1999 Supreme(SC) 359

1999(3) Supreme 243
Supreme Court of India
(From Kerala High Court)
Dr. A.S. Anand, CJI., M. Srinivasan & R.P. Sethi, JJ.
V.S. Achuthanandan -Appellant
versus
P.J. Francis & Anr. -Respondents
Civil Appeal No. 1808 of 1997
Decided on 22-3-1999
Counsel for the Parties :
For the Appellant : Dr. A.M. Singhvi, K. Sudhakaran, Sr. Advocates, Ms. Maliai Poduval, P.K. Bansal, R. Satish, Ms. Kamini Jaiswal, Advo­cates.
For the Respondents : Ramkumar, (Roy Abraham) Advocate for Ms. Baby Krishnan, Advocates.

Important Points
1. It is true that on vague and ambiguous evidence no court can direct recount. But it is equally true that the doors of justice cannot be shut for a person seeking recount without affording him an opportunity of proving the circumstances justifying a recount.
2. Lacking of full particulars could not be made a basis for rejecting on election petition as the election petitioner has the right to amend the pleadings.
3. The word ‘election’ cannot be restricted only to the lectoral process which commences with the issuance of the notification and ends with the casting of votes at polls. Election means every stage from the time the notification calling for election is issued till the declaration of the result.

Headnote:(i) Representation of People Act -Section 86-Purpose of section-Is to ensure that every charge of corrupt practice is brought before Court within prescribed period of limitation so that trial is not coverted in to prosecution by adding more and more charges.

       Held : Free, fair, fearless and impartial elections are the guarantee of a damocratic polity. Effective mechanism is the basic requirement for having such elec­tions. For conducting, holding and completing the damocratic process, a potential law based upon requirements of the society tested on the touchstone of the experience of times is concededly of paramount importance. A balanced judicial approach in implementing the laws relating to frachise is the mandate of this Court. Law relating to the accomplishment of the damocratic process by holding the elections is not required to be so liberally construed as to frustrate the will of the people expressed at the elections and not too rigidly applied which may result in shaking the confidence of the common man in the institution entrusted with the noble task of establishment of the rule of law. It has always to be kept in mind that the law relating to elections is the creation of the statute which has to be given effect to strictly in accordance with the will of the Legislature. (Para 5)

       Rules of pleadings are in­tended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it. The purpose of Section 86 of the Act is to ensure that every charge of corrupt practice is brought before the Court within the prescribed period of limitation and not thereafter, so that the trial of the case is not converted into a prosecution by adding more and more charges or by converting one charge into another as the trial proceeds. (Para 6)

       (ii) Constitution of India-Art. 329(b) - Election - Meaning of-Elec­tion means entire process culminating in a candidate being declared elected and not confined to final result. (Para 10)

       (iii) Representation of People Act-Section 83 read with Section 123-Dismissal of election petition on ground details of corrupt practice are wanting-Whether correct -No-Lacking of full particulars could not be made a basis for rejecting election petition-Election petitioner has right to amend plead­ings-Cause of action cannot be equated with proof.

       Held : Material facts are such primary facts which must be proved at the trial by a party to establish existence of a cause of action. Whether in an election petition a particular fact is material fact or not, and as such, required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon, and in the light of the special circumstances of the case. (Para 12)

       The corrupt practices referred to in the aforesaid two sub-sections (2) and (7) of Section 123 are deemed to be corrupt practices if such practices are committed. “for the furtherance of the prospects of that candidate’s election”. The word `election’ cannot be restrict­ed only to the electoral process which commences with the issuance of the notification and ends with the casting of votes at the Polls. The word `election’ as used in the Representation of the People Act has been interpreted by this court to mean “that every stage from the time the notification calling for elections is issued till the declaration of the result.” (Para 15)

       In the instant case the appellant had specified the alleged corrup practices in para­graphs 11 (E), (F), (H), (J), (K), (M) and (P). It was alleged that Sri Ayyappan Pillai, the Election Tehsildar of the Constituency was close associate and fried of the 1st respondent who played a pivotal role in the manoeuvring relating to ballot papers which were not distributed to the polling stations and ultimately used for the benefit of the successful candidate. He was alleged to have been helping the 1st respondent in violation of the provisions of the Act, the Rules, Orders and Instructions issued thereunder. He was admitted­ly a gazetted officer who was alleged to have acted as an agent of the 1st respondent. The trial Judge found that allegations made in para­graphs 11(E), (F), (H), (J), (K), (M), and (P) of the election peti­tion were vague in nature and did not setforth full particulars of any corrupt practice. Lacking of full particulars could not be made a basis for rejecting the election petition as the appellant had the right to amend the pleadings. The trial Judge found that, “details of corrupt practice are wanting in the election petition”. The absence of the details appears to have persuaded the learned Judge to reject the election petition apparently under a misconception of the legal posi­tion regarding the difference between the `material facts’ and `material particulars’. It was, therefore, wrongly, found that in the absence of specific pleadings and full particulars of corrupt practices, the election petition deserved rejection as it allegedly did not disclose any cause of action. The trial Judge appears to have equated the cause of action with proof and thus committed an illegality of law requiring interfer­ence by us. It appears that while interpreting the provisions of Order VII Rule 11 of the Code of Civil Procedure and Section 83 read with Section 123 of the Act, the learned trial Judge has taken a hypertech­nical view in the matter which if approved would frustrate the purpose of the purity of the elections which has been held to be machanism devised to ascertain the true wishes and will of the people in the matter of choosing their political leaders in a damocratic system. (Para 13 & 17)

       (iv) Representation of People Act-Section 100 read with Section 83-Prayer for recounting-Rejec­tion of election petition on ground details of corrupt practice wanting-Not correct-It is true that no vague and ambiguous evidence no court can direct recount-But doors of justice cannot be shut for a person seeking recount without offording him on opportunity of proving circumstances justifying a recount.

       Held : The learned trial Judge was justified in rejecting the election petition without affording the appellant opportunity to place on record the circumstances justifying the recount as prayed for by him. It is true that on vague and ambiguous evidence no court can direct recount. But it is equally true that the doors of justice cannot be shut for a person seeking recount without affording him an opportunity of proving the circumstances justifying a recount. In his petition the appellant had given details of the alleged illegalities and irregularities committed by the respondent No. 1 which according to him justified the holding of a recount. The learned trial Judge relied upon some judgments where recount was not allowed after trial and wrongly dismissed the election petition filed by the appellant without affording him the opportunity to substantiate the allegations made in the petition or to bring on record the evidence jsutifying a recount. It is settled position of law that the court trying an elec­tion petition can direct inspection and recount of votes if the material facts and particulars are pleaded and proved for directing such recount in the interest of justice. In doing so, the provisions of Section 94 of the Act have to be kept in mind and given due weight before directing inspection and recount. (Para 18)