Supreme Court remands councillor's false-affidavit case, holds wrong-section cognizance curable

A division bench held that cognizance taken under the wrong statute is a curable defect under Section 465 CrPC and remanded the poll-affidavit complaint for fresh cognizance.

The Supreme Court declined to quash a criminal complaint against a Gujarat municipal candidate accused of filing a false election affidavit, but held that the Magistrate had taken cognizance under the wrong statute and sent the matter back for fresh cognizance. Deciding Chandrikaben Kishor Dafda v. State of Gujarat, a bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh found that an error in the section under which cognizance is taken is a curable defect where the court otherwise had power to proceed. The Court read the affidavit format to require disclosure of a spouse's solely-owned property and rejected the appellant's grammatical argument built on a comma. The complaint arose from a 2015 municipal election declaration and the summons issued by the Additional Chief Judicial Magistrate, Gandhidham, in November 2017.

How the complaint reached the Magistrate and the High Court

The complainant, Velji Namori Maheshwari, alleged that Chandrikaben Kishor Dafda, while filing her electoral affidavit for the councillor's post in the 2015 municipal elections, had not disclosed the true extent of landed property owned by herself and her spouse.

After a representation to the Deputy District Development Officer and a repeat representation on 16 May 2017, the complainant moved a private complaint before the Additional Chief Judicial Magistrate, Gandhidham. The Magistrate issued summons by order dated 8 November 2017.

The Magistrate recorded that four immovable properties standing in the name of the appellant's husband had not been mentioned in the affidavit before the Election Officer. He found a prima facie breach of Section 33A of the Representation of the People Act and directed summons under Section 125A of that Act against the appellant.

The appellant approached the High Court of Gujarat at Ahmedabad to quash the case. The Single Judge rejected the plea by judgment dated 22 August 2025, observing that the appellant had knocked on the High Court's doors as soon as process was issued, that her reason for omitting properties — that she had entered agreements to sell — was fallacious since an agreement does not transfer title, and that the complaint was at a nascent stage.

The comma argument and the disclosure duty

Counsel for the appellant, Mr. Namit Saxena, argued that Rule 7A(1) of the Gujarat Municipalities (Conduct of Elections) Rules required disclosure of properties owned by the candidate or jointly with the spouse, but not those solely owned by the spouse. He also argued that the Representation of the People Act would not apply to a councillor's election, and that the complaint was barred by limitation under Sections 468 and 469 CrPC.

The Court examined the affidavit format in the Rules. It held that the candidate must give details of assets held by themselves, their spouse and dependents, including jointly held property, and that the form nowhere says that property held solely by the spouse need not be mentioned.

On the comma after “myself” in the phrase requiring details of assets “of myself, my spouse and dependents,” the Court held it was a listing comma. The word “of” applied equally to all three categories, and the sentence was to be read collectively. The comma created “no separate meaning, distinction, or exclusion.” The appellant therefore had to disclose the properties owned by her spouse.

Cognizance under the wrong provision

The central issue was the correctness of the cognizance order. Although the private complainant had mentioned certain provisions of the Indian Penal Code, the Trial Judge took cognizance only under the Representation of the People Act.

The Court noted that under the Gujarat Municipalities Act false declarations were once penalised under Section 9, but the relevant parts stood omitted around 1990. Since the candidate was required to file an affidavit, the controlling provisions would be under the Indian Penal Code.

The appellant contended that cognizance under Section 125A of the Representation of the People Act was a jurisdictional error going to the root of the matter. The State, represented by Ms. Swati Ghildiyal, contended that Section 465 CrPC would save the incorrect cognizance. The Court agreed with the State.

Relying on State of Karnataka v. Pastor P. Raju, State of W.B. v. Mohd. Khalid and Kallu Nat alias Mayank Kumar Nagar v. State of U.P., the Court reiterated that cognizance is taken of the offence and not of persons, and that it is a pre-trial stage. It cited Pruthvirajsinh Nodhubha Jadeja v. Jayeshkumar Chhakaddas Shah for the settled position that an error in taking cognizance under the wrong section is a curable defect so long as the court has power to take cognizance of the other sections.

Section 465 CrPC and failure of justice

The Court referred to Pradeep S. Wodeyar v. State of Karnataka, a three-judge bench decision, which held that Section 465 CrPC applies to pre-trial orders including an irregular cognizance order, since cognizance is at the pre-trial or inquiry stage.

That decision explained that Section 465 is a broad residuary provision covering irregularities not caught by Sections 461 to 464, and that the theme of failure of justice guides the chapter. The test is whether the irregularity caused prejudice to the accused, judged with reference to the stage of challenge, the seriousness of the offence, and any apparent intention to prolong proceedings.

Applying this, the Court held that the taking of cognizance, even if under a singular and erroneous section, would not vitiate the proceedings, because cognizance is taken of the offence and not of people. It observed that the filing of a false affidavit in the electoral process is “an offence against society at large” that has to be investigated.

Order

The Court granted leave and disposed of the appeal. It remanded the matter to the Magistrate concerned for taking cognizance afresh and to proceed as per law.

The Court clarified that it had expressed no opinion on the merits and that its discussion was for the limited purpose of deciding the propriety of the cognizance order. Pending applications, if any, were disposed of.