Back
1996(3) Supreme 534
SUPREME COURT OF INDIA
K. Ramaswamy, S.P. Bharucha and K.S. Paripoornan, JJ.
Abhiram Singh -Appellant
versus
C.D. Commachen & Ors. -Respondents
Civil Appeal No. 37 of 1992
Decided on 16-4-1996
Held : Prima facie, the following three questions which are interwoven, arise for decision in the case :
(i) whether the learned Judge who tried the case is required to record prima facie conclusions on proof of the corrupt practices committed by the returned candidate or his agents or collaborators (leaders of the political party under whose banner the returned candidate contested the election) or any other person on his behalf ?
(ii) whether the consent of the returned candidate is required to be proved and if so, on what basis and under what circumstances the consent is held proved ?
(iii) on reaching the conclusion that consent is proved and prima facie corrupt practices are proved, whether the notice under Section 99(1) proviso (a) should contain, like mini judgment, extraction of pleadings of corrupt practices under Section 123, the evidence - oral and documentary and findings on each of the corrupt practices by each of the collaborators, if there are more than one, and supply them to all of them for giving an opportunity to be complied with ? (Para 5)
In Dr. Prabhoo s case it was held that consent to the speeches of the collaborators by the returned candidate should be inferred and accordingly in paragraphs 53 and 57 the Court inferred such a consent but in other cases, it was held that consent is required to be proved. There appears to be some inconsistency in the above view. In any case as to when the case is held proved has not been specifically laid as law. This requires to be authoritatively decided. (Para 8)
Further held : As stated earlier, when and under what circumstances, speeches of the leaders of the political party or the appeal of any other person with the consent by a candidate or his election agent to vote or refrain from voting on the ground of religion, race, caste or community or language, etc. or promotion or an attempt to promote feelings of enmity or hatred between different classes of citizens of India on the ground of religion, race, caste, community or language with the consent of the candidate or his election agent for the furtherance of the prospects of the election of the candidate or prejudicially affect the election of any candidate, constitutes corrupt practice under sub-section (3) or (3A) of Section 123. Its content and scope also require to be clearly laid down authoritatively lest miscarriage of justice in interpretation of "corrupt practice" involved in every election petition would ensue. The purity of election process gets fouled and be fraught with deleterious effect in a democratic polity.
Thus, without expressing any opinion on these question, we are of the view that the entire case requires to be heard and decided by a large Bench of five Judges since the decision thereon impinges upon the purity of election process and requires to be decided authoritatively. (Para 9)
JUDGMENT
K. Ramaswamy, J.-After spending considerable time on diverse questions canvassed across the bar, we are of the opinion that this appeal requires to be posted before a Constitution Bench for deciding the questions that arise in the appeal. We would, however, indicate in brief the facts,the findings recorded and the questions raised which impress us to refer the matter for decision by the Constitution Bench. This appeal under Section 116B of the Representation of the People Act, 1951 [for short, the Act ] arises from the judgment dated December 24, 1991 of the Bombay High Court passed in Election Petition No. 11 of 1991.
2. The respondent, since deceased, his legal representatives have been brought on record and a notice, as required under the Act, was also duly published. He contested as a Congress Party candidate in the election to No. 40, Santacruz Legislative Assembly Constituency in 1990 for the Maharashtra State Assembly. The appellant is the returned candidate who filed his nomination on January 31, 1990 which was accepted on February 8, 1990. The poll was held on February 27, 1990. The result of the election was declared on March 1, 1990 declaring that the appellant was duly elected. He contested election as a BJP candidate and was also Vice President of the Bombay Unit of the said party. He secured single largest majority votes while the respondent secured second largest. By judgment dated December 19, 1991 the High Court allowed the election petition.
3. In paragraph 186, the High Court held that "the voluminous oral as well as documentary evidence leaves no room for doubt that the plank of Hindutva/Hinduism/Hindu was used". In paragraph 187 it is held that "it is clear from the voluminous material on record that the campaign was on the basis of appealing for votes on the basis of 1st Respondent s community and religion, i.e., the Hindu community and religion and that there was an attempt to create enmity and hatred between different classes of citizens on the basis of religion, community and caste particularly between the Hindus and the Muslims". In paragraphs 198 it is further held that "prima facie, it does appear that the leaders have appealed for votes for the Hindu candidates of the two parties on the basis of their religion and community. Prima facie, it does appear that the leaders did attempt to create enmity and hatred between different classes of citizen on the grounds of community and religion". In paragraph 197, it is held that "(I) my view, it will have to be held that the tape recordings contain the speeches made at these meetings. This of course is subject to hearing the leaders of these two parties on the Notices under Section 99 of the Representation of the People Act, 1951 which have been issued to them in Election Petition No. 21 of 1990".
4. Shri A.M. Khanwilkar, learned counsel for the appellant, contended that in view of the decisions of this Court in Suryakant Venkatarao Mahadik v. Smt. Saroj Sandesh Naik (Bhosalel)1, Ramakant Mayakar v. Smt. Celine D Silva2, Prof. Ramchandra G. Kapse etc. v. Haribansh Ramakbal Singh etc.3, Moreshwar Save v. Dwarkadas Yashwantrao Pathrikar4 the findings recorded under Sections 123(3) and 123(3A) of the Act without compliance of the requirements of notice and opportunity under Section 99, which was held to be a duty of the Court, vitiate the declaration that the appellant s allegations are baseless. The speeches made by the leaders on February 10, 1990, February 17, 1990, intervening night of February 20 and 21, February 23, 1990 within the constituency and on February 24, 1990 outside the constituency, were not made with his consent. Therefore, corrupt practices have not been proved. By reason of the ratio in Manohar Joshi v. Damodar Tatyaba @ Dadasaheb Rupwate5 [hereinafter referred to as "Manohar Joshi Case No. 2"] this Court had held that the court has to extract pleadings of corrupt practices, evidence - oral an
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
