YENDAPALLI SRINIVASULU REDDY versus VEMIREDDY PATTABHIRAMI REDDY & ORS. on 19 October 2022

YENDAPALLI SRINIVASULU REDDY

v.

VEMIREDDY PATTABHIRAMI REDDY & ORS.

(Civil Appeal No. 7951 of 2022)

OCTOBER 19, 2022

[DINESH MAHESHWARI AND J. K. MAHESHWARI, JJ.]

Representation of the People Act, 1951: Amendment to electionpetition – Election petition filed by the respondent challenging theelection of returned candidate on the grounds of improperacceptance of the nomination papers of returned candidate andimproper receipt of invalid votes and improper rejection of validvotes – A year later, the respondent filed the application to amendthe election petition to include certain averments – Applicationallowed by the High Court – On appeal, held: Election petitioner-respondent No.1 never took corrupt practice as a ground tochallenge the election of the returned candidate – Pleadings soughtto be taken by way of amendment so as to indicate that thenomination form was not to be accepted for non-compliance of thestatutory requirements, cannot be said to be of introduction of anynew cause of action or new ground of challenge – It cannot be saidthat the ground as sought to be pleaded does not have any foundationin the petition as filed; or that pleading of such particulars wouldchange the character of the election petition – Thus, the High Courtrightly allowed the amendment application.

Kisan Shankar Kathore v. Arun Dattatray Sawant andothers : (2014) 14 SCC 162 : [2014] 7 SCR 258;Krishnamoorthy v. Sivakumar and Others: (2015) 3SCC 467 : [2015] 4 SCR 987; Dhartipakar MadanLal Agarwal v. Rajiv Gandhi: 1987 (Supp) SCC 93 :[1987] SCR 369 ; Sethi Roop v. Malti Thapar (Mrs.)and Others:(1994) 2 SCC 579 : [1994] 1 SCR 1002 –referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION : Civil Appeal No.7951of 2022.

BFrom the Judgment and Order dated 06.12.2019 of the High Courtof Andhra Pradesh at Amaravathi in I.A. No.02 of 2018 in E.P. No.01of 2017.

P. Vishwanath Setty, Sr. Adv., G. N. Reddy, Hemal KiritkumarSheth, Advs. for the Appellant.

CByrapaneni Suyodhan, Abhijit Basu, Ms. Tatini Basu, Advs. forthe Respondents.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.DLeave granted.

2. We have heard Mr. P. Vishwanath Setty, learned senior counselfor the appellant and Mr. Byrapaneni Suyodhan, learned counsel for therespondents finally at this stage itself.

3. By way of this appeal, the appellant- returned candidate, whoseEelection has been called into question by the respondent No. 1 by way ofElection Petition No. 1 of 2017 before the High Court of Andhra Pradesh,seeks to question the order dated 06.12.2019 whereby, an applicationfor amendment of the petition has been granted.

4. Shorn of unnecessary details, the relevant aspects to be noticedFfor the purpose of this appeal are that in the election petition filed by therespondent No.1 herein, essentially two broad grounds have been urged.One being of improper acceptance of the nomination of the returnedcandidate, i.e., the appellant herein, and the second being of improperreceipt of invalid votes and improper rejection of valid votes.

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5. The second ground as referred hereinabove is not of relevancefor the purpose of the present appeal. The relevant part of the matterherein is that in the petition as filed, the appellant has, inter alia, prayedfor the following relief:

“B. Declare the acceptance of the nomination paper filed by theH1[st] Respondent/the Returned candidate with substantial defects in the affidavit as illegal, improper and consequently set aside/reject the same.”

6. In relation to the aforementioned relief, the election petitioner(respondent No.1) has stated that the nomination paper of the appellantought to have been rejected for being not accompanied by a properaffidavit, particularly when the verification part was not carrying thesignature of the appellant. The other submissions are that the affidavitwas drawn up on certain stamp papers but, one of them was not purchasedin the name of the appellant and was purchased by some other personand then, the name of the appellant was inserted by erasing the name ofthe original purchaser. It had also been submitted that there had beencertain blank spaces for which, the affidavit was rendered nugatory andthese being the defects of substantial nature, the nomination was requiredto be rejected.

7. It would be apposite to notice that the result of the election inquestion was declared on 21.03.2017 and the election petition underconsideration was filed on 27.04.2017. Leaving aside other proceedings,the relevant aspect for the present appeal is that on 27.03.2018, theelection petitioner (respondent No.1) moved an application, beingInterlocutory Application No.2 of 2018, seeking permission to amendthe election petition, so as to incorporate the averments in the followingterms:

“8a. It is submitted that as per section 33(A)(i) of theRepresentation of the People Act, 1951, a candidate shall furnishthe information as to whether he is accused of any offencepunishable with imprisonment for two years or more in a pendingcase in which charge has been framed by the court of competentJurisdiction. It is further submitted that the returned candidate/1strespondent herein filed a false in Form-26 by not disclosing thecriminal case pending against him in which he is accused of anoffence punishable with imprisonment for two years or more anda charge has already been framed by the court of competentJurisdiction as on the date filing his nomination. I respectfullysubmit that the petitioner has deliberately filed as a false affidavitin Form-26 by not disclosing the criminal case pending againsthim as the FIR in the said criminal case was filed on 3.10.2011and the same has been registered as Crime No. 188/2011 on thefile of the Gudur Rural Police Station, Nellore District. The AB

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petitioner has been arrayed as A3. The Court has taken cognizanceof the same as C.C. No. 370/2012 and the charges were alsoframed as on the day of filing nomination. Later the returnedcandidate/1st respondent herein has been convicted for theoffences under Section 143, 147, 148, 447, 290 and 332 r/w. 149IPC and the details of the sentence and fine imposed on thereturned candidate/the 1st respondent herein on 12.01.2018 bythe Hon’ble Additional Judicial Magistrate of First Class, Gudur,Nellore District are as follows:

The returned candidate/1st respondent herein did not disclose thecriminal case pending against him in the election affidavit filed inForm-26 and the non-disclosure of such an important fact hasrendered the affidavit defective and invalid in law as per the lawlaid down by the Hon’ble Apex Court in the case of KisanShankar Kathore vs Arun Dattatray Sawant and others reportedin (2014) 14 SCC 162.

8b. It is submitted that as per the Section 33 of the Representationof the People Act, 1951, a nomination paper complete in theprescribed Form, signed by a candidate and by an elector of theconstituency as proposer should be delivered to the returningofficer within the prescribed period. A candidate has to file anaffidavit along with his nomination paper as prescribed in Form26. The petitioner has deliberately filed a false affidavit in Form-26 by not disclosing the criminal case pending against him as theFIR in the said criminal case was filed on 3.10.2011 and the samehas been registered as Crime No.188/2011 on the file of the GudurRural Police Station, Nellore District. The petitioner has beenarrayed as A3. The Court has taken cognizance of the same asC.C. No. 370/2012 and the charges were also framed as on theday of filing nomination. As per Section 33(A) of The Representation of the People Act, 1951 it was incumbent uponevery candidate, who is contesting election, to give informationabout his assets, criminal antecedents and other affairs, whichrequirement is not only essential part of fair and free elections,inasmuch as, every voter has a right to know about these detailsof the candidates, such a requirement is also covered by freedomof speech granted under Article 19(1)(a) of the Constitution ofIndia. The right to get information in democracy is recognized allthroughout and it is a natural right flowing from the concept ofdemocracy. Under our Constitution Article 19(1)(a) provides forfreedom of speech and expression. Voter’s speech or expressionin case of election would include casting of votes, that is to say,voter speaks out or expresses by casting vote. For this purpose,information about the candidate to be selected is a must. Voter’sright to know antecedents including criminal past of his candidatecontesting election for MP or MLA is much more fundamentaland basic for survival of democracy. Voter may think over beforemaking his choice of electing law breakers as law-makers.

8c. It is submitted that the solemnity of the affidavit has beenridiculed by suppressing the material information resulting indisinformation and misinformation to the voters. The sanctity oftrue disclosure to be made by the candidate has failed to complywith said obligation in its letter and spirit. The result of the electionin so far as it concerned the returned candidate/1st respondentherein has therefore been materially affected by improperacceptance of his information and the election result of the returnedcandidate therefore is required to be declared void under U/s.100(1)(d)(i) of the Representation of the People Act, 1951.

8d. It is further submitted that the respondents herein who is thereturned candidate has failed and neglected to disclose theinformation of pending criminal case against him in which thecharges have already been framed in the affidavit in Form-26.The non-disclosure is a material lapse on the part of the returnedcandidate/1st respondent herein. The non-disclosure to the votersis fatal and amount to suppression of vital and material informationrendering the affidavit defective and the election of the returnedcandidate/1st respondent herein is liable to be set aside.”

8. The aforesaid application seeking leave to amend was contestedby the present appellant, essentially with the submissions that after expiry AB

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Aof the period of limitation for filing of election petition, it was notpermissible for the election petitioner (respondent No. 1) to amend thepetition so as to include any other and new ground of challenge to theelection. It was also submitted that the alleged non-disclosure of offenceof the petty nature was neither intentional nor wanton and any suchomission was not of any material bearing on the matter.B

9. The High Court examined the rival contentions and particularlywith reference to the decision of this Court in the case of Kisan ShankarKathore v. Arun Dattatray Sawant and others: (2014) 14 SCC 162,proceeded to allow the petition, inter alia, with the following observations:

“11. There is no dispute that the 1[st] respondent figured as anCaccused in a criminal case, which ended in conviction. But thecontention of the respondents’ counsel is that by virtue of thesuspension of the judgment of conviction and sentence of theappellate court, the respondents need not furnish the informationas sought for. The argument of the 1[st] respondent’s counsel isDbased on the premise that the column No.5 in nomination formseeks only information with regard to the conviction of thecandidate. But the information required by clause 5 of thenomination form is not with regard to whether the candidate isconvicted, but it is with regard to whether the candidate is anaccused in any offence. Hence, it prime facie appears to be aEcase of suppression of the facts, which were to be mentioned inthe nomination form.

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13. The counsel for the respondents argues that the involvementFof the candidate in a criminal case would not make his applicationliable for rejection. The said contention need not be dismissed asincorrect. But as per the above judgment, it is not the fact that hewas involved in a criminal case that renders the application liablefor rejection, but it is the suppression of the fact of his involvementin the criminal case that renders the application liable for rejection,Gwhich, prima facie, is proved to have occurred in this case.”

10. In the petition preferred in challenge to the order aforesaid,notice was issued on 14.02.2020 by this Court and operation of theimpugned order was stayed. We have been informed that furtherproceedings in the election petition having not been stayed, the sameHhave progressed further in recording of evidence. Be that as it may, having regard to the nature of proceedings, we have considered itappropriate to hear the matter finally at this stage itself.

11. The learned counsel for the appellant has taken us through theprovisions of Sections 33A, 86(5), 100(1) and 125A of the Representationof the People Act, 1951 (hereinafter referred to as the “Act of 1951”)and has emphatically argued that the amendment as sought for by therespondent No.1 relates to the allegations of corrupt practice and for thefundamental reason that there had not been any allegation of corruptpractice in the petition as originally filed, no averments in that regardcould be inserted by way of amendment.

12. The learned counsel has particularly referred to the decisionof this Court in the case of Krishnamoorthy v. Sivakumar and Others:(2015) 3 SCC 467 with emphasis on the submission that non-disclosureof the particulars concerning offence is referable to corrupt practicewithin the meaning of Section 100(1)(b) of the Act of 1951. Learnedcounsel has also referred to the decision of this Court in the case ofDhartipakar Madan Lal Agarwal v. Rajiv Gandhi: 1987 (Supp) SCC93. The emphasis has been that any amendment for inserting the groundof corrupt practice could not have been allowed after the expiry of theperiod of limitation for filing the election petition.

13. Per contra, learned counsel for the respondents hasparticularly referred to the provisions of Section 100(1)(d)(iv) of the Actof 1951 to submit that when the result of the election is materially affectedby non-compliance of any provisions of the Constitution or the Act of1951, that remains a ground alongside the akin ground of improperacceptance of any nomination in terms of Section 100(1)(d)(i) of theAct of 1951. The learned counsel submits that respondent No.1, in hiselection petition has admittedly not taken any ground pertaining to corruptpractice but then, even by way of amendment, no fact was sought to bepleaded so as to be referable to the ground of corrupt practice. Thesubmission has been that the amendment essentially concerns the groundsimilar to that of improper acceptance of nomination which has alreadybeen pleaded. The learned counsel has particularly referred to the decisionof this Court in Sethi Roop v. Malti Thapar (Mrs.) and Others: (1994)2 SCC 579.

14. We have given thoughtful consideration to the rival contentionsand have examined the material placed on record.

15. The relevant provisions read as under:

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“33A. Right to information.—(1) A candidate shall, apart fromany information which he is required to furnish, under this Act orthe rules made thereunder, in his nomination paper delivered undersub-section (1) of section 33, also furnish the information as towhether–

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(i) he is accused of any offence punishable with imprisonmentfor two years or more in a pending case in which a charge hasbeen framed by the court of competent jurisdiction; B

(ii) he has been convicted of an offence [other than any offencereferred to in sub-section (1) or sub-section (2), or covered insub-section (3), of section 8] and sentenced to imprisonmentfor one year or more.

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(2) The candidate or his proposer, as the case may be, shall, at thetime of delivering to the returning officer the nomination paperunder sub-section (1) of section 33, also deliver to him an affidavitsworn by the candidate in a prescribed form verifying theDinformation specified in sub-section (1).

(3) The returning officer shall, as soon as may be after thefurnishing of information to him under sub-section (1), display theaforesaid information by affixing a copy of the affidavit, deliveredunder sub-section (2), at a conspicuous place at his office for theEinformation of the electors relating to a constituency for whichthe nomination paper is delivered.”

“86. Trial of election petitions.-...........

(5) The High Court may, upon such terms as to costs and otherwiseas it may deem fit, allow the particulars of any corrupt practiceFalleged in the petition to be amended or amplified in such manneras may in its opinion be necessary for ensuring a fair and effectivetrial of the petition, but shall not allow any amendment of thepetition which will have the effect of introducing particulars of acorrupt practice not previously alleged in the petition.

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“100. Grounds for declaring election to be void.- (1) Subject tothe provisions of sub-section (2) if the High Court is of opinion –

(a) that on the date of his election a returned candidate was notqualified, or was disqualified, to be chosen to fill the seat under H

the Constitution or this Act or the Government of Union TerritoriesAct, 1963 (20 of 1963); or (b) that any corrupt practice has been committed by a returnedcandidate or his election agent or by any other person with theconsent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returnedcandidate, has been materially affected—

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of thereturned candidate by an agent other than his election agent,or

(iii) by the improper reception, refusal or rejection of any voteor the reception of any vote which is void, or

(iv) by any non—compliance with the provisions of theConstitution or of this Act or of any rules or orders made underthis Act, the High Court shall declare the election of the returned candidateto be void.

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“125A. Penalty for filing false affidavit, etc.—A candidate whohimself or through his proposer, with intent to be elected in anelection,—

(i) fails to furnish information relating to sub-section (1) ofsection 33A; or

(ii) gives false information which he knows or has reason tobelieve to be false; or

(iii) conceals any information,

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

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A16. In the case of Krishnamoorthy (supra), in the referredparagraph, this Court has declared the law in the following terms:

“94. In view of the above, we would like to sum up our conclusions:

94.1. Disclosure of criminal antecedents of a candidate, especially,pertaining to heinous or serious offence or offences relating toBcorruption or moral turpitude at the time of filing of nominationpaper as mandated by law is a categorical imperative.

94.2. When there is non-disclosure of the offences pertaining tothe areas mentioned in the preceding clause, it creates animpediment in the free exercise of electoral right.C94.3. Concealment or suppression of this nature deprives thevoters to make an informed and advised choice as a consequenceof which it would come within the compartment of direct or indirectinterference or attempt to interfere with the free exercise of theright to vote by the electorate, on the part of the candidate.

D94.4. As the candidate has the special knowledge of the pendingcases where cognizance has been taken or charges have beenframed and there is a non-disclosure on his part, it would amountto undue influence and, therefore, the election is to be declarednull and void by the Election Tribunal under Section 100(1)(b) ofthe 1951 Act.E

94.5. The question whether it materially affects the election ornot will not arise in a case of this nature.”

17. However, in the case of Sethi Roop Lal (supra), this Courthas, while distinguishing the case of introduction of material fact fromFthat of material particulars, and the operation of the principles of OrderVI Rule 17 of the Code of Civil Procedure, 1908 in the trial of the electionpetitions subject to the provisions of Act 1951 has, inter alia, observedand held as under:

“9. Coming now to the other impugned order, we find that thelearned Judge has rejected the prayer for amendment of theGpetition principally on the ground that by the proposed amendmentthe appellant was seeking to introduce ‘material fact’ asdistinguished from ‘material particulars’ of a corrupt practice whichwas impermissible. In so doing the learned Judge drew sustenancefrom the following observations made by this Court in the case ofHF.A. Sapa v. Singora:(1991) 3 SCC 375:

YENDAPALLI SRINIVASULU REDDY v. VEMIREDDYPATTABHIRAMI REDDY & ORS. [DINESH MAHESHWARI, J.]

“(i) Our election law is statutory in character asdistinguished from common law and it must be strictly compliedwith.

(ii) There is a clear and vital distinction between ‘material facts’referred to in Section 83(1)(a) and ‘particulars’ in relation tocorrupt practice referred to in Section 83(1)(b) of the Act.

(iii) Section 86(5) of the Act empowers the High Court to allowparticulars of any corrupt practice which has already beenalleged in the petitions to be amended or amplified providedthe amendment does not seek to introduce a corrupt practicewhich is not previously pleaded.

(iv) By implication amendment cannot be permitted so as tointroduce ‘material facts’.”

10. The fasciculus of sections appearing in Chapter III of Part VIof the Act lays down the procedure for trial of election petitions. Sub-section (1) of Section 87 thereof provides that subject to the provisionsof this Act and of any rules made thereunder, every election petitionshall be tried by the High Court, as nearly as may be, in accordance withthe procedure applicable under the Code of Civil Procedure (‘Code’ forshort). That necessarily means that Order VI Rule 17 of the Code whichrelates to amendment of pleadings will afortiori apply to election petitionssubject, however, to the provisions of the Act and of any rules madethereunder. Under Order VI Rule 17 of the Code the Court has thepower to allow parties to the proceedings to alter or amend their pleadingsin such manner and on such terms as may be just and it provides that allsuch amendments shall be made as may be necessary for the purposeof determining the real questions in controversy between the parties.But exercise of such general powers stands curtailed by Section 86(5)of the Act, when amendment is sought for in respect of any electionpetition based on corrupt practice. Since Section 87 of the Act — and,for that matter, Order VI Rule 17 of the Code — is subject to the provisionsof the Act, which necessarily includes Section 86(5), the general powerof amendment under the former must yield to the restrictions imposedby the latter.

11. Indubitably, therefore, if the amendment sought for in the instantcase related to corrupt practice we might have to consider the same inconformity with Section 86(5) of the Act as interpreted by this Court inthe case of F.A. Sapa and accept the findings of the learned Judge as A

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Arecorded in the impugned order; but then, the learned Judge failed tonotice that the amendments, the appellant intends to bring in his electionpetition, do not relate to any corrupt practice and, therefore, it has to beconsidered in the light of Section 87, and de hors Section 86(5) of theAct. For the foregoing reasons the impugned order dated May 28, 1993cannot also be sustained.”B

18. Applying the principles aforesaid to the facts of the presentcase with reference to the pleadings already taken in this matter, we areunable to find any fault in the approach of the High Court in allowing theamendment as prayed for. This is for the simple reason that the electionpetitioner (respondent No.1) had never taken “corrupt practice” as aCground to challenge the election of the appellant. The grounds, as noticedabove, have precisely been of improper acceptance of the nominationform of the returned candidate and improper acceptance of invalid votesas also improper rejection of valid votes. That being the position, thepleadings sought to be taken by way of amendment so as to indicate thatDthe nomination form was not to be accepted for yet another reason, thatis, for non-compliance of the statutory requirements, cannot be said tobe of introduction of any new cause of action or new ground of challenge.It cannot be said that the ground as sought to be pleaded does not haveany foundation whatsoever in the petition as filed; or that pleading ofsuch particulars would change the character of the election petition.EThat being the position, we are at one with the High Court that theamendment as prayed for was required to be allowed.

19. For what we have discussed as above, this appeal fails and is,therefore, dismissed.

20. It goes without saying that we have not made any commentFon the merits of the case as sought to be pleaded by way of amendmentor any other aspect relating to the merits of the issues involved in electionpetition.

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Nidhi Jain

(Assisted by : Shashwat Jain, LCRA)

Appeal dismissed.

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