Delhi High Court refuses to dismiss petition challenging AAP MLA Durgesh Pathak’s election

Delhi High Court refuses to dismiss petition challenging AAP MLA Durgesh Pathak’s election

New Delhi: The Delhi High Court has refused to dismiss a petition challenging the election of AAP MLA Durgesh Pathak in the 2022 Assembly by-elections.

The petition challenged Pathak’s election as a legislator from Rajinder Nagar Assembly constituency in the June 2022 by-elections on the grounds that he was indulging in corrupt practices.

Pathak was declared the winner of Rajinder Nagar constituency defeating his nearest rival by a margin of 11,468 votes.

Justice Yashwant Varma, in a 103-page order issued on Monday, dismissed Pathak’s plea seeking dismissal of the election petition filed against him, saying there was no justification to do so at this stage.

The High Court listed the election petition before the Nominations Committee on July 22 for further proceedings.

Petitioner Rajan Tewari, who claimed to be a voter in Rajinder Nagar constituency, contested the election on the grounds of non-disclosure of criminal antecedents, holding gainful office on the date of nomination consideration, suppression of income tax returns for the financial year 2019-20 and disclosure of incorrect valuation of shares of a company in the nomination form.

The petitioner alleged that in addition to engaging in corrupt practices as contemplated under Section 123 of the Representation of the People (RP) Act, Pathak had wilfully and intentionally concealed facts which would constitute undue influence within the meaning of the Act.

The Aam Aadmi Party (AAP) leader, in his application, claimed that the petition had failed to disclose a cause of action and the allegation of non-disclosure of criminal antecedents was based on his failure to mention details relating to an FIR.

His counsel argued that Pathak’s name was not mentioned in the list of accused in the FIR and the relevant provisions of the law would establish that an applicant is required to disclose details only of those criminal cases in which charges could have been framed by a court or cognizance could have been taken.

The High Court noted that “broad and sweeping allegations” were made by Tewari, alleging corrupt practices, undue influence and improper acceptance of appointment.

“It is clear and manifest that the petitioner has failed in his duty to contend that the wrongful acceptance of candidature, corrupt practice or non-compliance with the provisions of the Constitution, the Act, the Rules or the Orders made thereunder had a material impact on the outcome of the election,” it said. The court, however, said it was conscious of the undoubted legal position that a petition cannot be dismissed in part.

“Therefore, while we have decided in favour of the applicant (Pathak) on the issues relating to the office of profits, disclosure of ITR and overstatement of shareholding,… the question whether disclosure in respect of an FIR is required by law, the meaning to be given to the expression – pending criminal case – are questions which are clearly triable.

“We therefore find no justification for rejecting the election petition at this stage and on this point,” he said.

The petitioner has demanded that the election be declared null and void on the grounds that the AAP leader indulged in “corrupt practices”.

He argued that the MP had failed to disclose in his nomination papers the existence of an FIR against him for allegedly committing offences under the Indian Penal Code and the Information Technology Act, which is in violation of the RP Act.

He also claimed that Pathak was also holding a “lucrative position” as a member of the Delhi Commission for Protection of Child Rights at the time of the election and should therefore be disqualified.

Published July 09, 2024, 2:02 p.m. IST