GEORGE JOSEPH Vs. RAMACHANDRAN

JUDGEMENT

(1.) Concurrent decision rendered by the two courts below that the petitioner, a returned candidate, in the election to the Grama Panchayath has suppressed material particulars of a criminal case he was involved while submitting his nomination paper, disclosure of which was mandated by the rules, and, therefore, his election as a member of the Panchayath is liable to be set aside, is challenged in the revision.

(2.) Petitioner and the respondent contested the Panchayath election held on 26.9.2005 from Ward No.3 of Balal Grama Panchayath. Petitioner having secured majority of votes than those secured by the respondent, he was declared elected. The respondent challenged the election of the petitioner filing an election petition before the Munsiff Court, Hosdurg contending that he had suppressed material particulars of a criminal case against him while furnishing Form 2A with his nomination paper. Petitioner was involved in a criminal case and facing trial, numbered as C.C.No.304 of 2004, for offences punishable under Sections 143, 147, 447 and 153 read with Section 149 of the Indian Penal Code before the Judicial 1st Class Magistrate Court, Hosdurg, was the ground canvassed by the respondent to impeach his election. Petitioner resisted that election petition filing a counter statement, in which he contended that the above criminal case had been stayed by the orders of the High Court. He had also raised counter allegations that the respondent (petitioner in the election petition) was a defaulter to a bank, a public sector undertaking, when he filed his nomination paper to contest the election. Both sides did not adduce any oral evidence. On the side of the respondent (petitioner in the election petition) A1 to A3 and for the revision petitioner (respondent in the election petition) B1, the order passed by the High Court staying the trial of the criminal case before the Judicial 1st Class Magistrate were exhibited, and towards court exhibits, X1 to X4 series were also marked. The learned Munsiff, on the materials placed and hearing the counsel on both sides, came to the conclusion that the petitioner had suppressed material facts as to his involvement in a criminal case when he furnished Form 2A with his nomination paper, and thus, he had violated Section 52 (1A) of the Kerala Panchayath Raj Act, which mandate furnishing of details of the criminal cases at the time of submission of nomination. His election was therefore found liable to be declared void under Section 102 (1)(a) of the Kerala Panchayath Raj Act, and it was ordered accordingly. Challenge raised by the revision petitioner against the acceptance of the nomination of the respondent (petitioner to the election petition) that he was a defaulter to a bank, a public sector undertaking, was also found true on the materials placed, and accordingly, it was held that he too was not qualified to contest the election. So much so, the election petition was allowed in part setting aside the election of the revision petitioner. In the appeal preferred against that decision of the learned Munsiff by the petitioner, the learned District Judge confirmed the finding of the court below and dismissed the appeal. Hence this revision.

(3.) I heard the counsel on both sides. The main thrust of attack, and, in fact, the only challenge, canvassed by the learned counsel for the revision petitioner to assail the concurrent finding of the court below is based on what meaning should be attached to the word 'trial' appearing in column No.1 of Form 2A of the Kerala Panchayath Raj (Conduct of Election) Rules, 1995. The offences imputed against the petitioner in the case, which was pending before the Judicial Ist Class Magistrate Court, as C.C.No.304 of 2004 as on the date of filing of his nomination, all of them, were triable as a summons case, the trial of which start not when the report was filed before the court nor when the accused appear, but, only, when the particulars of the offences were made known to the accused, is the submission of the counsel relying on State of Kerala v. Achutha Panicker,1975 KerLT 703 and Radhamany Amma v. Kunju Pillai, 1980 KerLT 393. The learned counsel for the petitioner also contended that Section 52 (1A) of the Kerala Panchayath Raj Act mandating the furnishing of the details of the criminal cases by the candidate while submitting the nomination contemplate of furnishing such information in the form and manner as may be prescribed. Relying on Thampanoor Ravi v. Charupara Ravi and others, 1999 8 SCC 74, it is contended that in interpreting the words used in a statute, its meaning cannot be enlarged by importing any meaning other than permissible on a strict interpretation of the expression used therein and such being the case, the word 'trial' used in column No.1 of Form 2A cannot be given a larger meaning to hold that involvement of the candidate in any criminal offence, whatever be the nature of the offences, required to be furnished in that form to be submitted with the nomination paper. It was also contended that the election petition lacked particulars as the petitioner has not alleged the essential ingredients showing that there was an improper acceptance of the nomination paper and his election was vitiated by such improper acceptance of nomination paper. Material allegations are lacking as to how Form 2A furnished under Section 52 (1A) is filed, which, according to the counsel, was fatal to the election petition involved in the case as the petitioner to such an election petition is not entitled to adduce evidence to supplement details which have not been furnished. Reliance is placed on Lucy Joseph v. Elikutty James and another,2009 KHC 4431 in support of that proposition. Reliance is also placed on Joseph v. Kuriakose, 2007 2 KerLT 242 to contend that unless necessary ingredients are alleged that the improper acceptance of nomination paper materially affected the election, an election cannot be set aside under Section 102 (1)(d)(i) of the Kerala Panchayath Raj Act. Inviting my attention to the observations of the apex court in Harikrishna Lal v. Babu Lal Marandi, 2003 8 SCC 613 that the success of a winning candidate is not lightly to be interfered with and the burden of proof would lie on one who challenges the election to raise necessary pleadings and adduce evidence to prove such averments as would enable the election to be set aside on any of the grounds available in the law it is contended that both the courts below have gone wrong in appreciating the lack of material particulars in the election petition and also of the significance to be given to the word 'trial' in Form 2A of the Kerala Panchayath Raj (Conduct of Election) Rules, 1995. Lastly, inviting my attention to Gopalakrishnan N. v. A. Sarasi and Others,2009 2 KHC 472, the learned counsel submitted that this Court, in the above decision, had taken a view that the criminal case contemplated under Section 52 (1A) could only be the criminal case in which a final report is filed and cognizance was taken, but, that view, according to the counsel, requires reconsideration since Form 2A contemplate of furnishing details only of criminal cases against him pending 'trial'. Submission of the counsel was that as the meaning attached to the word 'trial', vis-a-vis, a criminal case involving offences triable as a summons case as in the case of the present petitioner has not been gone into in the above decision. The decision is not applicable to the facts of the case and also in judging the merit of the decisions rendered by the court below, according to the counsel.