IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29574 of 2008(U)
1. A. NAIZAM, ADONIS HOUSE,
... Petitioner
Vs
1. THE CHIEF ELECTORAL OFFICER AND
... Respondent
2. THE RETURNING OFFICER, 125
3. SRI.A.A. AZEEZ,
For Petitioner :SRI.T.R.RAJAN
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN.
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :17/02/2010
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
-------------------------------------------
W.P(C).No.29574 OF 2008
-------------------------------------------
Dated this the 17th 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 re-
consider 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
5th 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.