IMPORTANT POINT
When a candidate is held to be guilty of corrupt practices vicariously for an act done by any person other than his agent with his consent, then the ultimate finding to this effect has to be recorded only after notice under Section 99 of Representation of the People Act, 1951 to that other person and an enquiry held as contemplated therein, naming the other person simultaneously for commission of such corrupt practice.

JUDGMENT

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

2. The High Court rejected the claim made in the petition that the speeches of the appellant made on 8.2.1990 and 15.2.1990 amounted to the above corrupt practices. Learned counsel for the respondent rightly made no attempt to assail this finding of the High Court to support the judgment. We have been taken through the contents of the speeches made by the appellant on 8.2.1990 and 15.2.1990 in her election campaign. We find nothing therein to doubt the correctness of the High Court s finding that both these speeches are innocuous and there is nothing in them to constitute any of the corrupt practices under sub-sections (3) and/or (3A) of Section 123 of the Act.

3. So far as the speeches of 29.1.1990 are concerned, there can be no doubt that the same have no relevance in the present context inasmuch as they were acts prior to the date on which the appellant became a candidate at the election. This being so, any speech made prior to the date on which she became a candidate at the election cannot form the basis of a corrupt practice by any candidate at that election since any act prior to the date of candidature cannot be attributed to her as a candidate at the election. For this reason, the learned counsel for the res-pondent rightly made no attempt to dispute this position. {See - Subhash Desai v. Sharad J. Rao and Others1.

4. Any further discussion of the speeches given at the meetings held on 29.1.1990 is, therefore, unnecessary.

5. The only remaining speeches for consideration are those made at the meeting of 24.2.1990 by certain leaders of the alliance. There was no speech made by the appellant at that meeting. The offending speeches are alleged to have been made by Bal Thackeray of the Shiv Sena and Pramod Mahajan of the BJP. The High Court has held that these speeches amount to corrupt practices under sub-sections (3) and (3A) of Section 123 of the Act. It is significant that the corrupt practice found proved against the returned candidate is on the basis of speeches made by Bal Thackeray and Pramod Mahajan without giving any notice under Section 99 of the Act to either of them in spite of this objection being expressly raised before the learned trial Judge which is evident from paras 64 and 65 of the impugned judgment, which read as under :-

"64. At this stage, Mr. Sathe submit