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PETITIONER: CHANDRAKANTA GOYAL

       Vs.

RESPONDENT: SOHAN SINGH JODH SINGH KOHLI

DATE OF JUDGMENT11/12/1995

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) SINGH N.P. (J) VENKATASWAMI K. (J)

CITATION:  1996 AIR  861            1996 SCC  (1) 378  JT 1995 (9)   114        1995 SCALE  (7)88

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T J.S. VERMA, J.:      This  is   an  appeal   under  Section   116A  of   the Representation of the People Act, 1951 (for short "the Act") by the  returned candidate  against the judgment dated 1st & 2nd July,  1991 of H. Suresh, J. of the Bombay High Court in Election Petition  No. 19  of 1990  by which the election of the appellant has been set aside on the ground under Section 100(1)(b) for  commission of  corrupt practices  under  sub- sections (3)  and (3A)  of  Section  123  of  the  Act.  The appellant was  candidate of  the Bhartiya  Janata Party  and respondent was  the candidate of the Janata Dal for election to the Maharashtra Legislative Assembly from No. 33, Matunga Constituency  held   on  27.2.1990.   The  appellant  became candidate at  the election on 8.2.1990. The date of poll was 27.2.1990 and  the election  result was declared on 1.3.1990 at which  the appellant  was declared  duly  elected  having secured  31,530   votes  while   the  respondent   (election petitioner)  had  secured  28,021  votes  and  the  Congress candidate secured  28,426 votes.  The election  petition was filed  on   the  ground  under  Section  100(1)(b)  alleging commission of  corrupt practices  under Sections  123(3) and 123(3A) of  the Act. These corrupt practices were alleged on the  basis   of  certain  speeches  made  on  29.1.1990  and 24.2.1990 by leaders of the political alliance of B.J.P. and Shiv Sena  which supported  the candidature of the appellant who was  a B.J.P.  candidate. In  addition, speeches  of the appellant made  on 8.2.1990  and 15.2.1990  were also relied on. The gravamen of the charge of corrupt practices was that these speeches  amounted to  appeal to  the  voters  on  the ground of  Hindu religion  which  is  the  religion  of  the appellant.      The High  Court rejected the claim made in the petition that the  speeches of  the appellant  made on  8.2.1990  and

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15.2.1990 amounted  to the  above corrupt practices. Learned counsel for the respondent rightly made no attempt to assail this finding  of the  High Court to support the judgment. We have been taken through the contents of the speeches made by the appellant  on 8.2.1990  and 15.2.1990  in  her  election campaign. We  find nothing  therein to doubt the correctness of the  High Court’s  finding that  both these  speeches are innocuous and  there is nothing in them to constitute any of the corrupt  practices under sub-sections (3) and/or (3A) of Section 123 of the Act.      So far  as the  speeches of  29.1.1990  are  concerned, there can be no doubt that the same have no relevance in the present context inasmuch as they were acts prior to the date on which  the appellant  became a candidate at the election. This being  so, any  speech made  prior to the date on which she became a candidate at the election cannot form the basis of a  corrupt practice  by any  candidate at  that  election since any  act prior  to the  date of  candidature cannot be attributed to  her as  a candidate at the election. For this reason, the  learned counsel for the respondent rightly made no attempt  to dispute  this position.  {See - Subhash Desai vs. Sharad J. Rao and Others : 1994 Supp.(2) SCC 446.}      Any further  discussion of  the speeches  given at  the meetings held on 29.1.1990 is, therefore, unnecessary.      The only remaining speeches for consideration are those made at  the meeting  of 24.2.1990 by certain leaders of the alliance. There was no speech made by      indulged in  corrupt  practices,  it  is      proper that  such  a  notice  be  given.      Thereafter   he   must   be   given   an      opportunity   to    cross-examine    the      witnesses, if  he so  desires and he has      to be  heard. But  it is  not  mandatory      that in  every matter  the Court  should      adopt proceedings  under Section  99  of      the Act, 1951.      65.  In  the  present  case,  I  do  not      propose to issue any such notice as I do      not  intend   to  name   them  in  these      proceedings. I understand that as far as      Bal Thackeray  is concerned,  there  are      already  such  notices  pending  against      him. I  am not  aware whether  any  such      notice   is   pending   against   Pramod      Mahajan. But, I think, if one has regard      for the  time that  is consumed  in such      electoral battles  within the  precincts      of the  Court, particularly  at the cost      of large  number of other urgent matters      pending in  this Court, I would say that      it is  not expedient  in the interest of      justice  to   issue  such   notices.   A      pragmatic approach  in all  such matters      is the  paramount need  of the  hour.  I      would therefore  say "thus  far  and  no      further" in  matters of  this type, in a      situation like  this, hoping  that it is      for the  leaders to  reflect  upon  what      they have done, in their own conscience.      It is  a sad commentary on our electoral      law, despite  Court  verdicts,  election      campaigns are  carried on  in  a  manner      rendering  the  legal  process  socially      irrelevant."                           (emphasis supplied)

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    The learned  trial Judge  has not even recorded a clear finding of  the appellant’s consent to the speeches given by the other  persons for which the returned candidate has been held to  be guilty  without the  compliance of Section 99 of the Act.  We have already held in the connected Civil Appeal No. 4973  of 1993  - Manohar Joshi vs. Nitin Bhaurao Patil & Anr. -  decided today,  that when  a candidate is held to be guilty of  corrupt practice  vicariously for  an act done by any person  other than  his agent with his consent, then the ultimate finding  to this  effect has  to be  recorded  only after notice  under Section  99 to  that other person and an inquiry held  as  contemplated  therein,  naming  the  other person  simultaneously   for  commission   of  such  corrupt practice. This  order is  to be made at the end of the trial which is  the effect  of the  combined reading of Section 98 and 99  of the  Act. For  this reason, deciding the election petition and  making an  order under  Section 98 against the returned candidate  without complying  with the requirements of Section 99 when the corrupt practice against the returned candidate is  held to  be proved  vicariously for the act of another person  by itself  vitiates the judgment. It is also clear that  the court has no option in this matter and it is incumbent to  name such  a person in the final verdict given in the  election petition  under Section 98 of the Act after making due compliance of Section 99.      The learned  trial  Judge  acted  contrary  to  law  in ignoring the  mandate of Section 99 and taking the view that there was  an option to ignore the requirement of Section 99 to give  notice to  the makers  of the  speeches and to name them as  persons guilty  of the corrupt practice even though those speeches  are  made  the  foundation  of  the  corrupt practice held  to be  proved against the returned candidate. The  judgment  is  obviously  vitiated  since  no  concluded finding on  this question  could have  been recorded against the  returned   candidate  alone   choosing  to  ignore  the requirement of Section 99 and without also naming the makers of those speeches.      The question  now is  of the effect of the above defect in the  impugned judgment.  Ordinarily in  such a  situation after setting  aside the  impugned judgment the matter is to be remitted  to the  High Court  for deciding  the  election petition afresh  after complying  with the  requirements  of Section 99  of the Act by giving notice to the makers of the speeches and  holding the requisite inquiry. However, in the present case, such a course would not be appropriate. No act of the  appellant herself  is found  to be offending and her own speeches  were held  to be  innocuous even  by the  High Court. The  only surviving  allegations relate  to  speeches made by some leaders of the political parties for which even the  High   Court  has  not  recorded  a  clear  finding  of appellant’s consent  thereto and  the High  Court has merely said that  the consent may be implied from the fact that the makers of the speeches were leaders of the political party.      As an  abstract proposition  of law  it cannot  be held that every  speech by  a leader of a political party, who is not an  agent of  the candidate  set up  by  the  party,  is necessarily with the consent of the candidate set up by that party  to  make  it  superfluous  to  plead  and  prove  the candidate’s consent,  if that speech otherwise satisfies the remaining constituent  parts of  a corrupt practice. The act amounting to a corrupt practice must be done by ‘a candidate or his  agent or  by any  other person with the consent of a candidate or  his election  agent’. A  leader of a political party is not necessarily an agent of every candidate of that party. An  agent is  ordinarily a  person  authorised  by  a

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candidate to  act on  his  behalf  on  a  general  authority conferred on  him by the candidate. Ordinarily, the agent is the understudy  of the  candidate and  has to  act under the instructions given  to him,  being under  his  control.  The position of  a leader is different and he does not act under instructions of  a  candidate  or  under  his  control.  The candidate is  held to  be bound by acts of his agent because of the  authority given  by the candidate to perform the act on his  behalf. There  is no  such relationship  between the candidate and  the leader, in the abstract merely because he is a  leader of  that party. For this reason, consent of the candidate or his election agent is necessary when the act is done by any other person. Thus, even in the case of a leader of the  party, ordinarily,  consent of  the candidate or his election agent  is to be pleaded and proved, if the election of the  candidate is  to  be  declared  void  under  Section 100(1)(b) for  the corrupt practice committed by the leader. It is  a different  matter that  the consent  may be implied more readily  from circumstances  such  as  conduct  of  the candidate evident  from his  personal presence  at that time and place without any protest. On this scanty material and a half-hearted presumption of consent drawn only from the fact that the  speeches were  made by leaders of the party, which is a  constituent part  of  the  corrupt  practice  and  the further fact  that the  Legislative Assembly  for which that election was  held has  been dissolved  and the next general election thereto  has also  taken place,  a  remand  in  the present case is uncalled for.      For the  aforesaid reasons,  the appeal is allowed. The impugned judgment is set aside resulting in dismissal of the election  petition.   The  appellant   will  get  her  costs throughout from the respondent.