Supreme Court Allows Amendment to Election Petition: Yendapalli Srinivasulu Reddy vs. Vemireddy Pattabhirami Reddy (2022)

Introduction

Date of the Judgment: 19 October 2022
Citation: 2022 INSC 497
Judges: Dinesh Maheshwari, J. and J.K. Maheshwari, J.

Can an election petition be amended to include a new ground of challenge related to non-disclosure of criminal antecedents, when the original petition alleged improper acceptance of nomination? The Supreme Court recently addressed this question in the case of *Yendapalli Srinivasulu Reddy vs. Vemireddy Pattabhirami Reddy & Ors.*, clarifying the scope of amendments in election petitions. The core issue revolved around whether an amendment to an election petition, introducing the ground of non-disclosure of criminal antecedents, was permissible after the limitation period for filing an election petition had expired. The Supreme Court bench comprising Justices Dinesh Maheshwari and J.K. Maheshwari delivered the judgment.

Case Background

The election for the Andhra Pradesh Legislative Assembly took place, and the results were declared on 21 March 2017. Yendapalli Srinivasulu Reddy, the appellant, was the returned candidate. Vemireddy Pattabhirami Reddy, the respondent No. 1, filed an election petition on 27 April 2017, challenging the election on two broad grounds: improper acceptance of the appellant’s nomination and improper receipt of invalid votes, as well as improper rejection of valid votes. The respondent No. 1 contended that the appellant’s nomination paper should have been rejected because it was not accompanied by a proper affidavit. Specifically, the verification part of the affidavit lacked the appellant’s signature, and one of the stamp papers used was not purchased in the appellant’s name. The respondent No. 1 also alleged that there were blank spaces in the affidavit.

On 27 March 2018, the respondent No. 1 filed an application (Interlocutory Application No. 2 of 2018) seeking to amend the election petition. The amendment sought to include allegations that the appellant had failed to disclose a pending criminal case in his affidavit (Form-26), which is a violation of Section 33(A)(i) of the Representation of the People Act, 1951. The respondent No. 1 argued that the appellant had been accused of an offense punishable with imprisonment for two years or more, and that charges had been framed against him before the date of filing the nomination. The respondent No. 1 also stated that the appellant had been convicted for offences under Sections 143, 147, 148, 447, 290 and 332 read with 149 of the Indian Penal Code, 1860 on 12 January 2018. The respondent No. 1 contended that the non-disclosure of the criminal case rendered the affidavit defective and the election liable to be set aside under Section 100(1)(d)(i) of the Representation of the People Act, 1951.

Timeline:

Course of Proceedings

The High Court of Andhra Pradesh examined the contentions of both parties, particularly with reference to the Supreme Court’s decision in *Kisan Shankar Kathore v. Arun Dattatray Sawant and others* (2014) 14 SCC 162. The High Court allowed the amendment, observing that the information required by clause 5 of the nomination form is with regard to whether the candidate is an accused in any offense. The High Court noted that the appellant’s non-disclosure of his involvement in a criminal case was a suppression of facts, which rendered the application liable for rejection. The High Court did not accept the argument that the suspension of the judgment of conviction and sentence by the appellate court meant that the appellant did not need to furnish the information as sought for.

Legal Framework

The following provisions of the Representation of the People Act, 1951, are relevant to this case:

• Section 33A: Right to information: This section mandates that a candidate must disclose whether they are accused of any offense punishable with imprisonment for two years or more in a pending case where charges have been framed by a competent court. It also requires disclosure of convictions for offenses with imprisonment of one year or more. The candidate must also submit an affidavit verifying the information.

  “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.”

• Section 86(5): Trial of election petitions: This provision allows the High Court to amend the particulars of any corrupt practice alleged in the petition, but it prohibits any amendment that introduces a new corrupt practice not previously alleged.

  “86. Trial of election petitions.-………..
  (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
  ……………..”

• Section 100(1): Grounds for declaring election to be void: This section outlines the grounds on which the High Court can declare an election void. These include the candidate’s disqualification, the commission of corrupt practices, improper rejection of nomination, and material effects on the election result due to improper acceptance of nomination or non-compliance with the Constitution or the Act.

  “100. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion –
  (a)that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or
  (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
  (c) that any nomination has been improperly rejected; or
  (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected—
  (i) by the improper acceptance or any nomination, or
  (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
  (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
  (iv) by any non—compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,
  the High Court shall declare the election of the returned candidate to be void.
  ……………..”

• Section 125A: Penalty for filing false affidavit, etc.: This section specifies the penalties for a candidate who fails to furnish the required information, gives false information, or conceals any information in their nomination paper or affidavit. The penalty includes imprisonment up to six months, a fine, or both.

  “125A. Penalty for filing false affidavit, etc.—A 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 33A; or
  (ii) gives false information which he knows or has reason to believe to be false; or
  (iii) conceals any information,
  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 33A, 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 to six months, or with fine, or with both.”

Arguments

Appellant’s Arguments:

• The appellant argued that the amendment sought by the respondent No. 1 related to allegations of corrupt practice. Since the original petition did not include any allegations of corrupt practice, no such averments could be introduced through an amendment.
• The appellant relied on the decision in *Krishnamoorthy v. Sivakumar and Others* (2015) 3 SCC 467, emphasizing that non-disclosure of particulars concerning an offense is referable to corrupt practice under Section 100(1)(b) of the Representation of the People Act, 1951.
• The appellant also cited *Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi* 1987 (Supp) SCC 93, arguing that any amendment introducing a ground of corrupt practice could not be allowed after the expiry of the limitation period for filing the election petition.

Respondent’s Arguments:

• The respondent argued that the amendment was not related to corrupt practice but rather to the ground of improper acceptance of nomination under Section 100(1)(d)(i) of the Representation of the People Act, 1951.
• The respondent contended that the non-disclosure of criminal antecedents falls under the ambit of non-compliance with the provisions of the Act, as provided in Section 100(1)(d)(iv).
• The respondent relied on *Sethi Roop v. Malti Thapar (Mrs.) and Others* (1994) 2 SCC 579, to argue that the amendment sought to introduce a material fact, not a new corrupt practice, and should be allowed.

Issues Framed by the Supreme Court

The Supreme Court considered the following issue:

1. Whether the amendment sought by the respondent No. 1 in the election petition introduces a new cause of action or a new ground of challenge, particularly concerning the non-disclosure of criminal antecedents by the appellant.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Cases:

• Kisan Shankar Kathore v. Arun Dattatray Sawant and others (2014) 14 SCC 162: This case was referred to by the High Court to conclude that the non-disclosure of criminal antecedents was a suppression of facts. The Supreme Court did not specifically discuss this case in detail.
• Krishnamoorthy v. Sivakumar and Others (2015) 3 SCC 467: This case was cited by the appellant to argue that non-disclosure of particulars concerning an offense is referable to corrupt practice. The Supreme Court distinguished this case, noting that the respondent had not pleaded corrupt practice.
• Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi 1987 (Supp) SCC 93: This case was cited by the appellant to argue that an amendment introducing a ground of corrupt practice could not be allowed after the limitation period. The Supreme Court distinguished this case, noting that the respondent had not pleaded corrupt practice.
• Sethi Roop v. Malti Thapar (Mrs.) and Others (1994) 2 SCC 579: This case was relied upon by the respondent and the Supreme Court to distinguish between material facts and material particulars and to allow the amendment as it did not relate to corrupt practice. The Court held that the general power of amendment under Order VI Rule 17 of the Code of Civil Procedure, 1908, applies to election petitions, subject to the restrictions imposed by Section 86(5) of the Representation of the People Act, 1951.
• F.A. Sapa v. Singora (1991) 3 SCC 375 This case was referred to in Sethi Roop (supra) and distinguished by the court in the context of the present case.

Legal Provisions:

• Section 33A of the Representation of the People Act, 1951: This section mandates the disclosure of criminal antecedents by candidates.
• Section 86(5) of the Representation of the People Act, 1951: This section restricts amendments related to corrupt practices.
• Section 100(1) of the Representation of the People Act, 1951: This section lists the grounds for declaring an election void, including improper acceptance of nomination and non-compliance with the Act.
• Section 125A of the Representation of the People Act, 1951: This section provides for penalties for filing a false affidavit.
• Order VI Rule 17 of the Code of Civil Procedure, 1908: This rule provides the general power of amendment of pleadings.

Judgment

How each authority was viewed by the Court?

• The Court distinguished *Krishnamoorthy v. Sivakumar and Others* [(2015) 3 SCC 467] and *Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi* [1987 (Supp) SCC 93], stating that these cases dealt with corrupt practices, which were not pleaded in the present case.
• The Court followed *Sethi Roop v. Malti Thapar (Mrs.) and Others* [(1994) 2 SCC 579], highlighting the distinction between material facts and material particulars. The Court held that the amendment sought to introduce a material fact, not a new corrupt practice, and was therefore permissible.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the fact that the original election petition had already included the ground of improper acceptance of nomination. The court reasoned that the amendment sought to add another reason as to why the nomination form was not to be accepted, i.e., non-compliance of statutory requirements, and did not introduce a new cause of action or ground of challenge. The Court emphasized that the respondent had not pleaded any corrupt practice, which would have been a bar to the amendment under Section 86(5) of the Representation of the People Act, 1951. The Court also noted that the power of amendment under Order VI Rule 17 of the Code of Civil Procedure, 1908, applies to election petitions, subject to the restrictions imposed by Section 86(5) of the Representation of the People Act, 1951.

Logical Reasoning

Issue: Whether the amendment introduces a new cause of action or a new ground of challenge?

Key Takeaways

• An election petition can be amended to include additional reasons for improper acceptance of nomination, provided the original petition already included this ground.
• Amendments to election petitions are permissible under Order VI Rule 17 of the Code of Civil Procedure, 1908, subject to the restrictions imposed by Section 86(5) of the Representation of the People Act, 1951.
• The non-disclosure of criminal antecedents can be considered as a ground for challenging the election under Section 100(1)(d)(i) of the Representation of the People Act, 1951, as it relates to the improper acceptance of nomination and non-compliance with the provisions of the Act.
• The distinction between material facts and material particulars remains crucial in determining the permissibility of amendments in election petitions.
• The bar on introducing new grounds of corrupt practice after the limitation period applies only when the original petition was based on corrupt practices.

Directions

No specific directions were given by the Supreme Court in this judgment.

Specific Amendments Analysis

There was no specific amendment discussed in the judgment.

Development of Law

The ratio decidendi of this case is that an amendment to an election petition is permissible if it relates to the existing ground of improper acceptance of nomination, even if it introduces a new reason for such improper acceptance, provided that the original petition did not include any allegations of corrupt practice. This judgment clarifies the scope of amendments in election petitions under Section 86(5) of the Representation of the People Act, 1951, and reinforces the importance of disclosure of criminal antecedents by candidates.

Conclusion

The Supreme Court dismissed the appeal, upholding the High Court’s decision to allow the amendment to the election petition. The Court clarified that the amendment did not introduce a new cause of action or ground of challenge, as it was related to the existing ground of improper acceptance of nomination. The Court emphasized that the respondent had not pleaded any corrupt practice, which would have been a bar to the amendment. This judgment reinforces the importance of disclosure of criminal antecedents by candidates and clarifies the scope of amendments in election petitions.