http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (civil)  8315 of 2003

PETITIONER: Harmohinder Singh Pradhan

RESPONDENT: Ranjeet Singh Talwandi  & Ors

DATE OF JUDGMENT: 28/04/2005

BENCH: CJI R.C. Lahoti, G.P. Mathur & P.K. Balasubramanyan

JUDGMENT: J  U  D  G  M  E  N  T

R.C. Lahoti, CJI

       This appeal under Section 116A of the Representation of  the People Act, 1951 (hereinafter ’the Act’ for short) puts in  issue an order passed by the designated Election Judge of the  High Court, whereby an election petition filed by the appellant  has been directed to be dismissed at the threshold as disclosing  no cause of action.          The sole ground on which the election of respondent No. 1  was sought to be challenged and set aside, is that the  respondent No.1 had committed the corrupt practice within the  meaning of sub-Section (3) of Section 123 of the Act, which  reads as under:

"123. Corrupt practices \027 The following shall be  deemed to be corrupt practices for the purposes of  this Act:-                   xxx                     xxx

(3) The appeal by a candidate or his agent or by any  other person with the consent of a candidate or his  election agent to vote or refrain from voting for any  person on the ground of his religion, race, caste,  community or language or the use of, or appeal to  religious symbols or the use of, or appeal to, national  symbols, such as the national flag or the national  emblem, for the furtherance of the prospects of the  election of that candidate or for prejudicially  affecting the election of any candidate:

       [Provided that no symbol allotted under this  Act to a candidate shall be deemed to be a religious  symbol or a national symbol for the purposes of this  clause.]"

The said corrupt practice is said to have been committed  by respondent No. 1 in the public meetings held on 1.2.2002,  3.2.2002, 8.2.2002 and 9.2.2002.  The relevant part of the  averments made in this regard in the election petition are  extracted and reproduced hereunder:   

"Jathedar Jagdev Singh Talwandi, had  specifically named all the religious leaders including

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

Sant Mahesh Muni ji, Borewale, Sant Balbir Singh,   Lamman Jattpura, Sant Zora Singh, Badni Kalan,  Nanaksar thath, Sant Niranjan Singh Ji Vaid, Sant  Avtar Singh, Badni Kalan, Sant Bir Singh, Madoke,  Member, SGPC, Sant Atma Singh, Dhurkot, Member,  SGPC and Sant Bharpoor Singh Barmi Wale.  He had  called upon the people to cast their votes in  furtherance to the wishes of their respective leaders  and to keep their symbols high by letting his son \026  Sh. Ranjeet Singh Talwandi, to win from 54 \026 Raikot  Assembly Constituency.  Jathedar Jagdev Singh  Talwandi himself was the president of SGPC, the  supreme body of the Sikhs thus committing corrupt  practice under Section 123(3).

That thereafter, the above appeal was got  published by respondent No. 1 in Daily Ajit, a Punjabi  newspaper published from Jalandhar in the issue  dated 12.2.2002, photocopy of which is attached as  Annexure P-2.  A translated copy of the said appeal  is attached herewith as Annexure P-2.  The above  appeal was issued by various religious leaders under  their symbols, to the public and particularly to their  followers for casting their votes in favour of the  respondent No. 1 and is corrupt practice under  Section 123(3)."

"That Jathedar Jagdev Singh Talwandi, the  father of respondent No. 1 along with the respondent  No. 1, in several public meetings held on 8.2.2002  and 9.2.2002, announced that all the religious  leaders of the area have appealed to the public to  cast their votes in favour of respondent No. 1 and as  such, the people should vote in accordance with the  wishes of the said leaders, under whose  religion/symbols, the said people are followers."       

 According to the election petitioner (appellant herein),  such appeals for casting votes amount to corrupt practice under  Section 123(3) of the Act.  These appeals made at the public  meetings were followed by publication in daily newspapers  carrying on with them the names of the religious leaders making  the appeal.  

English translation of the appeals published in Gurumukhi  respectively in the newspapers dated 5.2.2002 and 12.2.2002  have been filed, which read as under:

"APPEAL Appeal is made to the intellectual voters of  Raikot Assembly Constituency to vote and elect the  candidate of Shiromani Akali Dal\026BJP\026BSP S.  RANJEET SINGH TALWANDI son of the former  President, Shiromani Gurudwara Prabandhak  Committee-Jathedar Jagdev Singh Talwandi for all  round development of the area and spearheading the  religious works."

"APPEAL      CAST YOUR PRECIOUS VOTE AND ELECT S.  RANJEET SINGH TALWANDI THE EDUCATED,  HONEST, GUARDIAN OF RIGHTS AND TRUTH AND

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

PEOPLE FRIENDLY CANDIDATE OF SHIROMANI  AKALI DAL (BADAL), BJP-BSP FROM RAIKOT  ASSEMBLY CONSTITUENCY."  

Below the two appeals, names of certain religious heads,  to whom the appeals are attributed, have also been published.   

Averments so made have been denied in the written  statement.  It has also been urged that what is alleged in the  election petition, does not amount to corrupt practice.

The learned designated Election Judge framed issues,  some of which were taken up for hearing as preliminary issues.   Arguments were advanced by the learned counsel for the parties  before the High Court on an assumption, if no evidence were  produced and the averments made in the election petition were  taken as correct, would it amount to corrupt practice? Shri U.U. Lalit, the learned senior counsel for the appellant  has submitted that the High Court was not justified in dismissing  the election petition in limine  and the petition should have been  set down for trial.  On the other hand, Shri Jaspal Singh, the  learned senior counsel for  respondent No. 1 has submitted that  the High Court is justified in dismissing the election petition as  disclosing no cause of action, inasmuch as the averments made  in the election petition even if substantiated,  would not amount  to corrupt practice and any evidence beyond the material facts  averred in the election petition, would not be admitted.    

The question arising for decision in this appeal is no more  res integra as the point is covered by several decided cases, the  most instructive one being Dr. Ramesh Yeshwant Prabhoo v.  Prabhakar Kashinath Kunte & Ors.,  (1996) 1 SCC 130.  The  emphasis is laid on the word ’his’ as it occurs in Section 123(3)  of the Act which word was not to be found in the original draft of  the provision as enacted but came to be inserted into the text of  the provision by the Act 40 of 1961.  Reference has been made  to the Parliamentary debates and the reasons ascribed by the  then Law Minister for the amendment while moving the Bill in  the  Parliament.  The Court has then held that the word ’his’  used in sub-Section (3) of Section 123 of the Act must have  significance and it cannot be ignored or equated with the word  ’any’ to be brought within the net of sub-Section (3).  The  religion forming the basis of the appeal to vote or refrain from  voting for any person, must be of that candidate for whom the  appeal to vote or refrain from voting is made.  This is clear from  the plain language of sub-Section (3) and this is the only manner  in which the word ’his’ used therein can be construed.  When the  appeal is to vote on the ground of ’his’ religion for the  furtherance of the prospects of the election of that candidate,  that appeal is made on the basis of the religion of the candidate  for whom votes are solicited.  On the other hand, when the  appeal is to refrain from voting for any person on the ground of  ’his’ religion for prejudicially affecting the election of any  candidate, that appeal is based on the religion of the candidate  whose election is sought to be prejudicially affected.  Thus, for  soliciting votes for a candidate, the appeal prohibited is that  which is made on the ground of religion of the candidate for  whom the votes are sought; and when the appeal is to refrain  from voting for any candidate, the prohibition is against an  appeal on the ground of the religion of that other candidate.  The  first is a positive appeal and the second a negative appeal.  Sub- Section (3) clearly indicates the particular religion on the basis of  which an appeal to vote or refrain from voting for any person is  prohibited under sub-Section (3).          

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

So is the view taken by this Court in Kanti Prasad  Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel,  (1969) 1 SCC 455.

In the case before us, the election petition nowhere  mentions the religion of respondent No. 1.  There is no averment  made in the election petition that the said appeal was made in  the name of the religion of respondent No. 1.  It is not the case  of the appellant in his election petition that there was any  negative appeal made at any time by respondent No. 1 or on his  behalf, that is to say, an appeal to voters to refrain from voting  for the appellant on the ground of his religion.  

There is yet another reason why the averments made in  the election petition are deficient.  The appeals are said to have  been made by certain religious leaders.  A distinction has to be  drawn between an appeal simpliciter to vote or to refrain from  voting made by religious leaders which may benefit any  particular candidate and an appeal to vote or to refrain from  voting on the ground of religion emanating from religious leaders  and attributable to the candidate within the meaning of Section  123(3).  The former is not vulnerable while the latter is.  All that  the election petition alleges is that certain religious leaders, held  in reverence by the voters, issued an appeal to vote in favour of  respondent No. 1.  The appeals forming the gravamen of the  charge of corrupt practice do not carry in it the element of an  appeal to vote for any person on the ground of religion.  

Necessary averment of facts constituting an appeal on the  ground of ’his religion’ to vote or to refrain from voting would be  material facts within the meaning of Clause (a) of sub-Section  (1) of Section 83 of the Act.  If such material facts are missing,  they cannot be supplied later on, after the expiry of period of  limitation for filing the election petition and the plea being  deficient, can be directed to be struck down under Order VI  Rule  16 of the Code of Civil Procedure, 1908 and if such plea be the  sole ground of filing an election petition, the petition itself can be  rejected as not disclosing a cause of action under Clause (a) of  Rule 11 of Order VII of the Code.   

No fault can be found with the view taken by the learned  designated Election Judge of the High Court.  The appeal is  devoid of any merit and is dismissed with costs.