Musa Patel Vs. Satyawan Ganpat Jawkar & Ors  INSC 1540 (2 December 1996)
O R D
appeal by special leave arises from the order of the learned single Judge of
the Bombay High Court, made on 11/22-2-1991 in Election Petition No.13/90. It
is not necessary to adumberate all the corrupt practices alleged to have been
committed by the appellant mentioned in the election petition filed by the
respondents. It would appear that the appellant had filed an application to
dismiss the election petition on a preliminary ground that the required
particulars of corrupt practices are lacking in the election petition and,
therefore, no cause of action has been furnished to proceed further in the
election petition. That objection was over-ruled. Subsequently, a petition has
been filed to dismiss the election petition itself. In the impugned order, the
learned Judge while holding that "the particulars are lacking" has
held that what is missing from the petition are "merely particulars"
and held that under Section 86(5) of the Representation of People's Act, the
Court has discretion to direct the party to furnish the particulars.
Accordingly, he directed to furnish the particulars as mentioned in the
operative part of the order which reads thus:
In para 5 of the Petition in respect of each instance set out under sub-para
(a) to (e) the petitioner shall state whether the instances set out therein
have been managed by Respondent No.1, or his Election Agent or by supporters of
Respondent No.1 with the consent of Respondent No.1. If it is alleged that it
is done by supporters, Petitioner to state the names of the supporters and if
the names are not available to state that the names are not available.
para 6(a) of the Petition, the names of the three persons who had come to cast
bogus votes to be supplied. If such names are not available, Petitioner to
state that the names are not available.
para 6(b) of the Petition, Mr. Chinoy had, during the course of his argument,
clarified that it was not the case of the Petitioner that delible ink for
marking fingers was used because it was so managed by Respondent No.1 or his
Election Agent or any of his supporters with the consent of the Petitioner or
Petitioner to so state in the Schedule now to be given. Further the Petitioner
must give the names of hirelings and goondas of Respondent No.1, if available. If
not available to so state. The Petitioner to also give the names of the
Presiding and Polling Officers at the various Booths mentioned therein and who
according to the Petitioner, have been favouring and/or openly supporting
Respondent No.1. The Petitioner also to state whether the acts of Booth
capturing was managed by Respondent No.1 and/or/ his Election Agent and/or
supporters (whose names must be supplied if available) with the consent of
Respondent No.1 or his Election Agent;
para 6(c) of the Petition in respect of each instances set out in sub-paras (i)
to (v) the Petitioner to give the same particulars as those set out hereinabove
in respect of para 6(b) viz. whether it is managed by Respondent No.1 and/or
his Election Agent and/or supporters of Respondent No.1 with the consent of the
Respondent No.1 or his Election Agents, the names of the parties (if
available), including the name of the persons
have cast bogus votes,
prevented the Petitioner's Chief Election Agent at the point of revolver,
removed Book No.17
threatened the Petitioner's Polling Agent with murder.
being clarified that the Petitioner need not for the present give the names of marathi
speaking persons who were not permitted to go to the Polling Stations. This is
a possibility exists of these witnesses being approached.
respect of para 7 of the Petition, Mr. Chinoy has clarified that the Petitioner
does not have and will not lead any positive evidence to show that the
instances set out in this para have been managed or committed by Respondent
No.1 or his Election Agent and/or any supporters of Respondent No.1 with the
consent of the Respondent No.1 or his Election Agent. Mr. Chinoy however
clarifies that one of the arguments of the Petitioner will be that these have
materially affected the result of Election of Respondent No.1 and that the
natural and only inference would be that they were managed by Respondent No.1
or his Election Agent or by his supporters with the consent of Respondent or
his Election Agent.
regards para 9 of the Petition, apart from the two Registration Numbers of the
Vehicles mentioned in this paragraph and two further Registration Numbers of
Vehicles mentioned in Exhibit `J-I; to the Petition, if the petitioner is
relying upon or has any other Registration Numbers of these vehicles also. The
petitioner must also state, if available, the Booth numbers to which the voters
were carried by to and by which vehicle.
available, the Petitioner must give the names of the voters whom accordingly to
the Petitioner, have been carried to the Polling Booths in those vehicles. The
petitioner to also stated whether the hirelings and/or grounds, and/or his
Election Agent and/or supporters of Respondent No.1 with the consent of
Respondent No.1 and/or with the consent of his Election Agent. If it is alleged
that it is by supporters, the Petitioner must give names of the supporters, if
available. If not to so state.
Mr. Chinoy has clarified that even though there is reference to pamphlets and
wall posters in para 10A of the Petition for the case made out in this para the
Petitioner is only relying upon the pamphlets Exhibit `X' to the Petition.
respect of para 10B, the Petitioner to state whether the Issue and circulation
of pamphlets (Exhibit `Y') was by Respondent No.1 and/or by his Election Agent
and/or supporters (with names, if available) with the consent of Respondent
No.1 and/or his Election Agent.
Petitioner to state when and where the pamphlets mentioned in sub-paras (a) and
(b) were circulated. The Petitioner also to underline portions of Exhibits `X'
and `Y' which according to him amounts, to campaigning on ground of religion
and/or creation and/or promotion of enmity and hatred between two classes of
citizen. If it is the case of the Petitioner that the entire documents does so,
then the Petitioner to so state.
In-sub-paras (c) and (e) the Petitioner to give details like time and place
where the speeches were made and the names of speakers. The Petitioner also to
give the names and dates of the newspaper relied upon by them. The Petitioner
to give similar details in respect of Press Conference and the campaigns
mentioned in sub-para (e). The petitioner also to give in respect of each
speech the gist of the speech which according to the Petitioner amounts to campaigning
in the name of religion and/or creating or promoting feelings of enmity and/or
hatred. In case, a speech or Press Conference or a campaign is by a person
other than Respondent No.1 the Petitioner to state whether the same is with the
consent of Respondent No.1 and/or his Election Agent.
The same particulars as set out hereinabove in respect of pamphlets and the
speeches also to be supplied in respect of Advertisement, paintings, posters,
banners, referred to in para 10A of the Petition." This direction is now
the subject matter of this appeal. Shri Khanwilkar, learned counsel for the
respondent, in fairness, has stated that the Court cannot give a new cause of
action by directing to furnish the particulars which are not already part of
the election petition but he sought to sustain the order stating that these are
only amplifications of the material allegations made of the corrupt practices
in the election petition. Therefore, they are no new facts or constitute no new
cause of action. We do not agree with the learned counsel. These facts do
furnish the further particulars filling up the gaps which are found in the
election petition. Having found that these particulars are missing, the learned
Judge has committed an obvious error in giving the direction to furnish those
particulars; in other words, providing an opportunity to the respondents to
fill in the gap which would gravely prejudice the appellant at the trial. Under
this situation, the impugned direction stands set aside and it would be open
tot he learned Judge to proceed with the trial of the matter in accordance with
appeal is accordingly allowed. No costs.