Singh Vs. Janmeja Singh & Ors  INSC 483 (19 September 2000)
appeal is directed against an order of the High Court of Punjab and Haryana
dated 3.6.1999, dismissing an election petition filed by the appellant at the
threshold on sustaining preliminary objection.
appellant, who was a candidate set up by the Congress Party was defeated by
respondent No .1, the returned candidate, who had been set up by the Akali Dal
(Badal group). The elections to constituency No .96, Perozepur Cantt of Punjab
Legislative Assembly were held in 1997. The polling took place on 7.2.1997 and
after counting of votes on 9.2.1997, respondent No.l was declared elected.
view of the limited nature of controversy involved in this appeal, we are
relieved of the necessity of giving break-up of votes or mention about other
candidates, who had also contested the election.
appellant filed an election petition seeking to declare the election of
returned candidate void on various grounds and for a further declaration that
the appellant be declared duty elected as Member of the Legislative Assembly
after setting aside election of the returned candidate. In the election
petition, two main corrupt practices were alleged to have been committed by the
returned candidate - one falling under Section 123 (1)(A)(b) of the
Representation of the People Act, 1951 (hereinafter referred to as the Act) and
the other falling under Section 123 (4) of the Act. The material facts and
particulars concerning allegations of corrupt practice insofar as corrupt
practice under Section 123(1) is concerned, are contained from paragraphs 28
to. 39 of the election petition, while material facts and particulars concerning
commission of corrupt practice falling under Section 123 (4) of the Act are
contained in paragraphs 12 to 27 of the election petition.
learned counsel appearing for the election petitioner has taken us through the
123(4) of the Representation of the People Act provides :
pub1ication by a candidate or his agent or by any other person with the consent
of a candidate or his election agent, of any statement of fact which -is false,
and which he either believes to be false or does not believe to be true, i'n
relation to the personal character or conduct of any candidate, or in relation
to the candidature, or withdrawal, of any candidate, being a statement
reasonably calculated to prejudice the prospects of that candidate's
election," In vain, have we searched through the election petition and,
particularly through paragraphs 12 to 27 thereof, dealing with the alleged
commission of corrupt practice which falls within the mischief of Section
123(4) of the Act, for any averment to the effect, that the publication was
made by the returned candidate or. his election agent or by any other person
with the consent of the candidate or his election agent' or any statement of
fact which is false and which he either beIieves .to be false. or does not
believe .to be true in relation to the personal character or conduct of the
election petition -is singularly silent of any such averment that the returned
candidate, even "if, it be assumed for the sake of the arguments, had
published and distributed certain documents, (Annexures A-1 to A-7), as alleged
in the election petition either himself or through any other persons with his
consent, that those statements were false and that the returned., candidate .. eJ.the"".
be I i
eved hem on be false or did not believe them to be true, though in paragraph 9
of the election petition, which has been verified as correct on the basis of
legal advice, this requirement emanating from Section 123(4) has been mentioned
but without any assertion that the returned candidate in this case published
the false statements knowing them to be false and/or not believing them to be
true. The submission of Mr. Talwar, that at the trial, the petitioner could
have said so in his evidence is futile. It is an established proposition that
no evidence can be led on a plea not raised in the pleadings and that no amount
of evidence can cure defect in the pleadings.
face of the pleadings, no charge could have been framed insofar as corrupt
practice under Section 123(4) of the Act is concerned. We need not detain
ourselves to consider the 'allegations' in this behalf, because of the absence
of the essential averments to lay a charge under Section 123(4) of the Act. The
requirement of making such a statement, as referred to above by us. is
mandatory and in the absence of any such statement, the charge could not be put
to trial. Paced with this serious lacuna in the pleadings, Mr. Talwar sought to
press the allegations of bribery under Section 123(1) as detailed in paragraphs
28 to 39 of the election petition.
now to the charge of corrupt practice falling under Section 123(1) of the Act,
for which material facts and particulars have been detailed in paragraphs 28 to
39 of the election petition, we find that those allegations could not be put to
trial either. There is no affidavit filed in support of the allegations of
corrupt practice of bribery.
to Section 83(1) of the Act lays down, in mandatory terms, that where a.n
election petitioner alleges any corrupt practice, the election petition shall
also be accompanied by an affidavit, in the prescribed form, in support of the
allegations of such practice and the particulars thereof. The affidavit, which
has been filed in support of the election petition, does not at all deal with
the charge of bribery falling under Section 123 (1) of the Act. Leaving aside
the questions that the affidavit is not even in the prescribed form - Form 25. of
the conduct of Election Rules, the allegations of corrupt practice made in the
election petition are not supported by the otherwise defective affidavit
either. .All the names of the informants which have been given in the affidavit
relate to the corrupt practice under Section 123(4) and the affidavit in this
respect is a verbatum reproduction of the verification clause of the election
petition concerning corrupt practice under Section 123(4). No name of any
informant has been mentioned in respect of the allegations of corrupt practice
under Section 123(1) in the affidavit.
absence of the requisite affidavit filed in support of the allegation of
corrupt practice under Section 123(1) of the Act, as detailed in the election
petition, no issue could be raised for trial.
83 of the Act is mandatory in character and requires not only a concise
statement of material facts and full particulars of the alleged corrupt
practice, so as to present a full and complete picture of the action to be
detailed in the election petition but under the proviso to Section 83(1) of the
Act, the election petition levelling a charge of corrupt practice "is
required, by law, to be supported by an affidavit "in which the election
petitioner is obliged to disclose his source of information in respect of the
commission of that corrupt practice. The reason for i:,his insistence is
obvious. It is necessary for an election petitioner to make such a charge with
full responsibility and to prevent any fishing and roving enquiry and save the
returned candidate from being taken by surprise, in the absence of proper
affidavit, in the prescribed form, filed in support of the corrupt practice of
bribery, the allegation pertaining thereto, could not be put to trial the
defect being of a fatal nature.
also wish to note here that the learned Senior counsel appearing for the
election petitioner in the High Court had on 14.7.1998 made a statement in the
High Court that- he was not pressing his prayer relating to recounting of
votes. No other point was raised before us.
learned Single Judge of the High Court dismissed the election petition on
deciding Issue No.5, which was treated as a preliminary issue and reads thus :
the election petition lacks in material facts and particulars, necessary to
constitute complete cause of action for setting as"'de of the election of
'the respondent No.1, within the meaning of Section 83, read with Sections
100(1)(d)(1v) and 123 of the Representation of People Act.?" For what. we
have said above, the order of dismissal of the election petition, without
putting it to trial, cannot be faulted with.
our reasons) which are somewhat different from the ones given by the High
Court, we find that the decision of the High Court to non-suit the election
petitioner by deciding the preliminary issue against him is well merited.
is no merit in this appeal. It. consequently, fails and is hereby dismissed.
There shall, however, be no order as. to costs.