Jacob Vs. A. Narayanan  Insc 225 (20 February 2008)
& Altamas Kabir
APPEAL NO.1250 OF 2007 O R D E R
have heard learned counsel for the parties.
application for impleadment is allowed.
appeal is directed against the final judgment and order passed by the learned
Single Judge of the Kerala High Court dated 2nd February, 2007 in Election
Petition No.2 of 2006 whereby the learned Single Judge after conclusion of the
trial has recorded a finding in para 70, which reads as under :- "On the
basis of the aforesaid findings, it has to be held that the respondent has
committed the corrupt practice in terms of Section 123(4) of the Act and his
election is, therefore, liable to be declared void as per sub-section (1)(b) of
Section 100 of the Act. It is so held."
light of the aforesaid finding, the learned Single Judge issued a notice to
R.W.1 Shri O.N. -2- Vijayan, R.W.2 Sri Jinson V. Paul and R.W.3 Sri P.G.
Manu under Section 99 of the Representation of the Peoples Act, 1951
(hereinafter referred to as the 'Act'). Aggrieved against this order, the
present appeal was filed. This appeal was entertained by this Court and an
interim order was passed on 23rd March, 2007, which reads as under :-
"Operation of the impugned judgment of the High Court is stayed but the
appellant is only permitted, pending decision of the appeal, to take part in
the proceedings of the House but he will not vote or draw emoluments. It is,
however, made clear that proceedings under Section 99 of the Representation of
the People Act, 1951 may go on."
the appeal has come up for final disposal.
F.S. Nariman, learned senior counsel appearing on behalf of the appellant has
submitted that the learned Single Judge should not have passed this order
holding that the appellant (herein) is guilty of corrupt practice and then
proceeded to issue notice to the aforesaid three persons. This approach of the
learned Single Judge is not correct and not in consonance with the decision of
this Court in the case of Manohar Joshi versus Nitin Bhaurao Patil and another
reported in 1996 (1) SCC 169.
against this, Mr. K.K. Venugopal, learned senior counsel appearing on behalf of
the respondent has seriously contested the matter and submitted that the interim
stay order may be vacated and the papers which have been retained in this Court
may be sent back to the High Court for proceeding against the aforesaid three
persons under Section 99 of the Act.
heard learned senior counsels for both the parties at length, we are of the
opinion that, in fact, the learned Single Judge should have proceeded with the
matter in one go instead of segregating into two parts. The learned Single
Judge has found the appellant guilty of corrupt practice under Section 123(4)
of the Act.
learned Single Judge should not have given a categorical finding but should
have observed prima facie finding of guilt.
regard to the facts and circumstances of this case and after going through the
judgment, we are of the opinion that in fact the intention of the learned
Single Judge was that this was a prima facie finding which he has arrived at.
It is a matter of expression in which he has said that having found them guilty,
he has issued notice to three persons for proceeding under Section 99 of the
Act. It has to be treated to be a prima facie finding only.
in this background the finding recorded by the learned Single Judge is a prima
facie only and the learned Single Judge will give an opportunity to these three
persons before deciding the matter. We may observe that these three persons are
not parties before us and we have not heard them in the matter.
we are of the opinion that the finding recorded by learned Single Judge shall
be treated to be a prima facie finding and the learned Single Judge may now
proceed and decide the matter in accordance with law with reference to Sections
98 and 99 of the Act.
we remit this case back to the learned Single Judge to proceed and decide the
matter finally as far as possible within a period of three months.
interim order passed by this Court on 23rd March, 2007 shall stand vacated.
Registry is directed to send back all the record which has been summoned
forthwith to the High Court -5- of Kerala so that the learned Single Judge
shall proceed with the matter and dispose it of within a period of three months
as far as possible.
appeal is accordingly, disposed of. No order as to costs.