Holding

Section 33‑A’s disclosure requirement extends to cases where cognizance has been taken, and failure to disclose such cases in Form‑26 attracts liability under Section 125‑A.

Summary

Satish Ukey filed a criminal complaint under Section 125-A of the Representation of the People Act, 1951 alleging that MLA Devendra Fadnavis concealed two criminal cases in his Form‑26 affidavit, where cognizance had been taken by the courts. The trial court dismissed the complaint, a Sessions Court remanded it for fresh consideration, and the High Court set aside the remand, dismissing the complaint again. The Supreme Court examined the scope of the information required under Section 33‑A and the accompanying Form‑26, interpreting the statutory language, the 1961 Conduct of Election Rules, and letters issued by the Election Commission. It held that the disclosure requirement includes cases where cognizance has been taken, not merely those where charges are framed, and that omission amounts to a violation of Section 125‑A. Consequently, the Court found the lower courts' dismissal untenable and ordered the complaint to be reconsidered by the trial court. The appeals were allowed and the High Court’s order set aside.

Issues considered

Whether the information required under Section 33‑A of the Representation of the People Act, 1951 includes pending criminal cases in which cognizance has been taken by a court.
Whether omission of such information in Form‑26 constitutes an offence under Section 125‑A of the Act.
Whether a complaint under Section 125‑A can be entertained despite earlier dismissal by the trial court and the High Court.
How Rule 4‑A of the Conduct of Election Rules, 1961 and the format of Form‑26 must be interpreted in relation to Section 33‑A.
Whether the High Court’s order dismissing the complaint was legally tenable.

Legislation cited

Conduct of Election Rules, 1961s. Rule 4A
Representation of the People Act, 1951s. 125-A, s. 33-A

Subjects

Representation of the People ActSection 125-ASection 33-AForm 26Election affidavitCriminal casesCognizanceCandidate disclosureElectoral lawSupreme Court interpretation

Judgment

524 [2019]
SUPREME COURT 15 S.C.R. 524
REPORTS [2019] 15 S.C.R.

A SATISH UKEY
v.
DEVENDRA GANGADHARRAO FADNAVIS
AND ANR.
B (Criminal Appeal Nos. 1515-1516 of 2019)
OCTOBER 01, 2019
[RANJAN GOGOI, CJI., DEEPAK GUPTA AND
ANIRUDDHA BOSE, JJ.]
Representation of the People Act, 1951:
C
ss. 33A and 125A – Rules 4A r/w Form 26 of Conduct of
Election Rules, 1961 – Criminal complaint against MLA – Alleging
infraction of the provision u/s 125-A as the MLA had not mentioned
in Form 26 two criminal cases in which cognizance was taken
against him – Complaint dismissed by trial court – Order affirmed
D by High Court – Appeal to Supreme Court – Held: Form 26
mandates disclosure of information by the contesting candidate of
not only case(s) in which charges have been framed but also case(s)
in which cognizance has been taken by the Court – Certain Letters
written by Election Commission of India to the Chief Electoral
E Officers of all the States and UTs also show that contesting
candidate is mandated to furnish information with regard to cases
in which cognizance is taken and that any fake declaration or
concealment in the affidavit prescribed in Form 26 as required
u/s. 33-A(2), will attract the provision of s. 125-A – Cumulative
reading of ss. 33-A and r. 4A and Form 26 alongwith the letters
F from the Election Commissioner, makes it clear that information to
be furnished u/s. 33-A includes not only information contained in
clauses (i) and (ii) of s. 33-A (1), but also the information made
under the Act or the rules made thereunder and such information
should be furnished in Form 26 – As per the averment in the
complaint, the criminal cases were deliberately not mentioned in
G
Form 26 – Hence, orders of courts below dismissing the complaint
is not tenable – Complaint to be considered afresh by trial court.
Allowing the appeals, the Court
HELD: 1. Consequent to the directions issued in
H *Association for Democratic Reforms case, Section 33-A was
524
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS 525

inserted into Representation of the People Act, 1951 vide the A
Representation of the People (Third Amendment) Act, 2002.
Section 33-A(1), as worded and drafted, required furnishing of
the information of cases where (i) the person filing the
nomination has been convicted; and (ii) where charges have been
framed against the person filing the nomination but excluded
cases where cognizance had been taken. This was despite the B
order of this Court, to the effect that details of case(s) of which
cognizance has been taken should also be furnished. [Paras 8
and 9] [531-A-G-H]
People’s Union for civil Liberties (PUCL) and Ors. v.
Union of India (UOI) and Ors. (2003) 4 SCC 399 : C
[2003] 3 SCR 75 ; *Union of India (UOI) and Ors.
v. Association for Democratic Reforms and Ors. (2002)
5 SCC 294 : [2002] 3 SCR 696 – relied on.
2. Whether the provisions of Section 125-A of the 1951
Act would be applicable in the present case, to make the first D
respondent liable in law, would require the Court to decide on
the true meaning and purport of the following phrases found in
Section 125-A of the 1951 Act i.e. (a) fails to furnish information
relating to sub-section (1) of Section 33-A; (b) conceals any
information; (c) in his nomination paper delivered under sub-
section (1) of section 33 or in his affidavit which is required to E
be delivered under sub-section (2) of section 33-A. To find out
the true meaning and purport of the aforesaid phrases, the crucial
question that has to be answered is whether the word
‘information’ as mentioned in Section 33-A of the 1951 Act
means only such information as mentioned in clause (i) and (ii)
of Section 33-A(1) or whether along with the said information a F
candidate is also required to furnish such other information as
required under the Act or the Rules made thereunder. The
consequential question that would arise is whether in the
affidavit required to be filed under sub-section (2) of Section 33-
A information is to be given as required in terms of the affidavit
which is prescribed by Form-26 of the Conduct of Election Rules, G
1961 or such information is confined to what is required to be
submitted under Section 33-A (1) (i) and (ii). [Paras 12 and 13]
[535-C-G]
3. Rule 4-A of 1961 Rules which was inserted by
S.O.935(E), dated 3.9.2002 with effect from 3.9.2002 provides H
526 SUPREME COURT REPORTS [2019] 15 S.C.R.

A for form of affidavit to be filed at the time of delivering nomination
paper. Form 26 is the prescribed form of affidavit to be filed by
a candidate along with his nomination papers as required under
Section 33-A (2) of the 1951 Act. [Paras 13 and 14] [535-G; 536-
B]

B 4. Form-26 was substituted by S.O. 1732 (E) dated
1.8.2012 with effect from 1.8.2012. A bare perusal of Form-26
makes it abundantly clear that, for offences punishable with
imprisonment for two years or more, while entry (5)(i) mandates
disclosure of information by the contesting candidate regarding
the case(s) that is/are pending against him in which charges have
C been framed by the Court; entry (5)(ii) mandates disclosure of
information by the contesting candidate regarding cases that are
pending against him in which cognizance has been taken by the
Court. Entry 5(ii) specifically mentions that the candidate is
required to provide information of the case(s) pending in which
D cognizance has been taken. This is in addition to the information
he is required to provide against the column in Entry 5(i) as the
words ‘Other than the cases mentioned in item (i) above are
specifically used in Entry 5(ii). This would leave no element of
doubt that, subsequent to the substitution of Form 26 in 2012,
the new Form 26 (as in vogue at the time of the elections in
E 2014), mandates the disclosure of information by the contesting
candidate of not only case(s) in which charges have been framed
but also case(s) in which cognizance has been taken by the Court.
[Paras 15, 16 and 17] [544-C-F]
5. The position is made further clear by the letters dated
F 24.8.2012, 26.9.2012 and 26.4.2014 written by the Election
Commission of India to the Chief Electoral Officer of all the
States and the Union Territories. A reading of the said letters
would go to show that a contesting candidate is mandated to
furnish information concerning the cases in which a Competent
G Court has taken cognizance along with the cases in which
charges have been framed. The said letters also make it clear
that the affidavit mentioned in Section 33-A(2) of the 1951 Act
is prescribed in Form-26 and that any false declaration or
concealment of information in the said affidavit will attract the
provisions of Section 125-A of the 1951 Act. [Para 18] [544-G-
H H; 545-A]
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS 527

6. A cumulative reading of Section 33-A of the 1951 Act A
and Rule 4-A of the 1961 Rules and Form-26 along with the
letters of Election Commission dated 24.8.2012, 26.9.2012 and
26.4.2014, make it amply clear that the information to be
furnished under Section 33-A of the 1951 Act includes not only
information mentioned in clauses (i) and (ii) of Section 33-A(1),
but also information, that the candidate is required to furnish, B
under the Act or the Rules made thereunder and such
information should be furnished in Form 26, which includes
information concerning cases in which a competent Court has
taken cognizance (Entry 5(ii) of Form 26). This is apart from
and in addition to cases in which charges have been framed for
C
an offence punishable with imprisonment for two years or more
or cases in which conviction has been recorded and sentence
of imprisonment for a period of one year or more has been
imposed (Entries 5(i) and 6 of Form 26 respectively). [Para 19]
[547-D-F]
7. Therefore, in view of the fact that clear averment was D
made in the complaint to the effect that the First Respondent
had knowledge of the two cases against him which had not been
mentioned in the affidavit filed by the First Respondent
alongwith his nomination papers, the order of the trial Court
upheld by the High Court is legally not tenable and the same
deserves to be set aside. The complaint of the appellant will E
be considered afresh by the trial Court from the stage where it
was interdicted. [Para 20] [547-F-H]
Krishnamoorthy v. Sivakumar and others (2015) 3
SCC 467 : [2015] 4 SCR 987 – relied on.
Case Law Reference F

[2002] 3 SCR 696 relied on. Para 7
[2003] 3 SCR 75 relied on. Para 10
[2015] 4 SCR 987 relied on. Para 21
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal G
Nos. 1515-1516 of 2019.
From the Judgment and Order dated 03.05.2018 of the High
Court of Judicature at Bombay, Nagpur Bench at Nagpur in Criminal
Revision Application No. 94 of 2016 and Criminal Application (APPR)
No. 101 of 2018. H
528 SUPREME COURT REPORTS [2019] 15 S.C.R.

A Vivek Tankha, Mukul Rohatgi, Sunil Manohar, Sanjay Parikh,
Sr. Advs., Vaibhav Srivastava, Akshay C. Srivastava, Prashant
Sivaragan, Pranav Gupta, Shashi Bhushan Wahane, Sanjay Patil, Balraj
Dewan, Satish Veke, Sameer Rohatgi, Ms. Ranjeeta Rohatgi, Sidharth
Dharmadhikari, Nishant Ramakantrao Katneshwarkar, Anoop Kandari,
Abhimanue Shrestha, Ms. Sanjana Srikumar, Ritwik Parikh, Jatinderpal
B
Singh, Ms. Rani Mishra, Randhir Kumar Ojha, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
RANJAN GOGOI, CJI.
C 1. Leave granted.
2. The appellant– Satish Ukey is a practicing Advocate of the
Bombay High Court. The first respondent is an elected member of the
Maharashtra State Legislative Assembly and is presently holding the
post of Chief Minister of the State of Maharashtra.
D
3. The appellant had filed a criminal complaint before the learned
Judicial Magistrate First Class, Nagpur for registration of a case against
the first respondent under Section 125-A of the Representation of the
People Act, 1951 (hereinafter referred to as “the 1951 Act”). The
learned Judicial Magistrate First Class, Nagpur by order dated 7th
E September, 2015 dismissed the complaint. In Revision, the learned
Sessions Judge, Nagpur remanded the matter to the learned trial Court
for a de novo consideration. Aggrieved, the first respondent moved
the High Court and the High Court having set aside the order of the
learned Sessions Judge by its judgment and order dated 3 rd May, 2018,
F the present appeals have been filed.
4. The complaint filed by the appellant contains an allegation that
in the affidavit in Form-26, prescribed by the Conduct of Election Rules,
1961 (hereinafter referred to as “the 1961 Rules”), which had
accompanied the nomination papers of the first respondent details of
two cases in which cognizance was taken i.e. (i) Summary Case No.231
G
of 1996 (under Section 500 of IPC) before the Judicial Magistrate First
Class, Nagpur; and (ii) Regular Criminal Case No.343 of 2003 (Old
No.125 of 1998) (under Sections 468, 471, 218, 467, 420 and 34 of IPC)
before the Court of Judicial Magistrate First Class, Nagpur have not
been mentioned by the first respondent despite knowledge of the same.
H Consequently, according to the appellant – complainant, an infraction
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS 529
[RANJAN GOGOI, CJI.]

of the provisions of Section 125-A has been committed for which the A
first respondent is liable to be prosecuted in a court of competent
jurisdiction.
On the very same allegations the appellant had challenged the
election of the first respondent before the High Court by instituting
Election Petition No.1 of 2014 which has been dismissed by the High B
Court by its order dated 19th August, 2015.
5. To determine the correctness of the stand taken by the
appellant - complainant and the legality of the impugned order of the
High Court holding that the complaint is liable to be dismissed, the Court
would be required to consider the provisions of Sections 33-A and 125-
C
A of the 1951 Act, Rule 4A of the 1961 Rules read with Form-26
prescribed under the said Rules. Several letters of the Election
Commission of India to the Chief Electoral Officers of all the States
and the Union Territories issued in this regard would also require a close
look.
6. Before setting out the relevant provisions of the law D
enumerated above, a brief prologue on the judicial precedents that had
led to the insertion of Sections 33-A and 125-A in the 1951 Act and
the provisions of Rule 4-A of the 1961 Rules read with Form-26 is
considered necessary.
7. In Union of India (UOI) and Ors. v. Association for E
Democratic Reforms and Ors.1 this Court while examining the issue
of the Voters right to know relevant particulars of the contesting
candidates before they are called upon to cast their votes had made
the following observations :
“22. For health of democracy and fair election, whether the F
disclosure of assets by a candidate, his/her qualification and
particulars regarding involvement in criminal cases are necessary
for informing voters, may be illiterate, so that they can decide
intelligently, whom to vote? In our opinion, the decision of even
illiterate voter, if properly educated and informed about the
contesting candidate, would be based on his own relevant criteria G
of selecting a candidate. In democracy, periodical elections are
conducted for having efficient governance for the country and
for the benefit of citizens — voters. In a democratic form of

1
(2002) 5 SCC 294 H
530 SUPREME COURT REPORTS [2019] 15 S.C.R.

A government, voters are of utmost importance. They have right
to elect or re-elect on the basis of the antecedents and past
performance of the candidate. He has choice of deciding whether
holding of educational qualification or holding of property is
relevant for electing or re-electing a person to be his
representative. Voter has to decide whether he should cast vote
B
in favour of a candidate who is involved in criminal case. For
maintaining purity of elections and healthy democracy, voters are
required to be educated and well informed about the contesting
candidates. Such information would include assets held by the
candidate, his qualification including educational qualification and
C antecedents of his life including whether he was involved in a
criminal case and if the case is decided—its result, if pending—
whether charge is framed or cognizance is taken by the Court?
There is no necessity of suppressing the relevant facts from the
voters.
D [underlining is ours]”
Further, this Court issued the following directions to the Election
Commission (para 48, pg. 322):
“48. The Election Commission is directed to call for information
E on affidavit by issuing necessary order in exercise of its power
under Article 324 of the Constitution of India from each candidate
seeking election to Parliament or a State Legislature as a
necessary part of his nomination paper, furnishing therein,
information on the following aspects in relation to his/her
F candidature:-
(1) Whether the candidate is convicted/acquitted/ discharged
of any criminal offence in the past-if any, whether he is
punished with imprisonment or fine?
(2) Prior to six months of filing of nomination, whether the
G
candidate is accused in any pending case, of any offence
punishable with imprisonment for two years or more, and
in which charge is framed or cognizance is taken by the
Court of law. If so, the details thereof.

H [underlining is ours]”
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS 531
[RANJAN GOGOI, CJI.]

8. Consequent to the above and the directions issued in A
Association for Democratic Reforms (Supra), Section 33-A was
inserted into the 1951 Act vide the ‘Representation of the People (Third
Amendment) Act, 2002’ (Section 2 of the Act 72 of 2002).
9. The new Section 33-A, which is the bone of contention in the
present case, deals with the ‘Right to Information’ and reads as under: B
“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 – C
(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 D
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 E
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
F
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.
[underlining is ours]”
It is pertinent to note here that Section 33-A(1), as worded and G
drafted, required furnishing of the information of cases where (i) the
person filing the nomination has been convicted; and (ii) where charges
have been framed against the person filing the nomination but excluded
cases where cognizance had been taken. This was despite the order
of this Court, noticed above, to the effect that details of case(s) of
which cognizance has been taken should also be furnished. H
532 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 10. The aforesaid discrepancy was addressed by this Court, in
the case of People’s Union for civil Liberties (PUCL) and Ors.
v. Union of India (UOI) and Ors.2 In the said case, this Court had
examined the import of Sections 33-A and 33-B3 of the 1951 Act [as
inserted in the 1951 Act through the amendment in 2002 (Supra)] vis-
à-vis the directions issued by this Court in the case of Association for
B Democratic Reforms (Supra) and held as under (opinion of M.B. Shah,
J. is quoted. The opinion of P. Venkatarama Reddi and D.M.
Dharmadhikari, JJ. on the point is one of concurrence):
“114. I shall now discuss the specifics of the problem. With a
view to promote the right to information, this Court gave certain
C directives to the Election Commission which, as I have already
clarified, were ad hoc in nature. The Election Commission was
directed to call for details from the contesting candidates broadly
on three points, namely, (i) criminal record, (ii) assets and
liabilities, and (iii) educational qualification. The Third Amendment
D to the RP Act which was preceded by an ordinance provided
for disclosure of information. How far the Third Amendment to
the Representation of the People Act, 2002 safeguards the right
of information which is a part of the guaranteed right under Article
19(1)(a), is the question to be considered now with specific
reference to each of the three points spelt out in the judgment
E of this Court in Assn. for Democratic Reforms case.
115. As regards the first aspect, namely, criminal record, the
directives in Assn. for Democratic Reforms case are twofold:
(SCC p. 322, para 48)
“(1) Whether the candidate is convicted/acquitted/discharged of
F any criminal offence in the past — if any, whether he is punished
with imprisonment or fine.
2
(2003) 4 SCC 399
3
Section 33-B was also added through the 2002 Amendment. It stated that
notwithstanding anything contained in any judgment of any Court, or any instruction
G issued by the Election Commission, no candidate shall be liable to disclose information
not required by the Act or rules made thereunder.
Section 33-B was declared unconstitutional in People’s Union of Civil Liberties
v. Union of India and Ors. ((2003) 4 SCC 399) as violating the fundamental right of
citizens to know the antecedents of candidates contesting in the elections, which right
was held to be an essential facet of freedom of speech and expression enshrined in
Article 19(1)(a) of the Constitution which could only be validly limited through the
H restrictions conforming with Article. 19(2) of the Constitution of India.
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS 533
[RANJAN GOGOI, CJI.]

(2) Prior to six months of filing of nomination, whether the A
candidate is an accused in any pending case, of any offence
punishable with imprisonment for two years or more, and in which
charge is framed or cognizance is taken by the court of law.”
As regards the second directive, Parliament has substantially
proceeded on the same lines and made it obligatory for the B
candidate to furnish information as to whether 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
competent court. However, the case in which cognizance has
been taken but charge has not been framed is not covered by
clause (i) of Section 33-A(I). Parliament having taken the right C
step of compelling disclosure of the pendency of cases relating
to major offences, there is no good reason why it failed to provide
for the disclosure of the cases of the same nature of which
cognizance has been taken by the Court. It is common
knowledge that on account of a variety of reasons such as the D
delaying tactics of one or the other accused and inadequacies
of the prosecuting machinery, framing of formal charges gets
delayed considerably, especially in serious cases where committal
procedure has to be gone through. On that account, the voter/
citizen shall not be denied information regarding cognizance taken
by the Court of an offence punishable with imprisonment for two E
years or more. The citizen’s right to information, when once it is
recognized to be part of the fundamental right under Article
19(1)(a), cannot be truncated in the manner in which it has been
done. Clause (i) of Section 33-A(I) therefore falls short of the
avowed goal to effectuate the right of information on a vital F
aspect. Cases in which cognizance has been taken should
therefore be comprehended within the area of information
accessible to the voters/citizens, in addition to what is provided
for in clause (i) of Section 33-A.
[underlining is ours]” G
Further, the Court held:
“123. Finally, the summary of my conclusions:
(1) …..
(2) …. H
534 SUPREME COURT REPORTS [2019] 15 S.C.R.

A (3) The directives given by this Court in Union of India v. Assn.
for Democratic Reforms were intended to operate only till the
law was made by the legislature and in that sense “pro tempore”
in nature. Once legislation is made, the Court has to make an
independent assessment in order to evaluate whether the items
of information statutorily ordained are reasonably adequate to
B
secure the right of information available to the voter/citizen. In
embarking on this exercise, the points of disclosure indicated by
this Court, even if they be tentative or ad hoc in nature, should
be given due weight and substantial departure therefrom cannot
be countenanced.
C …
(6) The right to information provided for by Parliament under
Section 33-A in regard to the pending criminal cases and past
involvement in such cases is reasonably adequate to safeguard
the right to information vested in the voter/citizen. However, there
D is no good reason for excluding the pending cases in which
cognizance has been taken by the Court from the ambit of
disclosure.
[underlining is ours]”
Eventually, the following direction was issued by the Court to the
E
Election Commission of India:
“123 (9) The Election Commission has to issue revised
instructions to ensure implementation of Section 33-A subject to
what is laid down in this judgment regarding the cases in which
cognizance has been taken….”
F
11. Section 125-A of the 1951 Act [Inserted by Section 5 of the
Representation of the People (Third Amendment) Act, 2002’ (Act 72
of 2002)] reads as under:
“Section 125-A. Penalty for filing false affidavit, etc.- A
G candidate who himself or through his proposer, with intent to be
elected in an election,—
(i) fails to furnish information relating to sub-section (1) of
section 33-A; or
(ii) gives false information which he knows or has reason to
H believe to be false; or
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS 535
[RANJAN GOGOI, CJI.]

(iii) conceals any information, in his nomination paper delivered A
under sub-section (1) of section 33 or in his affidavit which
is required to be delivered under sub-section (2) of section
33-A, as the case may be, shall, notwithstanding anything
contained in any other law for the time being in force, be
punishable with imprisonment for a term which may extend B
to six months, or with fine, or with both”
12. Whether the provisions of Section 125-A of the 1951 Act
would be applicable in the present case, as claimed by the appellant –
complainant, to make the first respondent liable in law, would require
the Court to decide on the true meaning and purport of the following C
phrases found in Section 125-A of the 1951 Act.
(a) fails to furnish information relating to sub-section (1)
of Section 33-A;
(b) conceals any information;
D
(c) in his nomination paper delivered under sub-section (1)
of section 33 or in his affidavit which is required to be
delivered under sub-section (2) of section 33-A.
13. To find out the true meaning and purport of the aforesaid
phrases, the crucial question that has to be answered is whether the E
word ‘information’ as mentioned in Section 33-A of the 1951 Act means
only such information as mentioned in clause (i) and (ii) of Section 33-
A(1) or whether along with the said information a candidate is also
required to furnish such other information as required under the Act or
the Rules made thereunder. The consequential question that would arise F
is whether in the affidavit required to be filed under sub-section (2) of
Section 33-A information is to be given as required in terms of the
affidavit which is prescribed by Form-26 of the 1961 Rules or such
information is confined to what is required to be submitted under Section
33-A (1) (i) and (ii). It is at this stage that Rule 4-A of the 1961 Rules G
would require to be noticed. Rule 4-A which was inserted by
S.O.935(E), dated 3.9.2002 with effect from 3.9.2002 is in the following
terms.
“4-A. Form of affidavit to be filed at the time of delivering
nomination paper.— The candidate or his proposer, as the case H
536 SUPREME COURT REPORTS [2019] 15 S.C.R.

A may be, shall, at the time of delivering to the returning officer
the nomination paper under sub-section (1) of Section 33 of the
Act, also deliver to him an affidavit sworn by the candidate
before a Magistrate of the first class or a Notary in Form 26.”
14. Form 26 is the prescribed form of affidavit to be filed by a
B candidate along with his nomination papers as required under Section
33-A (2) of the 1951 Act. The said affidavit in the prescribed form
reads as hereunder:
“ [FORM 26
(See Rule 4-A)
C
Please affix your recent
passport size photograph
here
Affidavit to be filed by the candidate along with nomination
paper before the returning officer for election to
D ........................................ .(name of the House) from
................................ constituency (Name of the constituency)
PART A
I ........................................, **son/daughter/wife of
E ........................................ Aged ............. years, resident of
........................................ (mention full postal address), a
candidate at the above election, do hereby solemnly affirm and
state on oath as under—
(1) I am a candidate set up by ........................................
F (**name of the political party)/**am contesting as an Independent
candidate.
(**Strike out whichever is not applicable)
(2) My name is enrolled in ........................................ (Name
of the constituency and the State), at Serial No. ......................
G in Part No. ............................
[(3) My contact telephone number(s) is/are ................................
and my E-mail ID (if any) is ..................................................
[(4) Details of Permanent Account Number (PAN) and status
of filing of income tax return:
H
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS 537
[RANJAN GOGOI, CJI.]

Sl. Names PAN The financial year for Total income shown A
No. which the last in income tax return
income-tax return has (in Rupees)
been filed.
1. Self
2 Spouse
3. Dependent-1 B
4. Dependent-2
5. Dependent-3

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) of competent C
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 D
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
concerned Police E
Station/District/State
(b) Section(s) of the concerned
Act(s) and short description
of the offence(s) for which
charged
(c) Name of the Court, Case
No. and date of Order F
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
proceeding(s) have been G
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.
H
538 SUPREME COURT REPORTS [2019] 15 S.C.R.

A (a) Name of the Court, Case No. and
date of 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
B (c) Details of Appeal(s)/Application(s)
for revision (if any) filed against the
above order(s)

(6) I have been/have not been convicted of an offences(s) other
than any offence(s) referred to in sub-section (1) or sub-section
(2), or covered in sub-section (3), of Section 8 of the
C
Representation of the People Act, 1951 (43 of 1951) and
sentenced to imprisonment for one year or more.
If the deponent is convicted and punished as aforesaid, he shall
furnish the following information:
D In the following cases, I have been convicted and sentenced to
imprisonment by a court of law:-
(a) The details of cases,
Section(s) of the concerned
Act (s) and description of
the offence(s) for which
E convicted.
(b) Name of the court(s), Case
No. and date(s) of order(s)
(c) Punishment imposed.
(d) Whether any appeal
was/has been filed against
the conviction order. If so,
F details and the present
status of the appeal.

(7) That I give hereinbelow the details of the assets (movable
and immovable etc.) of myself, my spouse and all dependents:
A. Details of movable assets:
G
Note:1. Assets in joint name indicating the extent of joint
ownership will also have to be given
Note:2. In case of deposit/investment, the details including serial
number, amount, date of deposit, the scheme, name of the Bank/
H Institution and Branch are to be given.
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS 539
[RANJAN GOGOI, CJI.]

Note:3. Value of Bonds/Share Debentures as per current market A
value in Stock exchange in respect of listed companies and as
per books in case of non-listed companies should be given.
Note:4. Dependent here has the same meaning as assigned in
Explanation (v) under Section 75-A of the Representation of the
People Act, 1951. B

Note:5: Details including amount is to be given separately in
respect of each investment.
Sl. No. Description Self Spouse Dependent- Dependent- Dependent-
1 2 3
(i) Cash in hand
C
(ii) Details of deposit in Bank accounts
(FDRs, Term Deposits and all other
types of deposits including saving
accounts), Deposits with Financial
Institutions, Non-Banking Financial
Companies and Cooperative
societies and the amount in each
such deposit D
(iii) Details of investment in Bonds,
debentures/shares and units in
companies/Mutual funds and others
and the amount
(iv) Details of investment in NSS, Postal
Saving, Insurance policies and
investment in any Financial
instruments in Post Office or
E
Insurance Company and the amount
(v) Personal loans/advance given to any
person or entity including firm,
company, Trust etc., and other
receivables from debtors and the
amount
(vi) Motor F
Vehicles/Aircrafts/Yachts/Ships
(Details of Make, registration
number etc. year of purchase and
amount)
(vii) Jewellery, bullion and valuable
thing(s) (give details of weight and
value)
(viii) Any other assets such as value of G
claims/interest
(ix) Gross Total Value

B. Details of Immovable Assets:
Note: 1. Properties in joint ownership indicating the extent of joint
ownership will also have to be indicated. H
540 SUPREME COURT REPORTS [2019] 15 S.C.R.

A Note: 2. Each land or building or apartment should be mentioned
separately in this format.
Sl. Description Self Spouse Dependent-1 Dependent-2 Dependent-3
No.
(i) Agricultural Land Location(s)
Survey number(s)
B
Area (total measurement in acres)
Whether inherited property (Yes or
No)
Date of Purchase in case of self-
acquired property
Cost of Land (in case of purchase) at
C the time of purchase
Any investment on the land by way of
development, construction etc.
Approximate current market value
(ii) Non-Agricultural Land:
Location(s)
D Survey number(s)
Area (total measurement in sq. ft.)
Whether inherited property (Yes or
No)
Date of Purchase in case of self-
acquired property
Cost of Land (in case of purchase) at
E the time of purchase
Any investment on the land by way of
development, construction etc.
Approximate current market value
(iii) Commercial Buildings (including
apartments)
F —Location(s)
—Survey number(s)
Area (total measurement in sq.ft.)
Built-up Area (total measurement in
sq.ft.)
Whether inherited property (Yes or
No)
G Date of purchase in case of self-
acquired property
Cost of property (in case of purchase)
at the time of purchase
Any investment on the property by
way of development, construction etc.
H Approximate current market value
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS 541
[RANJAN GOGOI, CJI.]

(iv) Residential Buildings (including A
apartments):
—Location(s)
—Survey number(s)
Area (total measurement in sq.ft.)
Built-up area (total measurement in
sq.ft.)
Whether inherited property (Yes or No) B
Date of purchase in case of self-acquired
property
Cost of property (in case of purchase) at
the time of purchase
Any investment on the land by way of
development, construction etc.
C
Appropriate current market value
(v) Others (such as interest in property)
(vi) Total of current market value of (i) to (v)
above
(8) I give herein below the details of liabilities/dues to public
financial institutions and government— D
(Note.—Please give separate details of name of bank, institutions,
entity or individual and amount before each item)
Sl. No. Description Self Spouse Dependent- Dependent- Dependent-
1 2 3
(i) Loan or dues to
Bank/financial
institution(s) E
Name of the Bank or
financial institution,
Amount outstanding,
Nature of Loan
Loan or dues to any other
individuals/entity other
than mentioned above
Name(s), Amount
outstanding, nature of
loan F
Any other liability
Grand total of liabilities
(ii) Government Dues
Dues to departments
dealing with government
accomm odation
Dues to department
dealing with supply of
water G
Dues to department
dealing with supply of
electricity
Dues to department
dealing with supply of
telephones/mobiles
Dues to department
dealing with government
transport (including
aircrafts and helicopters) H
542 SUPREME COURT REPORTS [2019] 15 S.C.R.

A Income Tax dues
Wealth tax dues
Service tax dues
Municipal/Property tax dues
Sales tax dues
Any other dues
(iii) Grand total of all Government dues
(iv) Whether any other liabilities are in
B dispute, if so, mention the amount
involved and the authority before which it
is pending

(9) Details of profession or occupation:
(a) Self .........................................................

C (b) Spouse .........................................................
(10) My educational qualification is as under—
...................................................................................
(Give details of highest School/University education mentioning
the full form of the certificate/diploma/degree course, name of
D
the School/College/University and the year in which the course
was completed.)
PART B
(11) Abstract of the details given in (1) to (10) of Part A:
E 1. Name of the candidate Sh./Smt./Kum.
2. Full postal address
3. Number and name of the constituency and State
4. Name of the political party which set up the candidate
(otherwise write ‘Independent’)
5. (I) Total number of pending cases where charges have
been framed by the court for offences punishable with
F imprisonment for two years or more

(ii) Total number of pending cases where the court(s)
have taken cognizance (other than the cases mentioned
in item (i) above
6. Total number of cases in which convicted and
sentenced to imprisonment for one year or more except
G for offences referred to in sub-sections(1), (2) or (3) of
Section 8 of Representation of the People Act, 1951.
7. PAN of Year for which Total income shown
last income tax
return filed
(a) Candidate
(b) Spouse
(d) Dependents]
H
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS 543
[RANJAN GOGOI, CJI.]

8. [Details of Assets and Liabilities in rupees] A
Description Self Spouse Dependent-I Dependent- Dependent-
II III
A. Movable Assets (Total Value)
B Immovable Asset
I. Purchase Price of self-acquired
immovable property
II. Development/Construction cost of B
immovable property after purchase (if
applicable)
III. Approximate Current market price of—
(a) self-acquired assets (Total Value)
(b) inherited assets (Total Value)
9. Liabilities
(i) Government dues (Total) C
(ii) Loans from Bank, Financial Institutions
and others (Total)
10. Liabilities that are under dispute
(i) Government dues (Total)
(ii) Loans from Bank, Financial Institutions
and others (Total)
11. Highest educational qualification:
D
(Give details of highest School/University education mentioning the full form of the
certificate/diploma/degree course, name of the School/College/University and the year in which
the course was completed.)

VERIFICATION
I, the deponent, abovenamed, do hereby verify and declare that E
the contents of this affidavit are true and correct to the best of
my knowledge and belief and no part of it is false and nothing
material has been concealed therefrom. I further declare that—
(a) there is no case of conviction or pending case against me
other than those mentioned in Items 5 and 6 of Part A and B F
above;
(b) I, my spouse, or my dependents do not have any asset or
liability, other than those mentioned in Items 7 and 8 of Part A
and Items 8, 9 and 10 of Part B above.
Verified at…………………………this the…………………day G
of………………………………………
DEPONENT
Note: 1. Affidavit should be filed latest by 3.00 PM on the last
day of filing nominations.
H
544 SUPREME COURT REPORTS [2019] 15 S.C.R.

A Note: 2. Affidavit should be sworn before an Oath Commissioner
or Magistrate of the First Class or before a Notary Public.
Note: 3. All column should be filled up and no column to be left
blank. If there is no information to furnish in respect of any item,
either “Nil” or “Not applicable”, as the case may be, should be
B mentioned.
Note: 4. The Affidavit should be either typed or written legibly
and neatly.”
15. It may be noticed here that Form-26 was substituted by S.O.
1732 (E) dated 1.8.2012 with effect from 1.8.2012.
C
16. A bare perusal of Form-26 makes it abundantly clear that,
for offences punishable with imprisonment for two years or more, while
entry (5) (i) mandates disclosure of information by the contesting
candidate regarding the case(s) that is/are pending against him in which
charges have been framed by the Court; entry (5)(ii) mandates
D
disclosure of information by the contesting candidate regarding cases
that are pending against him in which cognizance has been taken by
the Court.
Entry 5(ii) specifically mentions that the candidate is required to
provide information of the case(s) pending in which cognizance has
E
been taken. This is in addition to the information he is required to
provide against the column in Entry 5(i) as the words ‘Other than the
cases mentioned in item (i) above’ are specifically used in Entry 5 (ii).
17. The above can leave no element of doubt that, subsequent
to the substitution of Form 26 in 2012, the new Form 26 (as in vogue
F at the time of the elections in 2014), mandates the disclosure of
information by the contesting candidate of not only case(s) in which
charges have been framed but also case(s) in which cognizance has
been taken by the Court.
18. The position is made further clear by the letters written by
G the Election Commission of India to the Chief Electoral Officer of all
the States and the Union Territories. A reading of the said letters would
go to show that a contesting candidate is mandated to furnish information
concerning the cases in which a Competent Court has taken cognizance
along with the cases in which charges have been framed. The said
H letters also make it clear that the affidavit mentioned in Section 33-
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS 545
[RANJAN GOGOI, CJI.]

A(2) of the 1951 Act is prescribed in Form-26 and that any false A
declaration or concealment of information in the said affidavit will attract
the provisions of Section 125-A of the 1951 Act. The letters in this
regard are dated 24.8.2012, 26.9.2012 and 26.4.2014, relevant portions
of which are extracted below:
(i) Letter dt. 24-08-2012: B
“1. Sub:- Affidavit to be filed by candidates with their nomination
paper-modification of format-regarding.
The candidates at elections to the Parliament and the State
Legislatures hitherto were required to file two affidavits: one, in C
Form-26 appended to Conduct of Elections Rules, 1961 and the
other, in the Form prescribed by the Commission, vide its Order
No. 3/ER/2003 dt. 27-03-2003, as subsequently modified by the
letter of even number dt. 25-02-2011. In the affidavits, the
candidates are required to declare information about their criminal
background, if any, assets, liabilities and educational qualifications. D

2.On a proposal moved by the Commission for amalgamating the
two affidavits into one format, the Govt. has amended Form 26
so as to include in it all the information that was sought in the
two separate affidavits. The Ministry of Law and Justice have
E
notified the revised format 26 in the Gazette of India on 01-08-
2012. A copy of the said notification dated 1st August, 2012 is
enclosed herewith.
3.In view of the amendment to Form-26, all candidates shall,
hereafter, file only one affidavit in the revised Form 26 notified
F
on 01-08-2012 (at elections to the Parliament and State
Legislatures). The requirements to be followed while filing the
affidavit have been mentioned in the notes given at the end of
the format…..
... G
5.You are requested to furnish a copy of this letter along with
the copy of the enclosed notification to every political party
(including registered unrecognized parties) having headquarters
in your State/UT, including the State Units of recognized National
and State political parties.”[Emphasis is ours].” H
546 SUPREME COURT REPORTS [2019] 15 S.C.R.

A (ii). Letter dt. 26-09-2012:
“Sub: Affidavit to be filed by the candidates with their nomination
paper-regarding:
…
B 2. Item 5 of Part A and Part B of the revised Form 26 relates
to information regarding criminal antecedentsto be furnished by
the candidates. It is clarified that in item (5)(ii) of the said Part
A & Part B of Form-26, the details of all pending cases in which
cognizance has been taken by the Court, irrespective of the
quantum of punishment or framing of charges will have to be
C disclosed by the candidate. This may be brought to the notice of
all candidates when they file their nomination at all future general/
bye-elections in the State…”
(iii) Letter dt. 26-04-2014:

D “Sub: Filing of false affidavit in Form-26.reg.
Sir/Madam,
You are aware that the format of affidavit in Form-26 appended
to the Conduct of Election Rules, 1961, was amended with effect
from 01-08-2012. Now the candidates are required to make
E declarations about assets and liabilities including that of spouse
and dependants, candidate’s criminal antecedents and educational
qualifications, in the affidavit in Form 26. The concealing of
information in the affidavit in Form 26 will attract the provisions
of Section 125A. Under Section 125A, furnishing of any false
information or concealing of information in the affidavit in Form
F
26 is an electoral offence punishable with imprisonment upto six
months, or with fine or both.
2. Prior to amendment to Form 26 in August 2012, the affidavit
regarding declaration about assets, liabilities, criminal antecedents
and educational qualification was given in the format prescribed
G by the Commission. In the case of complaints about false
statement in the said affidavit, the Commission, vide its circular
letter No. 3/ER/2004, dated 2/6/2004, had clarified that if
complaints were filed before the Returning Officer raising the
issue of false declaration in the affidavit and if the RO was prima
H facie satisfied about the merits of the complaint, then the RO
SATISH UKEY v. DEVENDRA GANGADHARRAO FADNAVIS 547
[RANJAN GOGOI, CJI.]

was to file a complaint before the competent Court under Section A
177 of IPC read with Section 195 of Cr.P.C.
3. Now that the affidavit is in Form 26 under Section 33A of the
R.P. Act, 1951, making false declaration/concealing of information
in the affidavit would be covered under Section 125A of the Act.
Under Section 125A, there is no stipulation that complaints under B
the Section have to be made by the public servant concerned
(in this case the R.O.). Therefore, it would be open to any
aggrieved person to move petition before the appropriate Court
of competent jurisdiction with petition for action under Section
125A in the case of any false declaration or concealing of
information in the affidavit in Form 26. C

[underlining is ours]”
19. A cumulative reading of Section 33-A of the 1951 Act and
Rule 4-A of the 1961 Rules and Form-26 along with the letters dated
24.8.2012, 26.9.2012 and 26.4.2014, in our considered view, make it D
amply clear that the information to be furnished under Section 33-A of
the 1951 Act includes not only information mentioned in clauses (i) and
(ii) of Section 33-A(1), but also information, that the candidate is required
to furnish, under the Act or the Rules made thereunder and such
information should be furnished in Form 26, which includes information
concerning cases in which a competent Court has taken cognizance E
(Entry 5(ii) of Form 26). This is apart from and in addition to cases
in which charges have been framed for an offence punishable with
imprisonment for two years or more or cases in which conviction has
been recorded and sentence of imprisonment for a period of one year
or more has been imposed (Entries 5(i) and 6 of Form 26 respectively). F
20. In the light of the view that we have taken and in view of
the clear averment made in the complaint to the effect that the First
Respondent had knowledge of the two cases against him which had
not been mentioned in the affidavit filed by the First Respondent
alongwith his nomination papers, we unhesitatingly arrive at the G
conclusion that the order of the learned trial Court upheld by the High
Court by the impugned judgment and order dated 3rd May, 2018 is legally
not tenable and the same deserves to be set aside which we hereby
do. The complaint of the appellant will be considered afresh by the
learned trial Court from the stage where it was interdicted by the order
dated 30.5.2016. H
548 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 21. Our view as above is in consonance with a similar view
expressed by this Court in paragraph 75 of the report in
Krishnamoorthy v. Sivakumar and others4. Para 75 of the report
in Krishnamoorthy (supra) reads as under:
“75. On a perusal of the aforesaid format, it is clear as crystal
B that the details of certain categories of the offences in respect
of which cognizance has been taken or charges have been
framed must be given/furnished. This Rule is in consonance with
Section 33-A of the 1951 Act. Section 33(1) envisages that
information has to be given in accordance with the Rules. This
is in addition to the information to be provided as per Sections
C 33(1)(i) and (ii). The affidavit that is required to be filed by the
candidate stipulates mentioning of cases pending against the
candidate in which charges have been framed by the Court for
the offences punishable with imprisonment for two years or more
and also the cases which are pending against him in which
D cognizance has been taken by the court other than the cases
which have been mentioned in clause (5)(i) of Form 26. Apart
from the aforesaid, clause (6) of Form 26 deals with conviction.
22. Consequently and in the light of the above, the appeals are
allowed. The order of the High Court dated 3rd May, 2018 is set aside.
E All pending applications including the application for intervention/
impleadment are disposed of.

Kalpana K. Tripathy Appeals allowed.

F

G

4
H (2015) 3 SCC 467