Summary
A municipal councillor candidate was summoned under Section 125A of the Representation of the People Act, 1951 for not disclosing land held by her husband. The Supreme Court held that the Gujarat municipal election rules required disclosure of the spouse's sole property, and that cognizance under an inapplicable statute was a curable irregularity under Section 465 CrPC because a false electoral affidavit attracts the IPC. It remanded the matter to the Magistrate to take cognizance afresh.
Issues
- Whether the affidavit prescribed under Rule 7A of the Gujarat Municipalities (Conduct of Elections) Rules, 1994 (as amended in 2005) requires disclosure of property held solely by the candidate's spouse.
- Whether cognizance taken under Section 125A of the Representation of the People Act, 1951 for a municipal election affidavit is a jurisdictional error vitiating the proceedings or a curable irregularity.
- Which law governs a false declaration in an affidavit filed in a Gujarat municipal election.
Provisions considered
- Rule 7A and the prescribed affidavit form, Gujarat Municipalities (Conduct of Elections) Rules, 1994 (as amended in 2005)The form requires details of the assets 'of myself, my spouse and dependents'. The Court read the comma after 'myself' as a listing comma, with 'of' governing all three categories, so property held solely by the spouse must be disclosed. (¶¶ 6.1, 8, 9)
- Section 2(d) and Section 125A, Representation of the People Act, 1951'Election' in Section 2(d) means elections to Parliament or a State Legislature. The Court examined whether an offence like Section 125A exists under the Gujarat Municipalities Act and found that, false-declaration penalties there having been omitted, the controlling provisions would be in the IPC; cognizance under Section 125A was therefore under the wrong provision. (¶¶ 6.1, 11, 12, 13)
- Section 9 (Section 9I omitted) and Section 277, Gujarat Municipalities ActSection 277 empowers the State to make the election rules; the penal provision for false declarations in Section 9, particularly 9I, stood omitted around 1990, leaving no equivalent offence under the Act. (¶¶ 6.1, 12)
- Section 465, Code of Criminal Procedure, 1973Applying Pradeep S. Wodeyar, irregularity in a pre-trial cognizance order is covered by Section 465 and is not to be reversed unless failure of justice (prejudice) is shown; the wrong-section cognizance was held curable. (¶¶ 11, 13, 14)
Held
- The affidavit under Rule 7A requires the candidate to disclose properties held by herself, her spouse and dependents, including joint holdings; nothing exempts property held solely by the spouse, and the appellant had to disclose her husband's properties. (¶¶ 8, 9)
- Taking cognizance under the wrong section is a curable defect so long as the court had power to take cognizance of the correct offence; since the Gujarat Municipalities Act no longer penalises false declarations, the offence of filing a false electoral affidavit falls to be considered under the Indian Penal Code. (¶¶ 11, 12)
- Cognizance under the Representation of the People Act instead of the IPC was not a jurisdictional error going to the root but an irregularity saved by Section 465 CrPC, cognizance being a pre-trial stage and being taken of the offence, not of persons. (¶¶ 13, 14)
- Filing a false affidavit in the electoral process is an offence against society at large that must be investigated; the Court expressed no opinion on merits and confined itself to the propriety of the cognizance order. (¶ 14)
Result
Appeal disposed of; matter remanded to the Magistrate concerned to take cognizance afresh and proceed in accordance with law, without any opinion on the merits.