In a setback to Maharashtra Chief Minister Devendra Fadnavis ahead of the assembly polls, the Supreme Court on Tuesday revived a criminal complaint against the Bharatiya Janata Party leader alleging he failed to furnish details of two pending criminal cases in his 2014 election affidavit and asked the trial court to consider the case afresh.
However, the apex court verdict that quashed the Bombay high court's May 3, 2018 order which gave Fadnavis a clean chit will not come in the way of his contesting the October 21 elections.
The verdict that sparked demands from the opposition Nationalist Congress Party for the resignation of Fadnavis came on a day when the BJP announced its list of 125 candidates which included the chief minister who will seek a consecutive fifth term from Nagpur South West.
Union minister and Republican Party of India-A leader Ramdas Athawale came to the defence of Fadnavis, saying he has an unblemished track record and will come out clean.
Setting aside the order of the high court that held Fadnavis did not deserve to be tried for the alleged offences under the provision of the Representation of the People (RP) Act, an apex court bench headed by Chief Justice Ranjan Gogoi took into account the 'clear averment' made in the complaint that the BJP leader had 'knowledge of the two cases against him', which was not mentioned in the affidavit filed along with his nomination papers.
Section 125A of the RP Act deals with the penalty for 'filing false affidavit' and says that if a candidate or his proposer fails to furnish or gives false or conceals any information in his nomination paper on issues like pending criminal cases then the person may be awarded six months jail term or fine or both.
"....We unhesitatingly arrive at the conclusion that the order of the trial court upheld by the high court by the impugned judgment and order dated May 3, 2018 is legally not tenable and the same deserves to be set aside which we hereby do," said the bench also comprising justices Deepak Gupta and Aniruddha Bose in its 28-page judgment.
The top court allowed the appeal filed by Satish Ukey, an advocate who had filed a criminal complaint against Fadnavis before a magisterial court in Nagpur seeking registration of a case against him under section 125-A of the RP Act, which deals with penalty for filing false affidavit by a candidate.
"The complaint of the appellant (Ukey) will be considered afresh by the trial court from the stage where it was interdicted by the order dated May 30, 2016," the bench said.
In a statement released in Mumbai, the Chief Minister's Office (CMO) said the verdict has no bearing on Fadnavis continuing as public representative or to contest the elections.
Welcoming the verdict, NCP chief spokesperson Nawab Malik said Fadnavis has no moral right to continue in politics.
"He should resign immediately and renounce political life. He has no right to contest the elections," Malik told reporters in Mumbai.
Ukey had initially moved a magisterial court which had dismissed his complaint against Fadnavis on September 7, 2015.
Later, he moved the sessions court which remanded the matter to magisterial court for a 'de novo' (afresh) consideration.
Aggrieved by the sessions court order, Fadnavis had moved the Bombay high court which on May 3, 2018 set it aside.
Ukey thereafter approached the apex court challenging the high court's May 2018 order.
In his complaint, Ukey alleged that in the affidavit in Form-26, prescribed by the Conduct of Election Rules, 1961, Fadnavis had not mentioned the details of two pending criminal cases pending against him 'despite knowledge of the same'.
He alleged that the first case of 1996 relates to criminal defamation while the other case of 1998 against Fadnavis is about alleged cheating and forgery. Charges were not framed in both these cases.
On the basis of the same allegations, Ukey had challenged the election of Fadnavis before the high court by instituting an election petition in 2014 but it was dismissed on August 19, 2015.
In its verdict, the apex court noted that a bare perusal of Form-26, a prescribed form of affidavit to be filed by a candidate along with nomination papers, makes it 'abundantly clear' that for offences punishable with imprisonment for two years or more, entry (5)(i) mandates disclosure of information by contesting candidate regarding the cases pending against him in which charges have been framed by the court.
It said entry (5)(ii) mandates disclosure of information by the contesting candidate regarding cases that are pending against him in which cognisance has been taken by the court.
"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 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 cognisance has been taken by the court," the bench said.