Delhi High Court refuses to reject plea against election of AAP’s Durgesh Pathak in 2022 Assembly bypoll

A single-judge bench of Justice Yashwant Varma observed on Monday that in Tewari’s petition, “broad and sweeping allegations” had been made alleging “corrupt practice, undue influence, as well as improper acceptance of a nomination”.

“However, it becomes evident and apparent that there is a manifest failure on the part of the election petitioner (Tewari) having asserted that the improper acceptance of the nomination or a corrupt practice or non-compliance with the provisions of the Constitution, Act, Rules or Orders made thereunder had materially affected the results of the election,” the high court said in the order.

The high court also noted Tewari’s allegation against Pathak that he had failed to provide any information whether he was presently holding or had held the post of a member in the Delhi Commission for Protection of Child Rights.

However, the court said it was an “apparent and evident failure” to allege that Pathak was holding the post in the body on the relevant date. Hence the allegation clearly failed to “plead material facts”.

Tewari also alleged that Pathak had not disclosed his alleged criminal antecedents with respect to a 2020 FIR in his nomination affidavit. The court, however, said whether a disclosure with respect to an FIR is required in law was an issue to be determined during trial.

“The Court is also conscious of the indubitable position in law that a petition cannot be rejected in part. Consequently, although we have found in favour of the applicant (Pathak) insofar as the office of profit…we, in light of what has been noted in the context of Form 26 (under Rule 4A, Conduct of Election Rules), the question of whether a disclosure with respect to a FIR is required in law, the meaning to be ascribed to the expression ‘pending criminal case’ are issues which are clearly triable. We consequently find no justification to reject the election petition at this stage and on that score. The application shall consequently stand dismissed. All rights and contentions of respective parties are kept open,” the court said.

The high court directed that Tewari’s petition be listed for July 22.