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CASE NO.: Appeal (civil)  1250 of 2007

PETITIONER: M.J. JACOB

RESPONDENT: A. NARAYANAN

DATE OF JUDGMENT: 20/02/2008

BENCH: A.K.MATHUR & ALTAMAS KABIR

JUDGMENT: JUDGMENT

CIVIL APPEAL  NO.1250 OF 2007         O R D E R                          We have heard learned counsel for the parties.         The application for impleadment is allowed.         This 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."         In the light of the aforesaid finding, the learned Single Judge issued a notice  to R.W.1 \026 Shri O.N.  

                       -2- Vijayan, R.W.2 \026 Sri Jinson V. Paul and R.W.3 \026 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."         Now the appeal has come up for final disposal.           Mr. 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.           As 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.         Having 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

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has found the appellant guilty of corrupt practice under Section 123(4) of the Act.   The learned Single Judge should not have given a categorical finding but should  have observed prima facie finding of guilt.         Having 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.          Therefore, 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.           Hence, 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.         Accordingly, 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.           The interim order passed by this Court on 23rd March, 2007 shall stand  vacated.         The 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.         The appeal is accordingly, disposed of. No order as to costs.