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¨sÁUÀ– 4ಎ 14 2025 23 1946) . 153
Part – IVA BENGALURU, FRIDAY, 14, MARCH, 2025 PHALGUNA , 23, SHAKAVARSHA, 1946) No. 153
PERSONNEL AND ADMINISTRATIVE REFORMS SECRETARIAT (ELECTIONS)
NOTIFICATION
DPAR 15 CHUTHAA 2025, Bengaluru, Dated: 14.03.2025
ELECTION COMMISSION OF INDIA
Nirvachan Sadan, Ashoka Road, New Delhi – 110001
No:82/KT-LA/1/2023 Dated: 27th February, 2025
8 Phalguna, 1946 (Saka)
NOTIFICATION
No:82/KT-LA/1/2023 - In pursuance of Section 106 (b) of the Representation of the
People Act, 1951 (43 of 1951), the Election Commission of India hereby publishes the
judgment / order of the High Court of Karnataka, Bengaluru dated:19.12.2024 in the Election
Petition No.1/2023.
(1)IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ELECTION PETITION NO.1 OF 2023
BETWEEN
N. H. SHIVASHANKAR REDDY,
AGE: 69 YEARS, OCC: SOCIAL SERVICE,
R/O H.NO.29, NAGASANDRA VILLAGE,
TQ: GOURIBIDANUR,
DIST: CHIKKABALLAPUR,
KARNATAKA.
...PETITIONER
(BY SRI GANESH KUMAR R., ADVOCATE)
AND
K. H. PUTTASWAMY GOWDA,
AGE: 69 YEARS, OCC: BUSINESS,
R/O NO.1, WARD NO.19,
COURT ROAD, MTC COLONY,
GAURIBIDANURU TOWN-561208,
DIST: CHIKKABALLAPUR,
KARNATAKA.
…RESPONDENT
(BY SRI ROOPESA B., ADVOCATE)THIS ELECTION PETITION IS FILED UNDER SECTIONS 80,
80-A, 81, 100 (1)(B) OF THE REPRESENTATION OF PEOPLE ACT,
1951, PRAYING TO, A) ALLOW THIS ELECTION PETITION BY
DECLARING THE ELECTION OF THE RESPONDENT HEREIN AS
VOID TO THE POST OF MEMBER OF KARNATAKA LEGISLATIVE
ASSEMBLY TO THE GAURIBIDANURU ASSEMBLY CONSTITUENCY;
AND B) DECLARE THAT THE RESPONDENT HEREIN AS
COMMITTED CORRUPT PRACTICE UNDER SECTION 100(1)(B) OF
R.P. ACT ETC.,
THIS ELECTION PETITION PERTAINING TO PRINCIPAL
BENCH, BENGALURU HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 09.12.2024, THIS DAY AT KALABURAGI BENCH
THROUGH VIDEO CONFERENCING, ORDER WAS PRONOUNCED
THEREIN, AS UNDER:
CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
C.A.V. ORDER
The captioned election petition is filed to declare the
election of respondent herein to the post of Member of
Karnataka Legislative Assembly to Gauribidanur Assembly
Constituency as void on the ground that the respondent has
indulged in corrupt practice under Section 100(1)(b) of the
Representation of People Act, 1951 (for short, ‘the RP Act’).2. Facts leading to the case are as under:
The petitioner and the respondent filed nomination
papers pursuant to notice of election issued by the State on
13.04.2023. The subject matter of petition is in respect of
Gauribidanur Assembly Constituency for the period 2023.
The petitioner has challenged the declaration of respondent
as a returned candidate on 13.05.2023. The challenge is
primarily on the ground that the respondent has indulged in
corrupt practice under Section 33A of the RP Act for non-
disclosure of pending cases against him and therefore, a
declaration is sought.
3. Learned counsel appearing for the petitioner re-
iterating the grounds urged in the election petition has
vehemently argued and contended that disclosure of criminal
case is mandatory as per Section 33A of the RP Act. He
would submit that affidavit submitted in compliance with
procedure provided under Section 33A of the RP Act read
with Rule 4A and Form No.26 of the Conduct of ElectionsRules, 1961 (for short, ‘the Rules’), the respondent was
required to disclose the pendency of crime in Crime
No.120/2018 for the offences punishable under Sections 406
and 420 of the Indian Penal Code. Citing omissions of
Section 33B of the RP Act, as it was struck down by the
Hon’ble Apex Court as ultra vires the Constitution in the case
of People Union for Civil Liberties Vs. Union of India1.
He would contend that the requirements of disclosure of
pending cases under Form No.26 of the Rules has undergone
sea change from 10.10.2018. Taking this Court through Form
No.26 of the Rules, the format as it existed in 2012, he
would contend that only in those cases charges were framed
and cognizance were taken, the candidate was required to
disclose those relevant pending criminal cases in the affidavit
that was required to be submitted under Form No.26 of the
Rules. However, post judgment rendered by the Hon’ble
Apex Court in the above cited judgment, it is argued that
disclosure is not only limited to disclosure of criminal cases
1 AIR 2003 SC 2363where charges were framed or cognizance were taken but
also requires disclosure of details in respect of all pending
criminal cases irrespective of any stage.
4. He would further point out from the records that
the respondent had the knowledge of pending case in Crime
No.120/2018, on the file of Principal Senior Civil Judge and
CJM, Bagalkot. This factual matrix is admitted by the
respondent and therefore, non-disclosure clearly amounts to
corrupt practice under Section 100(1) (b) of the RP Act and
therefore, he would contend that this is a fit case where an
election declaring the respondent as a returned candidate
needs to be declared as void.
5. He would also lay emphasis on Rule 4A of the
Rules to point out that earlier it was only related to
conviction which later included filing of charge-sheet and
then taking cognizance. Citing distinction between the
requirements under Section 212 of the Code of Criminal
Procedure, Form No.26 and the present Form No.26 of the
Rules, it is argued that it has undergone substantial changes.He has referred to Clause (5) of the Table in Form No.26 of
the Rules passed on 10.10.2018. Referring to Form No.26 of
the Rules, he would contend that candidate is mandatorily
required to disclose all information. Taking this Court through
Section 33A of the RP Act, he would also lay emphasis on the
language employed under the above said Section. While
reading the Section, he would point out that the candidate is
required to disclose all information which is mandatory under
the Act. Therefore, it point out that he is required to disclose
all information apart from any information which is required
to furnish under the RP Act.
6. While stressing on word apart, he would point out
that pendency of case in Crime No.120/2018 for the offences
punishable under Sections 406 and 420 of IPC clearly
amounts to corrupt practice and therefore, warrants
interference at the hands of this Court.
7. Referring to Clause (5) of Form No.26 of the Rules
amended in 2018, he would point out that the candidate in
the contest election, cannot get away from the mandateindicated in the above said Clause which imposes a duty on
the candidate to disclose whether criminal cases are pending
or not, while in 2012 format under Form No.26 of the Rules,
a candidate was only required to disclose in the event charge
is framed in criminal proceedings. Therefore, highlighting
this distinction, he would vehemently argue and contend that
the respondent is guilty of withholding crucial information
which clearly contravenes Section 33A of the RP Act and
therefore, this is a clear case of corrupt practice.
8. He would also point out that ‘B’ report is not
defined under Cr.P.C. However citing the following
judgments;
(i) Kajal Naresh Kumar Vs. Union of
India and others in W.P.No.20850/2022 dated
16.11.2022.
(ii) Dr. Ravikumar Vs. Mrs. K.M.C.
Vasantha and Another reported in ILR 2018 KAR
1725.it is vehemently argued that irrespective of filing of ‘B’
report, FIR continues till Magistrate accepts ‘B’ report.
Reliance is also placed on the judgment rendered by the Co-
ordinate Bench in the case of Mudiyappa Vs. Basavaraj
and others in W.P.No.107291/2023 dated 10.01.2024.
He would further point out that the respondent admits filing
of FIR and also acknowledges his knowledge of filing of ‘B’
report. On these set of grounds, he would contend that the
prayer sought in the election petition may be allowed and
accordingly, this Court may declare the election of
respondent to the post of Karnataka Legislative Assembly to
Gauribidanur Assembly Constituency as null and void as per
Section 100(1) (b) of the RP Act.
9. Per contra, learned Senior Counsel appearing for
the respondents however has countered the contentions
raised by the learned counsel appearing for the petitioner
primarily referring to the prayer sought in the election
petition. Learned Senior Counsel would vehemently argue
and contend that what amounts to corrupt practice is clearlydefined under Section 123 of the RP Act. He would also point
out that the grounds to declare election as void is clearly
contemplated under Section 100 of the RP Act. He would
further point out that Section 100 (1)(b) of the RP Act which
relates to corrupt practice is the relevant provision. Citing
these two provisions, he would then requests this Court to
examine the wordings used in Section 33A of RP Act.
Referring to Section 33A of RP Act, he would point out that
there is absolutely no prayer alleging violation of Section 33A
of RP Act in prayer sought. While taking this Court through
the prayer sought in the election petition, he would point out
that the challenge in the election is sought primarily on the
ground that the respondent has indulged in corrupt practice
and therefore, declaration is sought to declare the election as
void solely on that count. When coming back to Section 100
of the RP Act, he would vehemently argue and contend that
the said Section clearly contemplates that when election can
be declared as void. An election can be declared as void if
the Court is of the opinion that the candidate has indulged incorrupt practice. What amounts to corrupt practice is clearly
defined under Section 123 of the RP Act. On reading the
entire election petition, none of the ingredients found in
Section 123 of the RP Act are made out in the election
petition.
10. In the alternate, learned Senior Counsel would
point out that non-disclosure of FIR, even if accepted for the
sake of argument, at the most attracts penalty under Section
125A of the RP Act. Learned Senior counsel would take this
Court through Section 125A(i) of the RP Act and contend that
there is an independent mechanism in the event the
petitioner is able to substantiate that there is no full
disclosure as mandatory under Form No.26 under Rule 4A of
the Rules. Learned Senior Counsel would then take this Court
through various provisions of the Code of Criminal Procedure,
more particularly the definition of police reports as defined
under Section 2(d) of Cr.P.C. He has also taken this Court
through provisions of Sections 154, 156, 157, 173 and 190
of the Code of Criminal Procedure.11. Having heard the learned counsel on record
exhaustively, this Court proceeds to record its reasons on the
issues framed by this Court. The issues are extracted as
under:
“1) Whether petitioner proves that respondent has
violated sub-clause (1) of Section 33(A) of the
Representation of the People Act, 1951 by not
disclosing the registration of crime against him
in Crime No.120/2018 and this amounts to
corrupt practice as defined under sub-clause (1)
of Section 33(A) of the Representation of the
People Act, 1951?
2) Whether petitioner proves that respondent has
committed “corrupt practice” of undue influence
by withholding information as to criminal
proceedings and whether he is able to prove
that merely because Investigation Officer has
submitted ‘B’ report that in itself will not
conclude the criminal proceedings and will not
exempt a candidate from disclosing criminal
proceedings in terms of Section 33(a) of the
Act?
3) Whether petitioner has locus standi to file
election petition and to seek declaration that
respondent’s election is void?”Finding on Issue Nos.1 and 2:
12. Before this Court delves into the matter further,
deems it fit to cull out the prayer sought in the election
petition which reads as under:
“a) allow this Election Petition by declaring the
election of the Respondent herein as void to
the post of Member of Karnataka Legislative
Assembly to the Gauribidanuru Assembly
Constituency; and
b) declare that the respondent herein has
committed corrupt practice under section 100
(1) (b) of R P Act.
c) Any other relief that this Hon’ble Court may
deem fit in the facts and circumstances of the
case.”
13. This Court also deems it fit to take cognizance of
Form No.26 issued in 2012 in compliance of Rule 4A of the
Rules. The relevant portion is as under:
"(5) I am/am not accused of any
offence(s) punishable with imprisonment for
two years or more in a pending case(s) in whicha charge(s) has/have been framed by the
Court(s) or competent jurisdiction.
If the deponent is accused of any such
offence(s) he shall furnish the following
information-
(i) The following case(s) is/are pending against
me in which charges have been framed by the Court
for an offence punishable with imprisonment for two
years or more-
(a) Case/First Information
Report No./Nos. together
with complete details of
Police Station/District/State
concerned
(b) Section(s) of the Act(s)
concerned and short
description of the offence(s)
for which charged.
(c) Name of the Court, Case
No. and date of order taking
cognizance
(d) Court(s) which framed
the charge(s)
(e) Date(s) on which the
charge(s) was/were framed
(f) Whether all or any of the
proceedings(s) have been
stayed by any Court(s) of
competent jurisdiction.
(ii) The following case(s) is/are pending against
me in which cognizance has been taken by the Court
other than the cases mentioned in Item (i) above-
(a) Name of the Court, Case
No. and date or order taking
cognizance.(b) The details of cases
where the Court has taken
cognizance, section(s) of the
Act(s) and description of the
offence(s) for which
cognizance taken."
14. The Hon’ble Apex Court struck down Section 33B
of the RP Act as ultra vires the Constitution. Section 33B of
the RP Act exempted the candidate from disclosing any
information which was not required to be disclosed or
furnished under the RP Act or Rules made thereunder.
Pursuant to the law laid down by the Apex Court in the case
of People Union for Civil Liberties supra, the authorities
aligning with the judgment rendered by the Hon’ble Apex
Court have come up with Form No.26 of the Rules with effect
from 10.10.2018. The relevant portion is as under:
"(5) Pending criminal cases
(i) I declare that there is no pending
criminal case against me. (Tick this alternative
if there is no criminal case pending against the
Candidate and write NOT APPLICABLE against
alternative (ii) below)
OR(ii) The following criminal cases are
pending against me:
(If there are pending criminal cases against the
candidate, then tick this alternative and score off
alternative (i) above, and give details of all pending
cases in the Table below)
Table
(a) FIR No. with name
and address of
Police Station
concerned
(b) Case No. with
Name of the Court
(c) Section(s) of
concerned
Acts/Codes
involved (give no.
of the Section, e.g.
Section…..of IPC,
etc.).
(d) Brief description of
offence
(e) Whether charges
have been framed
(mention YES or
NO)
(f) If answer against
(e) above is YES,
then give the date
on which charges
were framed
(g) Whether any
Appeal/Application
for revision has
been filed against
the proceedings
(Mention YES or
NO)15. Section 33A of the RP Act reads as under:
“[33A. Right to information.—(1)A
candidate shall, apart from any information which he
is required to furnish, under this Act or the rules
made thereunder, in his nomination paper delivered
under sub-section (1) of section 33, also furnish the
information as to whether—
(i) he is accused of any offence punishable
with imprisonment for two years or more
in a pending case in which a charge has
been framed by the court of competent
jurisdiction;
(ii) he has been convicted of an offence
other than any offence referred to in
sub-section (1) or sub-section (2), or
covered in sub-section (3), of section 8
and sentenced to imprisonment for one
year or more.
(2) The candidate or his proposer, as the case may
be, shall, at the time of delivering to the returning
officer the nomination paper under sub-section (1) of
section 33, also deliver to him an affidavit sworn by
the candidate in a prescribed form verifying the
information specified in sub-section (1).
(3) The returning officer shall, as soon as may be
after the furnishing of information to him under sub-
section (1), display the aforesaid information byaffixing a copy of the affidavit, delivered under sub-
section (2), at a conspicuous place at his office for
the information of the electors relating to a
constituency for which the nomination paper is
delivered.]”.
16. Section 123 of RP Act reads as under:
“123. Corrupt practices.— The following
shall be deemed to be corrupt practices for the
purposes of this Act:—
(1) “Bribery”, that is to say—
(A) any gift, offer or promise by a candidate or
his agent or by any other person with the consent of
a candidate or his election agent of any gratification,
to any person whomsoever, with the object, directly
or indirectly of inducing—
(a) a person to stand or not to stand as, or to
withdraw or not to withdraw from being a candidate
at an election, or
(b) an elector to vote or refrain from voting at
an election, or as a reward to—
(i) a person for having so stood or not stood,
or for having withdrawn or not having withdrawn his
candidature; or(ii) an elector for having voted or refrained
from voting;
(B) the receipt of, or agreement to receive,
any gratification, whether as a motive or a reward—
(a) by a person for standing or not standing
as, or for withdrawing or not withdrawing from
being, a candidate; or
(b) by any person whomsoever for himself or
any other person for voting or refraining from voting,
or inducing or attempting to induce any elector to
vote or refrain from voting, or any candidate to
withdraw or not to withdraw his candidature.
Explanation.—For the purposes of this clause
the term “gratification” is not restricted to pecuniary
gratifications or gratifications estimable in money
and it includes all forms of entertainment and all
forms of employment for reward but it does not
include the payment of any expenses bona fide
incurred at, or for the purpose of, any election and
duly entered in the account of election expenses
referred to in section 78.
(2) Undue influence, that is to say, any direct
or indirect interference or attempt to interfere on the
part of the candidate or his agent, or of any otherperson with the consent of the candidate or his
election agent, with the free exercise of any electoral
right:
Provided that—
(a) without prejudice to the generality of the
provisions of this clause any such person as is
referred to therein who—
(i) threatens any candidate or any elector, or
any person in whom a candidate or an elector
interested, with injury of any kind including social
ostracism and ex-communication or expulsion from
any caste or community; or
(ii) induces or attempts to induce a candidate
or an elector to believe that he, or any person in
whom he is interested, will become or will be
rendered an object of divine displeasure or spiritual
censure,
shall be deemed to interfere with the free
exercise of the electoral right of such candidate or
elector within the meaning of this clause;
(b) a declaration of public policy, or a promise
of public action, or the mere exercise of a legal right
without intent to interfere with an electoral right,shall not be deemed to be interference within the
meaning of this clause.
(3) The appeal by a candidate or his agent or
by any other person with the consent of a candidates
or his election agent to vote or refrain from voting
for any person on the ground of his religion, race,
caste, community or language or the use of, or
appeal to religious symbols or the use of, or appeal
to, national symbols, such as the national flag or the
national emblem, for the furtherance of the
prospects of the election of that candidate or for
prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act
to a candidate shall be deemed to be a religious
symbol or a national symbol for the purposes of this
clause.
(3A) The promotion of, or attempt to promote,
feelings of enmity or hatred between different
classes of the citizens of India on grounds of religion,
race, caste, community, or language, by a candidate
or his agent or any other person with the consent of
a candidate or his election agent for the furtherance
of the prospects of the election of that candidate or
for prejudicially affecting the election of any
candidate.(3B) The propagation of the practice or the
commission of sati or its glorification by a candidate
or his agent or any other person with the consent of
the candidate or his election agent for the
furtherance of the prospects of the election of that
candidate or for prejudicially affecting the election of
any candidate.
Explanation.—For the purposes of this clause,
“sati” and “glorification” in relation to sati shall have
the meanings respectively assigned to them in the
Commission of Sati (Prevention) Act, 1987 (3 of
1988).
(4) The publication by a candidate or his agent
or by any other person with the consent of a
candidate or his election agent, of any statement of
fact which is false, and which he either believes to be
false or does not believe to be true, in relation to the
personal character or conduct of any candidate or in
relation to the candidature, or withdrawal, of any
candidate, being a statement reasonably calculated
to prejudice the prospects of that candidate’s
election.
(5) The hiring or procuring, whether on
payment or otherwise, of any vehicle or vessel by a
candidate or his agent or by any other person with
the consent of a candidate or his election agent orthe use of such vehicle or vessel for the free
conveyance of any elector (other than the candidate
himself the members of his family or his agent) to or
from any polling station provided under section 25 or
a place fixed under sub-section (1) of section 29 for
the poll:
Provided that the hiring of a vehicle or vessel
by an elector or by several electors at their joint
costs for the purpose of conveying him or them to
and from any such polling station or place fixed for
the poll shall not be deemed to be a corrupt practice
under this clause if the vehicle or vessel so hired is a
vehicle or vessel not propelled by mechanical power:
Provided further that the use of any public
transport vehicle or vessel or any tramcar or railway
carriage by any elector at his own cost for the
purpose of going to or coming from any such polling
station or place fixed for the poll shall not be deemed
to be a corrupt practice under this clause.
Explanation.—In this clause, the expression
“vehicle” means any vehicle used or capable of being
used for the purpose of road transport, whether
propelled by mechanical power or otherwise and
whether used for drawing other vehicles or
otherwise.(6) The incurring or authorizing of expenditure
in contravention of section 77.
(7) The obtaining or procuring or abetting or
attempting to obtain or procure by a candidate or his
agent or, by any other person with the consent of a
candidate or his election agent, any assistance
(other than the giving of vote) for the furtherance of
the prospects of that candidate’s election, from any
person in the service of the Government and
belonging to any of the following classes, namely:—
(a) gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces;(e)excise
officers;
(f) revenue officers other than village revenue
officers known as lambardars, malguzars, patels,
deshmukhs or by any other name, whose duty is to
collect land revenue and who are remunerated by a
share of, or commission on, the amount of land
revenue collected by them but who do not discharge
any police functions; and(g) such other class of persons in the service of
the Government as may be prescribed:
Provided that where any person, in the service
of the Government and belonging to any of the
classes aforesaid, in the discharge or purported
discharge of his official duty, makes any
arrangements or provides any facilities or does any
other act or thing, for, to, or in relation to, any
candidate or his agent or any other person acting
with the consent of the candidate or his election
agent (whether by reason of the office held by the
candidate or for any other reason), such
arrangements, facilities or act or thing shall not be
deemed to be assistance for the furtherance of the
prospects of that candidate’s election.
(h) class of persons in the service of a local
authority, university, government company or
institution or concern or undertaking appointed or
deputed by the Election Commission in connection
with the conduct of elections.
(8) Booth capturing by a candidate or his agent
or other person.
Explanation.—(1)In this section the expression
“agent” includes an election agent, a polling agent
and any person who is held to have acted as anagent in connection with the election with the
consent of the candidate.
(2) For the purposes of clause (7), a person
shall be deemed to assist in the furtherance of the
prospects of a candidate’s election if he acts as an
election agent of that candidate.
(3) For the purposes of clause (7),
notwithstanding anything contained in any other law,
the publication in the Official Gazette of the
appointment, resignation, termination of service,
dismissal or removal from service of a person in the
service of the Central Government (including a
person serving in connection with the administration
of a Union territory) or of a State Government shall
be conclusive proof—
(i) of such appointment, resignation,
termination of service, dismissal or removal from
service, as the case may be, and
(ii) where the date of taking effect of such
appointment, resignation, termination of service,
dismissal or removal from service, as the case may
be, is stated in such publication, also of the fact that
such person was appointed with effect from the said
date, or in the case of resignation, termination of
service, dismissal or removal from service suchperson ceased to be in such service with effect from
the said date.
(4) For the purposes of clause (8), “booth
capturing” shall have the same meaning as in section
135A.”
17. Section 100 (1) (b) of R.P Act reads as under:
100. Grounds for declaring election to be
void.—(1) Subject to the provisions of sub-
section (2) if the High Court is of opinion—
(b) that any corrupt practice has been committed
by a returned candidate or his election agent or
by any other person with the consent of a returned
candidate or his election agent; or
18. The present election petition seeks to declare the
election of the respondent to the Karnataka Legislative
Assembly (Gauribidanur Assembly Constituency) null and
void under Section 100(1)(b) of the Representation of the
People Act, 1951 (“RP Act”) on the ground of corrupt
practices. The petitioner contends that the respondent failed
to disclose the filing of a 'B Report' in the requisite FormNo.26, thereby alleging non-compliance with Section 33A of
the RP Act.
19. Section 123 of the RP Act enumerates what
constitutes “corrupt practices.” Any act to declare an election
void under Section 100(1)(b) must specifically fall within the
definition of corrupt practices as laid down in Section 123.
Section 100(1)(b) applies when corrupt practices, as defined
under Section 123, are established against a candidate.
20. Section 33A mandates candidates to furnish
details of pending criminal cases or convictions in Form
No.26 under Rule 4A of the Conduct of Election Rules, 1961.
Section 125A prescribes a specific penalty for any omission
or false declaration in Form No.26. This penalty includes fine
or imprisonment, but it does not classify such omission as
“corrupt practice” under Section 123.
21. A 'B Report' filed under Section 173 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) indicates that, upon
investigation, the police have not found sufficient evidence toproceed with prosecution. The filing of a 'B Report' does not
imply the existence of a pending case or conviction, as
required for disclosure under Section 33A. It merely reflects
the closure of an FIR unless the Magistrate rejects the
report.
22. Consequently, until the Magistrate takes
cognizance or directs further investigation, the 'B Report'
does not translate into an actionable proceeding requiring
mandatory disclosure in Form No.26.
23. It is vehemently argued that irrespective of the
filing of a 'B Report,' the FIR continues until the Magistrate
accepts the 'B Report.' Reliance is placed on Mudiyappa Vs.
Basavaraj and Others (W.P.No.107291/2023, dated
10.01.2024). However, this argument is misplaced.
24. The legal position is clear. while an FIR initiates
the process of investigation, the submission of a 'B Report'
under Section 173(2) Cr.P.C. concludes the investigation
unless the Magistrate directs further action. In the absenceof any further direction from the Magistrate, the 'B Report'
effectively closes the FIR. Hence, there is no continuing
criminal proceeding that mandates disclosure under Section
33A.
25. The respondent’s admission of knowledge
regarding the FIR and 'B Report' does not alter the legal
position. Mere knowledge of an FIR does not amount to a
pending case requiring mandatory disclosure unless the
Magistrate rejects the 'B Report' and takes cognizance.
Therefore, the argument that the FIR subsists irrespective of
the 'B Report' lacks legal merit and cannot form the basis to
declare the election void under Section 100(1)(b).
26. Assuming for the sake of argument that the non-
disclosure of an FIR or the 'B Report' amounts to a failure
under Section 33A, the appropriate remedy lies under
Section 125A of the RP Act. Section 125A(i) clearly provides
for a fine or imprisonment as a penalty for failing to disclose
information in Form No.26. Importantly, this provisionoperates independently of the provisions relating to corrupt
practices.
27. Therefore, non-disclosure does not automatically
attract the severe consequence of declaring an election void
under Section 100(1)(b).
28. Reliance is placed on the decision of the Co-
ordinate Bench in Mudiyappa Vs. Basavaraj and
Others(W.P.No.107291/2023, dated 10.01.2024),
wherein it was vehemently argued that an FIR continues only
until the Magistrate accepts the 'B Report.' However, this
judgment does not establish that a concluded FIR (via a 'B
Report') qualifies as a pending proceeding under Section
33A.
29. Corrupt practices, as defined under Section 123,
involve acts such as bribery, undue influence, impersonation,
or false statements. These are substantive offenses with
significant consequences. Non-disclosure of information,
even if proven, amounts at most to a procedural lapsepunishable under Section 125A but does not constitute
corrupt practice.
30. The grounds for declaring an election void are
strictly circumscribed by Section 100, which must be read in
harmony with Sections 123 and 33A.
31. Based on the above, non-disclosure of the 'B
Report,' even if admitted, does not amount to corrupt
practice under Section 123 of the RP Act. At most, it could
attract a penalty under Section 125A, which provides an
independent mechanism for addressing such omissions.
32. The petitioner’s reliance on the continuance of the
FIR irrespective of the 'B Report' is legally unsustainable. The
'B Report' effectively concludes the FIR unless the Magistrate
takes further action. Consequently, the prayer to declare the
election null and void under Section 100(1)(b) cannot be
entertained, and the election petition deserves to be
dismissed for lack of merit.33. Accordingly, point Nos.1 and 2 are answered in
the Negative.
Finding on issue No.3:-
34. The petitioner, having contested the election in
question, undoubtedly has locus standi to maintain the
election petition and seek the declaration that the
respondent’s election is void. Under the provisions of the
Representation of the People Act, 1951 (or the relevant
statutory framework governing elections), an election
petition can be filed by any candidate who contested the
election. The term "candidate" is defined to include any
person who has filed a valid nomination and participated in
the electoral process. In the present case, the petitioner
satisfies these criteria, as evidenced by their participation in
the election and the subsequent declaration of results. The
petitioner, being an aggrieved party directly affected by the
outcome of the election, possesses a legitimate legal interest
in challenging its validity. This right is fundamental to
ensuring the integrity of the democratic process andaddressing any allegations of irregularities or illegality in the
conduct of the election. Therefore, the respondent's
contention that the petitioner lacks locus standi is untenable,
and the issue is answered in the affirmative.
35. Conclusions:
(i) Under criminal jurisprudence, the filing of a 'B
Report' under Section 173 of the Code of Criminal Procedure,
1973 (Cr.P.C.) signifies the non-existence of sufficient
evidence to prosecute the accused. This conclusion, unless
rejected by the Magistrate, effectively closes the matter and
absolves the accused from the label of a "pending case" or
"conviction." In the context of the Representation of the
People Act, 1951 (R.P. Act), this has significant implications
for the interpretation and application of Section 33A.
(ii) Section 33A mandates that candidates must furnish
information regarding pending criminal cases or convictions
in Form No.26 under Rule 4A of the Conduct of Election
Rules, 1961. However, the object of this provision is toensure transparency by requiring candidates to disclose
cases that could potentially affect public confidence in their
integrity or suitability for office. The term "any other
information" employed in Section 33A cannot be interpreted
so broadly as to include disclosures that fall outside this
legislative intent. The filing of a 'B Report,' which confirms
the absence of sufficient grounds for prosecution, does not
amount to a pending criminal case or a conviction.
(iii) Similarly, Section 123, which defines "corrupt
practices," and Section 100(1)(b), which provides grounds
for declaring an election void due to corrupt practices, are
aligned with ensuring electoral fairness and integrity. These
provisions do not envisage the inclusion of closed
investigations, such as those resulting in a 'B Report,' as a
basis for disqualification or disclosure.
(iv) The requirement to disclose under Section 33A is
limited to material that aligns with its legislative objective
ensuring that voters are informed of genuine legalencumbrances against a candidate. Including details of a 'B
Report' would go beyond this purpose and impose an
unwarranted burden on candidates, as the filing of a 'B
Report' signifies that no actionable case exists against them.
Therefore, candidates are not obligated to disclose the filing
of a 'B Report,' as it does not fulfill the criteria of "any other
information" under Section 33A of the R.P. Act.
(v) The prayer in the election petition seeks to declare
the election of the respondent to the post of Member of the
Karnataka Legislative Assembly from the Gauribidanur
Assembly Constituency as void under Section 100(1)(b) of
the Representation of the People Act, 1951, on the ground of
corrupt practice. However, for such a declaration to be
granted, it is imperative that the petitioner substantiate the
allegations with cogent and credible material evidence
demonstrating that the respondent or their election agent, or
any other person with their consent, engaged in corrupt
practices as defined under Section 123 of the Act. In the
present case, no material evidence has been placed beforethe Court to establish that the respondent indulged in or
consented to any acts constituting corrupt practices, such as
bribery, undue influence, or improper use of electoral
resources. The mere assertion of corrupt practice, without
corroborating evidence or concrete proof, fails to meet the
standard of proof required under the law. Therefore, the
prayer to declare the election as null and void under Section
100(1)(b) is unsustainable and cannot be granted in the
absence of substantiating material or evidence supporting
the allegations.
(vi) The petitioner has relied on Clause (5) in Form No.
26 of the Conduct of Election Rules, 1961, as amended on
10.10.2018, which mandates that a candidate must declare
whether any criminal cases are pending against them.
However, in the present case, the Investigating Officer has
filed a 'B Report' under Section 173 of the Code of Criminal
Procedure, 1973, indicating that upon investigation, there
was no sufficient evidence to prosecute the respondent. The
filing of a 'B Report' signifies the closure of the criminalproceedings unless the Magistrate rejects the report, and it
does not amount to a "pending case" as envisaged under
Clause (5) of Form No. 26. Consequently, the respondent
was not obligated to disclose the filing of the 'B Report,' as it
does not meet the criteria of a pending criminal case. Non-
disclosure of the filing of a 'B Report' cannot, therefore, be
construed as a false declaration or suppression of material
facts, nor does it amount to corrupt practice under the
Representation of the People Act, 1951. The legislative intent
behind the amendment to Form No.26 is to ensure
transparency in cases where candidates are actively facing
prosecution or are convicted, not to include instances where
investigations have concluded with a finding of no actionable
evidence. Hence, the respondent’s actions do not fall within
the ambit of corrupt practices, and the petitioner’s reliance
on Clause (5) of Form No.26 is misplaced in the absence of
pending criminal charges.
36. For the reasons stated above, the petitioner has
failed to establish any grounds under Section 100(1)(b) ofthe Representation of the People Act, 1951, that would
warrant the declaration of the respondent’s election as void.
The alleged non-disclosure of the 'B Report,' even if
accepted, does not amount to corrupt practice under Section
123 and, at most, attracts penalties under Section 125A.
Furthermore, the petitioner’s arguments regarding the
continuance of the FIR after the filing of the 'B Report' are
legally unsustainable.
37. Accordingly, the Election Petition is dismissed. No
costs.
SD/-
(SACHIN SHANKAR MAGADUM)
JUDGE
RSP
List No.: 19 Sl No.: 1
CT-SWANNEXURES
LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER
PW.1 - Sri. N.H.Shivashankar Reddy
LIST OF EXHIBITS MARKED ON BEHALF OF PETITIONER
Ex.P-1: Certified copy of notice of Election (Form No.1)
Ex.P-2: Certified copy of Form No.26 sworn on 16.04.2023 submitted by
the respondent K.H.Puttaswamy Gowda
Ex.P-2(a): English translated copy of Form No.26 sworn on 16.04.2023
submitted by respondent K.H.Puttaswamy Gowda
Ex.P-3: Certified copy of Form No.26 sworn on 19.04.2023 submitted by
the respondent K.H.Puttaswamy Gowda
Ex.P-3(a): Typed copy of Form No.26 sworn on 19.04.2023 submitted
by the respondent K.H.Puttaswamy Gowda
Ex.P-3(b): English translated copy of Form No.26 sworn on 19.04.2023
submitted by the respondent K.H.Puttaswamy Gowda
Ex.P-4: Certified copy of list of contesting candidates to the 139 -
Gouribidanuru Assembly Constituency (Form No.7A)
Ex.P-5: Certified copy of certificate of Election of returned candidate
(Form No.22)
Ex.P-5(a): Translated copy of certificate of Election of returned
candidate (Form No.22)
Ex.P-6: Certified copy of FIR No.120/2018 dated 20.04.2018 filed
against the respondent at Navanagar Police Station, Bagalkot
Ex.P-6(a): Translated copy of FIR No.120/2018 dated 20.04.2018 filed
against the respondent at Navanagar Police Station, Bagalkot
Ex.P-7: Certified copy of letter dated 06.08.2018 written by the
respondent to the PSI Navanagar Police Station, BagalkotR.N.I. No. KARBIL/2001/47147 POSTAL REGN. No. RNP/KA/BGS/2202/2017-19
Licensed to post without prepayment WPP No. 297
41
Ex.P-8: Certified copy of letter dated 10.08.2018 written by the
respondent to the PSI Navanagar Police Station, Bagalkot
Ex.P-9: Certified copy of order sheet in BGK (N) PS CR.No.120/2018
Ex.P-9(a): Typed copy of relevant portion of order sheet in BGK (N) PS
CR.No.120/2018
Ex.P-10: Certified copy of the order dated 18.10.2022 passed in
Criminal Petition No.4205/2022 by the High Court of
Karnataka at Bengaluru
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENT
RW.1 - Sri. K.H.Puttaswamy Gowda
LIST OF EXHIBITS MARKED ON BEHALF OF RESPONDENT
Ex.R-1: Certified copy of Form No.2B of respondent
SD/-
(SACHIN SHANKAR MAGADUM)
JUDGE
RSP
By Order
(B C PATRA)
SECRETARY
ELECTION COMMISSION OF INDIA
(MADHU A.C)
Assistant Chief Electoral Officer
& E/o Under Secretary to Government
D.P.A.R (Elections)
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