Supreme Court of India
ISHWARDAS ROHANIversusALOK MISHRA & ORS.
- Citation
- 2012 INSC 198
- Decided
- 3 May 2012
- Disposal
- Matter referred to larger bench
- Bench
- ALTAMAS KABIR
Holding
The High Court did not commit any error in directing the election petitioner to cure the defects in the election petition, and the appeal is dismissed.
Summary
The appellant, a returned candidate, challenged an election petition filed by the respondent alleging corrupt practices under Sections 123 of the Representation of the People Act, 1951. The High Court, despite noting deficiencies in the petition, directed the respondent to amend the pleadings and verify them, rather than dismissing the petition outright. The appellant appealed, arguing that the petition was fatally defective and that any amendment after the statutory limitation period was impermissible. A majority of the Supreme Court held that the High Court was correct in allowing the petition to be cured in the public interest and that the appeal was dismissed, while a dissent argued the petition should be dismissed for lack of material facts. The Court emphasized that election petitions, though subject to strict construction, may be amended to cure curable defects, but any amendment beyond the limitation period is not permissible.
Issues considered
- Whether an election petition deficient in material facts or particulars can be dismissed at the threshold or must be given an opportunity to amend.
- Whether the High Court erred in directing the election petitioner to amend the petition despite alleged procedural defects.
- Whether amendment of an election petition after the limitation period prescribed under the Representation of the People Act is permissible.
- Whether the election petition disclosed a cause of action under Section 123 of the Representation of the People Act, 1951.
Legislation cited
- Code of Civil Procedure, 1908s. Order VII Rule 11, s. Order VI Rule 15, s. Order VI Rule 16
- Conduct of Election Rules, 1961s. Form 25, s. Rule 94-A
- Representation of the People Act, 1951s. 100, s. 123(1)(A), s. 123(1)(B), s. 123(2), s. 123(6), s. 123(7), s. 81(3), s. 83, s. 86(5)
Subjects
Election petitionCorrupt practiceRepresentation of the People ActAmendment of pleadingsMaterial factsLimitation periodSupreme CourtElection law
Judgment
[2012] 13 S.C.R. 285
ISHWARDAS ROHAN! A
V.
ALOK MISHRA & ORS.
(Civil Appeal No. 4189 of 2012)
MAY 3, 2012
B
[ALTAMAS KABIR AND J. CHELAMESWAR, JJ.]
Election Laws - Election Petition - Pleadings - Allegation
in election petition that appellant (the returned candidate) had
indulged in corrupt practices falling uls.123 of the 1951 Act - C
Appellant filed application challenging the election petition as
being defective on various grounds viz. improper cause of
action, vague allegations and non-disclosure of material facts
and particulars, and thus liable to be rejected - High Court
passed directions permitting respondent no.1-election D
petitioner to cure deficiencies in the election petition and to
suitably amend the pleadings alongwith proper verification and
affidavit - Directions challenged before Supreme Court - Held
[per Kabir, J.] High Court did not commit any error in directing
the Election Petitioner to cure defects in the Election Petition E
- Though the provisions of the 1951 Act have to be strictly
construed, but that does not mean that any defect in the
Election Petition cannot be allowed to be cured in the public
interest - If after an opportunity is given, still no steps are taken
by the Election Petitioner to cure the qefects which are F
noticed, then the rigours of the procedure indicated by the
1951 Act, would come into effect with full vigour - Held [per
Chelameswar, J. (dissenting)], an election petition is required
to contain all the material facts sufficient to constitute the
cause of action for setting aside the election of the returned
candidate - Though failure to give 'material particulars' has G
not been held to be fatal, the failure to give 'material facts' has
always been held to be fatal to the election petition - Election
petition on hand did not state material facts constituting the
various corrupt practices mentioned in the election petition -
285 H
286 SUPREME COURT REPORTS [2012) 13 S.C.R.
A It was incapable of being read as disclosing any cause of
action on the basis of any known cannon of interpretation of
documents - Election petition thus not maintainable and liable
to be dismissed -· In view of difference of opinion, matter
referred to larger .Bench -Representation of the People Act,
B 1951 - s.123(1)(A) and (8), (2), (6) and (7).
Respondent no.1 filed Election Petition challenging
the election of appellant- the returned candidate, on the
ground of corrupt practice, as contemplated in Sub-
C Sections (1 )(A) and (B), (2), (6) and (7) of Section 123 of
the Representation of the People Act, 1951. In the
pending Election Petition, the appellant filed an I.A. under
Order VII Rule 11 read with Order VI Rule 16 of CPC,
praying that the Election Petition filed by Respondent
No.1 be rejected on ground of various deficiencies such
D as improper cause of action, vague allegations and non-
disclosure of material facts and particulars. The High
Court held that although the allegations of corrupt
practice had not been properly drafted, the Election
petition could nc>t be rejected on the said ground and
E directed Respondent no.1 to cure defects in the election
petition- in light c>f the objections raised, and amend the
pleadings suitablly. The High Court further directed that
after amending 1the pleadings, respondent no.1 would
also verify the s;ame by furnishing an affidavit under
F Order VI, Rule 15(4) CPC and further verify the pleadings
relating to the corrupt practice by filing a proper affidavit
in the prescribed Form No.25, as prescribed under Rule
94-A and appendi~d to the Conduct of the Election Rules,
1961. The direc:tions given by the High Court was
G challenged in thE~ instant appeal.
HELD:
Per Kabir. J.
H 1.1. One line of decisions rendered by this Court
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 287
suggests that since an Election Petition has serious A
consequences under Section SA of the Representation
of the People Act, 1951, the provisions of the Act have to
be strictly construed and, particularly, in cases where
corruption is alleged, any omission in the pleadings to
mention such corrupt practice would render the Election B
Petition not maintainable. On the other hand, another line
of decisions suggests that since the issue involved in an
Election Petition alleging corrupt practice, is of great
public interest, an Election Petition should not be rejected
at the threshold, but an opportunity should be given to C
the Election Petitioner to cure the defects which are
curable. It was contended by the counsel for the appellant
that in absence of a cause of action or incomplete cause
of action for the Election Petition on account of the
verification thereto not being in conformity with the
provisions of Order VI Rule 15 of the C.P.C. the Election 0
Petition was liable to be dismissed. Such contention is
not acceptable in the light of the decisions in Sardar
Harcharan Singh Brar's case and also in F.A. Sapa's
case, despite the fact that in F.A. Sapa's case it was
indicated that if the affidavit of schedule or annexure E
forms an integral part of the Election Petition itself, strict
compliance would be insisted upon. [Para 21] [303-F-H;
304-A-C]
1.2. In F.A. Sapa's case, it had been indicated that a F
charge of corrupt practice has a two dimensional effect,
namely, its impact on the returned candidate has to be
viewed from the point of view of the candidate's future
political and public life and from the point of view of the
electorate to ensure the purity of the election process. G
Accordingly, there has to be a balance in which the
provisions of Section 81 (3) of the 1951 Act are duly
complied with to safeguard the interest, both of the
individual candidate, as well as of the public. In this case,
while accepting the case made out by the appellant H
288 SUPREME COURT REPORTS [2012] 13 S.C.R.
A regarding the deficiencies in the Election Petition, the
High Court did not commit any error in directing the
Election Petitioner to cure the defects in the Election
Petition, which had been brought out during the hearing
of the Election Petition. Though the provisions have to
B be strictly construed, but that does not mean that any
defect in the Election Petition cannot be allowed to be
cured in the public interest. If after an opportunity is
given, still no steps are taken by the Election Petitioner
to cure the defects which are noticed, then the rigours
C of the procedure indicated by the 1951 Act, come into
effect with full vigour . [Paras 22, 23) [304-D-F, H; 305-A-
B]
1.3. There is no reason to interfere with the impugned
order of the High Court and the appeal is, accordingly, .
D dismissed. [Para 24] [305-B-C]
Sardar Harcharan Singh Brar v. Sukh Darshan Singh
[AIR 2005 SC 22) and F.A. Sapa & Ors. v. Singora & Ors.
[(1991) 3 sec 375) - relied on.
Surinder Singh v. Hardial Singh [(1985) 1 SCC 91);
Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi [(1987)
Supp. SCC 93); Anil Vasudev Salgaonkar v. Naresh Kushali
Shigaonkar [(2009) 9 SCC 310); R.P. Moidutty v. P. T. Kunju
Mohammad [(2000) 1 SCC 481); V. Narayanaswamy v. C.P.
F Thirunavukkarasu [(2000) 2 SCC 294) and Raj Narain v. Smt.
Indira Nehru Gandhi [(1972) 3 SCC 850) - referred to.
Per Chelameswar, J. (dissenting)
G
1.1. The election petition is not only a bad piece of
drafting, but also it is difficult to state with precision as
to what exactly is the substance of the complaint in the
election petition. The absurdity of the election petition can
only be understood by reading it, but cannot be
H explained. Respondent No.1 invited an adjudication that
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 289
corrupt practices falling under Section 123(2), (6), (7) and A
123(A) and (8) of the R.P. Act, have been committed.
There are no Sections numbered 123(A), (8) in the
R.P .Act, 1951. The High Court, however, generously
construed such reference to Sections 123(A) and (8)
occurring in the election petition as references to Section B
123(1)(A) and (B). (Paras 4, 5) [307-H; 308-A, F]
1.2. Section 100 of the R.P. Act, 1951, provides the
grounds on which an election could be declared void.
The election of a returned candidate can be declared
void, if the High Court is satisfied; a) that any corrupt C
practice has been committed either by the returned
candidate or his election agent or any other person with
the consent of either the candidate or his election agent;
and b) that any corrupt practice has been committed by
any agent other than the election agent. In the case of the D
satisfaction of the High Court of the 1st of the
abovementioned two contingencies, the High Court can
straightaway declare the election of the returned
candidate to be void. Whereas in the 2nd of the
abovementioned contingencies, the High Court must also E
be satisfied that such commission of the corrupt practice
has materially affected the result of the election because
the corrupt practices falling under the later category are
committed without the consent of the returned candidate
or his election agent. [Para 8) (310-C-D, E; 311-C-E] F
1.3. In the instant case, the returned candidate filed
his nomination on 03-11-2008. To be guilty of committing
a corrupt practice, the returned candidate or his election
agent or some other person duly authorised either by the G
returned candidate or his election agent must have
committed some act or omission contemplated under one
of the clauses under Section 123 of the R.P. Act, after 03-
11-2008, but before completion of the election process.
Para 1 of the election petition narrates the incidents that H
290 SUPREME COURT REPORTS [2012] 13 $.C.R.
A are alleged to have oc:curred from 30-10-2008 to 02-11·
2008. The returned candidate cannot be legally accused
to be guilty of any acti1iity falling within the scope of any
one of the corrupt practices enumerated under the
sections of the R.P. Act, 1951, as, on 02-11-2008, the
B returned candidate had not yet filed his nomination. The
allegations found in para 3 of the election petition are too
omnibus. The alleged irregularities in the preparation of
the voters list can never be the subject matter of an
election petition. The objection regarding employment of
c Electronic Voting Mac:hines are vague with which the
returned candidate is no way concerned. The allegations
in paras 5 and 6 pertaining to distribution of cash,
cheques, clothing material and school bags to children,
even if assumed to be true and constituting some corrupt
o practice, pertain to a period prior to the filing of the
nomination, i.e., 03-11-2008, by the returned candidate.
Para 7 repeats the allegations contained in para 1 of the
election petition while Para 8 contains vague allegations
regarding erection ot' "welcome gates" without the
E permission of the Distr~ct Election Officer. [Paras 14, 17,
18, 19, 21, 22) [315-A, B-C; 316-B; 318-C-D-E-F; 319-D-E;
320-A, B-D; 321-D-E]
1.4. If a returned candidate is asked to face trial of an
election petition, such as the one, which is the subject
F matter of the instant matter, it would be an absolute
travesty of justice and opposed to all the settled
principles of law regarding the election disputes. [Para
24] [322-E]
·G 1.5. An election petition is required to contain all the
material facts, which, either if proved or went
uncontroverted, would be sufficient to constitute the
cause of action for se!tting aside the ~lection of the
returned candidate on one or some of the grounds
H specified under Section 100 of the R.P. Act. There is an
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 291
absolute necessity of mentioning all the material facts in A
an election petition. Though the failure to give the
'material particulars' has not been held to be fatal, the
failure to give 'material facts' has always been held to be
fatal to the election petition. [Paras 25, 26] [323-C; 325-8,
C-D] B
1.6. The election petition on hand hopelessly lacks
in stating the material facts constituting the various
corrupt practices mentioned in the election petition to
enable the declarations sought by the election petitioner. C
The conclusion recorded by the High Court that "it is true
that the allegations suffer from lack of certain material
particulars particularly as to the consent of the returned
candidate or his election agent" is wholly erroneous in
law. Consent by the candidate or his election agent is an
essential material fact, which is required to be pleaded D
and proved when the allegation is that somebody other
than the candidate or his election agent committed a
corrupt practice. The election petition on hand is
incapable of being read as disclosing any cause of action
on the basis of any known cannon of interpretation of E
documents - whether a rule of reasonable construction
or any other construction. In view of the above
conclusion, there is no need to examine the other
submissions regarding the legal fact of the non-filing of
an affidavit in Form No.25 and absence of proper F
verification of the pleadings and annexures. [Para 30]
[330-F-H; 331-A-B]
1. 7. The returned candidate placed a photocopy of
an application seeking the amendment of the election G
petition pursuant to the directions of the High Court. The
same appears to have been presented on 02-05-2011. In
view of the fact that the results of the election in question
·were declared on 08-12-2008, the application was filed
beyond the period of limitation prescribed under the R.P.
Act, to challenge the election. Since the election petition, H
292 SUPREME COURT REPORTS [2012] 13 S.C.R.
A as originally presented, did not contain the necessary
material facts to constitute the cause of action to
challenge the election of the returned candidate, the
abovementioned application filed by the election
petitioner, even if it contain the necessary material facts,
B cannot be allowed as it would amount to permitting the
amendment of the election petition beyond the period of
limitation. [Para 31] [3~11-C-G]
1.8. The appeal is allowed and the election petition
C is dismissed. [Para 32] [331-G]
Kunwar Nripendra Bahadur Singh vs. Jai ram Verma and
Others (1977) 4 SCC 153: 1978 (1) SCR 208; Mohan Rawale
vs. Damodar Tatyaba (1994) 2 SCC 392: 1992 (3) Suppl.
SCR 850; Rahim Khan vs. Khurshid Ahmed and Others
D (1974) 2 SCC 660: 1975 (1) SCR 643; Dhartipakar Madan
Lal Agarwal vs. Rajiv Gandhi 1987 Supp SCC 93; Anil
Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar (2009)
9 SCC 310: 2009 (14) SCR 10; Samant N. Balakrishna vs.
George Fernandez and Others (1969) 3 SCC 238: 1969 (3)
E SCR 603; Sardar Harcharan Singh Brar vs. Sukh Darshan
Singh and Others (2004) 11 SCC 196: 2004 (5) Suppl. SCR
682 and Raj Narain vs. Smt. Indira Nehru Gandhi and
Another (1972) 3 SCR 841 - referred to.
Cas,e Law Reference:
F
In the judgment of Kabir, J.
(1985) 1 sec 91 referred to Para 8
(1987) Supp. sec '93 referred to Para 8
G
(2009) 9 sec 310 referred to Para 9
(2000) 1 sec 481 referred to Para 10
(2000) 2 sec 294 referred to Para 11
H AIR 2005 SC 22 Para 15
retied on
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. . 293
(1972) 3 sec 850 referred to Para 15 A
(1991) 3 sec 375 relied on Para 19
In the judgment of Chelameswar, J.
1978 (1) SCR 208 referred to Para 13
B
1992 (3) Suppl. SCR 850referred to Para 15
1975 (1) SCR 643 referred to Para 24
1987 supp sec 93 referred to Para 25
c
2009 (14) SCR 10 referred to Para 25
1969 (3) SCR 603 referred to Para 25
2004 (5) Suppl. SCR 682 referred to Para 27
(1972) 3 SCR 841 referred to Para 27 D
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4189 of 2012.
From the Judgment & Order dated 05.10.2009 of the High
E
Court of Madhya Pradesh at Jabalpur in Election Petition No.
22 of 2009.
Dr. Rajeev Dhawan, Rakesh K. Khanna, Navin Prakash,
Anoop Jain, Ashwani Kumar Dubey, Vishal Panwar, Snehasish
Mukherjee, Ali Jethmalani, Sunil Murarka, Sandeep K. Mishra, F
Asit Kumar Roy for the appearing parties.
The Judgments of the Court was delivered by
ALTAMAS KABIR, J. 1. Leave granted.
G
2. The Respondent No.1 herein, Shri Alok Mishra,
contested the 2008 elections to the Madhya Pradesh State
Assembly as a candidate of the Indian National Congress Party
from Cantt. Legislative Assembly No.99 Constituency, Jabalpur.
He was defeated in the elections by the Appellant herein as a H
294 $UPREME COURT REPORTS [2012] 13 S.C.R.
A candidate of the Bharatiya Janata Party. The said Respondent
filed Election Petition No.22 of 2009, challenging the election
of the Appellant on the ground of corrupt practice, as
contemplated in Sub-Sections (1)(A) and (B), (2), (6) and (7)
of Section 123 of the Representation of the People Act, 1951 ,
B hereinafter referred to as the "1951 Act".
3. The grounds re~lating to corrupt practice, as alleged by
the Respondent No.1 herein, inter alia, were to the following
effect:
c (i) as an Ex-M.L.A. and Ex-Speaker of the Vidhan
Sabha and being a close associate of the Chief
Minister of the State, the Appellant was able to exert
undue influence on the Collector, the District
Returning Officer and other authorities for procuring
D their assistance for the furtherance of his prospects
in the elections;
(ii} that on 2nd November, 2008, when the
Respondent No.1 was returning to Jabalpur from
New Delhi, as the authorized candidate of the Indian
E National Cc1ngress, his supporters, who came to
meet him at the railway station, were arrested,
whereas the very next day, no action was taken
against the ~:;upporters of the Appellant herein who
had deployed as many as 300 vehicles in the
F election rally organised on the occasion of the filing
of his nomination, although, permission had been
given for use of only 27 vehicles. The Appellant was
allowed to erect "welcome gates" at various places
and used unauthorized vehicles and also put up
flags, hoardings and posters on electric poles and
even on temples, despite the objections raised by
the Respondent No.1 herein;
(iii) during his 1election campaign, the Appellant
distributed school bags reflecting the name of the
H Appellant, as also his party flag amongst the
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 295
[ALTAMAS KABIR, J.]
children of the voters and huge amounts of money A
were also paid through cheques under the garb of
financial assistance by Garib Sahayata Samiti.
Apart from the above, clothes, sweets, blankets,
cheques for amounts of Rs.500/- to the female
voters and identity and ration cards, were B
distributed amongst the voters by the supporters of
the Appellant, but no action was taken either against
the Appellant or his agent for resorting to such
corrupt practice. Accordingly, in the election petition
the Respondent No.1, inter alia, prayed for a c
declaration that the election of the Appellant herein,
lshwardas Rohani, be declared as void and he be
declared as the returned candidate.
4. In the pending Election Petition No.22 of 2009, an
Application, being l.A.No.58 of 2009, was filed on behalf of the D
Appellant herein, under Order VII Rule 11 read with Order VI
Rule 16 of the Code of Civil Procedure, hereinafter referred to
as "C.P.C.", praying that the Election Petition filed by the
Respondent No.1 be rejected, inter alia, on the ground that
. except for making vague allegations of corrupt practice, the E
Respondent No.1 (Election Petitioner) had failed to disclose
material facts and particulars in respect thereof. Another ground
of challenge was that the Respondent No.1 had failed to
comply with the provisions of Section 81(3)(a) and (b), which
are mandatory and in the absence whereof no cause of action F
could be said to have been available to the Election Petitioner
to seek any relief thereunder.
5. l.A.No.58 of 2009, which was filed by the Appellant
under Order VII Rule 11 read with Order VI Rule 16 C.P.C. for G
rejection of the Election Petition or for a direction to set out
pleadings specified thereunder, was taken up for hearing by
the Madhya Pradesh High Court on 16th July, 2009. After
considering the facts involved in the Election Petition, as also
in the Application filed under Order VII Rule 11 read with Order
VI Rule 16 of the C.P.C., the High Court was of the view that H
296 SUPREME COURT REPORTS [2012] 13 S.C.R.
A although, the allegations of corrupt practice had not been
properly drafted, the Election Petition could not be rejected on
the said ground.As far as the Application under Order VI Rule
16 C.P.C. is concernEtd, the High Court observed that non-
revision of the voters list is not a ground set out in Section 100
B of the 1951 Act for declaring an election to be void. The High
Court also observed that violation of the Model Code of
Conduct cannot also be treated as a ground for declaring an
election to be void. On the said understanding of the law, the
High Court allowed the Appellant's l.A.No.58 in part and
c directed the Appellant to :
(i) delete the pleadings relating to voters' list and
Model Cod1:i of Conduct;
(ii) move an appropriate application for amending the
b pleadJngs in the light of the objections raised by the
Respondent No.1 and the defects as pointed out
in paragraph 2, subject to the limits circumscribed
by law. The High Court also added that after
amending the pleadings suitably, the Appellant
E would also verify the same by furnishing an affidavit
under Order VI Rule 15(4) C.P.C. and further verify
the pleadings relating to corrupt practice by filing a
proper affidavit in the prescribed Form No.25, as
prescribed under Rule 94-A and appended to the
F Conduct of the Election Rules, 1961.
6. Aggrieved by thEt directions given by the High Court in
I.A. No.58, directing the Respondent No.1 herein to delete the
pleadings relating to the voters' list and the Model Code of
Conduct and to move an appropriate application for amending
CD the pleadings in the light of the objections raised by the
Appellant herein, the said Appellant has filed the Special Leave
to Appeal challenging the said directions dated 5th October,
2009, in Election Petition No.22 of 2009.
H 7. Appearing for the Appellant, lshwardas Rohani, Dr.
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 297
[ALTAMAS KABIR, J.]
Rajeev Dhawan, learned Senior Advocate, submitted that all A
the allegations relating to corrupt practice were in respect of
periods prior to the date of the notification of the elections,
namely, 29th October, 2008, when the Election Petitioner, Shri
Alok Mishra, was not yet a candidate, nor was the Appellant
herein. Dr. Dhawan pointed out that the elections were notified B
for the Jabalpur Cantt. Legislative Assembly Constituency
No.99 on 29th October, 2008. On 3rd November, 2008, the
Election Petitioner, Mr. Alok Mishra, filed his nomination papers
and the polling was held on 27th November, 2008. The results
of the election were thereafter announced on 8th December, c
2008, in which the Appellant was declared to have been
elected. Dr. Dhawan termed the period between 29th October,
2008, when the elections were notified, till 8th December, 2008,
when the results were declared, as the "active" period, when
the conduct of the elected member could be faulted. Dr. D
Dhawan submitted that the Election Petition had been filed by
the Respondent No. 1 herein within the period of 45 days, as
specified under Section 81 of the 1951 Act. However, the
directions given by the High Court to amend the Election
Petition were not permissible in law as such amendment would
be beyond the period of limitation, as prescribed. Following E
such directions of the High Court, the Election Petitioner filed
an Application under Order VI Rule 17 CPC praying for various
amendments for providing material facts.
8. Dr. Dhawan urged that given the consequences of F
disqualification, allegations of corrupt practice would have to
be strictly construed, as was held in the case of Surinder Singh
Vs. Hardial Singh [(1985) 1 SCC 91], wherein it was, inter alia,
observed that for more than 20 years the position had been
uniformly accepted that charges of corrupt practice have to be G
equated with criminal charges and the proof thereof would not
be preponderance of probabilities as in civil matters, but proof
beyond reasonable doubt as in criminal trials. Reference was
also made to the decision in Dhartipakar Madan Lal Agarwal
H
298 SUPREME COURT REPORTS [2012] 13 S.C.R.
A Vs. Rajiv Gandhi [(1987) Supp. SCC 93], wherei~ it was
observed as follows :-
"Allegations of corrupt practice are in the nature of criminal
charges, it is necessary that there should be no vagueness
in the allegations so that the returned candidate may know
B
the case he has to meet. If the allegations are vague and
general and the particulars of corrupt practice are not
stated in the pl1eadings, the trial of the election petition
cannot proceed for want of cause of action. The emphasis
of law is to avoid a fishing and roving inquiry. It is therefore
c necessary for the Court to scrutinise the pleadings relating
to corrupt practice in a strict manner."
In this regard, Dr. Dhawan referred to the provisions of
Section SA of the 1951 Act, which sets out the harsh
D consequences of having been found guilty of corrupt practice
by an order under Seiction 99 of the 1951 Act.
9. Submissions were also advanced by Dr. Dhawan in
regard to the distincti()n between "material facts" and "material
E particulars", which daies not appear to me to be very material
for a decision in this case. What is necessary is that the material
facts must disclose the plaintiff's cause of action or may be the
source for the defence of the defendant. What is relevant is that ·
the facts as set out in the Election Petition must not be vague
and must be such as to enable the Respondent to deal with
F and give a proper response. Dr. Dhawan contended that as
has been held by this Court in Anil Vasudev Salgaonkar Vs.
Naresh Kushali Shig<~onkar [(2009) 9 SCC 310), the failure
to state even a single material fact will entail dismissal of the
Election Petition. Furthermore, it is also essential that any
G action which is attributed to an elected candidate and goes to
constitute an allegation of corrupt practice, must be shown to
have been done with the consent of the candidate, which, as
was observed in Surinder Singh's case (supra), is a lifeltne to
link up the candidate with the action of the other person which
H may amount to corrupt practice.
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 299
[ALTAMAS KABIR, J.]
10. Turning to another branch of his submissions, Dr. A
Dhawan submitted that where corrupt practices are alleged,
details supporting such allegations have to be pleaded.
Referring to the decision of this Court in R.P. Moidutty Vs. P. T.
Kunju Mohammad [(2000) 1 SCC 481], Dr. Dhawan referred
to paragraph 14 of the judgment, wherein it has been observed B
as follows:-
"The legislature has taken extra care to make special
provision for pleadings in an election petition alleging
corrupt practice. Under Section 83 of the Act ordinarily it
would suffice if the election petition contains a concise C
statement of the material facts relied on by the petitioner,
but in the case of corrupt practice the election petition must
set forth full particulars thereof including as full a statement
as possible of (i} the names of the parties alleged to have
committed such corrupt practice, (ii) the date, and (iii} D
place of the commission of each such practice. An election
petition is required to be signed and verified in the same
manner as is laid down in the Code of Civil Procedure,
1908 for the verification of pleadings. However, if the
petition alleges any corrupt practice then the petition has E
additionally to be accompanied by an affidavit in Form 25
prescribed by Rule 94-A of the Conduct of Elections Rules,
1961 in support of the allegations of such corrupt practice
and the particulars thereof. Thus, an election petition
alleging commission of corrupt practice has to satisfy some F
additional requirements, mandatory in nature, in the matter
of raising of the pleadings and verifying the averments at
the stage of filing of the election petition and then in the
matter of discharging the onus of proof at the stage of the
trial." G
11. In fact, in this regard, Dr. Dhawan also referred to
Section 83(1 }(b} of the 1951 Act, which indicates that full
particulars of any corrupt practice that the Petitioner alleges and
other details regarding such corrupt practice has to be set forth
H
300 SUPREME COURT REPORTS [2012] 13 S.C.R.
A in the Election Petition and the verification must disclose the
exact source of the information. Reference was also made to
the decision in V. Narayanaswamy Vs. C.P. Thirunavukkarasu
[(2000) 2 sec 294], where similar sentiments have been
expressed.
B
12. Dr. Dhawan urged that having regard to the above, the
Election Petition filed by the Respondent No.1 should have been
dismissed by the High Court, without giving an opportunity to
the Election Petitioner to rectify some of the defects, outside
the period of limitation, as prescribed under Section 81 of the
C 1951 Act.
13. Dr. Dhawan, learned senior counsel, contended that
all the alleged instanices referred to in the Election Petition
regarding alleged corrupt practice on the part of the Appellant
D · were outside the "active period" when the Respondent No.1
was not even a candidate and consequently the same could not
be taken into consideration for the determination of the Election
Petition in view of Section 81 of the 1951 Act, which stipulates
that such a Petition may be presented by any candidate at such
E election or any elector within forty-five days from, but not earlier
than the date of electii:>n of the returned candidate.
14. Replying to Dr. Dhawan's submissions, Mr. Rakesh
Khanna, learned S1enior Advocate, appearing for the
Respondent No.1, pointed out that the allegations relatin·g to
F corrupt practice made against the Appellant, are contained in
paragraph 10 of thE~ Election Petition and despite the
observations made by the High Court, the same conveyed the
manner in which financial allurements and the distribution of gifts
were made, as also the issuance of cheques by the Appellant
G from the Indus Ind Bank near Shastri Bridge, 124, Napier Town,
Jabalpur. Mr. Khanna contended that although Dr. Dhawan had
referred to the issuance of cheques as being a fishing
expedition, but, in fact, the details relating to the cheques are
in the custody of the Indus Ind Bank and are easily available.
H Mr. Khanna submitted that the details of the cheque books and
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 301
[ALTAMAS KABIR, J.]
the cheque numbers have also been provided in paragraph 9 A
of the Election Petition which disclosed the strategy adopted
by the Appellant for garnering votes in the election.
15. Referring to the decision of this Court in Sardar
Harcharan Singh Brar Vs. Sukh Darshan Singh [AIR 2005 SC B
22), which also involved the provisions of Section 83 of the 1951
Act, Mr. Khanna pointed out that even if all the bundles of
information which constitute the cause of action for the Petition
were not available in the Election Petition, the same could not
be dismissed at the threshold. Mr. Khanna submitted that in
Sardar Harcharan Singh Brar's case (supra), this Court had C
occasion to consider the observations made in the decision in
the case of Raj Narain Vs. Smt. lfl{fira Nehru Gandhi [(1972)
3 sec 850), which, inter alia, laid down that while a corrupt
practice has to be strictly proved, it does not follow that a
pleading in the election petition should receive a strict D
consideration. The charge of corrupt practice in an election
petition is a.very serious charge and has to be proved. It may
or may not be proved. The allegations may be ultimately proved
or not proved. But the question for the Courts is whether a
petitioner should be refused an opportunity to prove his E
allegations merely because the petition was drafted clumsily.
16. Mr. Khanna submitted that it was in such context that
it was observed that opportunity to prove should not be refused
and the Court should be reluctant to stay an action on technical F
grounds. In the said case it was further recorded that "material
facts" as referred to in Section 83 of the 1951 Act show that
the grounds of corrupt practice and the facts necessary to
formulate a complete-cause of action, must be stated, but the
Election Petition is not liable to be dismissed in limine because G
full particulars of the corrupt practices alleged were not set out.
If an objection was taken and the Tribunal was of the view that
full particulars had not been set out, the Petitioner had to be
given an opportunity to amend or amplify the particulars. It is
only in the event of non-compliance with such order to supply
H
302 SUPREME COURT REPORTS [2012) 13 S.C.R.
A the particulars, that the charge, which remained vague, could
be struck down. Mr. Khanna pointed out that a note of caution
had been sounded to the effect that 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 with a game of chess.
B 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.
17. Mr. Khanna submitted that in SardarHarcharan Singh
C Brar's case (supra), it was pointed out that the views expressed
in Raj Narain's case (supra) had been subsequently reiterated
in various other cases s1~t out in paragraph 11 of the judgment.
18. Drawing a parallel with the facts of this case, Mr.
o Khanna submitted that the High Court had passed the
impugned order in complete consonance with the views
expressed in Sardar Harcharan Singh Brar's case (supra).
19. Mr. Khanna next referrea to the decision of a three
Judge Bench of this Court in F.A. Sapa & Ors. Vs. Singora &
g Ors. [('1991) 3 SCC ~175), wherein the requirements of
furnishing material facts and full particulars, within the meaning
of Section 83(1) of the 1951 Act, in order to establish corrupt
practice, was considered in detail. After considering the various
decisions rendered earlier, including that in Raj Narain's case
F (supra), on the question of verification, Their Lordships held that
Clause (c) of Sub-Section (1) of Section 83 of the 1951 Act,
provides for an Election Petition to be signed by the petitioner
and verified in the manner laid down by the Code of Civil
Procedure for the verification of the pleadings. It was noted that
G under Section 83(2) any schedule or annexure to the pleading
must be similarly verified. Referring to Order VI Rule 15 of the
Code, Their Lordships to1:>k note of Sub-Rule (2) which provides
that the person verifying has to specify with reference to the
numbered paragraphs of the pleading, what he verifies on his
H own knowledge and what he verifies upon information received
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 303
[ALTAMAS KABIR, J.]
and believed to be true. The verification has to be signed by A
the person making it and must state the date on and the place
at which it was signed. However, Their Lordships also went on
to say that the defect in the verification could be of a formal
nature and not very substantial, or one which substantially
complies with the requirements, or that which is material but B
capable of being cured. Mr. Khanna submitted that the bottom
line of the aforesaid decision was that any defect in the
verification was not fatal to the entertainment of the Election
Petition at the threshold and as indicated in Sardar Harcharan
Singh Brar's case (supra), an opportunity ought to be given to c
the Election Petitioner to cure such defect.
20. Mr. Khanna submitted that the submissions advanced
by Dr. Dhawan in, relation to the order passed by the High
Court, were contrary to the decisions .rendered by this Court in
Sardar Harcharan Singh Brar's case (supra) and also in F.A. D
Sapa's case (supra), and all that the Court had directed was
in keeping with the spirit of the said decisions which
contemplated that an Election Petition, where corruption had
been alleged, should not be thrown out on a purely technical
ground, such as defect in verification of the pleadings, and E
without giving an opportunity to the Election Petitioner to cure
such defect.
21. From the decisions cited by learned counsel for the
respective parties, one line of decisions rendered by this Court F
suggests that since an Election Petition has serious
consequences under Section BA of the 1951 Act, the
provisions of the Act have to be strictly construed and,
particularly, in cases where corruption is alleged, any omission
in the pleadings to mention such corrupt practice would render G
the Election Petition not maintainable. On the other hand, as
indicated immediately hereinbefore, the other line of decisions
suggests that since the issue involved in an Election Petition
alleging corrupt practice, was of great public interest, an
Election Petition should not be rejected at the threshold, but an H
304 SUPREME COURT REPORTS [2012] 13 S.C.R.
A opportunity should be given to the Election Petitioner to cure
the defects which are curable. In the instant case, what has
been contended by Dr. Dhawan is that in the absence of a
cause of action or incomplete cause of action for the Election
Petition on account of the verification thereto not being in
B conformity with the provisions of Order VI Rule 15 of the C.P.C.
the Election Petition was liable to be dismissed. Such
submission is not acceptable to me in the light of the decisions
in Sardar Harcharan Singh Brar's case (supra) and also in
F.A. Sapa's case (suprai), despite the fact that in F.A. Sapa's
C case it was indicated that if the affidavit of schedule or annexure
forms an integral part of the Election Petition itself, strict
compliance would be insisted upon.
22. I am inclined to agree with the trend of thinking in F.A.
Sapa's case, where it had been indicated that a charge of
D corrupt practice has a two dimensional effect, namely, its
impact on the returned candidate has to be viewed from the
point of view of the candidate's future political and public life
and from the point of view of the electorate to ensure the purity
of the election process. Accordingly, there has to be a balance
E in which the provisions of Section 81 (3) of the 1951 Act are
duly complied with to safeguard the interest, both of the
individual candidate, as well as of the public. In this case, while
accepting the case made out by the Appellant regarding the
deficiencies in the Election Petition, the Division Bench of the
F High Court, in my view, did not commit any error in directing
the Election Petitioner to cure the defects in the Election
Petition, which had been brought out during the hearing of the
Election Petition.
G 23. The decisions cited on both sides, lay down the law in
regard to Election Petitions and how Election Petitions are to
be presented and the procedure to be strictly followed in filing
such Election Petitions, in which corruption, in particular, is the
allegation made against the returned candidate. There is little
doubt that the provisions have to be strictly construed, but that
H
ISHWARDAS ROHAN! v. ALOK MISHRA & ORS. 305
does not mean that any defect in the Election Petition cannot A
be allowed to be cured in the public interest. If after an
opportunity is given, still no steps are taken by the Election
Petitioner to cure the defects which are noticed, then the rigours
of the procedure indicated by the 1951 Act, come into effect
with full vigour. B
24. I, therefore, see no reason to interfere with the order
of the High Court appealed against and the appeal is,
accordingly, dismissed.
25. There will, however, be no order as to costs. C
CHELAMESWAR, J. 1. Both the petitioner (herein after
referred to as 'the returned candidate') and the 1st respondent
(herein after referred to as 'the election petitioner') contested
the General Election to the Legislative Assembly of the State 0
of Madhya Pradesh from the Jabalpur Cantonment
Constituency. The returned candidate was the candidate of the
Bharatiya Janata Party. The election petitioner was the
candidate of the Indian National Congress, who lost the election
with a margin of 24731 votes to the returned candidate. The
election petitioner questioned the validity of the election of the E
returned candidate by Election Petition No.22 of 2009 on the
file of the High Court of Madhya Pradesh. In the said petition,
the election petitioner not only sought a declaration that the
election of the petitioner is void, but also sought a further
declaration that; F
"the petitioner No.1 as Return candidate and directed to
be unseated Respondent No.1."
It is further prayed: G
"The Hon'ble High Court further kindly be directed the
Respondent to declare the petitioner as Elected
candidate."
Certain other reliefs are also prayed for in the election petition, H
306 SUPREME COURT REPORTS [2012) 13 S.C.R.
A the details of which are not necessary for our purpose. The said
election petition was filed on 20-01-2009, admittedly, within the
period of limitation prescribed for the said purpose. On 16-06-
2oo9, l.A.No.58 of 2009 was filed by the petitioner herein
(returned candidate) under Order 7 Rule 11 of the Code of Civil
B Procedure, seeking the dismissal of the election petition on the
following grounds:
(a) The allegations; of corrupt practice lacks material facts
and particulars, inasmuch as it is not disclosed on what
date and time the alleged corrupt practice had been
c committed;
(b) The mandatory affidavit in Form 25 of the Conduct of
Election Rules does not fulfil the mandatory contents as
required in law;
0
(c) Election Petitioner has not filed affidavit as required
under the provisions of CPC;
(d) The copy of the petition supplied by the Respondent
No.1 to the Petitioner is not identical to the copy of the
petition filed and the documents annexed to the election
petition have not duly been verified by the Respondent
No.1;
(e) The averments contained in a number of paragraphs
F are frivolous in nature and does not disclose any cause of
action against the Petitioner herein."
'
2. The abovementioned IA was partly allowed by the
impugned Judgment on 05-10-2009. The operative portion of
the Judgment is as follows:
G
"Consequently, the I.A. is allowed in part. In the result, the
petitioner is directed to -
(i) delete the pleadings relating to voter list and Model
Code of Conduct.
H
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 307
[J. CHELAMESWAR, J.]
(ii} move an appropriate application for amending the A
pleadings in the light of. the objections raised by the
respondent no.1 and the defects as pointed out in Para 2
(above} subject to the limits circumscribed by law."
Hence, the present S.L.P.
B
3. Before I proceed to examine the correctness of the
conclusion reached by the High Court, I deem it necessary to
extract para 2 of the Judgment under appeal in toto:
"2. At the outset, it may be remarked that the election c
petition is riot a good piece of drafting. A bare perusal
thereof would reveal that not a single paragraph is free from
grammatical and typographical errors and omissions.
Even provisions of law have not been correctly referred to.
For example : sub-section (1}(A} and (B} have been
0
mentioned as sub-section (A} and (B} Section 123. This
apart, there is apparent conflict between contents of some
of the annexures and the corresponding pleadings.
Moreover, some averments are mere mechanical
repetitions of the facts already pleaded [See Para 2
(wrongly numbered as 1), 3A and 7]. Further, the petitioner E
has used certain uncommon words such as Cambal,
Chadar & Floor-Sari. It appears that the petitioner is
labouring under a misconception· that an election petition
must be drawn up in English language whereas it is well
settled that in Madhya Pradesh, an election petition F
drafted in Hindi language would be maintainable (Vijay
Laxmi Sadho v. Jagdish AIR 2001 SC 600 referred to}.
Although, these defects would not provide any reasonable
ground for rejection of the petition in limine yet, the
negligent and indifferent manner in which the petition has G
been drafted and filed without even reading it, deserves
to be deprecated."
4. In my view, the election petition is not only a bad piece
of drafting, but also it is difficult to state with precision as to H
308 SUPREME COURT REPORTS (2012) 13 S.C.R.
A what exactly is the substance of the complaint in the election
petition. The absurdity of the election petition can only be
understood by reading it, but cannot be explained. There are
vague allegations that the returned candidate committed
corrupt practices falling under Sections 123 (A) and (B}, 123
B (2), (6) and (7) of the Representation of the People Act, 1951
(henceforth referred to ais 'the RP. Act'.). To demonstrate the
utter chaos of the pleadings, I extract a passage from the
election petition:
" .................. Since the Respondent No.1 have wrongly
0 and illegally adopted the corrupt practices by distributing
the amount in cash as well as through the Cheque, Article,
Cloths, Ornaments, Ornament's Jewellery and other article
further he has also command on the Respondent Distt.
Election Officer and ta.ken the Assistance from police and
D other authority, so that it is apparent that respondent No.1
lswardas Rohani has committed milled corrupt practices,
which is same under Section 123A, B, 123(2) and also
giving threat and other provision of this act have also been
violating therefore, his Election is deserve to be declare
E void."
5. On the basis of such pleadings, of which the above is
only a sample, the respondent invites an adjudication that
corrupt practices falling under Section 123(2), (6), (7) and
F 123(A) and (B) of the R.P. Act, have been committed. There
are no Sections numbered 123(A), (B) in the RP.Act, 1951.
The High Court, however, generously construed such reference
to Sections 123(A) and (B) occurring under para 13 of the
election petition as references to Section 123(1)(A) and (B).
G 6. The substance of :the chaotic pleadings in the election
petition is culled out by my learned brother as follows:
"The ground relating to corrupt practice, as alleged by the
Respondent No.1 herein, inter alia, was to the following
H effect:
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 309
[J. CHELAMESWAR, J.]
(i) as an ex-M.L.A. and Ex-Speaker of the Vidhan Sabha A
an·d being a close associate of the Chief Minister of the
State, the Appellant was able to exert undue influence on
the Collector, the District Returning Officer and other
authorities for procuring their assistance for the furtherance
of his prospects in the elections.; B
(ii) that on 2nd November, 2008, when the Respondent
No.1 was returning to Jabalpur from New Delhi, as the
authorised candidate of the Indian National Congress, his
supporters, who came to meet him at the railway station, C
were arrested, whereas the very next day, no action was
taken against the supporters of the Appellant herein who
had deployed as many as 300 vehicles in the election rally
organised on the occasion of the filing of his nomination,
although, permission had been given for use of only 27
0
vehicles. The Appellant was allowed to erect "welcome
gates" at various places and used unauthorised vehicles
and also put up flags, hoardings and posters on electric
poles and even on temples, despite the objections raised
by the Respondent No.1 herein;
E
(iii) during his election compaign, the Appellant distributed
school bags reflecting the name of the Respondent No.1,
as also his party flag amongst the children of the voters
and huge amounts of money were also paid through
cheques under the grab of financial assistance by Garib F
Sahayata Samiti. Apart from the above, clothes, sweets,
blankets, cheques for amounts of Rs.500/- to the female
voters and identity and ration cards, were distributed
amongst the voters by the supporters of the Appellant, but
no action was taken either against the Appellant or his G
agent for resorting to such corrupt practice. Accordingly,
in the election petition the Respondent No.1, inter alia,
prayed for a declaration that the election of the Appellant
herein, lshwardas Rohani, be declared as void and he be
declared as the returned candidate." H
310 SUPREME COURT REPORTS [2012) 13 S.C.R.
A 7. For the purpose of deciding the present petition, I shall
also presume that the election petitioner intended to complain
that various corrupt practices, i.e., bribery falling under Section
123 (1)(A) and (B); unduly influencing the voters, falling under
Section 123(2); incurring or authorising expenditure in
B contravention of Section ·77 - corrupt practice under Section
123(6) and procuring the assistance from the employees of the
State, falling under Section 123(7), were committed.
8. Before examining the correctness of the Judgment
under appeal, a brief survey of the Scheme of the relevant
C provisions of the R. P. Act, 1951, would be useful. Section 100
· provides the grounds on which an election could be declared
void. The said Section, insofar as it is relevant for our present
purpose, reads as under:
D "Subject to the provisions of sub-section (2) if the High
Court is of the opinion -
(a) ....................... ..
(b) that any corrupt practice has been committed
E by a returned candidate or his election agent or by
any other person with the consent of a returned
candidate or hiEI election agent; ....
(c) ........................ ..
F
(d) that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected-
(i) .................... .
G
(ii} by any corrupt practice committed in the
interests 1of the returned candidate by an
agent other than his election agent.
(111) .................... .
H
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 311
[J. CHELAMESWAR, J.]
(iv)................... A
The High Court shall declare the election of the returned
candidate to be void."
It can be seen from the above that the election of a returned
8
candidate can be declared void, if the High Court is satisfied;
(A) that any corrupt practice has been committed either
by the returned candidate or his election agent or
any other person with the consent of either the
candidate or his election agent; C
(B) that any corrupt practice has been committed by
any agent other than the election agent.
In the case of the satisfaction of the High Court of the 1st of
the abovementioned two contingencies, the High Court can D
straightaway declare the election of the returned candidate to
be void. Whereas in the 2nd of the abovementioned
contingencies, the High Court must also be satisfied that such
commission of the corrupt practice has materially affected the
result of the election because the corrupt practices falling under E
the later category are committed without the consent of the
returned candidate or his election agent.
9. The meaning of the expressions "candidate", "election
agent" and "agent other than the election agent" is required to F
be ascertained. Part VI of the R.P. Act deals with disputes
regarding elections. Part VII of the·R.P. Act deals with corrupt
practices and electoral offences. Section 79, with which part
VI commences, contains the definitions of various expressions
employed in Part VI and Part VII of the R.P. Act. Section 79, G
insofar as it is relevant for the present purpose, reads as
follows:
."In this Part and in Part VII unless the context otherwise
requires,-
H
312 SUPREME COURT REPORTS [2012] 13 S.C.R.
A (a) .................. .
(b) "candidate" means a person who has been or
claims to have been duly nominated as a candidate
at any election;"
B The expression "election agent" is not defined therein. But,
Section 40 provides for the appointment of "election agent". It
stipulates that a candidate at an election can appoint any
person, who is not subject to any disqualification stated in
Section 41 1 , to be his election agent2. Therefore, the
C expression "election agent" occurring under Section 100 must
be understood to be only an election agent appointed by the
candidate under Section 40. The meaning of the phrase "agent
other than the election agent" requires an examination.
Sections 46 and 4 7 of the Act, provide for the appointment of
D polling agents 3 and counting agents 4 , respectively, by the
contesting candidates at an election. I am conscious of the fact
that the phrase may take within its sweep other persons also,
1. 41. Disqualification for being an election agent.-Any person who is for the
time being disqualifed under the Constitution or under this Act for being a
E member of either House of Parliament or the House or either House of
the Legislature of a State or for voting at elections, shall, so long as the
disqualification subsists, also be disqualified for being an election agent
at any election.
2. 40. Election Agents.- A candidate at an election may appoint in the
prescribed manner any one person other himself to be his election agent
F and when any such appointment is made, notice of the appointment shall
be given in the prescribed manner to the returning officer.
3. 46. Appointment of polling agents.: A contesting candidate or his election
agent may appoint in the prescribed manner such number of agents and
relief agents as may be prescribed to act as polling agents of such
candidate at each polling station provided under section 25 or at the place
G fixed under sub-section (1) of section 29 for the poll.
4. 47. Appointment of counting agents.- A contesting candidate or his election
agent may appoint in the prescribed manner one or more persons, but not
exceeding such number as may be prescribed, to the present as his
counting agent or agents at the counter of votes, and when any such
appointment is made notice of the appointment shall be given in the
prescribed manner to the returning officer.
H
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 313
[J. CHELAMESWAR, J.]
but for the purpose of the present case, it is not necessary to A
explore the full contours of the phrase.
10. Section 123 of the R. P. Act deals with corrupt
practices. It declares 1O activities to be corrupt practices. They
are; (i) bribery; (ii) undue influence; (iii) appeal in the name of
8
religion; (iv) promotion of enmity or hatred between different
classes of citizens on grounds of religion, race, caste,
community, etc.; (v) propagation or glorification of the practice
of sati; (vi) publication of any false statement in relation to the
personal character of any candidate, etc. reasonably calculated
to prejudice the prospects of that candidate's election; (vii) C
hiring or procuring vehicles for the free conveyance of any
elector to the polling station; (viii) incurring expenditure in
contravention of Section 77; (ix) obtaining or procuring any
assistance of various categories of persons specified under
sub-section (7); and (x) booth capturing. D
It must be mentioned that each one of the sub-sections of
Section 123, deals with a distinct corrupt practice, which
contemplates commission or omission of an act or acts
indicated therein either by the candidate or his agent or any E
other person with the consent of either the candidate or his
election agent. The only sub-section, which does not refer to
the election agent or any other person is sub-section (6), i.e.,
the corrupt practice of incurring or authorising the expenditure
in contravention of Section 77.
F
11. It is argued by the learned senior counsel Dr. Rajeev
Dhawan appearing for the returned candidate that the
allegations of corrupt practice contained in the election petition
fall into two categories; (1) corrupt practices attributed to the
returned candidate; and (2) corrupt practices attributed to other G
persons. The learned counsel argued that the returned
candidate cannot be subjected to the pain of going through tl1e
trial of the election petition on these allegations for the following
reasons:
H
314 SUPREME COURT REPORTS (2012] 13 S.C.R.
A (i) the allegations of commission of corrupt practices either
pertain to the period anterior to 03-11-2008; or, (ii) lack in
material facts to constitute any corrupt practice satisfying the
description of any one of the corrupt practices enumerated
under Section 123.
B
12. Coming to the allegations of corrupt practice said to
have been committed by certain named and unnamed persons
in the election petition the learned counsel argued that, once
again, the allegations are vague, without any reference to the
dates on which such acts were committed and do not disclose
C any cause of action. Further, there is no allegation in the election
petition that such named persons, who are alleged to have
committed certain corrupt practices, did so with the consent of
either the returned candidate or his election agent. Interestingly,
the election petition does not even contain any specific
. D allegation against the election agent of the returned candidate.
Even the name of the election agent is not mentioned.
13. On the other hand, the learned counsel for the election
petitioner submitted that the election petition contained all the
E material facts required to be pleaded for establishing the
commission of corrupt practices. Such pleadings are required
to be scrutinized liberally in the larger interests of the purity of
election system as was done by the High Court. The learned
counsel also submitted that in view of the fact that what is at
F stake is the purity of the election system, the High Court rightly
directed the election petitioner to move an appropriate
application for the amendment of the pleadings. I am only
reminded of a caution given by this Court in Kunwar Nripendra
Bahadur Singh vs. Jai ram Verma and others, (1977) 4 SCC
153:
G
"21 ............. , the provisions of the election law which
have got to be construed strictly, must work with
indifference to consequences, immediate or
mediate ................. "
H
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 315
[J. CHELAMESWAR, J.]
14. Admittedly, the returned candidate filed his nomination A
on 03-11-2008. It is only with effect from that date the petitioner
became a candidate for the election in dispute. Goes without
saying that an election agent could have been appointed by the
returned candidate only after filing his nomination. To be guilty
of committing a corrupt practice, the returned candidate or his B
election agent or some other person duly authorised either by
the returned candidate or his election agent must have
committed some act or omission contemplated under one of
the clauses under Section 123 of the R. P. Act, after the 03-11-
2008, but before the completion of the election process. c
15. It was so held by this Court in Mohan Rawale vs.
Damodar Tatyaba, (1994) 2 SCC 392. It was a case where
the election of the appellant before this Court was called in
question by the respondent therein on the ground that the
appel.lant committed corrupt practices falling under Section D
123(2), (3) and (3)(A). The returned candidate raised various
preliminary objections regarding the maintainability of the
election petition. One of the objections was that the various
allegations said to be constituting corrupt practices, pertain to
a period long anterior to the date of the nomination of the E
returned candidate and, therefore, it was argued by the returned
candidate that even if these allegations were to be proved, they
would not amount to the commission of a corrupt practice by
the returned candidate. Such an objection did not find favour
with the Bombay High Court. Reversing the conclusion of the F
Bombay High Court, this Court held at para 6 as follows:
".................. The view fails to take note of and give
effect to the substitution of the definition of the expression
"candidate" in Section 79(b). All sub-sections of Section G
123 of the Act refer to the acts of a 'candidate' or his
election agent or any other person with the consent of the
candidate or his election agent. The substituted definition
completely excludes the acts by a candidate up to the date
he is non:iinated as a candidate ........................ "
H
316 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 16. The allegations in the election petition on hand are
required to be examined in the light of the principle of law laid
down by this Court.
17. Para 1 of the election petition narrates the incidents
B that are alleged to have occurred from 30-10-2008 to 02-11-
2008 and it reads as follows:
"That, the context of the situation is that the petitioner was
out of City at Jabalpur he was at Delhi for confirmation of
his Ticket from Indian National Congress Party, the same
c was confirmed on 30.10.2008 from his Party on 1.11.2008
the petitioner No.1 was come from Delhi on 2.11.2008, the
petitioner come from Delhi to Jabalpur by Mahakohal
Express Train, after rieceiving the information from the
petitioner his supporter were reach to the Jabalpur Railway
D station, where a number of person have received to the
petitioner after come-out from the Railway Station there
was crowd of the supporter who were reached there by
own vehicle or by him that very day District Returning
Officer, Respondent and his observer including the police
E men and authority an s.ubordinate officer, who have been
authorised by the State Election Commission on the
instance of Respondent no.1 Speaker of State Legislative
Assembly they have wrongly and illegally misused their
power and seized the personal vehicle of petitioner
F supporter and confined to the police station Cantt. And
police station Civil Lines with the intention to demoralize
and breaking the support with the help of police dispute
of that Gathering was not political movement nor any
object to moved in the shape of Rally, but all of a sudden
it was happen, the Respondent No. 1 winning candidate
G
have declare his Rally for submitting the Election
nomination form for this very purpose. The Respondent
Nod.1 have arranged as much as 300 Vehicle in that Rally
Respondent and his subordinate officer (observer) who ere
watching the Gathering and strand of vehicle in the Rally
H
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 317
[J. CHELAMESWAR, J.]
they have never raised any objection, nor seized any of the A
vehicle, despite of the permission was obtain for only 27
vehicles for used in the Election, but 10 time's more
vehicles were present in the Rally on the date of submitting
his nomination form the Respondent his subordinate and
police have not acted fairly and Reasonably in the Election B
of Cantt Constituency and they are working/acting in
support of Respondent No.1, who is speaker of State
legislative Assembly and having infalance on the
Respondent on the Distt. Election Officer including all the
Executive Officer, who are working in district Jabalpur c
including the police Officer, they have exercise the colour
of power in favour of Respondent No.1 and against the
petitioner, the complaint was made to the Chief Election
Commission and State Election Commission, but they
have not taken any action against the Respondent No.1."
0
The gist of this paragraph appears to be (giving some allowance
to the bad drafting) that while the returned candidate was
permitted to take out a rally with a large number of vehicles
without any objection from anybody, the vehicles of the election
petitioner's supporters were seized on the 02-11-2008 when E
they took out a rally from the Jabalpur railway station after the
election petitioner's return from Delhi. Assuming all the
allegations extracted above to be true and such allegations
constitute on 02-11-2008 (I only assume for the limited
purpose), the returned candidate had not yet filed his F
nomination. Even according to the election petitioner the
returned candidate filed the nomination on 03-11-2008:
''That on the next day 3.11.2008 the Respondent No.1 had
proceeded to fill up the nomination farm I paper............ " G
That apart, from a reading of the above-extracted portion, the
allegation appears to be that the vehicles of the election
petitioner and his supporters were seized by the State Election
Commission and its officers, but not the returned candidate:
H
318 SUPREME COURT REPORTS [2012] 13 S.C.R.
A "that very day District Returning Officer, Respondent and
his observer including the police men and authority an
subordinate officer, who have been authorised by the State
Election Commission on the instance of Respondent No.1
Speaker of State L,egislative Assembly they have wrongly
B and illegally misused their power and seized ttfe personal
vehicle of petitioner supporter and confined to the police
station Cantt. And police station Civil Lines with the
intention to demoralize and breaking the support with the
help of police ......................"
C Therefore, looked at either way, the returned candidate cannot
be legally accused to be guilty of any activity falling within the
scope of any one of the ,corrupt practices enumerated under the
sections of the R.P. Act, 1951, as, on 02-11-2008, the returned
candidate had not yet filed his .nomination.
0
18. Coming to the allegation that the returned candidate
being a Member of th•~ Legislative Assembly and also the
Speaker at the relevant point of time, was able to exert undue
influence on the Collector, who was the District Returning Officer,
E and other authorities f,or procuring their assistance for the
furtherance of his prospects in the elections-allegations are too
omnibus. Such allegatiions are to be found in para 3 of the
election petition. The vagueness of the pleading is better
extracted than explained:
F "PROCURING ASSISTANCE FROM GAZETIED
OFFICER:
It is respectfully submit that the Bhartiya Jana Party is the
Rulling Party in the State and also have its influence to all
G the Executive Offi1:er, who are serving in the State of
Madhya Pradesh. They are directly or indirectly having
relation with the Re~~pondent No.1 who is Speaker of State
Legislative Assembly and during last five year the Govt. of
Bhartiya Janta Party was dealing their power and handling
H the same with the help of all the Gazetted Officer including
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 319
[J. CHELAMESWAR, J.]
the Collector of the District including the Police Officer Shri A
Shivraj Singh Chouhan is the Chief Minister of Madhya
Pradesh and has got hold over the Administrative
Machinery during the Election period they have directly or
indirectly supported to the Respondent No.1 who is
Speaker of State Assembly the 'lure' work in a Better way B
than the command to the Administrative Officer and there
subordinate to them with the Aid an Assistance of Chief
Minister Shivraj Singh Chouhan, the Respondent No.1
having very thick Relationship with the Respondent. So that
the District Election Officer, Jabalpur was regularly oblige c
to the Respondent No.1 by way of supporting the act of
Respondent No.1 and objecting the same act by illegal
manner, the Respondent have performed several act to
oblige the Respondent No.1 the same are as under;"
Further, there are five sub-paras (A) to (E) in para 3. Sub-para D
(C) deals with some alleged irregularities in the preparation of
the voters list, which can never be the subject matter of an
election petition and the High Court rightly5 directed the deletion
of those allegations. Sub-para (D) deals with the objection of
the petitioner regarding employment of Electronic Voting E
Machines. These too are the vague allegations with which the
5. see Kunwar Nripendra Bahadur Singh vs. Jai Ram Verma and Others =
(1977) 4 sec153:
25. Thus in a catena of cases this Court has consistently taken the view that
the finality of the electoral roll cannot be challenged in an election even if F
certain irregularities had taken palce in the preparation of the electoral roll
or if subsequent disqualification had taken place and the electoral roll had
on that score not been corrected before the last hour of making
nominations. After that dead-line the electoral roll of a constituency cannot
be interfered with and no one can go behind the entries except for the
purpose of considering disqualification under Sectin 16 of the 1950 Act.
G
26. The electin could be set aside only on the grounds mentiond in Section
100 of the 1951 Act. In this case reliance was palced under Section
100(1)(d)(iii) for invalidating the election on the ground of reception of void
votes. We have already shown that the electoral roll containing the particular
names of voters was valid and there is, therefore, no question of reception
of any vote which was void. There is, thus, no substance in that ground for
challenging the election. H
320 SUPREME COURT REPORTS [2012) 13 S.C.R.
A returned candidate is no way concerned. Sub-paras (A} and
(B), once again, repeat the allegations contained in para 1 of
the election petition, i.e., allegations regarding the seizure of
the vehicles of the election petitioner and his supporters, etc.
Para 4 of the election petition, once again, exclusively deals
B with the complaint regardin1~ the preparation of the voters list.
19. Paras 5 and 6 contain the allegations of distribution
of cash, cheques, clothing material and school bags to the
children. The allegations in para 5 pertain to the distribution of
"cloths" on 17-10-2008 and cash to 200 persons on 21-10-
C 2008 and a cheque drawn on the lnduslnd Bank, Shastribridge,
Jabalpur, for an amount of Rs.500/- in favour of Shiv Durga
Utsava Sammittee on 08-10-2008. Assuming for the sake of
arguments that all the abovernentioned allegations are true and
constitute some corrupt practice, all these allegations pertain
D to a period prior to the filing of the nomination, i.e., 03-11-2008,
by the returned candidate.·
20. Para 6, once again, contains allegations of the returned
candidate issuing cheques, the numbers of which are given
E without disclosing in whose favour such cheques were given,
but it is relevant to notice that even according to the election
petitioner, such cheques were given some time prior to 30-10-
2008, because it is alleged in para 6 that the election petitioner
lodged a complaint dated 30-10-2008, marked as Annexure
F P~12 to the petition, with regard to the issuance of the cheques.
Obviously, the cheques must have been issued prior to that
date. At the cost of repetition it must be stated that by 30-10-
2008, the returned candidate had not filed his nomination:
"That the Respondent No.1 have issued the Cheque to the
G several other person. Even after notification issued by the
Election Commission and prior to the date, he has given
the cheque to the several! other person from the month of
Sept. 2008, Oct. 2008, Nov. 2008 and Dec. 2008
continuously cheque of lnduslnd Bank was issued the
H same was encashed by the person the Cheque No.
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 321
[J. CHELAMESWAR, J.]
mentioned in list submitted the Cheque No.348127 to A
348150 and 716616 to 716894 approximately 200
cheque were given to get vote from the Voter the list of
the Cheque is filed with the complaint dated 30.10.2008,
marked as ANNEXURE P-12 with the petition. The
petitioner have also submitted the facts. The Respondent B
No.1 with the help of their reliable Ward member, Punch
and Surpanch through the worker the amount was
distributed on 29.10.200, even in the Eve of Depawali. The
Respondent No.1 have distributed the amount in the Box
of Sweet with Sweet also the petitioner have submitted the c
Complaint before the Respondent, Distt. Election Officer,
but no action was taken by the Distt. Election Officer,
Respondent, even they are supporting to the Respondent
No.1 this Complaint dated 30.10.2008 is already filed as
Annexure P-12, but no action was taken."
D
21. Para 7, once again, repeats the allegations contained
in para 1 of the election petition.
22. Para 8 contains vague allegations regarding the
erection of welcome gates. Assuming for the sake of arguments E
that the so-called "welcome gates" were erected without the
permission of the District Election Officer, as alleged by the
election petitioner, I simply fail to understand, under what Head
of corrupt practice such an activity could be brought.
23. Para 9, once again, contains some vague allegations F
regarding distribution of clothing material, etc. Just to
demonstrate the vagueness of the pleading, I extract the
paragraph:
" ......... , further the Respondent No.1 have alsogiven the G
number of Article to the Women of the Cantt. Constituency
in which he had distributed the Payal, Long, Bichhiya,
Clothes, Cambal and other thing the complaint. The
Respondent No.1 have also distributed the Cash amount
to the several person or Sammittee the petitioner have H
322 SUPREME COURT REPORTS [2012] 13 S.C.R.
A made the complaint in time to time before the district
Election officer and State Election Commission and
Superior Authority, by they have not acted upon nor taken
any action against the Respondent No.1 nor made any
inquiry on the Complaint submitted by the petitioner and
B his Party supporter or agent the complaint dated
17 .10.200~. 21.10.2008, 23.10.2008, 30.10.2008,
31.10.2008, 13.11.:2008 and 14.11.2008. Even the
Respondent have distributed the amount by Cheque during
the Course of Election from 1.9.2008 to upto December
C 2008, from two chequ1e book as Cheque No.716886 of this
series and Cheque book No 348130 upto 100 and more
cheque from the Series was distributed by the Respondent
No.1 in favour of Voter or there benefited person. So in
this way the Respondent No.1 have adopted the corrupt
o practices during the Election or before the notification he
was trying to gain Vote from the Voter a any cost."
24. In my opinion, if a returned candidate is asked to face
trial of an election petition, such as the one, which is the subject
matter of the instant S.L.P ., it would be an absolute travesty of
E justice and opposed to all the settled principles of law regarding
the election disputes. It was held in Rahim Khan vs. Khurshid
Ahmed and Others, (1974) 2 SCC 660, as follows:
"9 ........... An election once held is not be treated in a
F lighthearted manrnH and defeated candidates or
disgruntled electors should not get away with it by filing
election petitions on unsubstantial grounds and
irresponsible evidence, thereby introducing a serious
element of uncertainty in the verdict already rendered by
G the electorate. An election is a politically sacred public act,
not of one person or of one official, but of the collective
will of the whole constituency. Courts naturally must respect
this public expression secretly written and show extreme
reluctance to set aside or declare void an election which
H has already been held unless clear and cogent testimony
ISHWARDAS ROHAN! v. ALOK MISHRA & ORS. 323
[J. CHELAMESWAR, J.]
compelling the Court to uphold the corrupt practice alleged A
against the returned candidate is adduced. Indeed election
petitions where corrupt practices are imputed must be
regarded as proceedings of a quasi-criminal nature
wherein strict proof is necessary. The burden is therefore
heavy on him who assails an election which has been B
concluded."
25. Coming to the pleadings in an election petition, an
election petition is required to contain all the material facts,
which, either if proved or went uncontraverted, would be
sufficient to constitute the cause of action for setting aside the C
election of the returned candidate on one or some of the
grounds specified under Section 100 of the R.P. Act. It is held
repeatedly by this Court that allegations of corrupt practice are
in the nature of criminal charges. In Dhartipakar Madan Lal
Agarwal vs. Rajiv Gandhi, 987 Supp SCC 93, this Court D
examined the nature of the allegations of corrupt practice and
the effect of the vagueness of the pleading in an election petition
and held as follows at para 108:
"Allegations of corrupt practice are in the nature of criminal E
charges, it is necessary that there should be no vagueness
in the allegations so that the returned candidate may know
the case he has to meet. If the allegations are vague
and general and the particulars of corrupt practice
are not stated in the pleadings, the trial of the F
election petition cannot proceed for want of cause of
action. The emphasis of law is to avoid a fishing and
roving inquiry. It is therefore necessary for the Court to
scrutinise the pleadings relating to corrupt practice in a
strict manner."
G
Emphasis Supplied
Again, in Anil Vasudev Salgaonkar vs. Naresh Kushali
Shigaonkar, (2009} 9 SCC 310, it was held as follows:
H
324 SUPREME COURT REPORTS [2012) 13 S.C.R.
A "57. It is settled legal position that all "material facts" must
be pleaded by the party in support of the case set up by
him within the period of limitation. Since the object and
purpose is to enable the opposite party to know the case
he has to meet with, in the absence of pleading, a party
B cannot be allowed to lead evidence. Failure to state
even a single material fact will entail dismissal of the
election petition. The election petition must contain
a concise statement of "material facts" on which the
petitioner relies."
c Emphasis Supplied
The distinction between 'material facts' and 'material particulars'
fell for the consideration of this Court repeatedly. In Samant N.
Balakrishna VS. George FEimandez and Others, (1969) 3 sec
D 238, this Court held as follows:
"29 ........... What is the difference between material facts
and particulars? The word 'material' shows that the facts
necessary to formulate a complete cause of action must
be stated. Omission c1f a single material fact leads to an
E
incomplete cause of action and the statement of claim
becomes bad. The function of particulars is to present as
full a picture of the cause of action with such further
information in detail as to make the opposite party
understand the c1:1se he will have to meet.
F "
11n Anil Vasudev Sa/gaonkar (supra), this Court reiterated the
difference between the material facts and particulars:
"56. There is no definition of "material facts" either in the
G
Representation of the People Act, 1951 nor in the Code
of Civil Procedure. In a series of judgments, this Court has
laid down that all facts necessary to formulate a complete
cause of action should be termed as "material facts". All
basic and primary facts which must be proved by a party
H
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 325
[J. CHELAMESWAR, J.]
to establish the existence of cause of action or defence A
are material facts. "Material facts" in other words mean the
entire bundle of facts which would constitute a complete
cause of action ................."
The absolute necessity of mentioning all the material facts in
an election petition is reiterated: 8
"48 .................. It is, however, absolutely essential that
all basic and primary facts which must be proved at the
trial by the party to establish the existence of a cause of
action or defence are material facts and must be stated c
in the pleading by the party."
26. Though the failure to give the 'material particulars' has
not been held to be fatal, the failure to give 'material facts' has
always been held to be fatal to the election petition.
D
27. The Judgment under appeal recorded a finding that the
election petition contained all material facts. At para 12 of the
Judgment, the learned Judge recorded as follows:
"12. Keeping in view the criteria for distinguishing material
facts from material particulars, it can safely be concluded E
that the election petition contains material facts in respect
of other corrupt practices alleged to have been committed
by the respondent no.1. It is true that the allegations suffer
from lack of certain material particulars particularly as to
the consent of the returned candidate or his election agent F
but, as explained in Rai Naraian's case (supra), this Court
may allow the deficient particulars to be amended or
elaborated."
Emphasis Supplied G
And opined that it is permissible to allow amendment of the
election petition to enable the election petitioner to supply the
particulars. Such a conclusion, according to the High Court, is
warranted on the basis of a Judgment of this Court in Sardar
Harcharan Singh Brar vs. Sukh Darshan Singh and Others, H
326 SUPREME COUl~T REPORTS [2012] 13 S.C.R.
A (2004) 11 sec 196. It was a case where the appellants before
the Court filed election petition challenging the election of the
respondent to the Panjab Legislative Assembly. One of the
grounds in the said election petition is that the respondent
obtained the assistance of a public officer, thereby committing
B a corrupt practice under Section 123 (7) of the R.P. Act. One
of the issues framed was whether the election petition lacked
material facts and, theref1ore, did not disclose any cause of
action. The High Court found the said issue against tile election
petitioner. On appeal, this Court reversed the conclusion of the
c High Court, holding as folliows:
"13. Having gone through the contents of the election
petition, we are satisfied that the High Court has not been
right in directing thEl petition to be dismissed at the
threshold by forming an opinion that the averments made
D in the election petition were deficient in material facts. It is
not necessary to burd1m this judgment with reproduction of
the several avermenti~ made in the election petition. The
High Court has already done it. The test laid down in the
several authorities refE!rred to hereinabove and in particular
E in the case of Raj N,arain (supra) is fully satisfied. The
grounds of corrupt piractice and the facts necessary to
formulate a complete cause of action have been stated."
While arriving at such a cc1nclusion, this Court relied upon Raj
Narain vs. Smt. Indira Ne,hru Gandhi and Another, (1972) 3
F SCR 841. At para 9, this Court 'summarised' the principles
emanating from Raj Narain (supra) as follows:
"9. Some of the principles elaborated in Raj Narain v. Smt.
Indira Nehru Gandhi and Anr. [1972] 3 SCR 841 , are
G relevant for our purpo1~e. Dealing with the corrupt practice,
the Court held that :
(i) While a corrupt practice has got to be strictly proved, it
does not follow that a pleading in an election proceeding
should receive a strict construction. Even a defective
H charge does not vitiate a criminal trial unless it is proved
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 327
[J. CHELAMESWAR, J.]
that the same has prejudiced the accused. If a pleading A
on a reasonable construction could sustain the action, the
court should accept that construction. The courts are
reluctant to frustrate an action on technical grounds.
(ii) The charge of corrupt practice in an election petition is
a very serious charge and has to be proved. It may or may B
not be proved. The allegations may be ultimately proved
or not proved. But the question for the courts is whether a
petitioner should be refused an opportunity to prove those
allegations merely because the petition was drafted
clumsily. Opportunity to prove should not be refused. C
(iii) If the allegations made in an election petition regarding
a corrupt practice do not disclose the constituent parts of
the corrupt practice alleged, the same will not be allowed
to be proved and those allegations cannot be amended
0
after the period of limitation for filing an election petition,
but the court may allow particulars of any corrupt practice
alleged in the petition to be amended or amplified.
"Material facts" in Section 83 of the Representation of
People Act, 1951 shows that the ground of corrupt practice E
and the facts necessary to formulate a complete cause of
action must be stated. The function of the particulars is to
present a full picture of the cause of action so as to make
the opposite party understand the case he has to meet.
Under Section 86(5) of the Representation of People Act F
if the corrupt practice is alleged in the petition the
particulars of such corrupt practice may be amended or
amplified.
(iv) An election petition is not liable to be dismissed in
limine because full particulars of corrupt practice alleged G
were not set out. If an objection was taken and the Tribunal
was of the view that full particulars have not been set out,
the petitioner : has to be given an opportunity to amend or
amplify the particulars. It is only in the event of non-
compliance with such order to supply the particulars, that H
328 SUPREME COURT REPORTS [2012] 13 S.C.R.
A the charge which remained vague could be struck down."
28. Raj Narain andl Indira Gandhi contested from Rae
Bareilly constituency in tlhe General Election to the Lok Sabha
held in March, 1971. Raj Narain lost the election and challenged
the election of Indira Gandhi. After the issues were framed in
B the election petition, an application was filed by Indira Gandhi
to strike out issues No . 1 to 3 therein. Raj Narain filed an
application to amend thei election petition. His application was
rejected and the application of Indira Gandhi was allowed by
the High Court on the ground that he was seeking to add
C material facts beyond the period of limitation for filing the
election petition. Raj Nairain carried the matter to this Court.
This court examining the question whether the High Court was
justified in striking out of the first issue, i.e., whether Indira
Gandhi obtained the ass>istance of Yashpal Kapur, a gazetted
D officer in the service of the Government of India, in furtherance
of the prospects of her E!lection, held as follows:
"10. The appellant's contention is that the respondent after
she became a candidate in the election in question
obtained the servicEis of Yashpal Kapur when he was still
E a gazetted officer in the Government of India for the
furtherance of the prospects of her election. In order to
establish that plea, he must plead and prove:
(1) That the resp<>ndent obtained the assistance of
F Yashpal Kapur when he was a gazetted officer;
(2) That the assistance obtained by her was for the
furtherance of the prospects of her election and
(3) That she obtained that assistance after she became
G a candidate."
Emphasis Supplied
And at para 13, this Court recorded that in order to establish
his plea, Raj Narain had to establish that the assistance of
H Yashpal Kapur was obtained when he was still a government
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. 329
[J. CHELAMESWAR, J.]
servant and at the time such an assistance was obtained Indira A
Gandhi had become a candidate. This Court after examining
the relevant averments of the election petition, which were
extracted in extenso, recorded a finding that the election petition
nowhere stated as to when Indira Gandhi had become a
candidate. It was, in this context, this Court observed at para B
16 as under:
".................... But if the petition is read reasonably, as
it should be, it is clear that the allegation of the petitioner
is that the service of Yashpal Kapur were obtained by the C
respondent when she had already become a candidate
and when she so obtained his assistance, Yashpal Kapur
was still a gazetted officer. It is true that one of the
ingredients of the corrupt practice alleged i.e. that when
the respondent obtained the assistance of Kapur, she was
a candidate is not specifically set out in the petition but D
from the allegations made; it flows as a necessary
implication. While a corrupt practice has got to be strictly
proved but from that it does not follow that a pleading in
an election proceeding should receive a strict construction.
This Court has held that even a defective charge does not E
vitiate a criminal trial unless it is proved that the same has
prejudiced the accused. If a pleading on a reasonable
construction could sustain the action, the court should
accept that construction. The courts are _reluctant to
frustrate an action on technical grounds. The charge of F
corrupt practice in an election is a very serious charge.
Purity of election is the very essence of real democracy.
The charge in question has been denied by the
respondent. It has yet to be proved. It may or may not be
proved. The allegations made by the appellant may G
ultimately be proved to be wholly devoid of truth. But the
question is whether the appellant should be refused an
opportunity to prove his allegations? Should the Court
refuse to enquire into those allegations merely because
the appellant or someone who prepared his brief did not H
330 SUPREME COURT REPORTS [2012] 13 S.C.R.
A know the language of the law. We have no hesitation in
answering those questions· in the negative. The
implications of the rule of law are manifold."
All that this Court held is that the particulars of a corrupt practice
can be supplied by amendment provided that the basic facts
8 constituting the corrupt practice are pleaded. This Court held
in Raj Narain (supra):
"It is true that one of the ingredients of the corrupt practice
alleged i.e. that when the respondent obtained the
c assistance of Kapur, she was a candidate is not
specifically set out in the petition but from the allegations
made; it flows as a necessary implication."
The fact that Indira Gandhi was a candidate at the election in
dispute would be a hJgical implication of the fact that it was her
D election, which was under challenge. The observations were not
meant to dilute the long established principles of pleadings in
the election disputes but were limited to the context.
29. This Court in Sardar Harcharan Singh Brar (supra),
E in my opinion, als<> came to the same conclusion. Principle
No.(iii) stated in para 9 of Sardar Harcharan Singh Brar (supra)
makes it abundantly clear.
30. In my opinion, the election petition on hand hopelessly
lacks in stated the material facts constituting the various corrupt
F practices mentioned in the election petition to enable the
declarations sought by the election petitioner. The conclusion
recorded by the High Court (extracted at para 27 supra) that;
"It is true that the allegations suffer from lack of certain
material particulars particularly as to the consent of the
G
returned candidate or his election agent. .......... "
In my opinion is wholly erroneous in I.aw. Consent by the
candidate or his election agent is an essential material
fact, which is required to be pleaded and proved when the
H. allegation is that somebody other than the candidate or his
ISHWARDAS ROHAN! v. ALOK MISHRA & ORS. 331
[J. CHELAMESWAR, J.]
election agent committed a corrupt practice. The election A
petition on hand, in my opinion, is incapable of being read
as disclosing any cause of action on the basis of any
known cannon of interpretation of documents - whether a
rule of reasonable construction or any other construction.
In view of the conclusion reached above, I do not propose B
to examine the other submissions regarding the legal fact
of the non-filing of an affidavit in Form No.25 and absence
of proper verification of the pleadings and annexures.
31. I may also mention here that though the learned
counsel for the election petitioner did not bring to our notice C
{obviously he was not briefed in this regard), Dr. Rajeev
Dhawan, learned counsel for the returned candidate placed
before us a photocopy of an application seeking the
amendment of the election petition pursuant to the directions
of the High Court. I do not propose to examine the content of D
the said application except to take note of the fact that the same
appears to have been presented on 02-05-2011. Even
otherwise, any such application could, obviously, have been
filed only after 05-10-2009, which is the date of Judgment under
appeal. In view of the fact that the results of the election in E
question were declared on 08-12-2008, the application was
filed beyond the period of limitation prescribed under the R.P.
Act, to challenge the election. In view of my conclusion that the
election petition, as originally presented, did not contain the
necessary material facts to constitute the cause of action to F
challenge the election of the returned candidate, the
abovementioned application filed by the election petitioner,
even if it contain the necessary material facts, cannot be
allowed as it would amount to permitting the amendment of the
election petition beyond the period of limitation. G
32. I, therefore, notonly grant leave in the S.L.P., but also
allow the appeal and dismiss the election petition.
B.B.B. Matter referred to Larger Bench.
H
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