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PETITIONER: ABHIRAM SINGH

       Vs.

RESPONDENT: C.D. COMMACHEN & ORS.

DATE OF JUDGMENT:       16/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. BHARUCHA S.P. (J) PARIPOORNAN, K.S.(J)

CITATION:  1996 SCC  (3) 665        JT 1996 (4)   194  1996 SCALE  (3)486

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K.Ramaswamy, J.      After spending  considerable time  on diverse questions canvassed across  the bar,  we are  of the opinion that this appeal requires to be posted before a Constitution Bench for deciding the  questions that  arise in the appeal. We would, however, indicate  in brief the facts, the findings recorded and the  questions raised  which impress  us  to  refer  the matter for  decision by  the Constitution Bench. This appeal under Section  116B of the Representation of the People Act, 1951 [for  short, the  ‘Act’] arises from the judgment dated December 24,  1991  of  the  Bombay  High  Court  passed  in Election Petition No.11 of 1991.      The   respondent,    since    deceased,    his    legal representatives have been brought on record and a notice, as required  under   the  Act,  was  also  duly  published.  He contested as  a Congress  Party candidate in the election to No.40, Santacruz  Legislative Assembly  Constituency in 1990 for the  Maharashtra State  Assembly. The  appellant is  the returned candidate  who filed  his nomination on January 31, 1990 which  was accepted  on February  8, 1990. The poll was held on  February 27,  1990. The  result of the election was declared on  March 1,  1990 declaring that the appellant was duly elected.  He contested  election as a BJP candidate and was also  Vice President  of the  Bombay Unit  of  the  said party. He  secured single  largest majority  votes while the respondent  secured   second  largest.   By  judgment  dated December 19,  1991  the  High  Court  allowed  the  election petition.      In paragraph  186, the  High  Court  held  that    "the voluminous oral  as well  as documentary  evidence leaves no room for doubt that the plank of Hindutva/Hinduism/Hindu was used". In  paragraph 187  it is  held that "it is clear from the voluminous  material on  record that the campaign was on

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the basis  of appealing  for  votes  on  the  basis  of  1st Respondent’s  community   and  religion,   i.e.,  the  Hindu community and  religion and  that there  was an  attempt  to create  enmity  and  hatred  between  different  classes  of citizens on  the basis  of  religion,  community  and  caste particularly between  the Hindus  and Muslims". In paragraph 198 it  is further  held that  "prima facie,  it does appear that the  leaders have  appealed for  votes  for  the  Hindu candidates of the two parties on the basis of their religion and community.  Prima facie, it does appear that the leaders did attempt  to create  enmity and  hatred between different classes  of   citizen  on   the  grounds  of  community  and religion". In  paragraph 197, it is held that "[I]n my view, it will have to be held that the tape recordings contain the speeches made  at these  meetings. This is course is subject to hearing  the leaders  of these two parties on the Notices under Section  99 of  the Representation  of the People Act, 1951 which have been issued to them in Election Petition No. 21 of 1990".      Shri  A.M.   Khanwilkar,  learned   counsel   for   the appellant, contended  that in  view of the decisions of this Court in  Suryakant Venkatrao  Mahadik v. Smt. Saroj Sandesh Naik [Bhosale]  [(1996) 1 SCC 384], Ramakant Mayekar v. Smt. Celine D’Silva  [1996) 1  SCC 399], [1996) 1 SCC 378], Prof. Ramchandra G.  Kapse etc.  v. Haribansh  Ramakbal Singh etc. [1996) 1  SCC 206],  Moreshwar Save v. Dwarkadas Yashwantrao Pathrikar [1996)  1 SCC  394] the  findings  recorded  under Sections 123  [3] and 123 [3A] of the Act without compliance of the  requirements of notice and opportunity under Section 99, which  was held  to be  a duty of the Court, vitiate the declaration that  the appellant’s  allegations are baseless. The speeches  made by  the leaders  on  February  10,  1990, February 17,  1990, intervening night of February 20 and 21, February 23,  1990 within  the constituency  and on February 24, 1990  outside the  constituency, were  not made with his consent. Therefore,  corrupt practices have not been proved. By reason of the ratio in Manohar Joshi v. Damodar Tatyaba @ Dadasaheb Rupwate  [(1991) 2  SCC 342] [hereinafter referred to as  "Manohar Joshi  Case No.2"]  this Court had held that the court  has to  extract pleadings  of corrupt  practices, evidence -  oral and documentary in proof thereof and in the order the  Judge is  required to  indicate portions  of  his findings of the speaker appealing to the voters on the basis of religion  etc. The  court should  supply  the  pleadings, evidence - oral and documentary and the copy of the order so as to  enable notice to adequately meet the ground on which he is  proposed to  be named  in the  order. This  mandatory requirement has  not  been  complied  with.  Therefore,  the judgment is  clearly illegal.  He, therefore,  requested  to remit the  matter for  taking the  proceedings under Section 99(1) proviso  as interpreted  in Manohar  Joshi Case  No.2. Shri B.A.  Desai, learned  counsel for  the respondent,  has controverted the same.      Prima facie,  the following  three questions  which are interwoven, arise for decision in the case: [i] whether the learned Judge who tried the case is required to record  prima facie  conclusions on  proof of the corrupt practices committed  by the returned candidate or his agents or collaborators [leaders of the political party under whose banner the returned candidate contested the election] or any other person on his behalf? [ii] whether  the  consent  of  the  returned  candidate  is required to  be proved  and if  so, on  what basis and under what circumstances the consent is held proved? [iii] on  reaching the conclusion that consent is proved and

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prima facie corrupt practices are proved, whether the notice under Section  99(1) proviso  (a) should  contain, like mini judgment, extraction of pleadings of corrupt practices under Section  123,  the  evidence  -  oral  and  documentary  and findings on  each of  the corrupt  practices by  each of the collaborators, if  there are  more than one, and supply them to all  of them  for giving  an opportunity  to be  complied with?      There is  a common  thread that  runs  through  many  a decision of  this Court  which mandates  as duty of the High Court under  sub-section [1] of Section 99, requiring at the time of  making an  order under  Section 98 to make an order recording the  names of  all persons,  if any, who have been proved at  the trial  to have  been guilty  of  any  corrupt practice and  the nature of that practice. The High Court is required to  refer names of all persons proved guilty of any corrupt practice  which have been proved at the trial. Under proviso to  subsection [1],  the person  who has  not been a party to  the petition  has to  be given  notice  to  appear before the  High Court  to show  cause why  he should not be named. If  he appears  pursuant to  the notice, he should be given an  opportunity of cross-examining any witness who has already been examined and given evidence and of calling evidence in his defence and of being heard.      In   Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte &  Ors.[(1996) 1 SCC 130], the scope of the content of the notice  under Section  99(1), proviso  (a)  came  up  or consideration. Background  facts to  the said  decision  are required to  be stated  here. In  Election Petition  No.1 of 1988 which is the subject matter of the above appeal, at the close of  the trial,  by order dated September 23, 1988, the learned Judge while holding that notice under Section 99 was necessary, the  court reached  prima facie  finding that the charges alleged  in the  petition of  the corrupt  practices under Section  123 [3] and 123 [3A] have been proved against the named  persons and directed notice to them to show cause why they should not be so named in the order of the election petition; the  notice indicated that the named persons shall have opportunity  to  cross-examine  the  witnesses  already examined at  the trial  and gave evidence against him and of calling  evidence   in  his  defence  and  of  being  heard. Accompanying  the   notice,  photocopies  of  the  petition, written statement,  the issues,  the  evidence  -  oral  and documentary were  supplied. In furtherance thereof, Shri Bal Thackeray had  appeared on  September 27, 1988 and contended that the  notice was vague since the notice did not indicate as to  which portions  of the  speeches  were  believed  and relied upon  to reach prima facie conclusion. By order dated October 10, 1988, the learned Judge overruled the objections by a  written order  which was  challenged in  Special Leave Petition No.13163  of 1988.  A Bench  of two  Judges of this Court by order dated December 1, 1988 dismissed the petition holding that  notice under  Section 99  was not  required to specify all  the portions  of the  speeches indicated  to be corrupt practices under sub-sections [3] and [3A] of Section 123. However,  liberty was given to Bal Thackeray to file an application before  the High  Court seeking to specify those portions which  according to  the  Court  prima  facie  come within the  purview of  sub-section [3]  or [3A]  of Section 123. If  such an  application was  made, the  High Court was directed to dispose of it in accordance with law.      Subsequently, an  application came  to be  made and  by order dated  December 16,  1988 the  learned Judge held that Section 99  does  not  require  the  court  to  analyze  the evidence and  specify either  in the notice under Section 99

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or at  any time  prior to hearing the persons to whom notice had been  issued, "portion  or portions  thereof in its view prima facie to make out the case which the notice is called upon to  answer". His  position can  be no  better than  the elected candidate.  It was  held that  the  notice  is  not entitled to be specified by the Court of the portions of the speeches which  according to  it prima facie fall within the purview of  sub-section [3] or (3A) of Section 123 either in the show  cause notice under Section 99 or at any time prior to so  showing cause.  Accordingly, the  High Court directed the  counsel  appearing  for  the  election  petitioner  "to indicate on  which portions  of the  speeches or evidence he seeks to  place reliance  at the  hearing  of  the  election petition" and  directed him to furnish to the notice or his advocate xerox copy of those speeches, marking in the margin thereof the  portions that  are so stressed. Accordingly, it was done.  The Special  Leave Petition  No.507 of 1989 filed against that  order came  to be  dismissed  by  order  dated January 23, 1989 of another Bench of two Judges.      In the  light of  the above background, an argument was raised in  the appeal  that the appellant was prejudiced for non-compliance of  the procedure under Section 99. The Bench had held  that "it  is difficult to visualize what prejudice was caused  to the  notice on  these facts  and  how  there should be  any  non  -  compliance  of  Section  99  of  the Representation of  the  People Act in this situation" and it was held  that, in  short, the  opportunity which a party to the petition  had at  the trial  to  defend  allegations  of corrupt practices  is to  be given  by such a notice to that person of  defending himself  if he was not already a  party to the  petition. In  other words,  the notice  has  to  be equated with  a party  to the  petition for this purpose and has to  be given  the same opportunity which he would get of he was  made a  party to the petition. This is the pragmatic test to  be applied  for deciding the question of compliance of requirements  of Section  99, the opportunity required to be given  by virtue of proviso to sub-section [1] of Section 99 is  the same  and not more than that available to a party to the  petition to  defend himself  in respect  of  corrupt practices. It  was held,  therefore, that the grievance that the portion  of the  material which formed the record at the trial was  not purposely communicated to the notice, had no merit.      The earlier Bench of three Judges in Manohar Joshi Case No.2 [supra]  in the  same situation arising out of Election Petition No.9  of 1990  from the  same Court  had held  that notice should  contain the portions of the petition, written statement, oral  and documentary evidence which is sought to be relied  upon in support of the said charge or each of the said charges  and the  prima facie findings thereon which is the minimum  safeguard. In  other words, a mini judgment was required to  be rendered.  The orders  referred  to  on  the special leave petitions in Dr. Probhoo’s case were deemed to have  been  overruled.  It  would  thus  be  seen  that  the decisions in  Manohar Joshi’s   No.2  and Dr.  Dr. Prabhoo’s case are mutually conflicting. If this Bench was to take yet another view,  it would  create yet another dimension. Which of the  two views  is correct is the question required to be decided by a larger Bench of five Judges.      In Dr.  Prabhoo’s case it  was held that counsel to the speeches of  the collaborators  by  the  returned  candidate should be  inferred and  accordingly in paragraphs 53 and 57 the Court inferred such a consent but in other cases, it was held that consent is required to be proved. There appears to be some  inconsistency in  the above view. In any case as to

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when the  case is held proved has not been specifically laid as law. This requires to be authoritatively decided.      As stated  earlier when  and under  what  circumstances speeches of the leaders of the political party or the appeal of any  other person  with the consent by a candidate or his election agent  to vote or refrain from voting on the ground of religion,  race, caste  or community or language, etc. or promotion or  an attempt  to promote  feelings of  enmity or hatred between different classes of citizens of India on the ground of  religion, race, caste, community or language with the consent  of the  candidate or his election agent for the furtherance  of   the  prospects  of  the  election  of  the candidate  or  prejudicially  affect  the  election  of  any candidates constitutes  corrupt practice  under sub-sections [3] or  [3A] of  Section 123.  Its content  and  scope  also require  to   be  clearly  laid  down  authoritatively  lest miscarriage  of   justice  in   interpretation  of  "corrupt practice" involved  in every  election petition would ensue. The purity  of election  process gets  fouled and be fraught with deleterious effect in a democratic polity.      Thus,  without   expressing  any   opinion   on   these questions, we  are of the view that the entire case requires to be  heard and  decided by  a large  Bench of  five Judges since the  decision thereon  upon the   purity  of  election process and requires to be decided authoritatively.      We, therefore,  direct the  Registry to  place the case before  our   learned  brother,   the  Chief   Justice   for constituting  a   larger  Bench  of  five  Judges,  and,  if possible, at an early date so that all the questions arising in the  present appeal  could be decided authoritatively and expeditiously.      Thus, this reference order of in the above terms.