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PETITIONER: MITHILESH KUMAR PANDEY

       Vs.

RESPONDENT: BAIDYANATH YADAV AND ORS.

DATE OF JUDGMENT02/01/1984

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J)

CITATION:  1984 AIR  305            1984 SCR  (2) 278  1984 SCC  (2)   1        1984 SCALE  (1)1  CITATOR INFO :  F          1990 SC 924  (28)

ACT:      Representation of  the People Act, 1951, Section 81(3)- Construction of  the provisions  of the  section-copy of the election  petition  containing  several  mistakes  of  vital character, not  found in  the original-Election  petition is not maintainable and must be dismissed.

HEADNOTE:      In  the  general  elections  held  in  June  1980,  the appellant fought  as a  Congress(1) candidate  from Harlakhi Assembly constituency in Bihar and was declared elected. The respondent who  was defeated  filed an  election petition in the Patna  High Court  listing a  large  number  of  persons through when  corrupt practices  were alleged  to have  been practised by  the appellant. Since the copy of the petition, though attested  by the  election petitioner  under his  own signature to  be a  true copy,  contained  several  mistakes which  were   of  a  very  vital  character,  the  appellant contested  the   petition  alleging   that   the   mandatory provisions of  section 83(3) of the Representation of People Act not  having been  complied with  at  all,  the  petition should be  dismissed in limine without going into the merits of the  case. Though  the High  Court found as a fact that a large number  of mistakes  were there  in the  copy  of  the election petition  supplied to  the appellant.  Yet, as they were of  a superficial and insignificant nature bordering on clerical or  typing mistakes,  on the  whole,  there  was  a substantial compliance of the provisions of Section 81(3) of the Act. Hence the appeal against the interlocutory order.      Allowing  the   appeal  and   dismissing  the  election petition the Court, ^      HELD: 1:1  A perusal  of Sections  81(3) and  86 of the Representation of  the People  Act reveals  that the statute intended  that   before  an   election   petition   can   be entertained, the  copy sent to the elected candidate must be a  true  copy,  failing  which  there  would  be  a  serious disobedience of the mandate contained in s.81(3) which would be fatal  to the  maintainability of the said petition. [281

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F]      1:2 It  is now  well  settled  by  a  large  catena  of authorities of  this Court  that the  electoral  process  by which the  verdict  of  the  people  has  been  given  is  a sacrosanct one  and cannot  be lightly  set at naught unless the grounds  mentioned in  the  Act  for  setting  aside  an election are  held to  be proved. In these circumstances, it is manifest that the provisions of s.81(3) of the act should be construed  to the letter and spirit of the law because if the election  petitioner does  not give  full  and  complete notice  of   the  allegations   made  against  the  returned candidate, he  runs the risk of his petition being dismissed in limine. [281 G-H] 279      2 On a careful consideration and scrutiny of the law on the subject, the following principles are well established;      (1)  that where  the  copy  of  the  election  petition           served on  the returned  candidate  contains  only           clerical or typographical mistakes which are of no           consequence,  the  petition  cannot  be  dismissed           straightway under s.86 of the Act, [283 F]      (2)  A true  copy means  a copy  which  is  wholly  and           substantially the  same as  the original and where           there are  insignificant or  minimal mistakes, the           court may not take notice thereof, [283 G]      (3)  where the  copy contains  important  omissions  or           discrepancies of  a vital nature, which are likely           to cause  prejudice to the defence of the returned           candidate, it cannot be said that there has been a           substantial  compliance   of  the   provisions  of           s.81(3) of the Act, [284 A]      (4)  Prime facie,  the statute  uses  the  words  "true           copy" and  the concept  of substantial  compliance           cannot be  extended too  far to include serious or           vital mistakes  which shed the character of a true           copy so  that the  copy furnished  to the returned           candidate cannot  be said to be a true copy within           the meaning of s.81(3) of the Act, and [284 B]      (5)  As s.81(3)  is meant  to protect and safeguard the           sacrosanct electoral process so as not the disturb           the verdict  of the  voters, there  is no room for           giving a  liberal or  broad interpretation  to the           provisions of the said section. [284 C]      Murarka Radhey  Shyam Ram Kumar v. Roop Singh Rathore & Ors. [1964]  3 SCR 573; Jagat Kishore Prasad Narain Singh v. Rajendra Kumar  Poddar & Ors. [1971] 1 SCR 821; Satya Narain v. Dhuja  Ram &  Ors., [1974]  23 SCR  20; Sharif-ud-din  v. Abdul Gani Lone, [1980] 1 SCR 1177; M. Karunanidhi etc. etc. v. H.V.  Hande &  Ors. etc.  etc.  [1983]  1  SCR  1177;  M. Karunanidhi etc.  etc. v. H.V. Hande & Ors. etc. etc. [1983] 1 SCALE 344 referred to. [284 D-E, 285 G; 286 A; 285 C]      3. In  the instant  case,  the  mistakes  in  the  copy supplied  to  the  returned  candidate  related  to  corrupt practices, have  to be  proved  to  the  hilt  just  like  a criminal charge and any mistake which contains an element of vagueness would  immediately vitiate  the election  petition and merit  its dismissal  under s.86  of the  Act. Among the many more  mistakes given  in Schedule  I, the  few selected items themselves  are vital  and may seriously prejudice the defence of  the appellant  because it will be very difficult for him  to find out the persons, named in the copy supplied to him who are said to have indulged in corrupt practices at his instance.  The present  case is  a much  worse case than Murarka Radhey  Shyam Ram  Kumar’s case (supra) where only a slight difference  in the  title led this Court to hold that

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the mistake  was a  vital one  was a valid one. Further, the omission of  names cannot be said to be a typing mistake but a very  vital and  serious on  which is sufficient to entail the dismissal of the election petition. [284 D-E; 285 G; 286 A; 285 C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION Civil  Appeal No. 5307 of 1983      Appeal by  Special leave  from the  Judgment and  Order dated the  7th January,  1983 of  the Patna  High  Court  in Election Petition 280      S.N.  Kacker,  L.R.  Singh  and  Gopal  Singh  for  the Appellant.      R. K. Garg and D.K Garg for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J. By  Order dated November 29, 1983 we had allowed the  appeal. We  now proceed to give the reasons for the said Order.      This   election   appeal   is   directed   against   an interlocutory Order  dated January  7, 1983  passed  by  the Patna High Court overruling a preliminary objection taken by the appellant (elected candidate) that the election petition of the  respondent (election petitioner) should be dismissed straightaway  under   the  provisions   of   s.86   of   the Representation of  the People Act. 1951-as amended uptodate- (hereinafter referred to as the ’Act’)      The appellant’s  case is  that in  the general election held in June 1980 he fought as a Congress (I) candidate from Harlakhi Assembly  constituency in  Bihar in  which  he  was declared elected,  defeating the  respondent who  filed  the election petition  in the  High Court.  He further submitted that the  copy  of  the  election  petition  served  on  him contained a  large number  of mistakes in respect of persons through whom  corrupt practices  were alleged  to have  been practised by the appellant during the election, He contended that in  view of  the very  large number  of mistakes, which were of  a very vital character, the mandatory provisions of s.81(3) of  the Act  were not  complied with  at all,  which infirmity by  itself would  be  sufficient  to  dismiss  the election petition in limine without going into the merits of the case.      The stand taken by the respondent was that the mistakes were  undoubtedly  there  but  they  were  of  a  minor  and significant nature and did not affect his case on merit.      The learned  Judge of  the High  Court found  as a fact that a  large number  of mistakes  were there in the copy of the election  petition supplied to the appellant but as they were of  a superficial and insignificant nature bordering on clerical or  typing mistakes,  on  the  whole  there  was  a substantial compliance  of the  provisions of s.81(3) of the Act.  The   learned  Judge   has  entered  into  a  detailed discussion of 281 the various  decisions of this Court and also of High Courts and has  correctly held  that the  provisions of s.81(3) are mandatory and  if the  court finds  that they  have not been complied with  it has  no alternative  but  to  dismiss  the election petition  straightaway. Unfortunately,  however, in the process  of applying  the principles  laid down  by this Court he  has completely  glossed over  the  nature  of  the mistakes by  describing them  as merely  clerical or  typing

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ones. On  a perusal of the aforesaid mistakes (listed at pp. 64-65 of the Paperbook) they do not appear to be so. Section 81(3) of the Act thus:      "81. Presentation of petitions           (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 copy of the petition."      The consequence  of non-compliance  of this section has been mentioned in s.86(3) which may be extracted thus:      "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."      A  perusal  of  the  above  reveals  that  the  statute intended  that   before  an   election   petition   can   be entertained, the  copy sent to the elected candidate must be a  true  copy,  failing  which  there  would  be  a  serious disobedience of the mandate contained in s.81(3) which would be fatal to the maintainability of the said petition.      It is now well settled by a large catena of authorities of this  Court that  the  electoral  process  by  which  the verdict of the people has been given is a sacrosanct one and cannot be lightly set at naught unless the grounds mentioned in the  Act for  setting aside  an election  are held  to be proved. In  these circumstances,  it is  manifest  that  the provisions of  s.81(3) of the Act should be construed to the letter and  spirit  of  the  law  because  if  the  election petitioner does  not give  full and  complete notice  of the allegations made against the returned candidate, he runs the risk of his petition being dismissed in limine. 282      In the  instant case,  it is  the admitted  case of the parties that  the mistakes  in  the  copy  supplied  to  the appellant related  to corrupt  practices indulged  in by him through various  persons who  have been named at pages 64-65 of the  Paperbook. In  Muraka Radhey Shyam Ram Kumar v. Roop Singh Rathore  &  Ors.(1)  this  Court  made  the  following observations:-           "Having regard to the provisions of Part VI of the      Act we  are of  the view  that the word "copy" does not      mean an  absolutely exact copy. It means a copy so true      that nobody  can by  any possibility  misunderstand it.      The test  whether the copy is a true one is whether any      variation from the original is calculated to mislead an      ordinary person."      In other,  words, this  Court merely  meant to indicate that where  the variation  is so  minimal and  insignificant that it is incapable of misleading any person as to the true purport  of  the  allegation,  it  would  be  a  substantial compliance of the provisions of s.81(3) of the Act. The High Court has  largely relied  on the  ratio of  this particular case.      There can  be no  dispute regarding  the principle laid down by  this Court  but the  main difficulty arises when we approach the facts of a particular case in order to find out whether the  copy supplied  to  the  returned  candidate  is really a true copy or not.      In Jagat  Kishore Prasad Narain Singh v. Rajendra KUmar Poddar &  Ors.(2) the  same principle was laid down. In this case, the  mistake was  that in the election petition it was stated that  money was  offered to  on Jetha Kisku by Munshi Hansda but  in the  copy served  on the  returned  candidate instead of  Munshi  Hansda  the  name  of  Paul  Hansda  was

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mentioned. Apparently, the mistake was a verbal one but this court held  that it  was sufficient to prejudice the defence and accordingly came to the conclusion that the petition was liable to be dismissed under s.86 of the Act.      We shall  presently show  that in  the instant case the mistakes were of a greater nature than those with which this Court was dealing 283 with in  the aforesaid  case. In Satya Narain v. Dhuja Ram & Ors.(1) this  Court clearly pointed out that where the first part of s.81(3) was not complied with, the provision being a peremptory one,  total noncompliance  with  the  same  would entail dismissal  of the election petition under s.86 of the Act. In  a later case in Sharif-ud-Din v. Abdul Gani Lone(2) this Court observed thus           "It is  true that  section 89(3)  of  the  Act  is      purely procedural  in  character  and  that  ordinarily      procedural law  should not  be given  that  primacy  by      courts as  would defeat  the ends  of justice. But if a      law even  though it  may  be  procedural  in  character      insists that an act must be done in a particular manner      and further  provides that  certain consequences should      follow if  the act  is not  done in that manner, courts      have no option but to enforce the law as it is."      In a  latest decision  of the  Court in  M. Karunanidhi etc. etc.  v. H. V. Hande & Ors. etc. etc.,(3) the following observations were made :           "It is  obvious that  the photograph was a part of      the averment  contained  in  paragraph  18(b).  In  the      absence of  the photograph  the averment  contained  in      paragraph 18(b)  would be  incomplete.  The  photograph      referred  to   in  paragraph  18(b)  was  therefore  an      integral part of the election petition. It follows that      there was total non-compliance with the requirements of      sub-s.(3) of  s.81 of  the Act  by failure to serve the      appellant with a copy of the election petition."      On a  careful consideration  and scrutiny of the law on the subject, the following principles are well established ;      1)   that where  the  copy  of  the  election  petition           served on  the returned  candidate  contains  only           clerical or typographical mistakes which are of no           consequence,  the  petition  cannot  be  dismissed           straightaway under s.86 of the Act,      2)   A true  copy means  a copy  which  is  wholly  and           substantially the  same as  the original and where           there are  insignificant or  minimal mistakes, the           court may not take notice thereof, 284      3)   where the  copy contains  important  omissions  or           discrepancies of  a vital nature, which are likely           to cause  prejudice to the defence of the returned           candidate, it cannot be said that there has been a           substantial  compliance   of  the   provisions  of           s.81(3) of the Act.      4)   Prima facie,  the statute  uses  the  words  "true           copy" and  the concept  of substantial  compliance           cannot be  extended too  far to include serious or           vital mistakes  which shed the character of a true           copy so  that the  copy furnished  to the returned           candidate cannot  be said to be a true copy within           the meaning of s. 81(3) of the Act, and      5)   As s.81(3)  is meant  to protect and safeguard the           sacrosanct electoral  process so as not to disturb           the verdict  of the  voters, there  is no room for           giving a  liberal or  broad interpretation  to the

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         provisions of the said section.      We might  mention here  that in  the instant  case  the mistakes in  the copy  supplied to  the  returned  candidate related to corrupt practices which, as has been held by this Court in  a large  number of cases, have to be proved to the hilt just  like a  criminal charge  and  any  mistake  which contains an  element of  vagueness would immediately vitiate the election  petition and merit its dismissal under s.86 of the Act.      In the view that we take, it is not necessary for us to wade through a detailed discussion of the mistakes because a few mistakes pointed out by the Judge himself clearly reveal that they  were of a very vital and material nature so as to mislead the  returned candidate  and prejudice  him  in  his defence. Schedule  I to  the election petition contained the list of  persons through  whom the  corrupt  practices  were alleged  to  have  been  committed.  An  analysis  of  these mistakes may  be placed  in three categories-(1) where there is complete omission of some names which have been mentioned in the election petition but not in the copy supplied to the returned candidate,  (2) giving absolutely wrong names which are bound  to mislead  the appellant  in his  defence as the persons bearing the wrong names could not be traced out, and (3) some  names given in the petition appear to be males but in the  copy given  to  the  appellant  they  appear  to  be females.           Coming to  the first category, a few examples will suffice to 285      illustrate our point      Sl. No. in            Name in the           Name in the      Schedule I            original petition     copy      17                    Yogendra Jha          Omitted      37                    Bulari Devi           Omitted      188                   Bal Bhogia            Omitted      445                   Ramdeo Paswan         Omitted      486                   Jugeshwari Devi       Omitted      The omission  of names  cannot be  said to  be a typing mistake but a very vital and serious one which is sufficient to entail  the dismissal of the election petition. Under the second category  (giving wrong  names), the  following names may be mentioned      Sl. No. in    Name in original          Name in copy      Schedule I      42            Nanpuran Mitra            Mahpuran Mitra      62            Bilas Jha                 Biml Jha      105           Dukhi Devi                Sudama Devi      179           Bhekai Paswan             Mokai Paswan      385           Mauki                     Tetri      440           Kalasiya                  Kalya      466           Kalish Jandra Jha         Kali Janwa Jha      479           Gayatri Devi              Sati Devi      498           Udit Mishra               Udit Mitra      579           Yashodara Mishra          Yashoda Devi      679           Jhularia Devi             Kaushilya Devi      Third Category      29            Kiran Jha                 Kiran Devi               (May be a male or a female) (Must be a female)      444           Dulaira                   Ramdeo Paswan      675           Rajsunair Yadav           Rajsunari Yadav      There are many more mistakes given in schedule I but we have selected  only those  which are vital and may seriously prejudice the  defence of  the appellant  because it will be very difficult for him to find out the persons, named in the copy supplied  to him,  who are  said to  have  indulged  in

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corrupt practices at his instance.      Thus, on  an overall  consideration of  the  facts  and circumstances 286 of this  case, we  are unable  to agree  with the High Court that  the   mistakes  in   the  copy   were  either  verbal, typographical or  clerical. The present case appears to be a much worse  case than  Murarka Radhey Shyam Ram Kumar’s case (supra) where only a slight difference in the title led this Court to hold that the mistake was a vital one.      We are,  therefore, of  the opinion that the High Court committed a  serious error  of law in holding that there had been a  substantial compliance  of the provisions of s.81(3) of the  Act so  as to exclude the application of s.86 of the Act.      For the  reasons given  above, we  allow the appeal and dismiss the election petition filed in the High Court but in the circumstances without any order as to costs. As a result of our judgment, nothing now survives in the High Court. S.R.                                        Appeal allowed. 287