Manohar
Joshi Vs. Damodar Tatyaba Dadasaheb Rupwate & Ors [1991] INSC 69 (11 March 1991)
Sawant,
P.B. Sawant, P.B. Singh, K.N. (J) Kuldip Singh (J)
CITATION:
1991 SCR (1) 759 1991 SCC (2) 342 JT 1991 (1) 588 1991 SCALE (1)410
ACT:
Representation
of the People Act, 1951: Sections 99, 123(2), (3) and 3(A)--Corrupt
practice--Allegations of-- Person summoned should know precise charge to be
met--Notice to such person to spell out precise corrupt practice and portions
of documentary evidence relied upon to sustain such.
HEAD NOTE:
In the
1989 elections to the Lok Sabha, respondent No. 2 was declared elected from the
Bombay South Central Constituency. One of the defeated candidates (respondent
no. 1) filed an election petition challenging the validity of the election of
respondent no. 2 inter alia on the ground of corrupt practices under
sub-section (2),(3) and (3A) of section 123 of the Representation of the People
Act, 1951.
The
High Court having reached the stage in the trial when it was prima facie of the
opinion that the charges alleged in the petition, of corrupt practices falling
under sections 123(3) and 123(A) had been proved to have been committed, it
proceeded under section 99 to name the collaborators in such corrupt practices.
The High Court accordingly directed issuance of notices to three persons.
Aggrieved
by this order, two of the person named therein approached his Court by way of
two separate appeals.
Before
this Court, it was contended on behalf of the appellants that (i) the
consequences of naming a person on his being found guilty pursuant to such
notices were grave;
(ii)
the proviso to sub-section(1) of section 99 of the Act enjoined upon the Court
to state precisely the charges and the evidence which the person summoned was
called upon to meet; and (iii) the notices to the appellants to answer
allegations of corrupt practices allegedly committed by them were vague.
Allowing
the appeals and directing the High Court to issue proper notices to the
appellants in the light of law, this Court,
HELD:
(1) It
is clear from the provisions of sub- clauses (i) and (ii) of clause (a) of
sub-section (1) of section 99, that at the time of deciding 760 the election
petition the Court has to record a finding that a corrup practices is proved to
have been committed and that it has been committed by a particular person. The
Court has not only to name the person but also the nature of the corrupt
practice committed by him.[766F-G)]
(2) If
the person is a party to the petition, it is not necessary to hear him
separately before recording such finding. However, when he is not a party to
the petition, before such serious finding is recorded against him, he must have
the same opportunity as the party to the petition, to meet the allegations
against him. In that respect, he stands on the same footing as the party to the
petition against whom such a finding is to be recorded. He cannot be
discriminated against and made to suffer any disadvantage because he is not a
party to the petition. [766H-767]
(3)
Where a corrupt practice is alleged, the trial of an election petition on such
charges is of a quasi-criminal nature, and a heavy burden rests on the person
alleging the corrupt practice to prove strictly all the ingredients of the
charge. This is as it should be since the naming of a person as having
committed a corrupt practice has a serious consequence of disqualifying him
from being chosen as or from being member of any House of Parliament or of the
Legislative Assembly or Council of a State for a period upto 6 years. [769B-C)
D.P. Mishra v. Kamal Narain Sharma & Ors., [1971] 3 S.C.R. 257 and Rashim
Khan v. Khurshid Ahmed & Ors., [1975] I.S.C.R. 643, referred to.
(4)
When the legislature requires that the election petition shall contain full
particulars of each and every alleged corrupt practice including as fuller a
statement as possible of the names of the parties and the date and place of
commission of such practice, it would be contrary to the object of the said
provisions to hold that when a notice is issued under Section 99 against a
person who is not a party to the election petition for holding him guilty of
any corrupt practice, the notice should not appraise him of the precise charge
against him and give him the full particulars thereof.[769D-E]
(5)
The impugned order directing the issuance of notice is extremely vague and
defective to the point of being contrary to the provisions of law. The notice
is of an omnibus character. Section 123(3) does not refer to one corrupt
practice but a variety of them. Yet the notice does not specify which
particular corrupt practice is sought to be 761 brought home to each of the
appellants, and does not state which of the portions of the petition, etc. is
being relied upon to sustain which of the charges and against which of the
appellants. [769F-G, 770B] [Order dated December 1, 1988 in Special Leave petition No. 13163
of 1988 and the later non-speaking order of January 23, 1989 in the matter overruled.] [771D]
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. (NCE) 1044 & 1045 of 1991.
From
the Judgement and Order dated 29.10.1990 of the Bombay High Court in Election
Petition No.5 of 1990.
K.K. Venugopal,
Harish Salve, P.H. Parekh, Sunil Dogra, V.D. Joshi and A.M. Khanwilkar for the
Appellants.
A.S. Bobde,
V.A. Bobde, S.D. Mudliar, C.K. Ratnaparkhi, B.P. Pandye, and Mrs. Nirmal Chhagan
for the Respondent.
The Judgement
of the Court was delivered by SAWANT, J. These two petitions arise out of a
common order dated 29th
October, 1990 passed
by the Bombay High Court in Election Petition No. 5 of 1990 and raise a common
question of law. Hence they are disposed of by this judgement.
2.
Leave is granted in both the petitions.
The
election petition in which the impugned order is passed was filed by a defeated
candidate (Respondent No.1) against the elected candidate (Respondent No.2) and
other contesting candidates challenging the validity of the election of
respondent No.2 to the Lok Sabha from the Bombay South Central Constituency in
the election held on November
24, 1989. The election
of respondent No.2 is challenged in the petition, among other things, on the
ground of corrupt practices under sub-sections (2), (3) and (3A) of Section 123
of the Representation of the People Act, 1951 (hereinafter referred to as the
"Act"). It appears from the impugned order that the High Court has
reached a stage in the trial of the election petition where examination-in-
chief and cross-examination of about 14 witnesses has been completed and
various documents have been brought on record.
It is
at this stage that the impugned order has been made, the operative part of
which reads as follows:
762
"In this Election Petition, the Petitioner seeks to set aside the election
of Respondent No.1 on the ground of corrupt practice under Sections 123(3) and
123(3A) of the said Act. The Petitioner has led documentary and oral evidence.
Respondent No.1 has tendered documents but has led no oral evidence. The other
Respondents have remained absent even though served. Petitioner and Respondent
No.1 have argued their respective cases.
The
learned Advocate General has also drawn my attention to Section 99 of the said
Act which requires this Court, whilst giving a finding that corrupt practice
has been proved, to name all persons who have been proved at the trial to have
been guilty of any corrupt practice and the nature of that practice. This
however must be after having given to such persons notice to appear and show cause
why he/they should not be so named.
At
this stage, I am of the prima facie opinion that the charges alleged in the
Petition of corrupt practice under Section 123(3) and 123(3A) of the said Act
have been proved to have been committed and that Mr. Bal Thackeray, Mr. Chhagan
Bhujbal and Mr. Manohar Joshi Are (to use the words of Supreme Court)
collaborators in such corrupt practice.
Accordingly,
I direct that notices under Section 99 of the Representation of the People Act,
1951, shall be given to Mr. Bal Thackeray, Mr. Chhagan Bhujbal and Mr. Manohar
Joshi to appear before me on 3rd December, 1990, to show cause why they should
be not be so named in the order on the Election Petition.
Each
notice shall state that the person named in the notice shall have an
opportunity of cross- examining all witnesses who have given evidence against
him and that he shall have a right of calling evidence and of being heard.
I
direct that to all the notices shall be annexed photo copies of:
(a) the
Petition, the written statement of Respondent No.1 and the Issues.
763
(b) the oral depositions of the petitioners witnesses.
(c) all
exhibits, except Exhibits RR, SS to YY, AAA, AAA1, AAAA, BBBB, BBBB1 and
Exhibits 1 to 8.
(d) this
order.
I also
direct that along with all the notices shall be sent audio cassettes containing
copies of Exhibits SS to YY." Aggrieved by this order, two of the persons
named therein, viz., Manohar Joshi and Chhagan Bhujbal have approached his
Court by way of these two separate appeals by special leave.
3. The
order is assailed on the ground that although it directs the issuance of notice
to the appellants to answer allegations of corrupt practices allegedly
committed by them, it is vague and does not indicate which of the corrupt
practices they are alleged to have committed and which evidence on record
supports them. In the absence of the specific charge/s and the evidence in
support of it/them indicated in the order and the notices issued pursuant to
it, the appellants are at a loss to comprehend the case that they are called
upon to meet. They are thus put to a disadvantage and are gravely prejudiced.
It is pointed out that the consequences of naming a person on his being found
guilty pursuant to such notice are grave inasmuch as, among other things, he
incurs a disqualification for contesting election under Article 103 of the Constitution
read with Section 8A of the Act. It is also urged that even otherwise the
notice to appear and the opportunity to show cause contemplated under the
proviso to sub-section (1) of Section 99 of the Act enjoins upon the Court to
state precisely the charge and the evidence which the person summoned is called
upon to meet. It does not contemplate a vague notice such as the one which is
issued and is directed to be issued by the impugned order.
4. For
reasons more than one, we find great force in these submissions. Shri Bobde,
the learned Advocate General of Maharashtra who appeared for respondent No.1
could not seriously dispute these contentions. However, he pointed out to us an
earlier order dated December 1, 1988 of this Court passed in Special Leave Petition
No. 13163 of 1988 which was filed against a similar order passed by the Bombay
High Court in Election Petition No.1 of 1988. This Court by its said order had
held as follows:
764
"We do not think that in a notice under Section 99 of the Representation
of the People Act, 1951 the portions of the speeches of the petitioner are
required to be specific for the purpose of sub-sections (3) and (3A) of Section
123 of the said act. The petitioner, however, will be at liberty to make an
application before the Court for specifying those portions which, Prima facie,
according to the Court, come within the purview of sub-sections (3) or (3A) of
Section 123 of the said Act. If any such application is made, the Court will
dispose of it in accordance with law.
The
special leave petition is disposed of accordingly." The provisions of the
Act which have a cumulative bearing on the present question are contained in
sections 82, 83, 97, 98, 99, 107, 123(3) and 123(3A) of the Act.
6.
Section 82 enjoins upon the election petitioner to join as respondent to the
petition, in addition to other necessary parties, any candidate against whom
allegations of any corrupt practice are made in the petition.
Section
83 which deals with the contents of the election petition states, among other
things, as follows:
"83.
Contents of petition.--(1) An election petition-- (a)
.........................................
(b)
shall set forth full particulars of any corrupt practice that the petitioner
alleges, including as full a statement as possible of the names of the parties
alleged to have committed such corrupt practice and the date and place of the
commission of each such practice; and
(c)...........................................
Provided
that where the petitioner alleges any corrupt practice, the petition shall also
be accompanied by an affidavit in the prescribed form in support of the
allegation of such corrupt practice and the particulars thereof.
(2)
Any schedule or annexure to the petition shall also be signed by the petitioner
and verified in the same manner as the petition." 765 It is clear from the
reading of these two sections that even in the election petition where
allegations of corrupt practices are made, full particulars of the alleged
corrupt practice including as fuller a statement as possible and the names of
the parties who are alleged to have committed such practice and the date and
place of the commission of each such practice have to be furnished. What is
further, the allegations of the corrupt practice have to be accompanied by an
affidavit in support both of the allegations as well as the particulars
thereof, and if there are any schedules or annexure to the petition in support
of the corrupt practice, they have also to be signed by the petitioner and
verified by him in the same manner as the petition. This is a mandatory
requirement. The object of the said provisions is obvious. The party and it
includes not only the returned candidate but all other candidates against whom
the corrupt practice is alleged, must have an adequate notice of the precise
allegations made against him so that he has a proper opportunity to meet them.
7.
Section 97 states that when in an election petition a declaration that any
candidate other than the returned candidate has been duly elected is claimed,
the returned candidate or any other party may give evidence to prove that the
election of such candidate would have been void if he had been the returned
candidate and the petition had been presented calling in question his election.
The section requires that before the returned candidate or such other party, as
aforesaid, gives such evidence, he should have, within 14 days from the date of
the commencement of the trial, given notice to the High Court of his intention
to do so and that notice has to be accompanied by the statement and particulars
required by Section 83 in the case of an election petition and has to be signed
and verified in the like manner. We have already referred to the relevant
requirements of Section 83 with regard to the furnishing of the particulars of
the corrupt practice.
8.
Section 98 states that on the conclusion of the trial of an election petition,
the High Court shall make an order (a) dismissing the election petition; or (b)
declaring the election of all or any of the returned candidates to be void; or
(c) declaring the election of all or any of the returned candidates to be void
and the petitioner or any other candidate to have been duly elected.
Then
follows Section 99 of which what is relevant for our purpose in sub-section (1)
which reads as follows:
"99.
Other orders to be made by the High Court.-- (1) At 766 the time to making an
order under section 98 the High Court shall also make an order-- (a) where any
charge is made in the petition of any corrupt practice having been committed at
the election, recording-- (i) a finding whether any corrupt practice has or has
not been proved to have been committed at the election, and the nature of that
corrupt practice; and (ii) the names of the persons, if any, who have been
proved at the trial to have been guilty of any corrupt practice and the nature
of that practice; and (b) fixing the total amount of costs payable and
specifying the persons by and to whom costs shall be paid.
Provided
that a person who is not a party to the petition shall not be named in the
order under sub-clause (ii) of clause (a) unless-- (a) he has been given notice
to appear before the high Court and to show cause why he should not be so
named; and (b) if he appears in pursuance of the notice, he has been given an
opportunity of cross-examining any witness who has already been examined by the
High Court and has given evidence against him, of calling evidence in his defence
and of being heard." It is clear from the provisions of sub-clause (i) and
(ii) of clause (a) of sub-section (1), that at the time of deciding the
petition, the Court has to record a finding that a corrupt practice is proved
to have been committed and that it is committed by a particular person. The
Court has not only to name the person but also the nature of the corrupt
practice committed by him. If the person is a party to the petition, it is not
necessary to hear him separately before recording such finding. However, when
he is not a party to the petition, before such serious finding is recorded
against him, he must have the same opportunity as the party to the petition, to
meet the allegations against him. In that respect, he stands on the same
footing as the party to the petition against whom such a finding is to be recorded.
He cannot be 767 discriminated against and made to suffer any disadvantage
because he is not a party to the petition. This is the precise object which is
sought to be secured by the proviso to the Section.
9.
Section 107 of the Act states that the order of the High Court under Section 98
or Section 99 shall take effect as soon as it is pronounced by the High Court
subject, of course, to the stay, if any, granted by the High Court itself or in
appeal by the Supreme Court.
10.
Section 123 enumerates and defines the corrupt practices for the purposes of
the Act. We are concerned in the present case with the corrupt practices
mentioned in sub-sections (3) and (3A) of the said section. Those sub- sections
read as follows:
"(3)
The appeal by a candidate or his agent or by any other person with the consent
of a candidate or his election agent to vote or refrain from voting for any
person on the ground of his religion, race, caste, community or language or the
use of, or appeal to religious symbols or the use of, or appeal to, national
symbols, such as the national flag or the national emblem, for the furtherance
of the prospects of the election of that candidate or for prejudicially
affecting the election of any candidate:
Provided
that no symbol allotted under this Act to a candidate shall be deemed to be a
religious symbol or a national symbol for the purposes of this clause.
(3A)
The promotion of, or attempt to promote, feelings of enmity or hatred between
different classes of the citizens of India on grounds of religion, race, caste,
community, or language, by a candidate or his agent or any other person with
the consent of a candidate or his election agent for the furtherance of the
prospects of the election of that candidate or for prejudicially affecting the
election of any candidate." It is clear from the aforesaid sub-sections
that each - of them enumerates not a single corrupt practice but various
distinct corrupt practices. They are as follows. Sub-section (3) speaks of the
corrupt practices of-- (A) the appeal (i) to vote, or (ii) to refrain from
voting for any 768 person on the ground of - (a) his religion. (b) his race,
(c) his caste, (d) his community, or (e) his language;
(B)(i)
of the use of, or (ii) of appeal to (a) religious symbols (b) national symbols
such as the national flag or (bb) the national emblem either for the
furtherance of the prospects of the election of that candidate, or for
prejudicially affecting the election of any candidate.
Likewise
Sub-section(3A) consists of different corrupt practices as follows:
(i)
the promotion of, or (ii) attempt to promote feeling of enmity or hatred
between different classes of the citizens of India on ground of- (a)religion,
(b) race, (c) caste, (d) community, or (e) language either for the furtherence
of the prospects of the election of that candidate or for prejudically
affecting the election of any candidate.
Hence
merely by enumerating in the notice the numbers of sections, viz., 122(3) and
122(3A) as is directed to be done by the impugned order, the person summoned
does not understand which of the various corrupt practices mentioned in the
sections is alleged against him and what precise charge he has to meet.
11.
Section 8A of the Act states that the case of every person who is found guilty
of a corrupt practice by an order under section 99 shall be submitted, as soon
as may be, after such order takes effect, by such authority as the Central
Government may specify in this behalf, to the President for determination of
the question as to whether such person shall be disqualified and if so, for
what period. The period of disqualification is not to exceed 6 years from the
date on which the order made in relation to him under Section 99 takes effect.
Subsection (3) thereof requires the President to obtain the opinion of the
Election Commission on such question and to act according to such opinion. The
President exercises this power under Article 103 of the Constitution and the
powers of Election Commission when such a reference is made by the President
are governed by Section 146 of the act.
769
12. A
reading of all the aforesaid provisions together would show that the
proceedings pursuant to the notice issued by the High Court under Section 99 of
the Act are of a quasi-criminal nature. It has also been held so by this Court
in so many words, in some of the decisions: See D.P.Mishra v. Kamal Narain
Sharma & Ors .., [1971] 3 SCR 2571 and Rashim Khan v. Khurshid Ahmed &
Ors..,[1975] 1 SCR 643. Where, therefore, a corrupt practice is alleged, the
trail of an election petition on such charge is of a quasi- criminal nature,
and a heavy burden rests on the person alleging the corrupt practice to prove
strictly all the ingredients of the charge. This is as it should be since the
naming of a person as having committed a corrupt practice has a serious
consequence of disqualifying him from being chosen as or from being member of
any House of the Parliament or of the Legislative Assembly or Council of a
State for a period upto 6 years.
13.
What is further, as pointed out above, when the legislature requires that the
election petition shall contain full particulars of each and every alleged
corrupt practice including as fuller a statement as possible of the names of
the parties and the date and place of the commission of such practice, it would
be contrary to the object of the said provisions to hold that when a notice is
issued under Section 99 against a person who is not a party to the election
petition for holding him guilty of any corrupt practice, the notice should not
apprise him of the precise charge against him and give him the full particulars
thereof.
14.
Judged in the light of these requirements of law there is no doubt that the
impugned order directing the issuance of notice as stated theren, is extremely
vague and defective to the point of being contrary to the provision of law. We
have reproduced above the relevant portion of the order. The order (i) directs
issuance of an omnibus notice against the appellants and one other person;(ii)
states again in an omnibus manner that the Court is satisfied that the charges
alleged in the petition of corrupt practices under Section 123(3) and 123(3A)
of the Act have been proved to have been committed by all of them (iii) further
directs that each notice shall state that the person named in the notice shall
have an opportunity of cross-examining all witness who have given evidence
against him and that he shall have a right calling evidence and of being heard.
It then directs that to all the notices to be issued, copies of (a) the
petition and the written statement, (b) oral deposition, (c) all exhibits (d)
the impugned order itself and (e) audio cassettes containing copies of Exhibits
SS to YY should be annexed 770
15.
The notices directed to be issued and which have accordingly been issued are
defective in many respects. In the first instance, they do not spell out the
precise corrupt practice which each of the appellants is called upon to meet.
As has been pointed out above, Section 123(3) does not refer to one corrupt
practice but a variety of them. Yet the notice does not specify which
particulars corrupt practice is sought to be brought home to each of the
appellants.
Secondly,
although the copies of the petition, written statement etc. are directed to be
sent along with the notices, the order does not direct the notices to state and
therefore, they do not state which of the portions of the petition, written
statement, oral evidence, documentary evidence and audio cassettes is being
relied upon to sustain which of the charges and against which of the
appellants. As pointed out earlier, it is a pre-condition for the trial of the
charges of the corrupt practices that the person called upon to face the charge
should be apprised, in advance, of the precise charge or charges against him
and also the precise evidence--oral or documentary, which is sought to be
relied upon in support of the said charge or each of the said charges. It is
obvious that the kind of notice which is directed to be issued by the impugned order
is defective in all these respects and conveys nothing to the appellants.
The
impugned order and the notices issued pursuant to it falling short of the
requirement of law are, therefore, liable to be struck down.
16. It
is true that this Court in its order dated December 1, 1988 had refused to interfere with a
similar order and had held that such a notice is not against the provisions of
the law. It has, however, to be remembered in this connection that even while
doing so, the Court had given an opportunity to the petitioner therein to make
an application before the High Court for specifying those portions of the
speeches of the petitioner which prima facie according to the High Court came
within the purview of sub- sections (3) or (3A) of Section 123. The Court had
further directed that if any such application is made, the High Court should
dispose it of in accordance with law. It appears that consequent upon the
direction, an application was made by the petitioner for specifying the
portions of the speeches which were sought to be relied upon to sustain the
charges under sub-sections (3) and (3A). The High Court held that the
provisions of Section 99 did not require it to analyse the evidence and specify
either in the notice under the said section or at any time prior to hearing the
person to whom it is issued, what portion or portions thereof seemed in its
view prima facie to make out the case which he was called upon to answer.
771
This the High Court did in spite of the fact that it recorded correctly that
the person to whom a notice under Section 99 is issued is entitled to be put in
the same position as the elected candidate and that his position can be no
better. We have pointed out earlier that in fact the vague notice which is
directed to be issued by the impugned order does in fact place the person
against whom the notice is issued in a worse position than not only the elected
candidate but other persons who are parties to the election petition. It is
with a view to see that he is not placed in a disadvantaged position as against
the parties to the petition that it is necessary to apprise him also of the
details of the specific charges against him in advance. We have also pointed
out that the trial being of a quasi- criminal nature and the consequence of the
named person being serious, he is entitled to this minimum safeguard. The view
taken by the High Court was, therefore, obviously wrong. Unfortunately, the
special leave petition filed even against that order of the High Court came to
be dismissed in limine and without a speaking order. We are of the view that
for the reasons which we have stated above, neither the order of December, 1 1988 nor the later non-speaking order of
January 23, 1989 lays down the correct position of
law and should be deemed to have been overruled by this decision. However, we
make it clear that these observations will not in any way affect the validity
of the decision rendered by the High Court in that election petition being
Election Petition No. 1 of 1988. We further make it clear that the law laid
down here will operate only prospectively, i.e., to final orders of indictment
passed under Section 99 of the Act, hereafter.
17. In
the view we have taken above, we should set aside the impugned order and the
notices issued in each case in pursuance of the said order. However, we are of
the view that it is not necessary to do so. Instead, we direct that the
appellants will appear before the High Court on 25th March, 1991 and the High
Court will on that day or on such other day as it may deem convenient, issue
proper notices to the appellants in the light of the law laid down and then
proceed to hear and dispose of the notices in accordance with law.
The
appeals are allowed accordingly. In the circumstances of the case, there will
be no order as to costs.
R.S.S.
Appeals allowed.
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