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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: 27^th 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.

¨sÁUÀ – 4ಎ

Part – IVA

14

2025

23

1946)

BENGALURU, FRIDAY, 14, MARCH, 2025

PHALGUNA , 23, SHAKAVARSHA, 1946)

. 153

No. 153

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19^TH 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.

(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.

...PETITIONER

…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 Elections

Rules, 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 2363

where 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 mandate

indicated 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 clearly

defined 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 in

corrupt 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 which

a 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.

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

(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."

(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 by

affixing 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 other