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PETITIONER: MANOHAR JOSHI

       Vs.

RESPONDENT: NITIN BHAURAO PATIL & ANR.

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  796            1996 SCC  (1) 169  JT 1995 (8)   646        1995 SCALE  (7)30

ACT:

HEADNOTE:

JUDGMENT:                           JUDGMENT J.S. VERMA, J. :      This  is   an  appeal   under  Section   116A  of   the Representation of  the People Act, 1951 (for short "the R.P. Act") against  the judgment dated 26.4.1993 by S.N. Variava, J. of  the Bombay  High Court in Election Petition No. 24 of 1990 whereby  the election of the appellant Manohar Joshi to the  Maharashtra   Legislative  Assembly   from  32,   Dadar Constituency of  Greater Bombay  held on  27.2.1990 has been declared to be void on the ground under Section 100(1)(b) of the R.P. Act.      Manohar Joshi  was the  candidate of  the BJP-Shiv Sena alliance  at  that  election  while  the  original  election petitioner Bhaurao  Patil (now  dead), was  the candidate of the Congress  (I) Party.  Manohar Joshi  secured the highest number of  votes i.e.  47,737, while  Bhaurao Patil  secured 24,354 votes.  Accordingly, Manohar  Joshi was declared duly elected on 1.3.1990.      Admittedly, the  last  date  for  filing  the  election petition according  to the  limitation  prescribed  in  sub- section (1)  of Section 81 of the R.P. Act was 14.4.1990 but the election  petition was  actually presented in the Bombay High Court  on 16.4.1990  was a  Saturday on  which date the High Court  as well as its office was closed on account of a public holiday  and 15.4.1990  was Sunday on which date also the High  Court as  well  as  its  office  was  closed  and, therefore,  the   election  petition  could  not  have  been presented on  either of  these two dates. The first question which arises,  relates to  compliance of  which renders  the election petition  liable for  dismissal under Section 86 of the R.P. Act.      The election petition alleged the commission of corrupt practices under  sub-sections (3) and (3A) of Section 123 of the R.P.  Act and  sought declaration  of  the  election  of

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Manohar Joshi  to  be  void  on  the  ground  under  Section 100(1)(b) of  the R.P.  Act. The  corrupt practices  alleged were, in substance, speeches on 24.2.1990 at Shivaji Park by the returned candidate Manohar Joshi and leaders of the BJP- Shiv Sena  alliance,namely, bal  Thackeray, Chhagan  Bhujbal and Pramod  Nawalkar; and  some audio  and  video  cassettes played during  the  election  campaign  alleged  to  contain material constituting  these corrupt  practices. Any further reference to  the audio  cassettes is unnecessary since none was either  produced or relied on at the trial. The petition was supported  only on  the ground  of the said speeches and video casettes.  Further details  of the same would be given later at the appropriate stage.      The  High   Court  rejected  the  contention  that  the election petition  was time barred and, therefore, liable to be dismissed under Section 86 of the R.P.Act. The High Court has held  that  the  corrupt  practices  alleged  have  been proved. Consequently, the election petition has been allowed and the election of the returned candidate Manohar Joshi has been declared  to  be  void  on  the  ground  under  Section 100(1)(b) of the R.P. Act. Hence this appeal.      It  would   be  appropriate  to  first  deal  with  the contention of Shri Ram Jethmalani relating to non-compliance of Section 81 of the R.P. Act which, if correct, renders the election petition  liable to  the dismissed under Section 86 thereof. The  arguments of  Shri Jethmalani  in this respect have to  be considered with reference to Sections 81, 83 and 86(1) which are as under :-      "81. Presentation  of petitions.- (1) An      election petition  calling  in  question      any election  may be presented on one or      more of  the grounds  specified in [sub-      section (1)]  of section 100 and section      101 to the [High Court] by any candidate      at such  election or any elector [within      forty-five days  from, but  not  earlier      than,  the   date  of  election  of  the      returned candidate, or if there are more      than  one   returned  candidate  at  the      election and the dates of their election      are different,  the later  of those  two      dates.]           Explanation.- In  this sub-section,      "elector"  means   a  person   who   was      entitled to  vote  at  the  election  to      which  the  election  petition  relates,      whether he has voted at such election or      not.      #[xx             xx                 xx      ##[(3) Every  election petition shall be      accompanied by as many copies thereof as      there are  respondents mentioned  in the      petition ###  and every  such copy shall      be attested  by the petitioner under his      own signature  to be  a true  coy of the      petition.]      ------------------      *Sub. by Act 27 of 1956, s.44, for "sub-      sections (1) and (2)".      **Subs. by  Act 47  of 1966,  s.39,  for      "Election  commission"   (w.e.f.  14-12-      1966).      ***Subs. by  Act 27 of 1956, for certain      words, i.e.,  "in such  form and  within      such time  but not earlier than the date

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    of publication  of the  name or names of      the returned  candidate or candidates at      such election  under Section  67, as may      be prescribed."      #Sub-section (2)  omitted by  Act 47  of      1966, s. 39 (w.e.f. 14-12-1966).      ##Ins. by  Act 40 of 1961, s. 17 (w.e.f.      20-9-1961).      ###Certain words  omitted by  Act 47  of      1966, s. 39 (w.e.f. 14-12-1966)."           "83. Contents  of petition.- (1) An      election petition -           (a)   shall   contain   a   concise      statement of the material facts on which      the petitioner relies;           (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 of  place of the commission of each      such practice; and           (c)  shall   be   signed   by   the      petitioner and  verified in  the  manner      laid  down   in  the   Code   of   Civil      Procedure, 1908  (5  of  1908)  for  the      verification of pleadings:           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."           "86. Trial of  election petitions.-      (1) The  High  Court  shall  dismiss  an      election petition  which does not comply      with the  provisions of  section  81  or      section 82 or section 117.           Explanation. - An order of the High      Court dismissing  an  election  petition      under this  sub-section shall  be deemed      to be  an order made under clause (a) of      section 98.      xxx               xxx                xxx      Shri Jethmalani  contended that  the election  petition should have  been dismissed  by the High Court in accordance with Section  86(1) of  the R.P.  Act for  non-compliance of sub-section (1)  of Section  81 because it was not presented within the  prescribed limitation; and it ought to have been dismissed thereunder, also for non-compliance of sub-section (3) of  Section 81.  For the  second part of the submission, Shri Jethmalani contended that sub-section (3) of Section 81 must be  read along with Section 83 and, therefore, the copy of the  election petition  must be  the copy  of a  petition satisfying the requirement of Section 83(1) of the R.P. Act. These are the two parts of the argument for invoking Section 86 for  dismissal of the election petition at the threshold. The question,  therefore, is:  Whether there  has been  non- compliance of  any part  of Section 81 to attract Section 86

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of the  R.P. Act  ? We  will consider  this argument  at the outset. NON-COMPLIANCE OF SUB-SECTION (1) AND/OR SUB-SECTION (3)  OF ----------------------------------------------------------- SECTION 81 OF THE R.P. ACT -------------------------- Re: Sub-section (1) of Section 81 ---------------------------------      In substance,  the point  for decision  is whether  the election petition filed on 16.4.1990 was presented within 45 days from  the date of election of the returned candidate as required by  sub-section (1)  of Section  81, since the last day  of   limitation,  so   reckoned,  fell   on  14.4.1990. Admittedly, the  High Court  and its  office was  closed  on 14.4.1990 as  well as  15.4.1990 on  account  of  which  the election petition  could not have been presented in the High Court on any of these two days. Incidentally, even 13.4.1990 was a holiday when the High Court and its office was closed, but that  is not  of any  significance since the last day of limitation was  14.4.1990. There  is no controversy that the provisions of the Limitation Act, 1963 are not applicable to the election  petitions required  to be  presented under the R.P. Act  and, therefore, Section 4 of the Limitation Act is of no  avail. The only question is whether Section 10 of the General Clauses Act, 1897 applies to an election petition to permit filing  of the election petition on the date when the High Court  opened after  the holidays. If Section 10 of the General Clauses Act is applicable then the election petition presented on  16.4.1990 was  within the  time prescribed  by sub-section (1)  of Section  81 and  there would  be no non- compliance of that provision to attract Section 86(1) of the R.P. Act  requiring dismissal  of the  election petition  as time barred.      The submission  of Shri Jethmalani is that the R.P. Act is  a  self-contained  Code  and,  therefore,  no  provision outside the Act can be imported for the purpose of computing the limitation  for presentation of an election petition. On this basis,  he submitted  that Section  10 of  the  General Clauses Act  has no application. In reply, Shri Ashok Desai, learned counsel  for  the  respondents  submitted  that  the scheme of  the R.P.  Act and  the legislative history of the limitation prescribed  by the  Act for  presentation  of  an election petition  clearly  show  that  Section  10  of  the General Clauses  Act applies  for computing  limitation  for presentation of an election petition. Shri Desai also relied on the  legal maxim  - ‘lex  non kojit  ad impossibillia’  - which means ‘the law does not compel a man to do that cannot possibly perform.’  Shri Desai  submitted that  the election petitioner was  entitled as of right to present the election petition on  the  last  day  of  limitation  which  fell  on 14.4.1990, but that day and the next day being holidays when the High  Court and  its office  was  closed,  the  election petition presented  on 16.4.1990, the first day on which the Court  and   its  office  opened  after  the  holidays,  was presented within  the prescribed  period of  limitation.  On this  basis,   Shri  Desai  submitted,  there  was  no  non- compliance of sub-section (1) of Section 81 of the R.P. Act.      Section 10  of the  General Clauses  Act,  1897  is  as under:-           "10. Computation  of   time.-   (1)      Where, by  any Central Act or Regulation      made after the commencement of this Act,      any act  or proceeding  is  directed  or      allowed to be done or taken in any Court      or office  on a  certain day or within a

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    prescribed period, then, if the Court or      office is closed on that day or the last      day of the prescribed period, the act or      proceeding shall  be considered  as done      or taken  in due  time if  it is done or      taken on  the  next  day  afterwards  on      which the Court or office is open:           Provided  that   nothing  in   this      section  shall   apply  to  any  act  or      proceeding   to    which   the    Indian      Limitation Act, 1877, applies.           (2)  This section  applies also  to      all Central Acts and Regulations made on      or after  the fourteenth day of January,      1887."      A brief  reference to  the legislative  history of  the limitation prescribed  by sub-section  (1) of  Section 81 is relevant. The  limitation  of  45  days  from  the  date  of election of  the returned  candidate for the presentation of an election petition, has been prescribed in sub-section (1) of Section  81 itself  by an  amendment by  substitution  of certain words  by Act 27 of 1956. Prior to it, the period of limitation was required to be prescribed by the Rules framed under the  R.P. Act according to the words then used in sub- section (1) of Section 81. Rule 119 of the Representation of the People  (Conduct of  Elections and  Election  Petitions) Rules,  1951  (for  short  "1951  Rules"),  prescribed  that period. The  1951  Rules  also  contained  Rule  2(6)  which expressly  provided  for  the  application  of  the  General Clauses Act to the provisions in the Rules.      A similar question relating to applicability of Section 10 of  the General Clauses Act arose when the limitation was prescribed by  the Rules  as required  by the  then existing sub-section (1)  of Section  81 in, H.H. Raja Harinder Singh vs. S.  Karnail Singh,  1957 SCR  208. It  was held  by this Court  that  Section  10  of  the  General  Clauses  Act  is applicable  to   the  presentation  of  election  petitions. Thereafter, the  same view has been taken in Hukumdev Narain Yadav vs. Lalit Narain Mishra, 1974 (3) SCR 31; Hari Shankar Tripathi vs.  Shiv Narayana  Rao vs.  M.  Budda  Prasad  and Others, 1994  Suppl. (1)  SCC 449  = 1991  (1) SCJ  281. The later decisions were in relation to election petitions filed after  amendment   of  Section  81(1)  by  Act  27  of  1956 prescribing the  limitation in  this  Section  itself.  Shri Jethmalani tried  to  distinguish  those  decisions  on  the ground that the earlier decision in H.H. Raja Harinder Singh vs. S.  Karnail Singh,  1957 SCR  208 was  followed  without noticing the  legislative change by amendment of sub-section (1) of  Section 81.  In view of the fact that this point was not raised in the manner it has been done by Shri Jethmalani before us,  it is  appropriate that we consider the merit of this submission.      It is  settled by the decision of this Court in Ramlal, Motilal and Chhotelal vs. Rewa Coalfields Ltd., 1962 (2) SCR 762 at  page 767  that the  litigant has  a right  to  avail limitation upto  the last  day and his only obligation is to explain his  inability to  present the  suit/petition on the last day  of limitation  and each  day thereafter till it is actually presented.  This being the basic premise, it cannot be doubted  that the election petitioner in the present case was entitled  to avail the entire limitation of 45 days upto the last day, i.e., 14.4.‘990 and he was required to explain the inability  of  not  filing  it  only  on  14.4.1990  and 15.4.1990 since  the petition  was actually presented in the High Court  on 16.4.1990.  If  Section  10  of  the  General

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Clauses Act  applies, the  explanation is  obvious  and  the election petition  must be  treated to  have been  presented within time.      The question  now is  : Whether  the  applicability  of Section 10 of the General Clauses Act to the presentation of election petitions under the R.P. Act is excluded ? No doubt the R.P.  Act is  a self-contained Code even for the purpose of the  limitation prescribed  therein. This,  however, does not answer  the question.  It has  to be  seen  whether  the context excludes  the applicability  of Section  10  of  the General Clauses Act which is in the part therein relating to the General  Rules of  Construction of all Central Acts. The legislative   history    of   prescribing   limitation   for presentation of  election petitions  in accordance with sub- section (1)  or Section  81 is also significant for a proper appreciation of  the context.  Admittedly, Section 10 of the General  Clauses   Act  applied   when  by   virtue  of  the requirement in  the then existing sub-section (1) of Section 81, the  period of limitation was prescribed by Rules framed under the  R.P. Act, in Rule 119 of the 1951 Rules. This was expressly provided  by Rule 2(6) of the 1951 Rules. There is nothing to  indicate that providing the period of limitation in sub-section  (1) of  Section 81 itself by substitution of certain words  by Act  27 of 1956 instead of prescribing the limitation  by  Rules,  was  with  a  view  to  exclude  the applicability of  Section 10 of the General Clauses Act. The change appears  to have  been made  to provide  for a  fixed period in the Act itself instead of leaving that exercise to be performed  by  the  rule  making  authority.  An  express provision in  Rule 2(6) of the 1951 Rules was required since the General  Clauses Act ipso facto would not apply to Rules framed under  the Central  Act, even  though it would to the Act  itself.  The  context  supports  the  applicability  of Section 10  of the General Clauses Act instead of indicating its exclusion  for the  purpose of  computing the limitation prescribed in sub-section (1) of Section 81 for presentation of election petition.      In  view   of  the  basic  premise  that  the  election petitioner is  entitled to avail the entire limitation of 45 days for  presentation of the election petition as indicated by Ramlal  (supra), if  the contrary view is taken, it would require the  election petitioner  to perform  an  impossible task in  a case  like the  present, to  present the election petition on  the last  day of  limitation on  which date the High Court  as well  as its  office is  closed.  It  is  the underlying principle  of this legal maxim which suggests the informed  decision  on  this  point,  leading  to  the  only conclusion that  Section  10  of  the  General  Clauses  Act applies in  the computation  of the limitation prescribed by sub-section  (1)   of  Section   81  of  the  R.P.  Act  for presentation of  an election petition. So computed, there is no dispute  that the  election  petition  presented  in  the present case  on 16.4.1990  was within  limitation and there was no  non-compliance of  sub-section (1)  of Section 81 of the R.P. Act.      We have reached the above conclusion independent of the above  decisions   of  this   Court  rendered  on  petitions presented subsequent  to the amendment of sub-section (1) of Section 81.  It may  straightaway be  said that in all these cases applicability of Section 10 of the General Clauses Act was either not doubted or was taken for granted. This is how the position  has been understood for all these years and no case taking  the contrary  view has  been cited  at the Bar. This settled position is in conformity with the view we have taken on  this point.  There is  no basis  is law  to take a

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different view. Re: Sub-section (3) of Section 81 ---------------------------------      Sub-section (3)  of Section 81 requires ‘every election petition to be accompanied by as many copy thereof’ as there are respondents,  obviously for the purpose of a copy of the election petition  being served  upon each  respondent along with the  notice of the election petition. The submission of Shri  Jethmalani   is  that   the  election   petition  and, therefore, its  accompanying copy in accordance with Section 81(3) should  satisfy the  requirement of sub-section (1) of Section 83  as to  the contents  of the  petition. He argues that if the contents of the election petition which has been filed and  the copy  accompanying  it  do  not  satisfy  the requirement of  Section 83(1),  there is  non-compliance  of Section 81(3)  attracting Section  86 for  dismissal of  the election petition. The argument is that the defect in such a case is  in the  accompanying copy  of the election petition which is  dificient in  its contents  as required by Section 83(1). For  this reason,  he submits,  it  results  in  non- compliance of Section 81(3) which attracts Section 86 of the R.P. Act.      In the present case, there is reference in paras 32 and 33 of  the election petition to certain video cassettes, the contents of which are deemed to be incorporated by reference in the election petition, and since the video cassettes or a transcript of  its contents  was not  filed along  with  the election petition  and was not supplied with the copy of the election petition to the respondent (returned candidate), it is argued, that it has resulted in non-compliance of Section 81(3) which attracts Section 86. No further reference to the audio cassettes  is necessary since the audio cassettes were not produced even at the trial and were not relied on by the election petitioner for proof of the corrupt practice. These video cassettes  were later  produced at  the trial  but the subsequent production  of the  video cassettes at the trial, it is  urged, does  not cure the defect of non-compliance of Section 81(3). In reply, Shri Ashok Desai submitted that the video cassettes  did not  form part of the election petition as the contents thereof are not incorporated by reference in the election  petition and, therefore, non-production of the video  cassettes  or  their  transcript  with  the  election petition and  failure to  annex the  same to the copy of the election petition  served on  the returned candidate did not amount  to  non-compliance  of  Section  81(3).  Shri  Desai submitted that  Section 81(3)  merely requires  the copy  to conform with the election petition as presented in the court and not  an election  petition as  required  to  be  drafted according to  Section 83(1)  of the  R.P.  Act.  He  further submitted that  any defect  or deficiency in the contents of the election  petition found with reference to Section 83(1) of the R.P. Act may have any other consequence requiring the court to act under Order 7 Rule 11 C.P.C. or order 6 Rule 16 C.P.C., but  there is  no non-compliance of Section 81(3) if the copy  accompanying the election petition which is served on the respondent is identical with the election petition as it is  actually presented in the court. In short, Shri Desai submitted that  non-compliance of  Section 83(1) of the R.P. Act is  not visited with the consequence of dismissal of the election petition  at the  threshold under  Section 86  and, therefore, the  non-compliance of  Section 81 which attracts Section 86 has to be seen without reference to Section 83 of the R.P.  Act. Both  sides have  placed reliance on the same set of decisions to support the rival contentions.      There is  no dispute  that  the  election  petition  as

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presented in  the court,  was accompanied  by as many copies thereof as  there were respondents in the election petition; and the copy of the election petition served on the returned candidate with  the notice  of  the  election  petition  was identical with  the election petition as it was presented in the court.  The requirement of the plain language of Section 81(3) was, therefore, fully met. The object of the provision is clearly  to ensure  that each  respondent to the election petition gets  an identical copy of the election petition as presented in  the court  to acquaint the respondent with the actual and  full contents  of the election petition as it is presented in  the court.  On the  basis of the idential copy the respondent  can prepare  his defence  and also  take the plea of  deficiency, if any, in the contents of the election petition with  reference to  Section 83  of the R.P. Act, in order to  apply in  the court  for action  being taken under order 7  Rule 11 or Order 6 Rule 16, C.P.C., as the case may be. These  provisions are  attracted only after the election petition  survives   the  liability  for  dismissal  at  the threshold under Section 86 of the R.P. Act.      Section 86  empowers  the  High  Court  to  dismiss  an election petition  at the  threshold if  it does  not comply with the  provisions of  Section 81 or Section 82 or Section 117 of the Act, all of which are patent defects evident on a bare examination of the election petition as presented. Sub- section  (1)   of  Section   81  requires  the  checking  of limitation with  reference to  the admitted  facts and  sub- section (3)  thereof requires  only a comparison of the copy accompanying  the   election  petition   with  the  election petition  itself,   as  presented.   Section   82   requires verification of  the required  parties to  the petition with reference to  the relief  claimed in  the election petition. Section 117 requires verification of the deposit of security in the  High Court  in accordance  with rules  of  the  High Court. Thus,  the compliance of Section 81, 82 and 117 is to be seen  with reference  to the  evident facts  found in the election petition  and the  documents filed along with it at the time  of its  presentation. This  is a  ministerial act. There is no scope for any further inquiry for the purpose of Section 86  to ascertain  the deficiency,  if  any,  in  the election petition  found with  reference to the requirements of Section  83 of the R.P. Act which is a judicial function. For this  reason, the  non-compliance of  Section 83, is not specified as a ground for dismissal of the election petition under Section 86.      Acceptance of  the argument  of Shri  Jethmalani  would amount to  reading into  Section 86 an additional ground for dismissal of the election petition under Section 86 for non- compliance of  Section 83.  There is  no occasion  to do so, particularly when  Section 86 being in the nature of a penal provision, has  to be  construed strictly  confined  to  its plain language.      We may  now refer  to the  decisions of  this Court  on which reliance  is placed by both sides to support the rival contention on  this point.  In Sahodrabai  Rai vs. Ram Singh Aharwar, 1968  (3) SCR  13, a  translation in English of the pamphlet annexed  to the  election petition was incorporated in the  body of  the election  petition and it was stated in the petition that it formed part of the petition. Along with the copy of the election petition which contained the entire transcript in  English  of  the  pamphlet,  a  copy  of  the pamphlet had  not been  annexed. The  respondent raised  the objection that  the copy  of the election petition served on him was not a copy of the election petition presented in the High Court  and, therefore, the election petition was liable

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to be  dismissed under  Section 86  of the  R.P. Act. It was held by  this Court  that the pamphlet which was filed as an annexure to  the election  petition must  be  treated  as  a document filed  with the election petition and not a part of the election  petition  in  so  far  as  the  everments  are concerned.  Obviously,  this  view  was  taken  because  the contents of  the pamphlet  were incorporated  in the body of the election petition of which a copy was duly served on the respondent. Accordingly,  it was held that there was no non- compliance of  Section 81(3) and the petition was not liable to be  dismissed under  Section 86  of the  R.P. Act.  In A. Madan Mohan  vs. Kalavakunta  Chandrasekhara, 1984  (2)  SCC 288, the  earlier decision  in Sahodrabai  Rai  (supra)  was followed. It  was held  that  failure  to  furnish  copy  of schedules and  documents which did not form an integral part of the  election petition  was not fatal to the petition and it was  not liable  to be  dismissed under Section 86 of the R.P. Act.  An earlier  decision in  M. Karunanidhi etc. etc. vs. Dr.  H.V. Hande  and others  etc. etc., 1983 (2) SCC 473 was distinguished and it was pointed out that M. Karunanidhi (supra)  did   not  depart  from  the  ratio  laid  down  in Sahodrabai Rai  (supra). Para 15 of the decision in A. Madan Mohan (supra) is as under:-           "This decision  in no  way  departs      from the  ratio laid  down in Sahodrabai      case.  The    aforesaid  case,  however,      rested on  the ground  that the document      (pamphlet) was  expressly referred to in      the election petition and thus became an      integral part  of the  same and ought to      have been  served on  the respondent. It      is, therefore,  manifest that  the facts      of the  case  cited  above  are  clearly      distinguishable from  the facts  of  the      present case.  Furthermore, the decision      in M.  Karunanidhi case  has noticed the      previous decision and has fully endorsed      the same."                                 (at page 292) This decision  by a  3-Judge Bench  also indicated that this stringent  provision   must  be   construed  literally   and strictly. Para 13 of the decision is as under:           "It is  a well settled principle of      interpretation of  statute that wherever      a statute  contains stringent provisions      they  must  be  literally  and  strictly      construed so as to promote the object of      the Act.  As extracted above, this Court      clearly held  that if  the arguments  of      the appellant  (in that case) were to be      accepted, it  would  be  stretching  and      straining the language of Section 81 and      82 and we are in complete agreement with      the view  taken by  this Court which has      decided the issue once for all."                                 (at page 291) Another  decision   referred  is   U.S.  Sasidharan  vs.  K. Karunakaran and  Another, 1989  (4) SCC 482. That was a case in  which  a  document  was  incorporated  in  the  election petition by  reference  and  was  filed  with  the  election petition in a sealed over but a copy was not supplied to the returned  candidate  along  with  a  copy  of  the  election petition. In  such a  situation, it  was  held  to  be  non- compliance of  Section 81(3) rendering the election petition liable for  dismissal under  Section 86(1)  of the R.P. Act.

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This conclusion  was reached  on the view that non-supply of copy of  the document  with a  copy of the election petition was a  fatal defect  because the  document was  filed in the High Court  with the  election petition  and  it  formed  an integral part  of the  election petition. This decision also indicates the  distinction between  a  document  forming  an integral part  of the  election petition  and being produced merely as  evidence of  an averment  made  in  the  election petition.      The distinction  brought out in the above decisions is, that in  a  case  where  the  document  is  incorporated  by reference in  the election  petition without reproducing its contents in  the body  of the election petition, it forms an integral part of the petition and if a copy of that document is not  furnished to  the respondent  with  a  copy  of  the election petition,  the defect is fatal attracting dismissal of the  election petition  under Section  86(1) of  the R.P. Act. On  the other  hand, when  the contents of the document are fully  incorporated in the body of the election petition and the  document also  is filed with the election petition, not furnishing  a copy  of the  document with  a copy of the election petition  in which the contents of the document are already incorporated,  does not  amount to non-compliance of Section 81(3)  to attract  Section 86(1) of the R.P. Act. In other words,  in the former case the document filed with the election petition  is  an  integral  part  of  the  election petition being  incorporated by  reference in  the  election petition and  without a copy of the document, the copy is an incomplete copy  of the  election petition  and,  therefore, there is  non-compliance of  Section  81(3).  In  the  other situation, the  document annexed  to the  petition  is  mere evidence of  the averment  in the  election  petition  which incorporates fully  the contents of the document in the body of the  election petition  and, therefore,  non-supply of  a copy of  the document is mere non-supply of a document which is evidence  of the  everments in the election petition and, therefore, there  is no  non-compliance of Section 81(3). In U.S. Sasidharan (supra), this distinction is clearly brought out as under:-           "........  The  material  facts  or      particulars  relating   to  any  corrupt      practice may  be contained in a document      and  the  election  petitioner,  without      pleading   the    material   facts    or      particulars  of  corrupt  practice,  may      refer  to  the  document.  When  such  a      reference  is   made  in   the  election      petition, a copy of the document must be      supplied  inasmuch   as  by   making   a      reference to  the document  and  without      pleading its  contents in  the  election      petition,    the     document    becomes      incorporated in the election petition by      reference. In  other words,  it forms an      integral part  of the election petition.      Section 81(3) provides for giving a true      copy of  the election  petition. When  a      document forms  an integral  part of the      election petition  and a  copy  of  such      document  is   not  furnished   to   the      respondent along  with  a  copy  of  the      election  petition,   the  copy  of  the      election petition  will not  be  a  true      copy within the meaning of Section 81(3)      and, as  such, the  court has to dismiss

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    the  election   petition  under  Section      86(1) for  non-compliance  with  Section      81(3)."           "On the other hand, if the contents      of the  document in question are pleaded      in the  election petition,  the document      does not  form an  integral part  of the      election petition.  In such  a  case,  a      copy of  the document need not be served      on the  respondent and  that will not be      non-compliance  with  the  provision  of      Section  81(3).   The  document  may  be      relied  upon   as  an  evidence  in  the      proceedings. In  other words,  when  the      document does  not form an integral part      of the  election petition,  but has been      either referred  to in  the petition  or      filed in  the proceedings as evidence of      any fact, a copy of such a document need      not be  served on  the respondent  along      with a copy of the election petition."                              (paras 15 and 16                                at page 489)      It may  be mentioned  that in  all the  above decisions cited at the Bar, the document in question had been filed in the court  along with  the election  petition, but a copy of that document  was not  supplied to  the respondent with the copy of  the election  petition. In  those cases wherein the annexed document was treated to be incorporated by reference in the  election petition  forming an  integral part  of the election petition,  non-supply of a copy of the document was held to  be  fatal  warranting  dismissal  of  the  election petition under  Section 86(1)  for non-compliance of Section 81(3). In  the other  cases, the document was filed with the election  petition,  but  the  contents  thereof  were  also incorporated in the body of the election petition, a copy of which had  been supplied  to the respondent even though copy of that  document was  not furnished  in addition.  In those cases, non-supply  of a copy of the document was held not to be non-compliance  of Section  81(3)  because  the  document annexed to  the election petition was treated as evidence of the  averments   contained  in  the  body  of  the  election petition,  a  copy  of  which  had  been  furnished  to  the respondent. This  is the  gist of these decisions which also indicates  that   the  question  has  to  be  answered  with reference to the kind of use made of the document annexed to the petition,  whether as  an integral  part of the election petition or merely as evidence of the pleadings contained in the body of the election petition.      In the present case, the video cassettes, non-supply of a copy of transcript of which is urged by Shri Jethmalani to be a  ground for  non-compliance of  Section 81(3), were not even filed  in the  High Court with the election petition in the High Court. This is, therefore, not a case of non-supply of a  copy of  a document  which was  filed along  with  the election  petition.   What  was  supplied  to  the  returned candidate in  the present  case, was  a  true  copy  of  the election petition  as it  was presented in the court without the video  cassettes of  which mere mention was made without incorporating its contents by reference of enumerating it in the election  petition. It  is not  the case of the election petitioner that  the full contents of the video cassettes or their transcripts  are  incorporated  by  reference  in  the election petition  in order  to make  the video cassettes an integral part of the election petition, inasmuch as no video

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cassette was  filed along  with the  election petition as it was presented  in the  High Court. Reliance is placed by the election petitioner  on the  video cassettes  produced later during the  trial as  only evidence of the pleading in paras 32 and  33 of the election petition. It is, therefore, clear that the  contents of  the video  cassettes  except  to  the extent pleaded  in paras 32 and 33 of the election petition, cannot be  treated to  be incorporated  by reference  in the election petition  as a part of the pleadings and its use is sought to  be  made  by  the  election  petitioner  only  as evidence of  the averments  contained in  paras 32 and 33 of the election  petition.  Admittedly,  a  true  copy  of  the election  petition  as  presented  in  the  High  Court  was furnished to the returned candidate along with the notice of the election  petition. There  was thus no non-compliance of sub-section (3)  of Section 81 of the R.P. Act. The election petition was,  therefore, not  liable to  be dismissed under Section 86(1)  even  on  the  ground  of  non-compliance  of section 81(3) of the R.P. Act. 26   The contention  of  Shri  Jethmalani  that  the  entire election petition  is liable  to be  dismissed under Section 86(1) of the R.P. Act for non-compliance of subs-section (1) and/or  sub-section   (3)  of   Section  81  is,  therefore, rejected. Non-compliance  of  Section  83  (1) of  the  R.P. Act - its ------------------------------------------------------------ effect. -------      The next  question now is : Whether the contents of the election petition  are as  required by Section 83 of the Act or there  is any  deficiency therein to attract Order 7 Rule 11 or  Order 6  Rule 16,  C.P.C. ? This question arises from the alternative  submission of Shri Jethmalani who contended that the  pleading of corrupt practice with reference to the use of  video cassettes  is  deficient  and  is,  therefore, liable to  be struck  out under  Order 6  Rule 16, C.P.C. He submitted that  this would  leave for consideration only the speeches of  Manohar Joshi,  Bal Thackeray,  Pramod Nawalkar and Chhagan  Bhujbal on  24.2.1990 as the only basis for the charge of  the corrupt  practice under  sub-section (3)  and (3A) of  Section  123  for  consideration  in  the  election petition. He  urged that there is no pleading of any part of the speech  of Chhagan Bhujbal in the election petition and, therefore, reference  to his  speech is  innocuous. For  the speeches  of   Manohar  Joshi,   Bal  Thackeray  and  Pramod Nawalkar, he  urged that  the specific pleading contained in the  body   of  the   election   petition   alone   requires consideration,  excluding  all  other  material  brought  on record during  the trial  which is an impermissible addition to the  record on  account of  a serious  mistrial resulting from the  unusual procedure  adopted by  the  learned  trial Judge in  the High Court. Shri Jethmalani referred copiously to the  evidence to  support his submission that the learned trial Judge himself directed a witness to search for certain documents and produce them in addition to extensively cross- examining that  witness himself  to bring on record a log of material which  is wholly  irrelevant and  inadmissible.  In sort, his  submission is  that on  the  basis  of  the  only pleading contained  in the body of the election petition and the admissible  and  relevant  evidence  alone,  no  corrupt practice  under  sub-section  (3)  or  sub-section  (3A)  of Section 123 is made out.      Some other  questions  arising  out  of  the  remaining arguments of  Shri Jethmalani  and reply of Shri Ashok Desai which  are  referred  later,  have  to  be  considered  with

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reference to the pleadings of the parties. It is, therefore, appropriate at this stage to quote the relevant pleadings in the election  petition and  the  written  statement  of  the returned candidate.      We must  observe that  the pleadings of the parties are frivolous and  prolix of  which only  certain portions  were relied at  the hearing  of the appeal by the learned counsel for the  parties  and,  therefore,  reference  only  to  the relevant partitions  of the  pleadings is  necessary. We may add that  the failure  to  exclude  from  consideration  the pleading which  is prolix  and irrelevant,  has led  to  the reception of  considerable evidence  which too is irrelevant and inadmissible  resulting in needless increase in the bulk of the  record of  the trial  court and  an excursion by the High Court into an irrelevant area. There has been a failure to invoke  and apply  the provisions  in the  Code of  Civil Procedure at the pretrial stage which has led to an improper frame of  the issues  resulting in lack of focus on the real points  in   controversy  alone   confined  to   the  actual pleadings.      According to  Shri Ashok Desai, learned counsel for the respondents,  the   relevant  pleadings   relating  to   the allegation of  corrupt practices  pleaded  in  the  election petition are  in paras  2, 5  (o), 7, 8, 16, 17, 18, 30, 31, 32, 33  and the first sentence of para 35 as well as pars 59 and  60   of  the   written  statement.  According  to  Shri Jethmalani, learned  counsel for the appellant, the relevant pleadings are  only in  paras 30,  31, 32,  and  33  of  the election petition.  At any rate, nothing more has to be seen in the election petition for this purpose in addition to the portions pointed  out by  Shri Desai.  These portions of the election petition and the written statement are as under:      From Election Petition No.24/1990      ---------------------------------      (as typed in paper book)      "(2)      The Petitioner  says that  the      petitioner  had  contested  the  general      election to  the Maharashtra Legislative      Assembly held  on 27/2/1990 (hereinafter      referred to as "the said election’) as a      candidate of  Indian  National  Congress      (Congress-I) with the election symbol of      "Hand". The Respondent was the candidate      of Shiv  Sena Party  with  the  election      symbol of  "Bow  &  Arrow"  put  by  the      alliance of  two parties  viz. Shiv Sena      and Bhartiya  Janata  Party  (BJP).  The      other candidates were either independent      candidates   or   belonging   to   other      political parties like Janata Dal, etc."      "5.       The  Petitioner   states  that      before setting out the nature of corrupt      practices   committed   by   the   first      respondent,  it  is  necessary  to  give      certain facts  which have  transpired in      India over  the last  one decade,  which      are as under:      xxx                xxx               xxx           (o) The  petitioner states that all                the aforesaid  facts show that                the said two parties, viz; BJP                and     Shiv     Sena     have                systematically       exploited                various  unfortunate  disputes                set out  hereinabove so  as to

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              seek    votes    during    the                parliamentary election and the                election in  question  in  the                name of  ‘Hindutva’ i.e. Hindu                religion."      "7.       The  petitioner   states  that      accepting a  candidature in the election      of the said alliance meant that the said      particular candidate  had  accepted  the      basic concept  and plank  on  which  the      said two parties were jointly contesting      the  elections   for  the  Assembly.  It      further   meant   that   the   candidate      accepted Bal  Thackeray, Pramod Mahajan,      Kirti  Somaiya   as  their  leaders  and      consented to  the said leaders making an      appeal to vote for the candidates of the      said alliance. It further meant that the      philosophy and  ideology of  the leaders      of the  alliance, and  particularly  Bal      Thackeray, such  as (a)  Hindus are  and      Hindu religion  is in  danger, (b)  that      only the alliance can protect Hindus and      Hindus religion, (c) that the Congress-I      and Janata  Dal have  failed to protect,      and will  not protect  Hindus and  Hindu      religion and  their candidates are unfit      to be  elected,  (d)  that  Hindus  have      suffered and  will  continue  to  suffer      indignity,  discrimination  and  unequal      treatment,  (e)  that  the  problems  in      states like  Kashmir, Punjab, Assam etc.      have arisen  because of the pampering of      the minorities,  (f)  that  Hindus  must      come together  and fight  the attack  on      them and  their religion  and  say  with      pride that  they are  Hindus,  (g)  that      Hindus owed a duty to their religion and      if necessary  must give  their life  for      it,    (h)    that    minorities,    and      particularly the  Muslims, were  treated      more favourably  for  their  votes  than      Hindus.      8.        The petitioner states that the      respondent being a candidate of the said      alliance, has  accepted the ideology and      philosophy of the said alliance, some of      which  is   set  out   hereinabove.  The      respondent also consented to the leaders      of  the   said  alliance   such  as  Bal      Thackeray,   Pramod    Mahajan,    Kirit      Somaiya,  Gopinath   Mundhe  and  others      making appeals to the voters to vote for      her. In  fact, as  more particularly set      out hereinbelow  the respondent  herself      has expressly made an appeal to vote for      her to fight for Hinduism."      "16.      The  petitioner   states  that      similarly another  joint public  meeting      was held  in the  said constituency i.e.      at Shivaji  Park, Dadar on 24/2/1990. At      the said  meeting most of the candidates      of the BJP-Shiv Sena alliance, including      the Respondent herein, were present. The      said  meeting   was  addressed   by  the

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    leaders of  the said  alliance.  At  the      said meeting  Bal  Thackeray  reiterated      that the  said alliance  was  contesting      the elections  sin  the  name  of  Hindu      religion and  to fight for Hindutva. The      proceedings of  the  said  meeting  were      widely reported  in various dailies viz;      ‘Mumbai Sakal’, ‘Nava Kal’, ‘Navshakti’,      ‘Maharashtra Times’,  ‘Navbharat Times’,      ‘Loksatta’,  ‘Sunday   Observer’,   ‘The      Times of  India’, ‘Indian  Express’  all      dated  25/2/1990   and   ‘Samma’   dated      25/2/1990 and  26/2/1990. The petitioner      craves leave  to refer  to and rely upon      the  said  press  reports  as  and  when      produced.      17.       Some  of  the  most  offending      statements made  at the  said meeting by      the leaders  of the said alliance are as      under:-           (a)  To   handle   the   Congress-I      hoodlums the  Shiv Sainiks  may take law      in  their  hands  and  use  firearms  if      necessary (Thackeray).           (b)  To save  ‘Hindutva’  vote  for      BJP-sena Nominees  (Pramod Mahajan, BJP-      MP).           (c)  Mr. Rajiv Gandhi does not know      his own  religion, and thus has no right      to speak on Hinduism (Pramod Mahajan).           (d)  The result  of these elections      will not  only depend on the solution to      the problem  of food, cloth but the same      will also  decide whether  in the  state      the flame  of Hindutva will grow or will      be extinguished.  If in  Maharashtra the      flame of  Hinduism is extinguished, then      anti-national Muslims  will be  powerful      and they  will  convert  Hindustan  into      Pakistan. If  the flame of Hindutva will      grow  then   in  that  flame  the  anti-      national  Muslims  will  be  reduced  to      ashes (Pramod Mahajan).           (e)  We must  protect ‘Hindutva’ at      all costs and for that we must not allow      the    saffron    (Bhagwa)    of    Shri      Chhakravarthi Shivaji  Maharaj  to  fall      from our shoulders (Pramod Mahajan).           (f)  Rajiv   Gandhi   speaking   on      Hindutva is  like a prostitute lecturing      on  fidelity.   The  country   is  again      heading for partition. It is, therefore,      necessary that  in  these  circumstances      and to keep the flame of Hindutva aline,      the alliance  of BJP-Shiv Sena should be      elected (Mahajan).           (g)  (Referring to  Rajiv  Gandhi),      wife Christian,  mother Hindu,  father a      Parsee and therefore himself without any      (Hindu)   culture/teaching    (vevarsi).      Pramod Mahajan).      18.       The petitioner states that the      proceedings of  the  said  meeting  were      tape-recorded   and    taken   down   in      shorthand by the police authorities. The

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    petitioner craves  leave to refer to and      rely   upon   the   said   tape-recorded      speeches and  the speeches taken down in      shorthand by the police authorities."      "30.      The petitioner states that the      respondent himself  in his capacity as a      candidate from  the said constituency as      well as  a leader  of the  said alliance      made   appeals    which   offends    the      provisions of  the said Act, For e.g. in      the meeting held on 24.2.1990 at Shivaji      Park, the  respondent stated  the  first      Hindu  State   will  be  established  in      Maharashtra Similarly  in various  other      public meetings,  the respondent  herein      made objectionable  appeals. Some of the      meetings were  reported  in  newspapers.      The petitioner states that such meetings      were held  at Khaddke Building, Dadar on      21.2.1990, Prabhadevi  on 16.2.1990,  at      Kumbharwada on 18.2.1990, and Khed Galli      on 19.2.1990.  At all the said meetings,      as well as meetings at other places, the      other speakers who were present for e.g.      Pramod Mahajan  (M.P.-BJP)  Dada  Kondke      (Marathi   Actor)    Jayantiben   Mehta,      Chandrika Kenia (MPs) made objectionable      appeals to vote for the respondent.      31.       In fact  the speakers  went on      to say  that  on  the  respondent  being      elected  and   on  the   said   alliance      establishing a Hindu Government, we will      give jobs  to all Hindus. The petitioner      craves leave  to refer  to and rely upon      the election  diaries maintained  by the      local  police   stations,  the  speeches      recorded  by  the  Special  Branch-I  on      audio cassettes, video cassettes and the      speeches recorded  in Marathi shorthand.      The  petitioner  also  craves  leave  to      refer to and rely upon the press reports      of the said meetings.      32.       The petitioner  states that in      addition to holding public meetings, the      said alliance  had also  taken out video      cassettes and audio cassettes. The video      cassettes  were   titled  "Challenge   &      Appeal "Shiv  Sena" and the other called      "Ajinkya". The  said video cassettes and      audio  cassettes   discloses   promises,      appeals, exhortations and inducements to      the voters to vote for the said alliance      and their candidates. The said cassettes      show that  the said  alliance has  scant      respect for  the religious  beliefs  and      practices  of   other   religions   like      Muslims, Christians  etc. Not  only  the      other religions  are ridiculed  but  the      followers   thereof    are   termed   as      "traitors" and  "betrayers".  Under  the      guise      of      protecting      Hindu      religion/Hindutva  the   said  cassettes      attach  other  religions  and  whips  up      lowered instincts  and animosities.  The      concept of  secular democracy is totally

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    eliminated.   It    generates   powerful      emotions  by   appealing  to  the  Hindu      voters to vote for the candidates of the      alliance on  a false impression given to      voters that  only the  alliance and  its      candidates can  protect Hindu  religion.      The  petitioner   will  rely   upon  the      visuals which  have the aforesaid effect      on  the   voters.  The  petitioner  also      craves leave  to refer  to and rely upon      the said  video cassettes  as  and  when      produced.      33.       The petitioner states that the      said  alliance  had  also  issued  audio      cassettes wherein  the speeches  of  the      leaders of  the said  alliance like  Bal      Thackeray,   at    various   places   in      Maharashtra are recorded, e.g. Parbhani,      Sely Aurangabad,  Panvel, Girgaon, Vashi      (New  Bombay)   etc.  The   said   audio      cassettes as well as the video cassettes      were played  in the  said  constituency,      particularly  at   the  Shakha  offices,      street corners after 6.30 p.m. They were      regularly  exhibited   at  or  near  the      places  of  residence  of  some  of  the      active workers  of the  said alliance in      the said  constituency.  The  exhibition      and playing  of the  cassettes was  on a      large scale  in the  said  constituency.      The petitioner  craves leave to refer to      and rely  upon the  said audio cassettes      as and when produced."      "35.      The petitioner states that the      aforesaid facts  clearly prove  that the      respondent  and   his  agents  with  his      consent  have   indulged  into   corrupt      practices listed  under section  123  of      the said Act. ......."      From Written Statement      ----------------------      (as typed in paper book)      "59.      With reference  to para  32 of      the Petition,  it is  true that the said      alliance has  taken two  video cassettes      known  as   "AJIMKYA"  and  "AVAHAN  AND      VAWHAN". However, it is totally false to      the  knowledge   of  the  petitioner  to      allege that  the  said  alliance  and/or      Shiv Sena  party and/or I have and/or my      election agent  and/or  any  person  has      with my  consent and/or  election  agent      and/or any  person has  with my  consent      and/or knowledge has taken out any audio      cassettes as  alleged.  This  respondent      denies that  the  said  video  cassettes      disclose  any  promises  and/or  appeals      and/or  extortions   and/or  inducements      which in  any manner  amount to  corrupt      practice and  or any other offence under      the Representation  of People  Act, 1951      as  alleged  or  at  all  and  puts  the      petitioner to  the strict proof thereof.      This respondent  denies  that  the  said      cassettes or  either of  them  show  any

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    religious beliefs  and/or  practices  as      alleged. This  Respondent  categorically      denies that the said cassettes or either      of  them  show  any  scant  respect  for      Muslims  and/or   Christian  and/or  any      other religion  as alleged or at all and      puts the  petitioner to the strict proof      thereof. This  Respondent  categorically      denies  that   any  religion   has  been      ridiculed and/or  followers thereof  are      termed as  "Traitors" and/or "Betrayers"      as  alleged  or  at  all  and  puts  the      Petitioner to  the strict proof thereof.      This Respondent  denies  that  the  said      cassettes and/or  either of  them attach      other religions  and/or whips up lowered      instincts and/or  animosities as alleged      or at  all. This  respondent denies that      the said cassettes or either of them had      appealed to  the voters  in the  name of      religion  as  alleged.  This  respondent      submits that  it has  been held  by  the      Supreme Court of India innumerable cases      that whenever a reference is made in the      election petition to a document, and the      document  includes  an  audio  or  video      cassette, copy  of such document must be      supplied   along   with   the   Election      Petition  to  the  concerned  Respondent      inasmuch as by making a reference to the      document  and   without   pleading   its      contents in  the Election  Petition, the      documents becomes  incorporated  in  the      Election  Petition   by  reference.   It      becomes an integral part of the Election      Petition  under   Section  81   and   as      required by  Section  81  when  document      forms an  integral part  of the petition      and the copy of the said document is not      furnished to  the  Respondent  alongwith      the  Election   Petition,  copy  of  the      Election Petition  will not  be  a  true      copy within  the meaning  of Section  81      and the  same is  liable to be dismissed      under  the  provisions  of  Section  86.      paragraph 32  of the  Petition does  not      give any  material particulars about the      allegations which are sought to be made.      It is  submitted that  the  test  to  be      applied where  the  pleadings  discloses      material facts  and cause  of action  is      that  in  absence  of  answer  from  the      Respondent, would  the  court  be  in  a      position to give a judgment in favour of      the petitioner.  It is submitted that in      the  instant   case,   the   answer   is      emphatically no  and  hence  the  entire      contents   of   para   32   are   wholly      irrelevant, vexatious  and abuse of this      Hon’ble  Court.   The  said   pleadings,      therefore, are  not a  complete cause of      action and  in breach  of provisions  of      Sections  81,   82   and   86   of   the      Representation of  People  act  and  the      election petition  is liable  to be  and

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    should be dismissed.      60.       With reference  to para  33 of      the    Petition,     this     Respondent      categorically  denies   that  the   said      alliance and/or  Shiv Sena  Party and/or      B.J.P. Party  issued any  audio cassette      as alleged  and this Respondent puts the      petitioner to  strict proof thereof. The      said paragraph  alleges  that  the  said      video and/or audio cassettes were played      in the said constituency particularly at      Shakha Office, Street, corners. The said      paragraph does not state the place, date      and time  when the  said  cassettes  are      alleged to  have been played. It further      does  not   mention  the  names  of  the      persons who  are alleged  to have played      the  said   cassettes.  This  Respondent      submits that  it has  been held  by  the      Supreme  Court   of   India   that   the      allegations of  corrupt practice  are in      the nature  of criminal  charges, and it      is necessary  that there  should  be  no      vagueness in the allegations so that the      returned candidate may know how the case      he has  to meet.  If the allegations are      bogus and general and the particulars of      corrupt practice  are not  stated in the      petition  then   in  such   a  case  the      petition does  not disclose any cause of      action  and   the  Petition   does   not      disclose any  cause of  action  and  the      petition is  liable to  be and should be      dismissed. Furthermore,  as mentioned in      the above paragraph, it has been held by      the Supreme  Court of  India that when a      reference has  been made in the Petition      to any  document including  a  video  or      audio  cassette,  a  copy  of  the  said      document, must  be supplied  along  with      the Election  Petition because by making      a reference  to such a document the same      forms integral  part of the petition and      therefore, without  a copy  of the  said      document  the  petition  is  incomplete.      This Respondent, therefore, submits that      for the  reasons  mentioned  above,  the      Petition is  liable to  be and should be      dismissed with costs."      It would also be appropriate to quote the issues framed on 9.1.1992 by the High Court on these pleadings, as under - -      "1.  Whether    the    Respondent    has      committed any  of the  corrupt practices      as defined  in  Section  123(3)  of  the      Representation of  Peoples Act,  1951 as      alleged in the Petition ?      2.   Whether the  Election Agent  or any      other  Agent   of  the   Respondent  has      committed any  of the  corrupt practices      as defined  in  Section  123(3)  of  the      Representation of  Peoples Act,  1951 as      alleged in the Petition ?      3.   Whether any  other person  with the      consent  of   the  Respondent   or   his

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    Election Agent  has committed any of the      corrupt practices  as defined in Section      123(3) of  the Representation of Peoples      Act, 1951 as alleged in the Petition ?      4.   Whether    the    Respondent    has      committed any  of the  corrupt practices      as defined  in Section  123(3A)  of  the      Representation of  Peoples Act,  1951 as      alleged in the Petition ?      5.    Whether  the Election Agent or any      other  Agent   of  the   Respondent  has      committed any  of the  corrupt practices      as defined  in Section  123(3A)  of  the      Representation of  Peoples Act,  1951 as      alleged in the Petition?      6.   Whether any  other person  with the      consent  of   the  Respondent   or   his      election Agent  has committed any of the      corrupt practices  as defined in Section      123(3a) of the Representation of Peoples      Act, 1951 as alleged in the Petition ?      7.   Whether the  Petitioner proves that      the Respondent has committed the corrupt      practices as  defined in  Section 123(7)      of the Representation of the Peoples Act      1951 as alleged in the Petition ?      8.   Whether   the   Election   of   the      respondent is to be set aside ?      9.   Generally ? It may  be mentioned that issue No. 6(A) was framed suo motu by the  High Court  almost at  the fag  end of the trial, as under :-      "6.(A)    Whether the  Hindutva as  used      by  the   Shiv  Sena  Party  during  the      Maharashtra     Legislative     Assembly      Election  1990  is  as  alleged  in  the      Petition or  as alleged  in the  Written      Statement ?"      After both  sides closed their respective cases, on the submission of  Shri Jethmalani,  the following  issues  were also permitted  to be  raised by  order dated  4th  January, 1993:-      "1.(A)    Whether the  Petition is filed      beyond the  period of  45 days  fixed by      Section  81  of  the  Representation  of      Peoples Act,  1951 and  requires  to  be      peremptorily dismissed  under Section 86      thereof ?      1.(B)     Whether the  Petition must  be      dismissed for  its failure  to plead  or      disclose under  what part of Section 100      of the Act relief is claimed ?"      It was  strenuously argued  by Shri Desai that there is admission of the returned candidate in his written statement about the  existence and  use of  the video cassettes during the election  campaign in  the constituency  and even of its contents, the  only dispute  being related to the meaning of the contents.  On this  basis, it was urged that there is no deficiency in  the pleading  of the  corrupt practice in the election petition  and  the  requirement  of  its  proof  is reduced to  a great  extent  by  admission  in  the  written statement. The  High Court  has taken  this  view  which  is supported and relied on by Shri Desai in his submission. The High  Court’s  judgment  proceeds  on  this  basis.  It  is, therefore, necessary to examine this aspect at this stage.

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    Assuming the  contents of  the video cassette amount to the kind  of speech or act which is a corrupt practice under sub-section (3) or sub-section (3A) of Section 123, in order to constitute that corrupt practice it must further be shown that the  act was  done during the election campaign between 8.2.1990 when  the returned  candidate became  a ‘candidate’ and 27.2.1990  the date  of poll, and that it was the act of the candidate  or his  agent or  any other  person with  his consent. Unless  all these  constituent parts of the corrupt practice are  pleaded to  constitute  the  cause  of  action raising a triable issue and are then proved by evidence, the corrupt practice cannot be held to be pleaded and proved. If the act  attributed is  by the  display of  a video cassette recorded some  time earlier,  the display  being between the above dates in the constituency, a mere display of the video cassette does  not prove  all the  constituent parts  of the corrupt practice,  inasmuch as  it must  also be pleaded and proved that  such display  was by the candidate or his agent or any  other person  with his consent. Where the display of the cassette  is attributed  to any  other person  with  the consent of the candidate, the liability of the candidate for commission of  the corrupt practice results vicariously from the act  of the  other person  done with  the consent of the candidate. In  such a  case, the  constituent  part  of  the corrupt practice is the act done by any other person, not by the candidate  himself  or  his  agent  for  whose  act  the candidate’s consent  is assumed,  with the authorisation for the act  being done by any other person with the candidate’s consent. This  distinction  between  the  act  amounting  to corrupt practice  done  by  the  candidate  himself  or  his election agent  and any other person with his consent has to be kept  in view. This has relevance also for the purpose of Section 99  of the  R.P. Act  with reference to which one of the arguments has been addressed.      It was  argued by  Shri Ashok Desai that in case of the provocative and  incendiary speeches  given by  acknowledged leaders of  the political party the consent of the candidate set up  by their party has to be assumed being implicit from the relationship  of the  candidate with the speaker through the medium  of the party. On this basis, it was urged that a party candidate  must be  held to  have  consented  to  such speeches made  by the  leaders of that party and, therefore, if the speech of the leader satisfies the other requirements of the  corrupt practice, the consent of the candidate which too is  a constituent  part of the corrupt practice, must be assumed to  make out  the ground  under Section 100(1)(b) of the R.P.  Act for  declaring his  election to  be void. Shri Desai made  a fervent  emotive appeal that unless the law is so construed,  a candidate of the party will get the benefit of appeal  for votes  on the  ground of  his religion on the basis that  his consent  has not  been pleaded  and  proved, thereby  frustrating   the  object   of  the  enactment  and adversely affecting  the purity  of elections  which  is  of essence in  a democracy.  It was  argued that leaders of the party must be assumed to be agents of the candidates of that party for the purpose of the ground of corrupt practice.      In our opinion, the fallacy in the argument i s that it overlooks certain  other provisions of the R.P. Act. Section 100 of the R.P. Act is as under :-           "100.   Grounds    for    declaring      election to  be void.  - (1)  Subject to      the provisions of sub-section (2) if the      High Court is of opinion -           (a)  that   on  the   date  of  his      election a  returned candidate  was  not

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    qualified, or  was disqualified,  to  be      chosen  to   fill  the  seat  under  the      Constitution  or   this   Act   or   the      Government  of  Union  Territories  Act,      1963 (20 of 1963); or           (b) that  any corrupt  practice has      been committed  by a  returned candidate      or his  election agent  or by  any other      person with  the consent  of a  returned      candidate or his election agent; or           (c) that  any nomination  has  been      improperly rejected; or           (d)  that   the   result   of   the      election, in  so far  as it  concerns  a      returned candidate,  has been materially      affected -           (i) by  the improper  acceptance of      any nomination, or           (ii)  by   any   corrupt   practice      committed  in   the  interests   of  the      returned candidate  by  an  agent  other      than his election agent, or           (iii) by  the  improper  reception,      refusal or  rejection of any vote or the      reception of any vote which is void, or           (iv) by any non-compliance with the      provisions of  the  Constitution  or  of      this Act  or of any rules or orders made      under this  Act, the  High  Court  shall      declare the  election  of  the  returned      candidate to be void.           (2) If  in the  opinion of the High      Court, a  returned  candidate  has  been      quality by  an  agent,  other  than  his      election agent,  of any corrupt practice      but the High Court is satisfied -           (a) that  no such  corrupt practice      was committed  at the  election  by  the      candidate or  his  election  agent,  and      every   such    corrupt   practice   was      committed contrary  to the  orders,  and      without the consent, of the candidate or      his election agent;           (b) Omitted.           (c)  that  the  candidate  and  his      election agent took all reasonable means      for preventing the commission of corrupt      practices at the election; and           (d) that  in all other respects the      election  was   free  from  any  corrupt      practice on the part of the candidate or      any of his agents,      then, the High Court may decide that the      election of  the returned  candidate  is      not void."      The distinction  between clause  (b) of sub-section (1) and sub-clause  (ii) of  clause (d)  therein is significant. The ground in clause (b) provides that the commission of any corrupt practice  by a  returned candidate  or his  election agent or  by any other person with the consent of a returned candidate or  his election  agent by itself is sufficient to declare the  election to  be void.  On the  other hand,  the commission of  any corrupt  practice in the interests of the returned candidate by an agent other than his election agent (without  the  further  requirement  of  the  ingredient  of

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consent of  a returned candidate or his election agent) is a ground for declaring the election to be void only when it is further pleaded  and proved  that the result of the election in so  far as  it concerns  a returned  candidate  has  been materially affected.  This ground is further subject to sub- section (2)  of Section  100 of  which the  onus is  on  the returned candidate.      It is, therefore, clear that if the corrupt practice is committed in  the interests of the returned candidate by any other person, even if he be an agent other than his election agent, without  the consent of the returned candidate or his election agent,  the law  provides for  the election  to  be declared void  under Section  100(1)(d)(ii) provided  it  is also pleaded  and proved  that the result of the election of the returned candidate has been materially affected thereby. The  apprehension   expressed  by   Shri  Ashok   Desai  is, therefore, ill  founded since  the law clearly provides that the returned  candidate would  not  get  the  benefit  of  a corrupt practice committed in his interests by anyone if the result of  the election  is shown  to be materially affected thereby.      Apart from  this aspect,  it has  also to be remembered that provision  is made  in the  R.P. Act  as well as in the general law to punish the makers of such incendiary speeches for the  offences committed by them in the form of electoral offences e.g. under Section 125 of the R.P. Act and Sections 153A, 153B  and 295A  of the Indian Penal Code. Thus even if the acknowledged  leaders of  a  party  have  committed  any corrupt practice  which results  in benefit  to the returned candidate then  on proof  of the  benefit having  materially affected the election result in favour of the candidate, his election would  be set  aside on  the ground  under  Section 100(1)(d)(ii) of  the R.P. Act. There is thus no occasion to read into  the ground in Section 100(1)(b) or the definition of "corrupt  practice" the  implied consent of the candidate for any  act done by a leader of that party to dispense with a clear  pleading  and  proof  of  the  candidate’s  or  his election agent’s  consent  as  a  constituent  part  of  the corrupt practice  for the  ground under section 100(1)(b) of the R.P. Act.      It may also be mentioned that the proposition suggested in the argument of Shri Desai does not appear to be correct. Whenever the  requirement is  of consent,  it must  be  free consent given  by the  giver of  the  consent,  of  his  own volition. Ordinarily,  it also implies a subservient role of the person to whom consent is given and the authority of the giver of the consent to control the actions of the agent. It is difficult  to ascribe  to an  acknowledged leader  of the party a  role subservient  to the  candidate set  up by that party inasmuch as the candidate is ordinarily in no position to control  the actions  of his  leader.  However,  if  even without giving  his  consent,  the  candidate  has  received benefit from  the leader’s  act in a manner which materially affects his  election favorably,  on pleading  and proof  of such  material  effect  on  the  election,  the  candidate’s election is  liable to  be set  aside on  the  ground  under Section 100(1)(d)(ii) unless, as provided in sub-section (2) of Section  100 he  further discharges  the onus placed upon him  that   in  spite  of  his  opposition  and  taking  due precautions that  act had been committed for which he cannot be responsible.      Reliance in the election petition on the allegations of corrupt practices was for the ground under Section 100(1)(b) and not  Section 100(1)(d)(ii);  and  it  is  under  Section 100(1)(b) that  the election has been declared to be void by

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the High Court. There was no attempt to plead and prove that the result  of the  election of the appellant was materially affected for  these reasons  to  make  out  a  ground  under Section 100(1)(d)(ii)  for declaring  the  election  of  the returned candidate  to be  void. It  is in  this manner  the present case has to be viewed.      The pleading  in paras 2, 5(o), 7 and 8 of the election petition is  general relating  to the  party  of  which  the appellant was  a candidate,  and the plank of Hindutva which in the  election petition is equated with Hindu religion. We have already  indicated in  the connected  matters  -  Civil Appeal No.  2835 of  1989 -  Bal Thackeray  vs Prabhakar  K. Kunte & Ors. - (with Civil Appeal NO. 2836 of 1989), decided today,  that   the  word   "Hindutva"  by  itself  does  not invariably mean Hindu religion and it is the context and the manner of its use which is material for deciding the meaning of the  word "Hindutva"  in a  particular text. It cannot be held that in the abstract the mere word "Hindutva" by itself invariably must  mean Hindu religion. The so-called plank of the political  party  may  at  best  be  relevant  only  for appreciation of  the context in which a speech was made by a leader of  the political party during the election campaign, but no  more for the purpose of pleading corrupt practice in the election petition against a particular candidate.      In para  16 of  the election  petition apart  from some general pleading,  there is reference to a speech at Shivaji Park, Dadar  on 24.2.1990  by Bal  Thackeray and  some other leaders who  have not  been named  therein  except  for  the appellant (respondent in the election petition). In para 17, the alleged  offending portions  of the  speeches  of  those leaders of  the BJP-Shiv Sena alliance have been enumerated. These portions  are from  speeches alleged to have been made by Bal  Thackeray of the Shiv Sena and Pramod Mahajan of the B.J.P. Thus para 17 contains allegation of specific portions of speeches  by Bal  Thackeray and  Pramod Mahajan  for  the purpose of  pleading the corrupt practice. Further reference to it  would be  made later.  Para 18  merely says  that the proceedings of the meeting were tape-recorded and taken down in shorthand  by police  authorities on which the petitioner would rely.  Obviously this relates only to evidence of what is pleaded and does not amount to incorporation by reference of the  contents of  the  alleged  tapes  and  there  is  no enumeration of  its contents  in the election petition. Para 30 refers  to the  speech by the appellant himself and names some other  speakers at different meeting. Further reference to para  30 would  be made  later.  Para  31  is  a  general statement referring  to speakers  in general  without naming any one  of them and mentions the existence of certain audio and video  cassettes of  the speeches.  Paras 32 and 33 then refer to  certain video cassettes and audio cassettes giving merely the  title of the video cassettes and generally their purport and  say that  the video cassettes were displayed in the constituency,  particularly  at  Shaka  offices,  street corners after  6.30 p.m.  and were regularly exhibited at or near the  places of  residence of some of the active workers of the  said  alliance  in  the  said  constituency.  It  is significant that  neither these  video cassettes  and  audio cassettes nor  the transcript  of their texts was reproduced in the election petition or annexed to the election petition so that  the contents  thereof were not pleaded in either of the required  modes. That  apart, there  is nothing  in  the pleading to  indicate the  names  of  the  persons  who  are alleged to  have displayed  the same  or the  dates on which they were  displayed or  in other words any other fact which would make  the allegation  clear and  specific. The further

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requirement of  consent of  the returned candidate for those acts is not pleaded as required for the ground under Section 100(1)(b) of  the R.P.  Act and  in the  definition  of  the corrupt practices under sub-sections (3) and (3A) of Section 123. Para 35 is the only other para in the election petition which is  relied on  by Shri  Desai in  this context  and it merely says that the ‘aforesaid facts clearly prove that the respondent (appellant  in this  appeal) and  his agents with his  consent  have  indulged  into  corrupt  practice  under Section 123  of the  said Act.’ This is a mere repetition of the statutory  provision and  not a pleading of any material fact.      We have  no doubt  that the  requisite consent  of  the returned  candidate   or  his  election  agent  which  is  a constituent part of the corrupt practices under sub-sections (3) and (3A) of Section 123, and an ingredient of the ground under Section  100(1)(b) has  nowhere been  pleaded  in  the election petition  either in connection with the allegations based on  the speeches  by Bal Thackeray, Pramod Mahajan and any other leader or the display of video and audio cassettes in the  constituency, when  this is an essential requirement for raising  a triable issue of corrupt practice to bind the appellant with  the consequences  of such a corrupt practice and to  invalidate his  election. In our opinion, this alone is sufficient  to ignore the entire pleading in the election petition relating  to  speeches  by  Bal  Thackeray,  Pramod Mahajan and any other leader as well as the display of video and audio  cassettes since  none of those acts is attributed to the  appellant or his election agent. For this reason, it is also  not necessary  to consider  the  specific  portions alleged to  form parts  of speeches  of  Bal  Thackeray  and Pramod Mahajan  mentioned in paras 16 and 17 of the election petition. Same is the result of pleadings in paras 32 and 33 relating to  the video and audio cassettes. In para 31 there is a  general averment that the speakers went on to say that on the  respondent (appellant  in this appeal) being elected and the  said alliance  establishing a Hindu Government jobs would be  given to  all Hindus.  No speaker  is specifically named and what is alleged to have been said by the appellant in his  speech in the meeting held on 24.2.1990 is contained only in para 30 of the election petition. Since the contents of para  31 cannot  be related to the speech alleged to have been made by the appellant in that meeting, that too must be left out of consideration.      The only  surviving allegation  requiring consideration is in para 30 relating to the allegation made with reference to the  speech made by the appellant himself. The portion in para  30  relating  to  the  appellant  (respondent  in  the election petition) which has to be considered is as under :-           "The  petitioner  states  that  the      respondent himself  in his capacity as a      candidate from  the said constituency as      well as  a leader  of the  said alliance      made   appeals    which   offends    the      provisions of  the said Act, For e.g. in      the meeting held on 24.2.1990 at Shivaji      Park, the  respondent stated  the  first      Hindu  State   will  be  established  in      Maharashtra. Similarly  in various other      public meetings,  the respondent  herein      made objectionable  appeals. Some of the      meetings were  reported  in  newspapers.      The petitioner states that such meetings      were held  at Khaddke Building, dadar on      21.2.1990, Prabhadevi  on 16.2.1990,  at

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    Kumbharwada on 18.2.1990, and Khed Galli      on 19.2.1990. ......"      The High  Court failed  to  appreciate  that  the  only allegation of  corrupt practice  in this  election  petition which raised  a triable issue is as indicated above and rest of the general averments deficient in requisite pleadings of all the  constituent parts  of the  corrupt practice did not constitute a  pleading of  the full  cause  of  action  and, therefore, had  to be  ignored and  struck out in accordance with Order  6,  Rule  16,  C.P.C.  However,  there  being  a specific allegation  in para  30 of  the  election  petition relating to  the returned  candidate himself  based  on  his speech made on 24.2.1990, to that extent a triable issue had been raised and had to be decided.      It is  this failure  in the High Court which has led to an   unnecessary   protracted   trial   and   reception   of considerable irrelevant  evidence which  in turn  has led to the errors  found in the judgment. The reason for this error appears particularly  from para  32 of the judgment in which the High Court has indicated its perception of the nature of trial of the election petition as under:-           It must be noted that this Election      Petition is  not based  upon  individual      acts of Respondent or his Election Agent      or any  other person  with his  consent.      This petition  is based  upon the  above      mentioned plank  and/or policy  decision      of the  Shiv Sena  and  B.J.P.  and  the      campaigning  by   the  party   and   the      Respondent on  the basis  of that plank.      ......"                           (emphasis supplied)      In our  opinion, it is this erroneous impression of the High Court  which has  led to  the serious  errors committed during the  trial for which the parties are equally to blame inasmuch as  both sides  contributed to the expansion of the legitimate scope  of the  trial by introducing matters which have no  relevance for the pleading and proof of the corrupt practices under sub-sections (3) and (3A) of Section 123 for the  purpose  of  the  ground  under  Section  100(1)(b)  to invalidate the  election, which  is the  true scope  of this election petition.      Before  we   take  up  for  consideration  the  corrupt practice attributed  to the  appellant himself in para 30 of the election  petition based on his own speech on 24.2.1990, it would  be appropriate  at this  stage  to  refer  to  the argument based on Section 99 of the R.P. Act. Non-compliance of Section 99 of the R.P. Act --------------------------------------------      Admittedly, no  notice  was  given  to  Bal  Thackeray, Pramod Mahajan  or any  other person against whom allegation was made  of commission  of corrupt practice in the election petition, even  though the High Court has held those corrupt practices to  be proved  for the  purpose of  declaring  the appellant’s election  to be  void on the ground contained in Section 100(1)(b) of the R.P. Act. We would now indicate the effect of  the combined reading of Sections 98 and 99 of the R.P. Act  and the  requirement of notice under Section 99 to all such persons before decision of the election petition by making an order under Section 98 of the R.P. Act.      The combined  effect of  Sections 98 and 99 of the R.P. Act may now be seen. These provisions are as under:-           "98. Decision  of the  High Court.-      At the  conclusion of  the trial  of  an      election petition  the High  Court shall

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    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.           99.  Other orders to be made by the      High Court.  - (1) At the time of 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  all persons, if           any, who  have been  proved at  the           trial to  have been  quality 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.           (2)  In this section and in section      100, the expression "agent" has the same      meaning as in section 123."      The opening  words in Section 98 are "At the conclusion of the  trial of  an election  petition the High Court shall make an  order". There  can be  no  doubt  that  Section  98 contemplates the  making  of  an  order  thereunder  in  the decision of  the High  Court rendered  ‘at the conclusion of the trial  of an  election  petition’.  Declaration  of  the election of  any returned candidate to be void in accordance with clause (b) is clearly to be made in the decision of the High Court  rendered at  the conclusion  of the  trial of an election petition  and not at an intermediate state. Clauses (a), (b)  and (c)  in Section  98 contemplate  the different kinds of  orders which  can be made by the High Court in its decision at the conclusion of the trial which has the effect of disposing  of the  election petition  in the  High Court. There is  nothing in  Section 98 to permit the High Court to

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decide the  election petition  piecemeal and  to declare the election  of  any  returned  candidate  to  be  void  at  an intermediate stage  of the  trial when any part of the trial remains to be concluded.      Sub-section (1) of Section 99 begins with the words "At the time  of making an order under section 98 the High Court shall also  make an  order" of the kind mentioned in clauses (a) and  (b) therein. It is amply clear that the order which can be  made under clauses (a) and (b) of sub-section (1) of Section 99  is required to be made ‘at the time of making an order under  section 98’.  As earlier  indicated,  an  order under Section  98 can  be made only at the conclusion of the trial. There  can be  no doubt  that the  order which can be made under  sub-section (1) of Section 99 has, therefore, to be made  only at  the conclusion of the trial of an election petition in  the decision of the High Court made by an order disposing of  the election  petition in  one  of  the  modes prescribed in  clauses (a),  (b) and (c) of Section 98. This alone is  sufficient to  indicate that  the  requirement  of Section 99  is to  be completed  during  the  trial  of  the election petition  and the  final order under Section 99 has to be  made in the decision of the High Court rendered under Section 98  at the  conclusion of  the trial of the election petition.      Clause (a)  of sub-section  (1) of  Section 99 provides for the  situation "where any charge is made in the petition of  any  corrupt  practice  having  been  committed  at  the election". In  that case,  it requires  that at  the time of making an  order under Section 98, the High Court shall also make an  order  recording  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 the names  of all  persons, if  any, who have been proved at the trial  to have  been quality of any corrupt practice and the nature  of that  corrupt practice.  Clause  (b)  further requires the fixing of the total amount of costs payable and specifying the  person by  and to  whom costs shall be paid. The net  result is  that where  any charge  is made  in  the petition of  any corrupt  practice having  been committed at the election, the High Court shall ‘at the time of making an order under  section 98’  also make  an  order  recording  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 where  the charge of corrupt practice has  been found  proved, it  must also  record  the names of  all persons,  if any,  who have been proved at the trial to  have been  quality of any corrupt practice and the nature of  that practice.  thus the trial is only one at the end of  which the  order made  by the High Court must record the names  of all  persons, if  any, who have been proved at the trial  to have  been quality of the corrupt practice and the nature of that practice.      It follows  that the  High Court  cannot make  an order under Section  98 recording  a finding  of proof  of corrupt practice against  the returned  candidate alone  and on that basis declare  the election  of the returned candidate to be void and  then proceed  to comply  with the  requirement  of Section 99  in the  manner stated  therein with  a  view  to decide at  a later  stage whether  any other  person also is quality of  that corrupt  practice for the purpose of naming him then  under Section  99 of  the R.P.  Act. It is equally clear that  the High  Court has  no option  in the matter to decide whether  it will proceed under Section 99 against the other persons alleged to be quality of that corrupt practice along  with   the  returned   candidate  inasmuch   as   the

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requirement of  Section 99  is mandatory  since the  finding recorded by  the High  Court requires it to name all persons proved at  the trial  to have  been quality  of the  corrupt practice. The  expression "the names of all persons, if any, who have  been proved  at the  trial to have been quality of any corrupt  practice" in  sub-clause (ii)  of clause (a) of sub-section (1)  of Section  99 clearly  provides  for  such proof being  required ‘at  the trial’ which means ‘the trial of an  election petition’  mentioned in  Section 98,  at the conclusion of  which  alone  the  order  contemplated  under Section 98 can be made. There is no room for taking the view that the  trial of  the election  petition for declaring the election of  the returned candidate to be void under Section 98 can  be concluded  first and  then the  proceedings under Section 99 commenced for the purpose of deciding whether any other person  is also  to be  named as  being quality of the corrupt practice of which the returned candidate has earlier been held  quality leading  to his  election being  declared void.      The rationale  is obvious. Where the returned candidate is alleged  to be  quality of  a  corrupt  practice  in  the commission of  which any  other person has participated with him or  the candidate is to be held vicariously liable for a corrupt practice  committed by  any other  person  with  his consent, a  final verdict  on that  question can be rendered only at the end of the trial, at one time, after the inquiry contemplated under  Section 99  against  the  other  person, after notice  to him, has also been concluded. Particularly, in a  case where  liability is  fastened  on  the  candidate vicariously for  the act  of another person, unless that act is found  proved against  the doer of that act, the question of recording  a finding  on that  basis against the returned candidate cannot  arise. Viewed  differently, if  the  final verdict has  already  been  rendered  against  the  returned candidate in  such a  case, the  opportunity contemplated by Section 99 by an inquiry after notice to the other person is futile since  the verdict  has already  been given.  On  the other  hand,   if  the   question  is  treated  as  open,  a conflicting verdict after inquiry under Section 99 in favour of the  notice would lead to an absurdity which could not be attributed to the legislature.      The plain language of Section 98 and 99 of the R.P. Act indicates the  construction thereof  made by  us and this is also  supported   by  the  likely  outcome  of  a  different construction which  is an absurd result and must, therefore, be rejected.  The High  Court  has  overlooked  the  obvious position in  law in taking a different view. No notice under Section 99  was given  by the  High Court  before making the final order  under Section  98 of the R.P. Act declaring the election to be void. This is a fatal defect.      This alone  is sufficient  to indicate  that apart from the reasons  given earlier, the election of the appellant in the present  case could  not be  declared void  by making an order under  Section 98  on the  ground contained in Section 100(1)(b) of  the  R.P.  Act  without  prior  compliance  of Section 99.  Absence of  notice under Section 99 of the R.P. Act vitiates  the final  order made  under Section 98 by the High Court declaring the election to be void.      However, in  the present  case, the remaining pleadings being ignored  for the  reasons already  given,  no  further question arises  of the  effect of non-compliance of Section 99 in  respect of these other persons because the finding of corrupt  practices   against  the  appellant  based  on  the speeches of  these other  persons and  the video  and  audio cassettes has to be set aside for the reasons already given.

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This is  yet another  instance of  a serious  defect in  the trial of this election petition by the High Court. Speech of appellant -------------------      We would now consider the only surviving question based on the  pleading in  para 30  of the  election petition. The specific allegation in para 30 against the appellant is that in the  meeting held on 24.2.1990 at Shivaji Park, Dadar, he had stated  that "the  first Hindu State will be established in Maharashtra".  It is  further pleaded  therein that  such meetings were  held at Khaddke Building, Dadar on 21.2.1990, Prabhadevi on  16.2.1990, at  Kumbharwada on  18.2.1990, and Khed Galli on 19.2.1990. These further facts are unnecessary in the  context because  the maximum  impact thereof  is  to plead that  the same  statement was made by the appellant in the other  meetings as  well, even  though such an inference does not  arise by  necessary implication. In our opinion, a mere  statement   that  the   first  Hindu   State  will  be established in  Maharashtra is  by itself  not an appeal for votes on  the ground  of his religion but the expression, at best,  of  such  a  hope.  However,  despicable  be  such  a statement, it  cannot be  said to  amount to  an appeal  for votes on  the ground  of his  religion.  Assuming  that  the making of such a statement in the speech of the appellant at that meeting  is proved,  we cannot hold that it constitutes the corrupt  practice either  under sub-section  (3) or sub- section (3A)  of Section  123, even  though we would express our disdain  at the entertaining of such a thought or such a stance in  a political  leader of  any shade in the country. The question  is whether  the corrupt practice as defined in the Act to permit negation of the electoral verdict has been made out. To this our answer is clearly in the negative.      As indicated  by us,  the only  triable issue raised in the election  petition is  limited to this extent, which did not require the consumption of the considerable time, energy and expense  involved in  the trial of the election petition and the  hearing of  this appeal in this Court. However, the lack of  proper perception of the limited scope of the trial and the  election petition  being filed and contested in the manner  in  which  unfortunately  the  elections  are  being fought, contributed  to the  trial being  converted into  an electoral battle  which misled even the High Court to commit several  errors  in  conducting  the  trial.  The  erroneous perception of  the position  in law  and the  scope  of  the election petition  also contributed  to this end. Obviously, it  was  much  ado  about  nothing  when  viewed  in  proper perspective after  ignoring from  consideration the  copious unnecessary, frivolous or vexatious pleading in the election petition and consequently in the written statement which was liable to be struck out under Order 6, Rule 16, C.P.C.      We may  refer to  the decision  in Jamaat-e-Islami Hind etc. vs  Union of  India, (1995)  1  SCC  428,  wherein  the requirement of  valid adjudication  by  the  Tribunal  under Section 4  of the Unlawful Activities (Prevention) Act, 1967 was indicated  for the purpose of confirming the declaration made by  the Central  Government under  sub-section  (1)  of Section  3   that  Jamaat-e-Islami   hind  is   an  unlawful association as defined in the said Act. The Tribunal’s order confirming the  declaration made  by the  Central Government was quashed  on the ground that the entire material on which the declaration  was based,  was inadequate for the purpose, even though  the Tribunal  is not required to confine itself only to  strict legal evidence admissible under the Evidence Act.      A 3-Judge  Bench, speaking  through  one  of  us  (J.S.

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Verma, J.), held as under:-           "..... The  only material  produced      by the Central Government to support the      notification issued  by it under Section      3(1) of  the Act,  apart from  a  resume      based on  certain intelligence  reports,      are  the   statements   of   Shri   T.N.      Srivastava, Joint Secretary, Ministry of      Home Affairs  and Shri N.C. Padhi, Joint      Director, IB.  Neither  Shri  Srivastava      nor Shri  Padhi has  deposed to any fact      on  the  basis  of  personal  knowledge.      Their  entire   version  is   based   on      official record.  The resume is based on      intelligence   reports    submitted   by      persons  whose   names  have   not  been      disclosed    on     the    ground     of      confidentiality.  In   other  words,  no      person   has   deposed   from   personal      knowledge whose veracity could be tested      by cross-examination. ....."                                 (at page 450)      It is  significant that  the  mere  production  of  the official record  including the literature of Jamaat-e-Islami Hind depicting its philosophy and aims, and the intelligence reports without  examining any witness who could depose from personal knowledge to the alleged unlawful activities of the Association  was  held  to  be  inadequate  to  support  the declaration  that   Jamaat-e-Islami  Hind   is  an  unlawful association as  defined in  the said  Act. It need hardly be mentioned  that  the  requirement  of  proof  of  a  corrupt practice at  the trial of an election petition is higher and confined to  strict legal  evidence, in  comparison  to  the material on  which the  tribunal can  rely for  its decision under Section 4 of the Unlawful Activities (Prevention) Act, 1967 to confirm the declaration by the Central Government of an association as unlawful.      The High  Court misdirected  itself by  starting  on  a wrong premise  in trying  an allegation  not in the pleading and then  in admitting  and relying on material which is not legal evidence  for the  proof of  a corrupt  practice.  The error was  aggravated by  an incorrect  appreciation of  the legal principles  and overlooking  the  meaning  of  certain terms explained  in earlier  decisions. The  significance of the trial  of a  corrupt practice and the consequence of the finding thereon,  appears to  have been  missed in  the High Court.      As a  result of  the aforesaid  discussion, the finding recorded by the High Court against the appellant that charge of corrupt  practices under  sub-section  (3)  and  (3A)  of Section 123  of the  R.P. Act has been proved to declare his election to  be void  on the  ground  contained  in  Section 100(1)(b) of  the R.P.  Act, is  contrary  to  law  and  is, therefore, set  aside. The  result is that no ground is made out for  declaring  the  appellants  election  to  be  void. Accordingly, this  appeal is allowed with costs resulting in dismissal of the election petition.