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New Delhi: The Supreme Court has held that the Representation of the People Act, 1951 has no application to elections for the post of Municipal Councillor, and that the Magistrate's invocation of that Act while taking cognizance in a case alleging non-disclosure of a candidate's assets was a curable defect, remanding the matter for fresh cognizance to be taken under the correct provisions of law.
Background
The Bench of Justices Sanjay Karol and Nongmeikapam Kotiswar Singh was hearing an appeal filed by Chandrikaben Kishor Dafda against a judgment of the Gujarat High Court refusing to quash criminal proceedings arising from a complaint that she had not disclosed, in her 2015 election affidavit for the post of Municipal Councillor, the true extent of landed property owned by herself and her spouse.
The complaint, originally made before the Deputy District Development Officer, Bhuj-Kutch, was later filed as a private complaint before the Additional Chief Judicial Magistrate, Gandhidham, who issued summons on 08.11.2017 under Section 125(A) RPA, holding that several properties standing in the name of the appellant's husband had not been disclosed in her affidavit.
The High Court had declined to quash the proceedings, reasoning that the appellant's explanation that some properties were the subject of unregistered agreements to sell did not by itself transfer title, and that the complaint was still at a nascent stage.
Submissions of the Parties
Appearing for the appellant, Mr. Namit Saxena submitted that the Representation of the People Act would not apply to a Councillor's election, which was instead governed by the Gujarat Municipalities (Conduct of Elections) Rules, 2005; that the complaint was barred by limitation under Section 468 CrPC; and that Rule 7A(1) of the Gujarat Rules required disclosure only of properties owned by the candidate or jointly with the spouse, not those owned solely by the spouse.
On behalf of the complainant, it was submitted that mentioning the wrong provision was a curable defect at this pre-charge stage; that the appellant's own special leave petition and rejoinder established the falsity of her affidavit; and that filing a false affidavit also attracted offences under Sections 192, 193 and 196 IPC, carrying a seven-year punishment and thus unaffected by the limitation bar. Reliance was also placed on a 2011 State Election Commission order directing Returning Officers to file complaints over false or misleading affidavits.
Representation of the People Act Not Applicable
Examining the statutory scheme, the Court noted that Section 2(d) of the RPA defines “election” as an election to fill a seat in either House of Parliament or a State Legislature. A Councillor's election to a Municipality is instead governed by the Gujarat Municipalities Act, under which the State Government had framed the Gujarat Municipalities (Conduct of Elections) Rules, 1994, later amended in 2005 to introduce Rule 7A requiring candidates to file an asset-disclosure affidavit.
The Court further noted that false declarations by candidates were originally penalised under Section 9-I of the Gujarat Municipalities Act, but that provision was omitted from the statute in 1990. Since the affidavit requirement nonetheless continued under Rule 7A, the Court held that the controlling provisions for an offence of filing a false affidavit in a Councillor's election would be found in the Indian Penal Code, not the Representation of the People Act, which had no application to the case at all.
Interpreting the Disclosure Rule
Examining the affidavit format prescribed under Rule 7A, the Court held that the requirement to disclose “the details of the assets... of myself, my spouse and dependents” covered property owned solely by the spouse as well. Rejecting the appellant's reading that the comma after “myself” excluded such property from disclosure, the Court observed that
“the comma does not create any separate meaning, distinction, or exclusion; it serves only a grammatical and structural function to identify the first item in the series.”
The Court accordingly held that the appellant was obligated to disclose the properties owned by her spouse, and her failure to do so could not be excused on a grammatical technicality.
Cognizance Under the Wrong Provision
The Court then turned to the consequence of the Magistrate having taken cognizance solely under Section 125A RPA, a provision inapplicable to a Councillor's election, despite the complainant having also invoked relevant IPC provisions. Tracing the settled meaning of “cognizance” through State of Karnataka v. Pastor P. Raju and State of West Bengal v. Mohd. Khalid, the Court reiterated that cognizance is taken of an offence and not of the person, marking the point at which a court first applies its judicial mind to the commission of an offence.
Holding that an erroneous invocation of a provision while taking cognizance is a curable defect under Section 465 CrPC, so long as the court had the power to take cognizance under the correct provisions too, the Court relied on Pruthvirajsinh Nodhubha Jadeja v. Jayeshkumar Chhakaddas Shah and the three-judge bench decision in Pradeep S. Wodeyar v. State of Karnataka.
Emphasising the substance over form of the objection, the Court held that “cognizance is taken of the offence and not people. If the issue is that a false affidavit has been filed in the electoral process, that is an offence against society at large and has to be investigated.”
Conclusion
Clarifying that it had expressed no opinion on the merits of the allegations, the Court set aside the finding of valid cognizance and remanded the matter to the Magistrate concerned to take cognizance afresh under the correct provisions and proceed in accordance with law. The appeal was disposed of in these terms.
Appearances:
For the Appellant: Mr. Namit Saxena, Advocate.
For the State of Gujarat: Ms. Swati Ghildiyal, Advocate.
For the Complainant: Mr. Jitendra Kumar Singh, Advocate.
Case Title: Chandrikaben Kishor Dafda vs. State of Gujarat & Anr., Criminal Appeal (@ SLP(Crl.) No.16030 of 2025)
