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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Anant Bijay Singh, J.
Nirmala Devi - Appellant
Versus
Sri Mukhtar Abbas Naqvi & Ors. - Respondent
E.P. No. 01 of 2016
Decided On : 15-01-2019
The court allowed the petitioner's interlocutory applications (I.A. No. 8872/2017 and I.A. No. 8837/2017) filed under Section 86(5) of the Representation of People Act, 1951 and Section 151 of the Code of Civil Procedure, 1908, respectively, subject to the petitioner depositing costs of Rs. 5,000/- in the bank account of Jharkhand State Legal Services Authority.
Fact of the Case:
The petitioner, an elector, filed an election petition challenging the election of the two returned candidates (respondents) to the Rajya Sabha on the ground of corrupt practices. The petitioner alleged that the respondents, in connivance with the Chief Minister and other government officials, offered bribes and exerted undue influence on the petitioner and other MLAs to abstain from voting or to cast their votes in favor of the respondents. The respondents filed their written statements denying the allegations and objecting to the maintainability of the election petition.
Finding of the Court:
The court held that the petitioner had made out a case for allowing the amendment of the election petition under Section 86(5) of the Representation of People Act, 1951, as the proposed amendments were in the nature of amplification of the facts already pleaded and did not introduce any fresh cause of action. The court also allowed the petitioner's application under Section 151 of the Code of Civil Procedure, 1908, for keeping certain relevant documents in safe custody.
Issues: 1. Whether the petitioner had made out a case for allowing the amendment of the election petition under Section 86(5) of the Representation of People Act, 1951? 2. Whether the petitioner was entitled to file the alleged purported documents mentioned in paragraph 1 of the application under Section 151 of the Code of Civil Procedure, 1908?
Ratio Decidendi: The court relied on the following principles of law in reaching its decision: * Section 86(5) of the Representation of People Act, 1951 empowers the High Court to allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. * The power of amendment granted by Section 86(5) is relatable to clause (b) of Section 83(1) of the Representation of People Act, 1951 and is coupled with a prohibition, namely, the amendment will not relate to a corrupt practice not already pleaded in the election petition.
Final Decision: The court allowed the petitioner's interlocutory applications (I.A. No. 8872/2017 and I.A. No. 8837/2017) filed under Section 86(5) of the Representation of People Act, 1951 and Section 151 of the Code of Civil Procedure, 1908, respectively, subject to the petitioner depositing costs of Rs. 5,000/- in the bank account of Jharkhand State Legal Services Authority.
JUDGMENT
I.A. Nos. 8837/2017 & 8872/2017
1. I.A. No. 8872 of 2017 dated 16.11.2017 filed under Section 86(5) of the Representation of People Act, 1951 on behalf of the petitioner is pressed. Further, an I.A. No. 8837 of 2017 has been filed under Section 151 of the C.P.C. on behalf of petitioner with a prayer to keep the C.Ds., two in numbers, and other documents, filed in sealed cover in safe custody, during the trial of election petition.
2. Rejoinder has been filed on behalf of respondent no. 1 objecting the application filed under Section 151 of C.P.C. vide I.A. No. 8837/2017 on behalf of the petitioner.
3. A reply has been filed on behalf of respondent no. 2 to I.A. No. 8837/2017 filed on behalf of the petitioner with a prayer to dismiss the application with heavy cost and for a direction to return the documents.
Both the I.As. are taken up for hearing.
Section 86(5) of the Representation of People Act, which reads as under:
86. (5) The High Court may, upon such terms as to costs and otherwise as it may deed fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
4. Learned counsel for the petitioner while referring to the provisions of Section 86(5) of the Representation of People Act and also the averments made in para-9 onwards of the Election Petition No. 01/2016 submitted that the election petitioner has pleaded the material fact indicating that corrupt practice was exercised by the winning candidate namely Mukhtar Abbas Naqvi and Mahesh Poddar (respondents) in the Rajya Sabha Election and now by filing I.A. No. 8872/2017, he has only amplifying to bring on record certain evidence which is annexed as Schedule to I.A. Learned counsel for the petitioner further made prayer by filing application under Section 86(5) of the Representation of People Act for keeping all documents including CDs and other documents in box in safe custody.
5. Learned counsel for the petitioner has referred to the following paragraphs of the election petition which reads as under:
"10. That the details and the particulars of the corrupt practice committed by the respondents are given in the succeeding paragraphs of this petition.
11. That Bhartiya Janta Party (herein after called B.J.P in short) is a recognized political party for the whole of India by the Election Commission of India. Its election symbol is Lotus.
12. That the respondents were candidates set up by the BJP to contest the Rajya Sabha election from Jharkhand State Assembly constituency and the other candidate Basant Soren was the candidate set by the political party Jharkhand MUkti Morcha.
13. That B.J.P had returned a total of 43 members to the Jharkhand Legislative Assembly in the last general election 2014, whereas the Indian National Congress has 07 elected members in the Jharkhand State Assembly.
14. That the voting in the Rajya Sabha Election is based upon with the system of Proportional representation by means of single transferable vote. And as such for getting success in the two Rajya Seats for both the respondents one MLAs vote was crucial.
15. That it is stated that in Jharkhand State Sri Raghubar Das as the leader of the House is the Chief Minister of Jharkhand was entrusted with the task of working out a strategy and finding out ways and means for the success of the respondents in the election to the Rajbya Sabha which was going to take place on 11.06.2016.
16. That as a part of the strategy Sri Raghubar Das had set up a top officer of the State namely Sri Anurag Gupta, IPS, Additional Director General of Police (Special Branch) of Jharkhand to manage the horse trading and by way of corrupt practice to get the both BJP candidates to win the election in que
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