ABHIRAM SINGHversusC.D. COMMACHEN AND ORS.

A                               ABHIRAM SINGH
                                          v.
                         C.D. COMMACHEN AND ORS.

                                  APRIL 16, 1996

B    [K. RAMASWAMY, S.P. BHARUCHA AND K.S. PARIPOORNAN]

          Representation of People Act, 1951 : Section 99( 1)-Election Peti-
    tion-Show Cause Notice to person not party to the petition-Content and
    scope of-Decision by Supre111e Coiut in one case that the notice n1ust inter-
C   alia contain the portions of the petition written statement oral and documen-
    tary evidence, in support of the charges of c01rupt practice and prima facie
    finding thereon-1n a subsequent judgment Supreme Cowt held that the prag-
    matic question of deciding the question of compliance of requirements of the
    Section is that the noticee gets the same opportunity which he would get if he
D   were made party, hence the communication of mate1ial not required-Held,
    the two decisions are conflicting hence matter refe!Ted to larger bench of five
    Judges.

            Sections 123 (3) & (3A)-Conupt practice-Content and scope of---
    Held, requires to be clear laid down authoritatively, hence refelTed to Con-
E   stitution Bench for deciding the issue.

           Co1TUpt practice in speeches delivered by collaborators-Consent to, by
    the candidate--ffe/d in one case by Supreme Court that it should be in-
    ferred-Held in other cases by Supreme Court that it should be proved-Held,
    the views are inconsistent-No specific law laid down as to when the case is
F   held proved-Authoritative decision required, hence refeired to Constitution
    Bench.

        The appellant, a BJP candidate, and the respondent a Congress
  party candidate contested a legislative assembly election. Appellant was
  duly elected. Respondent filed election petition before High Court alleging
G corrupt practices by the collaborators of the candidate while delivering
  speeches on certain dates. Appellant was not made party to the petition.
  High Court on findingprima facie evidence of use of corrupt practice sent
  noticee to the appellant u/s. 99 of Representation of People Act, 1951,
  without communicating to .him, the pleadings of corrupt practices and
H evidence - oral and documentary in proof thereof.
                                          340
                ABHIRAM SINGH v. C.D. COMMACHEN                           341

       Tl)e Supreme Court held in Manohar Joshi's case that the notice A
required the extract of pleadings of corrupt practices, evidence, oral and
documentary in proof thereof and the Judge is required to give his prima
facie findings indicating the portions of speeches delivered by the speaker.
In a later judgment, the Supreme Court held that the noticee gets the same
opportunity which he would get if he were made party, hence communica· B
lion of the material on record is not required.

      The appellant in appeal to this Court challenging the order of the
High Court contended that the speeches by the collaborators were not
made with his consent; therefore, corrupt practices have not been proved
and that the impugned judgment has not complied with the mandatory               C
requirements of notice u/s 99 as held in Manohar Joshi's case 2 and that
the findings u/s 123(3) and (3A) without compliance of requirements of
notice and opportunity under Section 99 vitiate the declaration that the
appellant's allegations are baseless.

      Refering the matter to the Constitution Bench, this Court                  D

       HELD : 1.1. When and under what circumstances speeches of the
leaders of the political party or the appeal or 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         E
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 candidates or his election
agent for the furtherance of prospects of the election of the candidate or
prejudicially effect the election of any candidate, constitutes corrupt prac·
lice under sub-sections (3) or (3A) of Section 123 of the Representation of      F
People Act. 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. (347-G-H; 348-A·B)                                            G
      Suryakant Venkatarao Mahadik v. Smt. Saroj Sandesh Naik (Bhosa/e),
(1996) 1 SCC 384; Ramakant Mayekarv. Smt.· Celine D'Si/va, (1996) 1 SCC
399, (1996] 1 SCC 378; Prof Ramchandra G. Kapse Etc. v. Haribansh
Ramakbal Singh Etc., (1966] 1 SCC 206; Moreshwar Save v. Dwarkadas·
Yashwantrao Pathn·kar, (1996] 1 SCC 394 and Dr. Ramesh Yashwant                  H
    342                    SUPREME COURT REPORTS [1996) SUPP. 1 S.C.R.

A Prabhoo v. Prabakar Kashinath Kunte and Ors., [1996] (1) SCC 130,
    referred to.

           1.2. As to when the case is held proved in such cases has not been
    specifically laid as law. There appears to be some inconsistency in the view
    in Dr. Prabhoo's Case that consent to the speeches of collaborators, by the
B   returned candidate should be inferred, and in other cases that consent is
    required to be proved. (347-E-F]

        1.3. The decision in Manohar Joshi's case No. 2 and Dr. Prabhoo's
  Case are mutually conflicting. Which of the two views is co"ect is the question
C required to be decided by a larger bench. (347-DJ

             Manohar Joshi v. Damodar Tatyaba and Dadasaheb Rupwate, (1991]
    2 SCC 342 and Dr. Ramesh Yashwant Prabhoo v. Prabhakar Kashinath
    Kunte & Ors., (1996] 1 SCC 130, referred to.

D            CIVIL APPELLATE JURISDICTION              Civil Appeal No. 37 of
    1992.

         From the Judgment and Order dated 24.12.91 of the Bombay High
    Court in E.P. No. 11 of 1991.
E
             AM. Khanwilkar, Ramesh Singh and Ms. Bina Gupta for the Appel-
    lants.

             B.A. Desai, M.N. Shroff and Ms. Reema Bhandari for the Respon-
    dents.
F
             The Judgment of the Court was delivered by

           K. RAMASWAMY, J. After spending considerable time on diverse
    question canvassed across the bar, we are of the opinion that this appeal
    requires to be posted before a Constitution Bench for deciding the ques-
G   lions 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
H   High Court passed in Election Petition No. 11 of 1991.
     ABHIRAM SINGH v. C.D. COMMACHEN !K. RAMASWAMY,J.]                     343

       The respondent, since deceased, his legal representatives have been        A
brought on record and a notice as required under the Act, was also duly
published. He contested as a Congress Party candidate in the clcclion to
No. 40, Santacruz Legislative Assembly Constituency in 1990 for the
Maharashtra State Assembly. The appe.llant is the returned candidate who
filed his nomination on January 31, 1990 which was accepted on February
                                                                                  B
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. The contested election as a BJP candidate and was also Vice
President of the Bombay Unit of the said party. He secured single largest
majority \Utcs white the respondent secured second largest. By judgment
dated December 19, 1991 the High Court allowed the election petition.             c
       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/Hunduism/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         D
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 paragraph 198 it is further held that "prima facic, it
does appear that the leaders have appealed for votes for the Hindu can-           E
didates of the two parties on the basis of their religion and community.
Prima facie, it does appear that the leaders did attempt to create e'nmity
and hatred between different classes of citizen on the grounds of community
and religion". In paragraph 197, it is held that "(I)n my view, it will have to
be held that the tape recordings contain the speeches made at these               F
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"

       Shri A. M. Khanwilkar, learned counsel for the appellant, contended G
that in view of the decisions of this Court in Suryakant Venkatarao Mahadik
v. Smt. Saroj Sandesh Naik (Blwsa/e), (1996] 1 SCC 384; Ramakant
Mayekar v. Smt. Celine D'Silva, (1996] 1 SCC 399, (1996] 1 SCC 378; Prof
Ramchandra G. Kapse Etc. v. Ha1iba11sh Ramakbal Singh Etc., (1996] 1 SCC
206; Moreshwar Save v. Dwarkadas Yashwantrao Patluikar, (1996] 1 SCC
394 the findings recorded under Sections 123(3) and 123 (3A) of the Act H
    344                   SUPREME COURT REPORTS [1996J SUPP. 1 S.C.R.

A   without con1pliance of the rcquiren1cnt~ of notice and opportunity under
    Section 99 which was held to be a <lutv of the Court, vitiate the declaration
    that the appdbnt's allegations are baseless. The speeches made hy the
    leaders on February 10, 19YO, February 17, 1990 intervening night of
                                                           1


    February 20 an<l 21, Fcbru:iry 2:1, 1990 \vithin the constituency and on
    February 24, 1990 outside the cunslitucncy, \Vere not n1adc with hi:.. con-
B   sent. Therefore, corrupt practices have not been proved. By reason of the
    ratio in Manohar Joshi v. Damodar Ta1yuba ~I Dadasaheb Rupwale, [ 1991J
    2 SCC 342 (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 and documentary in proof thereof and in the order the
c   Judge is required to indicate portions of his p1in1a facie findings of the
    speaker appealing to the voters on the basis of religion etc. The court
    should supply the pleadings, evidence - oral an<l documentary and the copy
    of the order so as to enable noticce to adequately meet the ground on
    which he is proposed to be named in the order. This mandatory require-
    ment has not been complied with. Therefore, the judgment is clearly illegal.
D
    He, therefore, requested to remit the matter for taking the proceedings
    under Section 99(1) proviso as interpreted in Manohar Joshi Case No.2,
    Shri, B.A. Desai, learned counsel for the respondent, has controverted the
    same.

E         P1in1a facie 1 the follo\ving three questions \vhich arc 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
F   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 bJ~is and under \Vhat circu1nstances the consent
G   is held proved?

           (iii) on reaching the conclusion that consent is proved and piima
    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
H   and findings on each of the corrupt practices by each of the co\laborators,
      ABHIRAM SINGH v. C.D. COMMACHEN [K. RAMASWAMY, J.]                 345

 if there are more than one, and supply them to all of them for giving an A
 opportunity to be complied with?

        There is a common thread that runs through many a decision of this
 Court which mandates as duty of the High Court under sub- section (1) of
 Section 99, requiring at the time of making an order under Section 98 to
                                                                                B
 make an order recording the names of all persons, if any, who have been
 proved at the trial to have been guilty of any corrupt practice and the
 nature of that practice. The High Court is required to refer names of all
 persons proved guilty of any corrupt practice which have been proved at
 the trial. Under proviso to sub-section (1), the person who has not been a
 party to the petition has to be given notice to appear before the High Court   c
 to show cause why he should not be named. If he appears pursuant to the
 notice, he should be given an opportunity of cross-examining any witness
 who has already been examined and given evidence and of calling evcdence
 in his defence and of being heard.
                                                                                D
         In Dr. Ramesh Yeshwant Probhoo v. Prabhakar Kashinath Kunte &
  Ors., [1996] 1SCC130, the scope of the content of the notice under Section
  99(1), proviso (a) came up for consideration. Background facts to the said
  decision are required to be stated here. In Election Petition No. 1 of 1988
  which is the subject matter of the above appeal, at the close of the trial, by
  order dated September 23, 1988, the learned Judge while holding that E
  notice under Section 99 was necessary, the Court reached prima facie
  finding that the charges alleged in the petition of the corrupt practices
  under Section 123(3) and 123(3A) have been proved against the named
  persons and directed notice to them to show cause why they should not be
  so named in the order of the election petition; the notice indicated that the F
  named person shall have opportunity to cross-examine the witnesses al-
  ready examined at the trial and gave evidence against him and of calling
  evidence in his defence and of being heard. Accompanying the notice,
· photocopies of the petition, written statement, the issues, the evidence -
  oral and documentary were supplied. In furtherance thereof, Shri Bal G
  Thackeray had appeared on September 27, 1988 and contended that the
  notice was vague since the notice did not indicate as to which portions of
  the speeches were believed and relied upon to reach prima facie con-
  clusion. By order dated October 10, 1988, the learned Judge overruled the
  objections by a written order which was challenged in Special Leave
  Petition No. 13163 of 1988. A Bench of two Judges of this Court by order H
    346                   SUPREME COURT REPORTS [1996] SUPP. l S.C.R.

A dated December 1, 1988 dismissed the petition holding that notice under
    Section 99 was not required to specify all the portions of the speeches
    indicated to be corrupt practices under sub-sections (3) and (3A) of
    Section 123. However, liberty was given to Bal Thackeray to file an applica-
    tion before the High Court seeking to specify those portions which accord-
    ing to the Court p1ima facie come within the purview of sub-sections (3)
B   or (3A) of Section 123. If such an application was made, the High Court
    was directed to dispose of it in accordance with law.

           Subsequently, an application came to be made and by order dated
    December 16, 1988 the learned Judge held that Section 99 does not require
C   the Court to analyse the evidence and specify either in the notice under
    Section 99 or at any time prior to hearing the persons to whom notice had
    been issued, "portion or portions thereof in its view prima facie to make
    out the case which the noticee is called upon to answer". His position can
    be no better than the elected candidate. It was held that the noticee is not
D   entitled to be specified by the Court of the portions of the speeches which
    according to it prima facie fall within the purview of sub-section (3) or (3A)
    of Section 123 either in the show cause notice under Section 99 or at any
    time prior to so showing cause. Accordingly, the High Court directed the
    counsel appearing for the election petitioner "to indicate on which portions
    of the speeches or evidence he seeks to place reliance at the hearing of the
E   election petition" and directed him to furnish to the noticee or his advocate
    xerox copy of those speeches, marking in the margin thereof the portions
    that are so stressed. Accordingly, it was done. The Special Leave Petition
    No. 507 of 1989 filed against that order came to be dismissed by order
    dated January 23, 1989 of another Bench of two Judges.
F
        In the light of the above background, an argument was raised in the
  appeal that the appellant was prejudiced for non-compliance of the proce-
  dure under Section 99. The Bench had held that "it is difficult to visualise
  what prejudice was caused to the noticee on these facts and how there
  should be any non-compliance of Section 99 of the Representation of the
G People Act in this situation" and it was held that, in short, the opportunity
  which a party to the petition had at the trial to defend allegations of corrupt
  practices is to be given by such a notice to that person of defending himself
  if he was not already a party to the petition. In other words, the noticee
  has to be equated with a party to the petition for this purpose and has to
H be given the same opportunity which he would get if he was made a party
         ABHIRAM SINGH v. C.D. COMMACHEN [K. RAMASWAMY, J.]                  347

    to the petition. This is the pragmatic test to be applied for deciding the      A
    question of compliance of requirements of Section 99. The opportunity
    required to be given by virtue of proviso to sub- section (1) of Section 99
    is the same and not more than that available to a party to the petition to
    defend himself in respect of corrupt practices. It was held, therefore, that
    the grievance that the portion of the material which formed the record at
                                                                                    B
    the trial was not purposely communicated to the noticee, had no merit.

          The earlier Bench of three Judges in Manohar Joshi Case No. 2
    (supra) in the same situation arising out of Election Petition No. 9 of 1990
    from the same Court had held that notice should contain that portions of
l   the petition, written statement, oral and documentary evidence which is C
    sought to be relied upon in support of the said charge or each of the said
    charges and the prima facie findings thereon w!tich is the minimum
    safeguard. In other words, a mini judgment was required to be rendered.
    The orders referred to on the special leave petitions in Dr. Prabhoo's case
    were deemed to have been overruling . It would thus be seen that the D
    decision in Ma11ohar Joshi's case No. 2 and Dr. Prabhoo's case are mutually
    conflicting. If this Bench was to take yet another view, it would create yet
    another dimension. Which of the two views is correct is the question
    required to be decided by a larger Bench of five Judges.

           In Dr. Prabhoo's case it was held that consent to the speeches of the    E
    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 son1e 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       F
    authoritatively decided.

         As stated earlier, v.1h~n 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     G
    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 H
    348                   SUPREME COURT REPORTS (19%( SUPP. l S.C.R.

A   practice under sub-sections (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 ncorrupt practicc involved in every election
                                                      11



    petition would ensue. The purity of election process gets fouled and be
    fraught with deleterious effect in a democratic polity.

B         Thus, \Vithout expressing any opinion on these questions, \Ve are of
    the view that the entire case requires to be heard and clecided by a larger
    Bench of five Judges since the decision thereon impinges upon the purity
    of election process .md req uircs to be decided authoritatively.


c learnedIV c,brother,
                 therefore, direct the Registry to place the case before our
                       the Chief Justice for constituting a larger Bench of five
    Judges, and, if possible, at an early date so that all the questions arising in
    the present appeal could be decided authoritatively and expeditiously.

          Thus, this reference order of in the above terms.
D   K.K.T.                                                           Still pendine.