RAJ KUMAR SINGH SON OF BALIRAM SINGH Vs. STATE ELECTION COMMISSION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA THROUGH THE STATE ELECTION COMMISSIONER

JUDGEMENT

(1.) Petitioner was elected Mukhiya of Nargada Gram Panchayat under Barhara Block of District-Bhojpur. The elections were held in the year, 2006. After the election, respondent No. 4 filed an election petition challenging the election of the petitioner. Parties appeared, issues were framed and ultimately the election petition was allowed. The election of the petitioner was set aside on ground of wrong acceptance of his nomination on primarily three grounds to which I will advert later. Once this judgment was passed, the election petitioner sought a clarification and most curious thing happened. The judgment having been delivered holding the election of petitioner invalid now, by a subsequent order, the Election Tribunal corrects its judgment and declares the election petitioner (respondent No. 4 here) as elected. This Court fails to understand how this could be done because once nomination of petitioner is held to be invalid then the whole election process has to undergo fresh contest because it is not known as to for whom the voters, who had voted in favour of the petitioner, would vote in event of re-election. Thus, at the outset itself, I have to hold that the subsequent order of the Election Tribunal which had already become functus officio cannot be sustained. Respondent No. 4 has, thus been wrongly declared elected by the Election Tribunal that is Munsif- I, Ara. That order is, thus, set aside. In fairness to Mr Sharma, learned Senior Counsel appearing for respondent No. 4, I must note that he does not support that part of the order.

(2.) Now coming to the substantive order by which petitioner's election has been set aside on the ground that his nomination was wrongly accepted. The three grounds are (i) petitioner was re- required by rules to declare his criminal antecedent. He disclosed that he was accused in a case but did not disclose that he was accused of offences under Section 307, IPC read with Section 27 of the Arms Act. Non-disclosure of these Sections was held to be violation of disclosure norm invalidating his nomination. The (ii) being wrong disclosure of his assets. The Tribunal found that petitioner had failed to disclose his deposits with Sahara India Limited and his asset declaration was false and that being so his nomination was wrongly accepted. Lastly (iii), it is said that petitioner's name figured in Ara Assembly Constituency as well as Nargada Gram Panchayat showing his residence in Barhara Block. Thus, he was shown resident of two different places. His nomination was, thus, invalid. Mr. Sharma, learned Senior Counsel for respondent No. 4, the election petitioner, submits that the findings given by the Election Tribunal should not be and cannot be interfered by this Court. Mr. Mangalam in support of the writ petition submits that in fact and in law, the findings are unsustainable. As against the decision of the Election Tribunal there being no appellate authority prescribed writ petition under Article 226 is the only remedy. That being the only remedy the writ Court would be competent and is obliged to go into all questions of fact and law as this is the first appellate and/or the only remedy available. In my view, Shri Mangalam, learned counsel for the petitioner is correct. If what is submitted by Mr. Sharma appearing for respondent No. 4 is accepted then, however perverse the findings of fact may be, the writ Court would not be competent to interfere. Thus, effectively the right of judicial review is taken away totally. That cannot be and that is not the situation. Under Article 227 of the Constitution, this Court exercises power of superintendence over all inferior Courts and Tribunals. Learned Munsif exercising jurisdiction in election matters is a subordinate Court over which this Court exercises powers of superintendence and, thus, writ petition impeaching the judgment lies on all questions of fact as well as on questions of law.

(3.) Now coming to the three issues as decided against the petitioner. The first issue is with regard to non-mentioning of Section 307, IPC and Section 27 of the Arms Act. Shri Mangalam points out and these facts are very fairly not controverted by Shri Sharma appearing for respondent No. 4 that the first information report was lodged in the year, 2001. That is an exhibit. The first information report was against the petitioner and several others. It was, inter alia, under Section 307, IPC read with Section 27 of the Arms Act. But, after investigation, upon charge-sheet being filed, petitioner was not charged with offence under Section 307, IPC and Section 27 of the Arms Act and was discharged by the trial Court in that regard. This happened in 2003 which order is also on record in the trial. The nominations for the elections were filed in the year, 2006 and that being so by then, the petitioner having been discharged of an offence in relation to Section 307, IPC and Section 27 of Arms Act, petitioner committed no illegality in not mentioning those Sections having mentioned the police case number. In my view, Mr. Mangalam is correct. If, on the day when nomination is filed, a person is not charged with certain offences then non-mentioning of offences as initially charged will not be an illegality. Therefore, this issue is decided in favour of the petitioner and the finding of the Election Tribunal is reversed.