disposed of.  

 ……………………, CJI  

[RANJAN GOGOI]    

…………………….., J.  [DEEPAK GUPTA]  

…………………….., J.  [ANIRUDDHA BOSE]  

NEW DELHI  OCTOBER 01, 2019