Singh Vs. C.D. Commachen & Ors  INSC 557 (16 April 1996)
K.Ramaswamy, K.Bharucha S.P. (J) Paripoornan, K.S.(J) K.Ramaswamy, J.
1996 SCC (3) 665 JT 1996 (4) 194 1996 SCALE (3)486
spending considerable time on diverse questions canvassed across the bar, we
are of the opinion that this appeal requires to be posted before a Constitution
Bench for deciding the questions that arise in the appeal. We would, however,
indicate in brief the facts, the findings recorded and the questions raised
which impress us to refer the matter for decision by the Constitution Bench.
This appeal under Section 116B of the Representation of the People Act, 1951
[for short, the `Act'] arises from the judgment dated December 24, 1991 of the
Bombay High Court passed in Election Petition No.11 of 1991.
respondent, since deceased, his legal representatives have been brought on
record and a notice, as required under the Act, was also duly published. He
contested as a Congress Party candidate in the election to No.40, Santacruz
Legislative Assembly Constituency in 1990 for the Maharashtra State Assembly.
The appellant is the returned candidate who filed his nomination on January 31, 1990 which was accepted on February 8, 1990. The poll was held on February 27, 1990. The result of the election was
declared on March 1,
1990 declaring that
the appellant was duly elected. He contested election as a BJP candidate and
was also Vice President of the Bombay Unit of the said party. He secured single
largest majority votes while the respondent secured second largest. By judgment
dated December 19, 1991 the High Court allowed the election
paragraph 186, the High Court held that "the voluminous oral as well as
documentary evidence leaves no room for doubt that the plank of Hindutva/Hinduism/Hindu
was used". In paragraph 187 it is held that "it is clear from the
voluminous material on record that the campaign was on the basis of appealing
for votes on the basis of 1st Respondent's community and religion, i.e., the
Hindu community and religion and that there was an attempt to create enmity and
hatred between different classes of citizens on the basis of religion,
community and caste particularly between the Hindus and Muslims". In paragraph
198 it is further held that "prima facie, it does appear that the leaders
have appealed for votes for the Hindu candidates of the two parties on the
basis of their religion and community. Prima facie, it does appear that the
leaders did attempt to create enmity and hatred between different classes of
citizen on the grounds of community and religion". In paragraph 197, it is
held that "[I]n my view, it will have to be held that the tape recordings
contain the speeches made at these meetings. This is course is subject to
hearing the leaders of these two parties on the Notices under Section 99 of the
Representation of the People Act, 1951 which have been issued to them in
Election Petition No.21 of 1990".
A.M. Khanwilkar, learned counsel for the appellant, contended that in view of
the decisions of this Court in Suryakant Venkatrao Mahadik v. Smt. Saroj Sandesh
Naik [Bhosale] [(1996) 1 SCC 384], Ramakant Mayekar v. Smt. Celine D'Silva
[1996) 1 SCC 399], [1996) 1 SCC 378], Prof. Ramchandra G. Kapse etc. v. Haribansh
Ramakbal Singh etc. [1996) 1 SCC 206], Moreshwar Save v. Dwarkadas Yashwantrao
Pathrikar [1996) 1 SCC 394] the findings recorded under Sections 123  and
123 [3A] of the Act without compliance of the requirements of notice and
opportunity under Section 99, which was held to be a duty of the Court, vitiate
the declaration that the appellant's allegations are baseless.
speeches made by the leaders on February 10, 1990, February
17, 1990, intervening
night of February 20 and 21, February 23, 1990
within the constituency and on February 24, 1990
outside the constituency, were not made with his consent. Therefore, corrupt
practices have not been proved.
reason of the ratio in Manohar Joshi v. Damodar Tatyaba @ Dadasaheb Rupwate
[(1991) 2 SCC 342] [hereinafter referred to as "Manohar Joshi Case
No.2"] this Court had held that the court has to extract pleadings of
corrupt practices, evidence - oral and documentary in proof thereof and in the
order the Judge is required to indicate portions of his findings of the speaker
appealing to the voters on the basis of religion etc. The court should supply
the pleadings, evidence - oral and documentary and the copy of the order so as
to enable notice to adequately meet the ground on which he is proposed to be
named in the order. This mandatory requirement has not been complied with.
Therefore, the judgment is clearly illegal. He, therefore, requested to remit
the matter for taking the proceedings under Section 99(1) proviso as
interpreted in Manohar Joshi Case No.2.
B.A. Desai, learned counsel for the respondent, has controverted the same.
facie, the following three questions which are interwoven, arise for decision
in the case:
the learned Judge who tried the case is required to record prima facie
conclusions on proof of the corrupt practices committed by the returned
candidate or his agents or collaborators [leaders of the political party under
whose banner the returned candidate contested the election] or any other person
on his behalf? [ii] whether the consent of the returned candidate is required
to be proved and if so, on what basis and under what circumstances the consent
is held proved? [iii] on reaching the conclusion that consent is proved and
prima facie corrupt practices are proved, whether the notice under Section
99(1) proviso (a) should contain, like mini judgment, extraction of pleadings
of corrupt practices under Section 123, the evidence - oral and documentary and
findings on each of the corrupt practices by each of the collaborators, if
there are more than one, and supply them to all of them for giving an
opportunity to be complied with? There is a common thread that runs through
many a decision of this Court which mandates as duty of the High Court under
sub-section  of Section 99, requiring at the time of making an order under
Section 98 to make an order recording the names of all persons, if any, who
have been proved at the trial to have been guilty of any corrupt practice and
the nature of that practice. The High Court is required to refer names of all
persons proved guilty of any corrupt practice which have been proved at the
trial. Under proviso to subsection , the person who has not been a party to
the petition has to be given notice to appear before the High Court to show cause
why he should not be named. If he appears pursuant to the notice, he should be
given an opportunity of cross-examining any witness who has already been
examined and given evidence and of calling evidence in his defence and of being
Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte & Ors.[(1996) 1 SCC
130], the scope of the content of the notice under Section 99(1), proviso (a)
came up or consideration. Background facts to the said decision are required to
be stated here. In Election Petition No.1 of 1988 which is the subject matter
of the above appeal, at the close of the trial, by order dated September 23,
1988, the learned Judge while holding that notice under Section 99 was
necessary, the court reached prima facie finding that the charges alleged in
the petition of the corrupt practices under Section 123  and 123 [3A] have
been proved against the named persons and directed notice to them to show cause
why they should not be so named in the order of the election petition; the
notice indicated that the named persons shall have opportunity to cross-examine
the witnesses already examined at the trial and gave evidence against him and
of calling evidence in his defence and of being heard.
the notice, photocopies of the petition, written statement, the issues, the
evidence - oral and documentary were supplied. In furtherance thereof, Shri Bal
Thackeray had appeared on September 27, 1988 and contended that the notice was vague since the notice did not
indicate as to which portions of the speeches were believed and relied upon to
reach prima facie conclusion. By order dated October 10, 1988, the learned Judge overruled the objections by a written
order which was challenged in Special Leave Petition No.13163 of 1988. A Bench
of two Judges of this Court by order dated December 1, 1988 dismissed the
petition holding that notice under Section 99 was not required to specify all
the portions of the speeches indicated to be corrupt practices under
sub-sections  and [3A] of Section 123. However, liberty was given to Bal
Thackeray to file an application before the High Court seeking to specify those
portions which according to the Court prima facie come within the purview of
sub-section  or [3A] of Section 123. If such an application was made, the
High Court was directed to dispose of it in accordance with law.
an application came to be made and by order dated December 16, 1988 the learned
Judge held that Section 99 does not require the court to analyze the evidence
and specify either in the notice under Section 99 or at any time prior to
hearing the persons to whom notice had been issued, "portion or portions
thereof in its view prima facie to make out the case which the notice is called
upon to answer". His position can be no better than the elected candidate.
It was held that the notice is not entitled to be specified by the Court of the
portions of the speeches which according to it prima facie fall within the
purview of sub-section  or (3A) of Section 123 either in the show cause
notice under Section 99 or at any time prior to so showing cause. Accordingly,
the High Court directed the counsel appearing for the election petitioner
"to indicate on which portions of the speeches or evidence he seeks to place
reliance at the hearing of the election petition" and directed him to
furnish to the notice or his advocate xerox copy of those speeches, marking in
the margin thereof the portions that are so stressed. Accordingly, it was done.
The Special Leave Petition No.507 of 1989 filed against that order came to be
dismissed by order dated January
23, 1989 of another
Bench of two Judges.
light of the above background, an argument was raised in the appeal that the
appellant was prejudiced for non-compliance of the procedure under Section 99.
The Bench had held that "it is difficult to visualize what prejudice was
caused to the notice on these facts and how there should be any non -
compliance of Section 99 of the Representation of the People Act in this situation"
and it was held that, in short, the opportunity which a party to the petition
had at the trial to defend allegations of corrupt practices is to be given by
such a notice to that person of defending himself if he was not already a party
to the petition. In other words, the notice has to be equated with a party to
the petition for this purpose and has to be given the same opportunity which he
would get of he was made a party to the petition. This is the pragmatic test to
be applied for deciding the question of compliance of requirements of Section
99, the opportunity required to be given by virtue of proviso to sub-section
 of Section 99 is the same and not more than that available to a party to
the petition to defend himself in respect of corrupt practices. It was held,
therefore, that the grievance that the portion of the material which formed the
record at the trial was not purposely communicated to the notice, had no merit.
earlier Bench of three Judges in Manohar Joshi Case No.2 [supra] in the same
situation arising out of Election Petition No.9 of 1990 from the same Court had
held that notice should contain the portions of the petition, written
statement, oral and documentary evidence which is sought to be relied upon in
support of the said charge or each of the said charges and the prima facie
findings thereon which is the minimum safeguard. In other words, a mini
judgment was required to be rendered. The orders referred to on the special
leave petitions in Dr. Probhoo's case were deemed to have been overruled. It
would thus be seen that the decisions in Manohar Joshi's No.2 and Dr. Dr. Prabhoo's
case are mutually conflicting. If this Bench was to take yet another view, it
would create yet another dimension. Which of the two views is correct is the
question required to be decided by a larger Bench of five Judges.
Prabhoo's case it was held that counsel to the speeches of the collaborators by
the returned candidate should be inferred and accordingly in paragraphs 53 and
57 the Court inferred such a consent but in other cases, it was held that
consent is required to be proved. There appears to be some inconsistency in the
above view. In any case as to when the case is held proved has not been
specifically laid as law. This requires to be authoritatively decided.
stated earlier when and under what circumstances speeches of the leaders of the
political party or the appeal of any other person with the consent by a
candidate or his election agent to vote or refrain from voting on the ground of
religion, race, caste or community or language, etc. or promotion or an attempt
to promote feelings of enmity or hatred between different classes of citizens
of India on the ground of religion, race, caste, community or language with the
consent of the candidate or his election agent for the furtherance of the
prospects of the election of the candidate or prejudicially affect the election
of any candidates constitutes corrupt practice under sub-sections  or [3A]
of Section 123. Its content and scope also require to be clearly laid down
authoritatively lest miscarriage of justice in interpretation of "corrupt
practice" involved in every election petition would ensue.
purity of election process gets fouled and be fraught with deleterious effect
in a democratic polity.
without expressing any opinion on these questions, we are of the view that the
entire case requires to be heard and decided by a large Bench of five Judges
since the decision thereon upon the purity of election process and requires to
be decided authoritatively.
therefore, direct the Registry to place the case before our learned brother,
the Chief Justice for constituting a larger Bench of five Judges, and, if
possible, at an early date so that all the questions arising in the present
appeal could be decided authoritatively and expeditiously.
reference order of in the above terms.