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High Court Of Madhya Pradesh
G. P. Bhutt, C. J. and K. L. Pandey, J.
K.C.SHARMA, TARACHAND - Appellant
Versus
KRISHI PANDIT RISHAB KUMAR - Respondents
First Appeal 91 Of 1958
Decided On : 02/02/1959
ELECTION LAW - CORRUPT PRACTICES - PARTICULARS OF CORRUPT PRACTICES - AMENDMENT OF PETITION - DISCRETION OF ELECTION TRIBUNAL - ELECTION EXPENSES - INCURRING OR AUTHORISING OF EXPENDITURE IN CONTRAVENTION OF SECTION 77 - MEANING OF - DISQUALIFICATION UNDER SECTION 7 (B) OF THE ACT - SAVING CLAUSE IN SECTION 8 (1) (A) - APPEAL TO VOTE ON THE GROUND OF RELIGION - MEANING OF.
Fact of the Case:
The appellant, who contested the election for the general seat, filed an election petition alleging that the respondent 1, and others acting for the respondents 1 and 2, had committed a number of corrupt practices and that the respondents 1 and 2, who suppressed or imperfectly disclosed their election expenses, incurred expenditure in excess of the scale prescribed for the election under Section 77 (3) of the Act.
Finding of the Court:
The Election Tribunal dismissed the election petition on the ground that the particulars of corrupt practices were vague, indefinite and lacking in particulars and that the appellant was disqualified under Section 7 (b) of the Act for being chosen as a member of the State Legislative Assembly.
Issues: 1. Whether the Election Tribunal was right in disallowing the amendment of the petition to include particulars of corrupt practices? 2. Whether the appellant was disqualified under Section 7 (b) of the Act? 3. Whether the pamphlet Ex. N. A.-1, issued with the appellant's knowledge and concurrence, fell within the mischief of Section 123 (3) of the Act?
Ratio Decidendi: 1. The Election Tribunal has the power to allow particulars of corrupt practices to be given where no particulars were initially given, but it is a matter of discretion. In the instant case, the Election Tribunal did not err in disallowing the amendment of the petition to include particulars of corrupt practices, as the appellant had not explained why he did not incorporate the particulars in the schedules attached to the petition and had not alleged that he came to know of the particulars after he had filed the petition. 2. The appellant was not disqualified under Section 7 (b) of the Act, as he was a sitting member of the State Legislative Assembly at the time of his conviction and had preferred an appeal against his conviction and sentence within three months of the date of disqualification. 3. The pamphlet Ex. N. A.-1, issued with the appellant's knowledge and concurrence, did not fall within the mischief of Section 123 (3) of the Act, as it was not an appeal to vote on the ground of religion.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS is an appeal under Section 116-A of the Representation of the People Act, 1951 (hereinafter called the Act against the order of the Election Tribunal, Chhatarpur, dated 16-7-1958 by which the appellant's election petition under Section 81 of the Act calling in question the election of the respondents 1; and 2 from the Khurai Rural Constituency to the Slate Legislative Assembly was dismissed.
( 2 ) THE constituency in this case is a double-member constituency, one of the seats being reserved for a member of the Scheduled Castes. The polling took place on 9-3-1957 and the respondents 1 and 2, who secured the largest number of votes, were declared elected to the general and the reserved seat respectively. On 25-4-1957, the appellant, who contested the election for the general seat, filed his election petition alleging that the respondent 1, and others acting for the respondents 1 and 2, had committed a number of corrupt practices detailed in schedules A and B and that the respondents 1 and 2, who suppressed or imperfectly disclosed their election expenses detailed in schedule C, incurred expenditure in excess of the scale prescribed for the election under Section 77 (3) of the Act. The appellant prayed that the election of the respondents 1 and 2 might be declared void and that he might be declared as duly elected.
( 3 ) THE respondents 1 and 2 filed their written statements denying the allegations. It was pleaded that since the details given in schedules A, B and C were vague, indefinite and lacking in particulars, which had to be given under Section 83 (1) (b) of the Act, the petition deserved to be rejected summarily. In any event, the allegations lacking in particulars might be ignored and the enquiry restricted to only those allegations which were not wanting in necessary particulars. ( 4 ) THE respondents 3, 4, 5 and 6, who were the other candidates for the election, remained absent and allowed the trial of the election petition to proceed ex parte against them.
( 5 ) SINCE the appellant claimed that he be declared as duly elected, the respondent No. 1 gave notice of a recrimination under Section 97 of the Act alleging therein that the appellant was convicted of an offence under Section 399 read with Section 120b of the Indian Penal Code and sentenced to rigorous imprisonment for three years and was for that reason disqualified under Section 7 (b) of the Act for being chosen as a member of the State Legislative Assembly, It was further alleged that the appellant systematically appealed to the voters to vote for him as lie was a Sanasani Hindu and thereby committed a corrupt practice. The appellant traversed the grounds put forward in the recrimination and stated that he was at the time of his conviction a sitting member of the Legislative Assembly and that he preferred an appeal against his conviction and sentence and, therefore, under Section 8 (1) (a) of the Act, the disqualification did not take effect.
( 6 ) ON 12-8-1957, the respondent 1 raised a preliminary objection that certain corrupt practices disclosed in schedules A and B, were vague, indefinite and lacking in particulars and urged that these might be ignored and not enquired into. The case was fixed for 1-9-1957 for arguments on the preliminary objection and issues, when the appellant applied for an adjournment to enable him 'to file amendment and amplification of the, particulars". This was not granted and arguments were heard on that day aid on the following day when the appellant submitted "further and better particulars by way of amplification of the particulars of the petition' covering 12 pages. It is remarkable that the appellant did not formally apply for leave to amend the petition. Further arguments were heard on the petition on 7-9-1957 when the Election Tribunal took the view that under Section 90 (5) of the Act only the particulars of a corrupt practice -alleged in the petition could be amended or amplified and that, where no
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