GANGA MISHRA, ADVOCATE CIVIL COURT, BHABHUA, SON OF LATE RAM SAKHI MISHRA, RESIDENT OF VILLAGE, BHABHUA TOWN, WARD NO. 3, (NORTH TO PATEL CHOWK), P.O. AND P.S. Vs. CHHEDI PASWAN, SON OF LATE RAM CHANDRA PASWAN, RESIDENT OF VILLAGE TAKIYA, P.O.

JUDGEMENT

(1.) The petitioner is an elector from 34 Sasaram (SC) Parliamentary Constituency for which election was held on 10.04.2014 and the result was declared on 16.05.2014. He has filed the election petition under the relevant provisions of the Representation of People Act, 1951 (hereinafter referred to as 'the Act') questioning the validity of the election of the respondent no. 1 who was declared elected at the said parliamentary election having polled the highest number of valid votes. On grant of the said relief, a further prayer is made to order re-election to elect new Member of Parliament from the said constituency in accordance with law.

(2.) The schedule of the election for 34 Sasaram (SC) Parliamentary Constituency held in 2014 is set out herein-below:-

(3.) The Respondent no. 1 contested the election on being nominated by the Bhartiya Janta Party (BJP). Altogether 11 candidates contested the election. It is stated that being a voter of 34 Sasaram (SC) Parliamentary Constituency, he has a right under Art. 19(1)(a) of the Constitution to know about the contesting candidates including his/their criminal antecedents. It is much more fundamental and basic for survival of a vibrant democracy. A well informed voter can vote judiciously and elect the law maker. By various judgments, the Apex Court has emphasised the legal right of the elector/voter like the petitioner. Any candidate contesting election is required to furnish details regarding his/her criminal antecedent while filing nomination paper. Part-IIIA of Form-2A as well as paragraph no. 5 of Part-A of Form 26 require detailing of pending criminal cases against the contesting candidate in which the offence is punishable with imprisonment with two years or more. However, the Returned Candidate (Respondent no. 1) suppressed the material fact that a criminal case bearing Mohania P.S. Case No. 168 of 2006 dated 08.09.2006 was pending against him in which cognizance was taken by the competent Court in the year 2007. The same was not disclosed in Clause 5(ii) of Form-26. The Returned Candidate had filed his nomination paper on 30.10.2010 to contest the assembly election from 204 Mohania Assembly Constituency and in Form 2A and Form-26, he had detailed all the criminal cases but in the election under question he purposefully suppressed his criminal antecedent by not disclosing pendency of Mohania P.S. Case No. 168 of 2006. Altogether three criminal cases were pending against the Returned Candidate. The first criminal case arose out of Mohania P.S. Case No. 168 of 2006 under Sections 143, 145, 283 and 290 of the Indian Penal Code out of which punishment under Sec. 145 Penal Code is two years. In the aforesaid case, charge-sheet had already been filed on 20.02.2007 whereupon cognizance was taken by the learned Chief Judicial Magistrate, Bhabhua in 2007 and the case is pending for final adjudication in the Court of learned S.D.J.M., Bhabhua. In the said case, the Returned Candidate had surrendered on 19.02.2010 and was released on bail on furnishing bond as directed by the Court. The said case is fixed up for attendance. The said case was lodged by the Officer-in-charge of the Police Station against the Returned Candidate and others named and unknown accuses alleging that Respondent no. 1 along with 60-70 supporters constituting a mob in the afternoon of 08.09.2006 at about 4.30 p.m. sat on the middle of the road and blocked N.H.-2 (G.T. Road) resulting in complete blockage. Even on instruction by the Police, the accuseds did not disperse and remained static creating public nuisance. The mob was doing so to compel the Government to enforce Durgawati Reservoir Project. Another criminal case bearing Mohania P.S. Case No. 28 of 2005 under Sec. 171(h) of I.P.C. and Sec. 3(i) of the Bihar Prevention of Defacement of Property Act, 1985 was lodged against the Returned Candidate (Sri Chhedi Paswan) which is also pending before the learned Judicial Magistrate, Bhabhua on a charge-sheet being filed against him and cognizance taken against the petitioners and others on 31.01.2006. The Returned Candidate later surrendered and was enlarged on bail. The third criminal case pending against the Returned Candidate was Mohania P.S. Case No. 206 of 2005 under Sec. 3(i) of the Bihar Prevention of Defacement of Property Act which is pending trial vide Tr. No. 2987 of 2013. The Returned Candidate is on bail in the said case which is still pending. Prima facie it is established that the Returned Candidate had filled up the nomination paper in 2014 Parliamentary Election by furnishing false affidavit in regard to his pending criminal cases. In one of those three cases, the punishment is two years. The Returning Officer acted contrary to the provisions of the Act and diverse judgments of the Apex Court in illegally accepting the nomination paper of the Respondent no. 1 as valid instead of rejecting the same as per Sec. 33A of the Act as he was required to furnish the information about his involvement in criminal offence(s) punishable with imprisonment of two years or more and pending consideration before the Court upon filing of charge-sheet. By not furnishing the entire details of his criminal antecedents, the Respondent no. 1 prevented the voter, like the petitioner, from expressing their considered choice at the franchise. The votes thus polled in his favour by the uninformed citizens/voters of 34 Sasaram (SC) Parliamentary Constituency have become meaningless and in strict violation of the fundamental rights of the voters guaranteed under the Constitution. The purity of election and more particularly the transparency in the said election process has been completely frustrated which materially affected the result of the election insofar as it concerns the Returned Candidate. The Returned Candidate in Clause-5 of the Form-26 filled up by him did not record pendency of the Mohania P.S. Case No. 168 of 2006. His nomination paper was liable to be rejected. The Returning Officer illegally/improperly accepted the nomination paper of the respondent (Returned Candidate). In clause 5(ii) of Form-26, the Returned Candidate wrote 'Nil'. This is clear case of suppression of his criminal antecedents.