Cases Punishable Below Two Year Threshold Need Not Be Disclosed In Form 26: Orissa HC Rejects Poll Challenge

The Orissa High Court has dismissed an election petition challenging the election of the returned candidate from the 54-Sukinda Assembly Constituency in the 2024 Odisha Legislative Assembly elections, holding that the pleadings did not disclose material facts required under the Representation of the People Act, 1951 and therefore failed to constitute a cause of action.

Justice Sashikanta Mishra allowed an interlocutory application filed by the returned candidate under Order VII Rule 11 of the Code of Civil Procedure seeking rejection of the election petition at the threshold and consequently dismissed the election petition in its entirety.

"The allegations relating to non-disclosure of criminal cases pertain to proceedings which do not attract the statutory threshold requiring disclosure under Section 33-A of the Act and, in any event, are unsupported by pleadings demonstrating any material effect on the result of the election. Similarly, the allegation regarding incorrect declaration of educational qualification is founded on vague and unsubstantiated assertions, bereft of primary material and wholly insufficient to establish a triable issue or to show that the election result was materially affected", it was observed.

The Court also directed that the substance of the order be communicated to the Election Commission of India and the Speaker of the State Legislative Assembly in terms of Section 103 of the Representation of the People Act.

The election petitioner, who had lost the constituency by a margin of 9,577 votes, had sought to declare the election void on the ground that the returned candidate had suppressed material information in the affidavit filed in Form 26 along with the nomination paper.

It was alleged that two criminal cases pending before the JMFC, Jajpur Road under the Payment of Wages Act had not been disclosed and that the candidate had falsely declared his educational qualification as having passed the High School Certificate examination under the Board of Secondary Education, Odisha.

According to the petitioner, such non-disclosure and misrepresentation deprived the electorate of their right to make an informed choice and materially affected the election result, thereby attracting Section 100 of the Representation of the People Act.

The returned candidate, in response, contended that the proceedings under the Payment of Wages Act did not attract the statutory requirement of disclosure under Section 33-A of the Act, as the offences were not punishable with imprisonment for two years or more.

It was further argued that the election petition lacked the mandatory concise statement of material facts under Section 83(1)(a) and that the allegations regarding educational qualification were based on hearsay without any foundational pleadings or supporting documents.

At the threshold, the Court rejected the objection that the application under Order VII Rule 11 was belated, reiterating that the power to reject a plaint or election petition for want of cause of action can be exercised at any stage prior to the commencement of trial and must be decided before the Court proceeds further.

Examining the issue of non-disclosure of criminal cases, the Court analysed the statutory scheme of Section 33-A of the Representation of the People Act, which mandates disclosure only where a candidate is accused of an offence punishable with imprisonment for two years or more and where charges have been framed by a competent court.

On a conjoint reading of Section 33-A and the penal provisions of the Payment of Wages Act, the Court found that the maximum punishment prescribed under the latter fell below the statutory threshold.

As a result, even if such cases were pending on the date of nomination, their non-disclosure would not amount to a violation of the statutory requirement and could not constitute a ground to void the election.

The Court further held that the election petition did not contain any primary facts demonstrating how the alleged omission had materially affected the result of the election.

A mere assertion that voters were deprived of an informed choice, without pleading a factual nexus between the omission and the electoral outcome, was held to be insufficient to sustain a challenge under Section 100.

On the allegation of false declaration of educational qualification, the Court found that the pleadings did not disclose the source of information, the authority from whom the information was obtained or any official record to show that the declaration in Form 26 was incorrect.

Such averments, based solely on an alleged query made by an election agent, were held to be vague and speculative and incapable of being tried in the absence of material facts.

Reiterating the settled position that an election petition must strictly comply with the requirement of pleading material facts and that omission of even a single material fact is fatal, the Court held that no amount of evidence could cure the fundamental defect in the pleadings.

In the absence of a cause of action or any triable issue, continuation of the proceedings would amount to an unnecessary trial.

The Court accordingly allowed the interlocutory application and dismissed the election petition without costs.

Case Title: Pritiranjan Gharai v. Pradeep Bal Samant

Bench: Justice Sashikanta Mishra

Date of Judgment: 27.02.2026