A. Naizam v. Chief Electoral Officer and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931** **WP(C).No. 29574 of 2008(U)** **-------------------------------------** **PETITIONER(S):** **------------------------** **A. NAIZAM, ADONIS HOUSE, KOTTIYAM.P.O, KOLLAM - 691 571.** **BY ADVS. MR.T.R.RAJAN MR.K.SANIL KUMAR** **RESPONDENT(S):** **--------------------------** **1. THE CHIEF ELECTORAL OFFICER AND PRINCIPAL SECRETARY TO GOVERNMENT, ELECTION (GENERAL) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** **2. THE RETURNING OFFICER, 125 ERAVIPURAM LEGISLATIVE ASSEMBLY CONSTITUENCY AND ASSISTANT DEVELOPMENT COMMISSIONER (GENERAL), CIVIL STATION, KOLLAM.** **3. SRI.A.A. AZEEZ, KALEELAZHIKATHU VEEDU, UMAYANALLOOR.P.O, KOLLAM.** **R1 BY ADVS. MR.MURALI PURUSHOTHAMAN, SC,ELE.COMMN. R2 BY GOVT. PLEADER MR.V.MANU R3 BY MR.K.JAGADEESCHANDRAN NAIR, MR.J.KRISHNAKUMAR,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/02/2010, THE COURT ON 17/02/2010 DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.29574/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE EXTRACT FROM ADMISSION REGISTER OF THE GOVERNMENT HIGH SCHOOL, VELLAMANAL.** **P2:- COPY OF THE AFFIDAVIT FILED BY THE 3RD RESPONDENT ALONG WITH NOMINATION PAPERS FILED FOR CONTESTING THE 2006 GENERAL ELECTION TO THE KERALA LEGISLATIVE ASSEMBLY FROM 125 ERAVIPURAM CONSTITUENCY BEFORE THE 2ND RESPONDENT.** ## **P3:- COPY OF THE COMPLAINT DTD. 10.6.06 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT BY THE PETITIONER.** **P4:- COPY OF THE COMMUNICATION BEARING NO 5150/EL3/2005/ELEC. DTD. 14.8.06 ISSUED BY THE IST RESPONDENT TO THE PETITIONER.** **P5:- COPY OF THE ORDER BEARING NO D5-1140/06 DTD. 19.10.06 ISSUED BY THE 2ND RESPONDENT.** **P6:- COPY OF THE COMMUNICATION DTD. 28.10.2006 OF THE HEADMASTER, CFHS, KOTTIYAM TO THE PETITIONER.** ## **P7:- COPY OF THE COMMUNICATION BEARING NO 5150/EL3/2006/ELEC DTD. 24.2.07 ISSUED BY THE IST RESPONDENT TO THE PETITIONER.** **P8:- COPY OF THE COMMUNICATION DTD. 6.3.07 OF THE 3RD RESPONDENT ALONG WITH THE ENCLOSURES TO THE 2ND RESPONDENT.** **P9:- COPY OF THE COMMUNICATION BEARING NON D5-1140/06 DTD. 10.7.07 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.** ## **P10:- COPY OF THE REPLY DTD. 23.7.07 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.** **P11:- COPY OF THE COMMUNICATION BEARING NO D5- 1140/06 DTD. 6.6.07 OF THE 2ND RESPONDENT TO THE IST RESPONDENT.** **P12:- COPY OF THE COMMUNICATION BEARING NO D5-1140/06 DTD. 27.7.07 OF THE 2ND RESPONDENT TO THE IST RESPONDENT.** **P13:- COPY OF THE COMMUNICATION BEARING NO E.X. NO.B.A. (2) 30605/2007/D.G.E. DTD. 26.9.07 ISSUED BY THE EXAMINATION SECRETARY OF THE OFFICE OF THE COMMISSIONER OF EXAMINATIONS TO THE PETITIONER.** **P14:- COPY OF THE ORDER NO.D5-140/06 DTD. 28.2.08 OF THE 2ND RESPONDENT.** **P15:- COPY OF THE APPEAL DTD. 30.4.08 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT.** ## **W.P.(C) NO.29574/2008** **P16:- COPY OF THE ORDER BEARING NO 1084/EL3/2008/ELEC DTD. 10.7.08 OF THE IST RESPONDENT.** **P17:- COPY OF THE LETTER NO. 3/ER/2004-JS-II DTD. 2.6.05 OF THE ELECTION COMMISSION TO THE CHIEF ELECTORAL OFFICERS OF ALL STATES AND UNION TERRITORIES.** **R3(a):- ORIGINAL DRAFT OF THE LETTER DTD. 4.3.07 SENT BY THE 3RD RESPONDENT ADDRESSED TO THE HEAD MASTER.** **ANNEXURE A:- COPY OF THE ELECTION COMMISSION'S LETTER NO.3/ER/2004-JS-II DTD. 2.6.04 ADDRESSED TO CHIEF ELECTORAL OFFICERS.** **ANNEXURE B:- COPY OF THE LETTER NO.5150/EL.3/2006/ELEC. DTD. 18.2.08 OF THE IST RESPONDENT ADDRESSED TO THE 2ND RESPONDENT.** **ANNEXURE C:- COPY OF THE LETTER NO.5150/EL3/06/ELEC. DTD. 8.1.08 OF THE IST RESPONDENT ADDRESSED TO THE 2ND RESPONDENT.** ## **TRUE COPY** ## **P.A. TO JUDGE** **tss** ## **THOTTATHIL B.RADHAKRISHNAN, J.** ------------------------------------------- W.P(C).No.29574 OF 2008 ------------------------------------------Dated this the 17[th] day of February, 2010 ## **JUDGMENT** 1.The petitioner, a voter in No.125 Eravipuram LA Constituency, filed a petition on 10.6.2006 before the Returning Officer stating that the third respondent, a candidate from that constituency in 2006 general elections, had given wrong information in the affidavit filed along with the nomination paper. It was alleged that the information given by the third respondent that he had passed the SSLC examination conducted by the Board of Public Examination, Kerala in 1959 was false. The plea was that only a person who had passed the SSLC examination could claim that he is a holder of SSLC, while the third respondent is not a holder of such certificate. The Board of Public Examinations, Kerala come into being only in 1965 and any entry in that regard in the affidavit was also therefore wrong. WPC.29574/08 2 2.The Returning Officer issued Ext.P5 taking the view that as nobody had raised any objection at the time of scrutiny of the nomination paper, the nomination was accepted and there is no provision to initiate action to prosecute a candidate for which documentary evidence is a must. The Chief Electoral Officer (CEO), thereafter, directed the Returning Officer to reconsider the said decision. After hearing the parties again, the Returning Officer issued Ext.P14 taking the view that on the basis of the materials placed before him, it could not be decided either way as to whether there was a false statement in relation to the educational qualifications. The petitioner filed an appeal against that decision to the CEO. That was ordered as per Ext.P16 saying that the appeal petition cannot be considered as no appeal lies before the CEO against any order passed by the Returning Officer under the authority of Section 125A of the Representation of the People Act, 1951 and Section 177 of the Indian Penal Code. WPC.29574/08 3 3.Learned counsel for the petitioner, on the strength of the materials on record, argued that those materials unequivocally showed that the third respondent had made a false statement in the affidavit and that Ext.P1 evidences that the third respondent had left school from standard VI. Relying on Annexure A produced along the statement submitted on behalf of the first respondent CEO, it was argued by the learned counsel for the petitioner that the Returning Officer was duty bound to ensure action to prosecute the third respondent by making formal complaint. It was also argued that when a complaint was submitted by the petitioner supported by some documentary evidence, it is not for the Returning Officer to enter on any consideration as to the merit of the materials or to conclude that it was not worthwhile to ensure action to prosecute the third respondent who was a candidate. WPC.29574/08 4 - 4.Per contra, learned counsel appearing for the third respondent argued that no offence referable to Sections 33A and 125A of the Representation of the people Act, 1951 having been made out, it cannot be stated that the officer should be compelled to ensure any prosecution referable to section 177 IPC, having regard to the powers of the third respondent, as a public servant, under Section 195 Cr.PC. 5.The Apex Court in **Union of lndia** v. **Association for Democratic Reforms** [(2002) 5 SCC 294] and **People's Union of Civil Liberties** v. **Union of India** [(2003) 4 SCC 399] noticed that the voters have a right to information about the criminal antecedents, if any, of the candidates as also the assets and liabilities, including those of their spouse, dependent children as well as educational qualifications so that the voters may make an individual choice at the time of election. Pursuant to those directions, the Election Commission has issued a detailed order on 27.3.2003 WPC.29574/08 5 providing inter alia that every candidate, at the time of filing his nomination, shall furnish full and complete information regarding all the five matters specified by the Apex Court. The 5[th] among the matters enumerated by the Apex Court is the educational qualification of the candidate. Therefore, in terms of the order of the Election Commission, educational qualifications of the candidate had to be stated in the affidavit. However, except in cases where the affidavit in terms of the RP Act does not contain the relevant materials in terms of the provisions of that statute and the rules, the nomination cannot be rejected. - 6.The aforesaid being the position of law, the question is whether this Court should, in exercise of jurisdiction under Article 226, visit the decision of the Returning Officer not to file a complaint on the facts of the case in hand. WPC.29574/08 6 7.Adverting to the impugned Ext.P4, it needs to be noticed that after considering the materials which were placed before him, the Returning Officer had concluded that the complaint raised by the petitioner cannot be concluded either way and therefore, without appropriate documents being available, it would not be possible to institute any complaint against the third respondent before the criminal court alleging commission of offence. Section 33A of the RP Act requires the filing of affidavit in relation to the particulars stated therein. That does not include the requirement to make any statement regarding educational qualification. Obviously therefore, Section 125A does not apply and no offence under section 125A is made out. Adverting to section 177 IPC, the question would be whether the third respondent had knowingly furnished wrong information to public. With this, Section 195 Cr.PC requires to be considered. Sub section (i) thereof provides, among other, an inhibition on the court to take cognisance of an offence punishable under Section 177 IPC WPC.29574/08 7 except on a complaint in writing, of a public servant concerned or of some other public servant to whom he is administratively subordinate. Sub section (2) of Section 195 provides that the authority to which the complainant public servant is subordinate may order the withdrawal of that complaint. This provision has also been considered to hold that there could be an appellate power with the administrative superior to direct a public servant to institute a complaint. But that would depend upon case to case basis. Therefore, the general direction given by the Election Commission to all the Returning Officers as evidenced by Annexure A is only a direction to act in conformity with the provisions of law, meaning thereby, directing that the public servant, i.e., the Returning Officer, shall act in terms of Section 195 and institute complaint in cases where an offence is made out. In the case in hand, the primary inference that the alleged accused (the third respondent herein) had committed the offence of knowingly furnishing false information ought to be that of the public WPC.29574/08 8 servant, namely, the Returning Officer. On the basis of the conclusion arrived at by the Returning Officer in Ext.P14 that it is not proper to conclude so and to file a complaint with the materials before him, the said officer cannot be found fault with for not having proceeded to initiate a complaint. Institution of a complaint necessarily presupposes the requirement that the complainant has to assert the existence of the fact situation on the basis of which the complaint is being filed. Therefore, it would be wholly inadvisable to erase the said view of the public servant viz., the Returning Officer, in exercise of writ jurisdiction. No injustice is shown to have done. I am inclined to think this is not a fit case where the discretionary jurisdiction would be extended. 8.This leaves one more question. The petitioner filed an appeal against Ext.P14 to the CEO. That was rejected as per Ext.P16, stating that the CEO is not an appellate authority. This view is sustainable because the Returning Officer is not under the WPC.29574/08 9 immediate supervisory control of the CEO. The said decision also therefore stands. For the aforesaid reasons, this writ petition fails. The same is accordingly dismissed. Sd/- **THOTTATHIL B.RADHAKRISHNAN, Judge.** kkb.17/02.