The Supreme Court on Tuesday declined to stay the trial court proceedings against former Maharashtra chief minister Devendra Fadnavis in a case of election malpractices against him while reserving its order on a review petition filed by the BJP leader.
The order was reserved by a bench of Justices Arun Mishra, Deepak Gupta and Aniruddha Bose after hearing arguments by senior advocate Mukul Rohatgi, representing Fadnavis, who has sought review of the apex court’s 2019 judgement asking the ex-CM to face trial for allegedly failing to furnish details of two pending criminal cases against him in his 2014 poll affidavit.
After the court reserved the order, Rohatgi made the plea for stay of the trial court proceedings against Fadnavis, which the bench refused to grant.
In its judgement last year, the court had set aside a Bombay high court order which gave a clean chit to Fadnavis and held that he did not deserve to be tried for the alleged offence under the Representation of People Act (RPA).
During today’s proceedings, Rohatgi submitted that the issue will have far-reaching consequences for other candidates fighting elections and the top court needed to re-examine its October 1, 2019 decision.
He contended, “It is a clear case of error. The section (of RPA) requires an affidavit to disclose cases in which he was convicted or a charge is framed. I have already disclosed cases for which charge has been framed or in which I have been convicted.”
Rohatgi said his client had suppressed only cases in which cognisance was taken and no charge or conviction was there.
The senior lawyer said section 33 A of RPA under which the former chief minister has been prosecuted, also required disclosure of cases where charge or conviction had taken place.
To an observation by Justice Gupta that the affidavit required disclosure of all the information, he contended, ”The law says the requirement is to furnish all the information including fresh information but it should be subject to sections 33 (1) and (2) which meant it should be about the cases in which conviction and framing of charge has been done.”
Rohatgi said, “The legislature knew that a person of such dignity as a minister cannot know about the cognisance of all the cases against him, as many cases including false ones are being filed. So they did not impose a penalty for not disclosing the cases in which no conviction or framing of charge has been done.”
The senior counsel said in case of failure to disclose anything in the nomination papers, it would have consequences which could lead to setting aside of the election but could not call for prosecution since it would violate Article 21 of the Constitution.
Justice Mishra observed, “ If he (Fadnavis) did not have any knowledge, then it ia fine but if he had knowledge about those cases, then it’s a grey area. “
To this, Rohatgi replied, “This is what I am trying to point out, that a lot of false cases are filed against any chief minister, and he cannot be expected to know about all of them. That is why the legislature explicitly excluded the word cognisance.”
The apex court’s verdict against Fadnavis had come on an appeal by one Satish Ukey, who had challenged the high court’s order.
The appeal had contended the BJP leader filed a false affidavit by not disclosing the two criminal matters and yet the trial court and the high court held that no prima facie case was made out for prosecution of the chief minister.
He had said a candidate was under mandatory legal obligation to disclose details of all cases, in which either charges have been framed or the trial court had taken cognisance, in nomination papers.
It was contended that the chief minister did not disclose the information as required of him under the election law and the non-disclosure of these two pending criminal cases was in violation of Section 125A of RPA and constituted an offence in itself.
The two cases of alleged cheating and forgery were filed against Fadnavis in 1996 and 1998 but charges were not framed.