Holding

The petition failed to meet the mandatory pleading and affidavit requirements under Sections 123(4) and 83(1) of the Representation of the People Act, so the charges could not be put to trial and the High Court's dismissal was upheld.

Summary

Ravinder Singh, who lost the 1997 Punjab Legislative Assembly election to Janmeja Singh, filed an election petition alleging two corrupt practices: bribery under Section 123(1)(A)(b) and false statements under Section 123(4) of the Representation of the People Act, 1951. The High Court dismissed the petition at the threshold, holding that it lacked the material facts and particulars required by Section 83 read with the Conduct of Election Rules. On appeal, the Supreme Court examined whether the petition satisfied the mandatory pleading requirements. It found that the petition made no specific averment that the returned candidate or his agent published or consented to false statements, a prerequisite under Section 123(4), and therefore the charge could not be tried. The Court also held that the petition did not include a proper affidavit in Form 25 disclosing the source of information for the bribery allegation, violating the mandatory proviso to Section 83(1). Consequently, the Supreme Court affirmed the High Court’s dismissal and dismissed the appeal.

Issues considered

Whether the election petition adequately alleged corrupt practice under Section 123(4) by including the mandatory averment that the candidate or his agent published or consented to false statements.
Whether the petition complied with the mandatory affidavit requirement under Section 83(1) in the prescribed Form 25 for the allegation of bribery under Section 123(1).
Whether the High Court was justified in dismissing the election petition on the preliminary ground of lack of material facts and particulars.

Legislation cited

Representation of the People Act, 1951s. 123(1), s. 123(4), s. 83(1)

Subjects

election petitioncorrupt practiceSection 123Section 83affidavitForm 25preliminary objectionRepresentation of the People Actelection law

Judgment

RAVINDER SINGH A
v.
JANMEJA SINGH AND ORS.

SEPTEMBER 19, 2000

[DR. A.S. ANAND, CJ. AND N. SANTOSH HEGDE, JJ.] B

Election Laws :

Representation of the People Act, 1951-Section 123(4)--Commission
of corrupt practice under-Allegation of-Requirement of making a statement C
to the effect that the publication was made by the returned candidate or his
election agent or by any other person with the consent of the candidate or
his election agent or any statement offact which is false and which he either
believes to be false or does not believe to be true in relation to the personal
character or conduct of the candidate-Jn the present case, the election
petition silent regarding any such averment-Effect of-Held, the requirement D
of making such a statement is mandatory under Section 123(4)'and in the
absence of any such statement, the charge could not be put to trial.

Sections 83, 123(1)--Conduct of Election Rules-Form 25-Mandatory
requirement that the election petition levelling a charge of corrupt practice E
be supported by an affidavit in the prescribed form in which the election
petitioner is obliged to disclose his source of information in respect of the
commission of that corrupt practice-Held, in the absence ofproper affidavit
in the prescribed form filed in support of the corrupt practice alleged, the
allegation pertaining thereto could not be put to trial, the defect being of
a fatal nature. F
The appellant was defeated by respondent no. 1, the returned candidate
in the Legislative Assembly elections. The appellant filed an election petition
in the High Court seeking to declare the election of returned candidate void
on various grounds and for a further declaration that the appellant be declared
duly elected as Member of the Legislative Assembly after setting aside election G
of the returned candidate. The High Court dismissed the said election petition
at the threshold on sustaining preliminary objection that the election petition
lacked in material facts and particulars, necessary to constitute complete
e~mse of 11etion for setting aside of the election of respondent no. 1. Hence
the present appeal. H
331
332 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A Dismissing the appeal, this Court

HELD: 1.1. In the election petition, two main corrupt practices were
alleged to have been committed by the returned candidate - one falling under
Section 123(1)(A)(b) of the Representation of the People Act, 1951 and the
other falling under Section 123(4) of the Act. The requirement emanating
B from Section 123(4) of the Act for the alleged commission of corrupt practice,
is making an averment to the effect, that the publication was made by the
returned candidate or his election agent or by any other person with the
consent of the candidate or his election agent or any statement of fact which
is false and which he either believes to be false or does riot believe to be true
C in relation to the personal character or conduct of the candidate. The election
petition is singularly silent of any such averment. Though in the election
petition, this requirement emanating from Section 123(4) has been mentioned
there was no assertion that the returned candidate in this case.published the
false statements knowing them to be false and/or not believing them to be
true. The requirement, of making such a statement is mandatory and in the
D absence of any such statement, the charge could not be put to trial. Thus,
in the face of the pleadings, no charge could have been framed insofar as
corrupt practice under Section 123(4) of the Act is concerned.
(334-F-H; 335-A-B]

E 1.2. As regards the charge of corrupt practice falling under Secti~n
123(1) of the Act, those allegations could not be put to trial either. There
is no affidavit filed in support of the allegations of corrupt practice of bribery.
Section 83 of the Act is mandatory in character and requires not only a
concise statement of material facts and full particulars of the alleged corrupt
practice, so as to present a full and complete picture of the action to be
F detailed in the election petition but under the proviso to Section 83(1) of the
Act, the election petition levelling a chawe of corrupt practice is required,
by law, to be supported by an affidavit in which the election petitioner is
obliged to disclose his source of information in respect of the commission
of that corrupt practice. The reason for this insistence is obvious. It is
G necessary for an election petitioner to make such a charge with full
responsibility and to prevent any fishing and roving enquiry and save the
returned candidate from being taken by surprise. The affidavit, which has
been filed in support of the election petition, does not at all deal with the
charge of bribery falling under Section 123(1) of the Act. Leaving aside the
questions that the affidavit is not even in the prescribed form - Form 25, of
H the con<I.uct of Election Rules, the allegations of corrupt practice made in the
RAVINDER SINGH v. JANMEJA 333
election petition are not supported by the otherwise defective affidavit either. A
No name of any informant has been mentioned in respect of the allegations
of corrupt practice under Section 123(1) in the affidavit. In the absence of
proper affidavit, in the prescribed form, filed in support of the corrupt practice
of bribery, the allegation pertaining thereto, could not he put to trial - the
defect being of a fatal nature. [335-E-H, D]
B
CIVIL APP ELLA TE JURISDICTION : Civil Appeal No. 865 of
2000.

From the Judgment and Order dated 3 .6.1999 of the Punjab and Haryana
High Court at Chandigarh in Election Petition No. 4 of 1997.
c
R.K. Talwar, D.M. Sinha and Yash Pal Dhingra for the appearing parties.

... The Judgment of'thc Court was delivered

This appeal is directed against an order of the High Court of Punjab and D
Haryana dated 1.6.1999, dismissing an election petition filed by the appellant
at the thresholu{on sustaining preliminary objection.

The appellant, who was a candidate set up by the Congress Party was
defeated by respondent No . I, the returned candidate, who had been set up
by the Akali Dal (Badal group). The elections to constituency No .96, Ferozepur E

-
Cantt of Punjab Legislative Assembly were held in 1997. The polling took
place on 7.2.1997 and after counting of votes on 9.2.1997, respondent No. I
was declared elected. In view of the limited nature of controversy involved
in this appeal, we are relieved of the necessity of giving break-up of votes
or mention about other candidates, who had also contested the election.
F
The appellant filed an election petition seeking to declare the election
of returned candidate void on various grounds and for a further declaration
that the appellant be declared duly elected as Member of the Legislative
Assembly after setting aside election of the returned candidate. In the election
petition, two main corrupt practices were alleged to have been committed by G
the returned candidate -one falling under Section 123 (I)(A)(b) of the
Representation of the People Act, 1951 (hereinafter referred to as the Act) and
• the other falling under Section 123 (4) of the Act. The material facts and
particulars concerning allegations of corrupt practice insofar as corrupt practice
under Section 123(1) is concerned, are contained from paragraphs 28 to 39 of
the election petition, while material facts and particulars concerning commission H
334 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A of corrupt practice falling under Section 123 (4) of the Act are contained in
paragraphs 12 to 27 of the election petition.

Mr. Talwar, learned counsel appearing for the election petitioner has
taken us through the election petition.

B Section 123(4) of the Representation of the People Act provides :

"The pub I ication by a candidate or his agent or by any other
person with the consent of a candidate or his election agent, of any
statement of fact which is false, and which he either believes to be
false or does not believe to be true, in relation to the personal character
C or conduct of any candidate, or in relation to the candidature, or
withdrawal, of any candidate, being a statement reasonably calculated
to prejudice the prospects of that candidate's election."
\
In vain, have we searched through the election petition and, particularly
through paragraphs 12 to 27 thereof, dealing with the alleged commission of
D corrupt practice which falls within the mischief of Section 123(4) of the Act,
for any averment to the effect, that the publication was made by the returned
candidate or his election agent or by any other person with the consent of
the candidate or his election agent or any statement of fact which is false
and which he either believes to be false or does not believe to be true in
relation to the personal character or conduct of the candidate.
E
The election petition is singularly silent of any such averment that the
returned candidate, even if, it be assumed for the sake of the arguments, had
published and distributed certain documents, (Annexures A-1 to A-7), as
alleged in the election petition either himself or through any other persons
with his consent, that those statements were false and that the returned
F candidate either believed them to be false or did not believe them to be true,
though in paragraph 9 of the election petition, which has been verified as
correct on the basis of legal advice, this requirement emanating from Section
123(4) has been mentioned but without any assertion that the returned
candidate in this case published the false statements knowing them to be
G false and/or not believing them to be true. The submission of Mr. Talwar, that
at the trial, the petitioner could have said so in his evidence is futile. It is an
established proposition that no evidence can be led on a plea not raised in
the pleadings and that no amount of evidence can cure defect in the pleadings.

In the face of the pleadings, no charge could have been framed insofar
H as corrupt practice under Section 123(4) of the Act is concerned. We need
RA VIND ER SINGH v. JANMEJA 335
not detain ourselves to consider the 'allegations' in this behalf, because of A
the absence of the essential averments to lay a charge under Section 123(4)
of the Act. The requirement of making such a statement, as referred to above
by us, is mandatory and in the absence of any such statement, the charge

- could not be put to trial. Faced with this serious lacuna in the pleadings, Mr.
Talwar sought to press the allegations of bribery under Section 123(1) as
detailed in paragraphs 28 to 39 of the election petition.
B

Coming now to the charge of corrupt practice falling under Section
123( l) of the Act, for which material facts and particulars have been detailed
in paragraphs 28 to 39 of the election petition, we find that those allegations
could not be put to trial either. There is no affidavit filed in support of the C
allegations of corrupt practice of bribery.

Proviso to Section 83(1) of the Act lays down, in mandatory terms, that

- where an election petitioner alleges any corrupt practice, the election petition
shall also be accompanied by an affidavit, in the prescribed form, in support
of the allegations of such practice and the particulars thereof. The affidavit, D
which bas been filed in support of the election petition, does not at all deal
with the charge of bribery falling under Section 123 ( l) of the Act. Leaving
aside the questions that the affidavit is not even in the prescribed form - Form
25, of the conduct of Election Rules, the allegations of corrupt practice made
in the election petition are not supported by the otherwise defective affidavit
either. All the names of the informants which have been given in the affidavit E
relate to the corrupt practice under Section 123(4) and the affidavit in this
respect is a verbatum reproduction of the verification clause of the election
' petition concerning corrupt practice under Section 123(4). No name of any
informant has been mentioned in respect of the allegations of corrupt practice
under Section 123(1) in the affidavit. In the absence of the requisite affidavit F
filed in support of the allegation of corrupt practice under Section 123(1) of
the Act, as detailed in the election petition, no issue could be raised for trial.

Section 83 of the Act is mandatory in character and requires not only
a concise statement of material facts and full particulars of the alleged corrupt
practice, so as to present a full and complete picture of the action to be G
detailed in the election petition but under the proviso to Section 8~( 1) of the
Act, the election petition levelling a charge of corrupt practice is required, by
law, to be supported by an affidavit in which the election petitioner is obliged
to disclose his source of information in respect of the commission of that
corrupt practice. The reason for this insistence is obvious. It is necessary for
an election petitioner to make such a charge with full responsibility and to H
336 SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A prevent any fishing and roving enquiry and save the returned candidate from
being taken by surprise, in the absence of proper affidavit. In the prescribed
form, filed in support of the corrupt practice of bribery, the allegation pertaining
thereto, could not be put to trial the defect being of a fatal nature.
...
We also wish to note here that the learned Senior counsel appearing for
B the election petitioner in the High Court had on 14.7.1998 made a statement
in the High Court that he was not pressing his prayer relating to recounting
of votes. No other point was raised before us.

The learned Single Judge of the High Court dismissed the election
C petition on deciding Issue No. 5, which was treated as a preliminary issue and
reads thus :

"Whether the election petition lacks in material facts and particulars,
necessary to constitute complete cause of action for setting aside of
the election of the respondent No. I, within the meaning of Section
83, read with Sections IOO(I)(d)(iv) and 123 of the Representation of
D
People Act.?"

For what we have said above, the order of dismissal of the election
petition, without putting it to trial, cannot be faulted with.

E For our reasons, which are somewhat different from the ones given by
the High Court, we find that the decision of the High Court to non-suit the
election petitioner by deciding the preliminary issue against him is well merited.
There is no merit in this appeal. It, consequently, fails and is hereby dismissed.
There shall, however, be no order as to costs.

M.P. Appeal dismissed.

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