SC to examine if an appeal against acquittal be treated as pending case against candidate

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New Delhi, Apr 17 (PTI) Can an appeal against acquittal be treated as a pending criminal case and whether its non-disclosure while filing election nomination would amount to corrupt practice leading to the disqualification of an elected candidate? The Supreme Court has agreed to examine the legal question.

The matter has been brought before the top court by BJP leader Nimaichand Luwang who has challenged the election of Congress candidate Thounaojam Shyamkumar from the Andro constituency in the 2017 Manipur assembly election.

Luwang has challenged the decision of the Manipur High Court which held that appeal against acquittal shall not be treated as a pending criminal case and the same need not be disclosed by a candidate while filing nomination papers.

He referred to the top court's 2002 verdict wherein it has been held that the candidates have to declare in nomination papers about their conviction/acquittal/ discharge in any criminal offence in the past, if any, and whether they have been punished with imprisonment or fine.

A Supreme Court bench of Justices R F Nariman and Hrishikesh Roy agreed to hear the appeal filed by Luwang and issued notice to Shyamkumar and other contesting candidates seeking their response in four weeks.

Senior advocate B K Sharma, appearing for Luwang, contended that the question of law arising in the present election appeal is whether a pending criminal appeal against acquittal of the candidate (Shyamkumar) will not be termed a pending case and whether it is not required to be disclosed by candidate in the affidavit while submitting his nomination.

He said that the non-disclosure of such criminal antecedents will amount to commission of corrupt practice of undue influence so as to set aside the election of the candidate.

'The observation of High Court that appeal against acquittal shall not be treated as a pending criminal case and the same need not be disclosed by candidate while filing nomination will have a far-reaching consequence in the entire country and the same is absolutely against the principles of right to information of voters which this court has dealt in catena of decisions,” Luwang has contended.

In his plea filed through advocate Kaushik Choudhury, Luwang submitted that the observation of the high court is against the principle of criminal jurisprudence too which treats an appeal against acquittal as continuation of prosecution and which is also held by a constitutional bench verdict of the top court in 1953.

He said that Shyamkumar was charged with various sections of IPC, UAPA and the Official Secrets Act but was acquitted by a Delhi court here giving him benefit of doubt.

He said that against the acquittal of Shyamkumar, a criminal appeal is pending before the Delhi High Court and is admitted for hearing.

“It is an admitted position that the respondent No.1 (Shyamkumar) while filing his nomination did not disclose the fact that the Criminal Appeal is pending against him and filed a false Form 26 affidavit,' the appeal said, adding that in the verification column of Form 26, a candidate has to specify that there is no other pending criminal cases against him.

Luwang submitted that Shyamkumar had sworn the affidavit without mentioning about the pending criminal appeal, 'which tantamount to commission of corrupt practice of undue influence by a returned candidate' and the election ought to have been declared void by the High Court under section 100(1)(b) of the Representation of People Act. He submitted that in its 2015 verdict the top court has held that in cases of non- disclosure of pending cases in the Form 26, amounted to commission of corrupt practice of undue influence and the election is to be declared null and void.

Shyamkumar defected to the BJP after his election on a Congress ticket in 2017.

On March 28 last year, Manipur Speaker Y Khemchand Singh had disqualified Shyamkumar from the Assembly, almost three years after his disqualification was sought under the anti-defection law. PTI MNL SMN