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CASE NO.:

Appeal (civil) 1250 of 2007

PETITIONER:

M.J. JACOB

RESPONDENT:

A. NARAYANAN

DATE OF JUDGMENT: 20/02/2008

BENCH:

A.K.MATHUR & ALTAMAS KABIR

JUDGMENT:

JUDGMENT

CIVIL APPEAL NO.1250 OF 2007

O R D E R

We have heard learned counsel for the parties.

The application for impleadment is allowed.

This appeal is directed against the final judgment and order passed by the

learned Single Judge of the Kerala High Court dated 2nd February, 2007 in

Election Petition No.2 of 2006 whereby the learned Single Judge after conclusion

of the trial has recorded a finding in para 70, which reads as under :-

"On the basis of the aforesaid findings, it has to be held that the respondent

has committed the corrupt practice in terms of Section 123(4) of the Act and his

election is, therefore, liable to be declared void as per sub-section (1)(b) of Section

100 of the Act. It is so held."

In the light of the aforesaid finding, the learned Single Judge issued a notice

to R.W.1 \026 Shri O.N.

-2-

Vijayan, R.W.2 \026 Sri Jinson V. Paul and R.W.3 \026 Sri P.G. Manu under Section 99

of the Representation of the Peoples Act, 1951 (hereinafter referred to as the

’Act’). Aggrieved against this order, the present appeal was filed. This appeal was

entertained by this Court and an interim order was passed on 23rd March, 2007,

which reads as under :-

"Operation of the impugned judgment of the High Court is stayed but the

appellant is only permitted, pending decision of the appeal, to take part in the

proceedings of the House but he will not vote or draw emoluments. It is, however,

made clear that proceedings under Section 99 of the Representation of the People

Act, 1951 may go on."

Now the appeal has come up for final disposal.

Mr. F.S. Nariman, learned senior counsel appearing on behalf of the

appellant has submitted that the learned Single Judge should not have passed this

order holding that the appellant (herein) is guilty of corrupt practice and then

proceeded to issue notice to the aforesaid three persons. This approach of the

learned Single Judge is not correct and not in consonance with the decision of this

Court in the case of Manohar Joshi versus

Nitin Bhaurao Patil and another reported in 1996 (1) SCC 169.

As against this, Mr. K.K. Venugopal, learned senior counsel appearing on

behalf of the respondent has seriously contested the matter and submitted that

the interim stay order may be vacated and the papers which have been retained in

this Court may be sent back to the High Court for proceeding against the

aforesaid three persons under Section 99 of the Act.

Having heard learned senior counsels for both the parties at length, we are of

the opinion that, in fact, the learned Single Judge should have proceeded with the

matter in one go instead of segregating into two parts. The learned Single Judge

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has found the appellant guilty of corrupt practice under Section 123(4) of the Act.

The learned Single Judge should not have given a categorical finding but should

have observed prima facie finding of guilt.

Having regard to the facts and circumstances of this case and after going

through the judgment, we are of the opinion that in fact the intention of the

learned Single Judge was that this was a prima facie finding which he has arrived

at. It is a matter of expression in which

he has said that having found them guilty, he has issued notice to three persons for

proceeding under Section 99 of the Act. It has to be treated to be a prima facie

finding only.

Therefore, in this background the finding recorded by the learned Single

Judge is a prima facie only and the learned Single Judge will give an opportunity

to these three persons before deciding the matter. We