Sanchayita Lahkar

The High Court of Karnataka Single Bench of Justice M.I. Arun held that the election petition filed to declare the election in Davanagere Lok Sabha constituency void had to be rejected as it was filed without a valid cause of action. The Court stated that even if the allegations of corrupt practice made in the petition were assumed to be true, they related to a period prior to the filing of nomination papers by the returned candidate, and therefore could not attract the provisions of Section 123 of the Representation of People Act, 1951. Allowing the interlocutory application filed by the returned candidate under Order VII Rule 11(a) of CPC read with Section 86(1) of the Act, the Court rejected the election petition in its entirety and disposed of all pending interlocutory applications.

The matter concerned a challenge to the election of respondent no.1, who had been elected as Member of Parliament from the Davanagere Lok Sabha constituency in the 2024 general elections. The petitioner alleged that the election was vitiated by corrupt practices under Section 123(1)(A)(b) of the Representation of People Act, 1951. It was claimed that the returned candidate and her agents had distributed money and goods to voters prior to polling day, thereby materially affecting the result of the election.

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The petition invoked Sections 80, 81, 100, and 123 of the Act, seeking a declaration that the election held on 07 April 2024 in the 13-Davanagere parliamentary constituency was illegal and void. The allegations initially included the issuance of ‘Congress Guarantee Card’ by the political party to which the returned candidate belonged, and the distribution of money and goods on 06 April 2024. However, during the course of arguments, the petitioner chose not to press the claim concerning the guarantee card, noting that the Court had already stated in a previous election petition that issuance of such cards could not amount to a corrupt practice.

The petitioner confined his case to allegations set out in paragraphs 12 and 12A of the petition. In paragraph 12, he alleged that on 06 April 2024, respondent no.1 distributed money through party workers at various polling booths across Davanagere, with amounts ranging from Rs.1 crore at each booth and Rs.2,000 to Rs.3,000 per voter. He also alleged that the issuance of guarantee cards was aimed at ensuring votes in her favour. In the amended paragraph 12A, introduced later, he claimed that the respondent’s husband and father-in-law, with her consent, distributed pressure cookers to voters after the model code of conduct came into force, along with cash payments of Rs.2,000 per voter, again at KTJ Nagar booth.

The Court recorded that these allegations, particularly paragraph 12A, were inserted through an amendment. At the time of the amendment application, counsel for the petitioner had stated that the alleged acts of bribery and distribution took place on 06 April 2024, not later. Respondent no.1 moved I.A.No.2/2024 seeking rejection of the petition under Order VII Rule 11(a) CPC read with Section 86(1) of the Act. She argued that the guarantee card was a party policy decision, not an act of bribery by her personally. More significantly, she contended that the allegations of corrupt practices related to a period before she had filed her nomination on 12 April 2024, and that she was formally declared a candidate on 22 April 2024. Therefore, actions preceding her nomination could not constitute corrupt practice under the Act.

The petitioner countered this submission, stating that respondent no.1 had already been declared and nominated as a candidate by her party on 23 March 2024, and that any acts committed thereafter would fall within the ambit of Section 123. He urged the Court to dismiss the application and proceed to trial on the allegations.

The Court noted the legal question that arose was when a person becomes a “candidate” for the purposes of Section 123 of the Act. Referring to Section 79(b), the Court recorded: “‘candidate’ means a person who has been or claims to have been duly nominated as a candidate at any election.” Justice Arun stated that a person attains the status of candidate only after filing a nomination paper.

The Court relied on the Supreme Court’s judgement in Subhash Desai v. Sharad J. Rao [1994 Supp (2) SCC 446], wherein it was held: “The publications and speeches alleged to have been made prior to 31-1-1990 have to be ignored because the framers of the Act, required the High Court to judge the conduct of the candidate, his agent or persons with the consent of the candidate or his election agent, only after a person becomes a candidate for the particular election. A person becomes a candidate for the election in question only after filing the nomination paper.”

Quoting further from the judgment in Indira Nehru Gandhi v. Raj Narain, the Court noted: “The 1951 Act uses the expression ‘candidate’ in relation to several offences for the purpose of affixing liability with reference to a person being a candidate. If no time be fixed with regard to a person being a candidate it can be said that from the moment a person is elected he can be said to hold himself out as a candidate for the next election.” The Court also referred to Mohan Rawale v. Damodar Tatyaba [(1994) 2 SCC 392], which held: “We hold that all the averments… insofar as they refer to a period prior to 23-4-1991 cannot amount to allegations of corrupt practice.”

On this basis, the Court observed that respondent no.1 became a candidate only upon filing her nomination on 12 April 2024. Acts attributed to her prior to that date, including those alleged on 06 April 2024, could not be considered corrupt practices under Section 123.

The Court stated: “Thus, a person becomes a candidate as per Section 79(b) of the Act for the purposes of Section 123 of the Act only upon filing of nomination and not earlier to it. In the instant case, respondent No.1 has become a candidate only after 12.04.2024 (the date on which she has filed her nomination) and not earlier to it. Thus, any act done by respondent No.1 prior to 12.04.2024, does not become a corrupt practice for the purposes of Section 123 of the Act.”

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The Court further recorded: “Admittedly, all the specific allegations of corrupt practice alleged against respondent No.1 is said to have been made on 06.04.2024, much earlier to respondent No.1 becoming a candidate. Thus, even if all the allegations made against respondent No.1 in the election petition are held to be true, the petitioner cannot succeed in the election petition and under the circumstances, it has to be construed that the election petition has been filed without a valid cause of action.”

Having held that the allegations concerned a period prior to the respondent acquiring the status of a candidate, the Court allowed the interlocutory application. It declared: “For the aforementioned reasons, I.A.No.2/2024 is hereby allowed and the election petition is hereby rejected.” The Court further directed: “Pending IAs., if any, stand disposed of.”

Advocates Representing the Parties

For the Petitioner: Sri Venkatesh P. Dalwai, Advocate for Sri Shivaraj B., Advocate

For the Respondent: Sri Prashant F. Goudar, Advocate for Sri Goutam S. Bharadwaj, Advocate

Case Title: Suban Khan v. Prabha Mallikarjun

Neutral Citation: 2025: KHC:29821

Case Number: Election Petition No. 3 of 2024

Bench: Justice M.I. Arun