A

B

ABHIRAM SINGH

v.

C.D. COMMACHEN AND ORS.

APRIL 16, 1996

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

Representation of People Act, 1951 : Section 99( 1)-Election Peti­

tion-Show Cause Notice to person not party to the petition-Content and

scope of-Decision by Supre111e Coiut in one case that the notice n1ust inter-

C alia contain the portions of the petition written statement oral and documen­

tary evidence, in support of the charges of c01rupt practice and prima facie

finding thereon-1n a subsequent judgment Supreme Cowt held that the prag­

matic question

of deciding the question of compliance of requirements of the Section is that the noticee gets the same opportunity which he would get if he

D were made party, hence the communication of mate1ial not required-Held,

the two decisions

are conflicting hence matter refe!Ted to larger bench of five

Judges.

Sections

123 (3) & (3A)-Conupt practice-Content and scope

of--­

Held, requires to be clear laid down authoritatively, hence refelTed to Con­

E stitution Bench for deciding the issue.

Co1TUpt practice in speeches delivered by collaborators-Consent to, by

the candidate--ffe/d in one case by Supreme Court that it should be in­

ferred-Held in other cases by Supreme Court that it should be proved-Held,

the views

are inconsistent-No specific law laid down as to when the case is

F held proved-Authoritative decision required, hence

refeired to Constitution

Bench.

The appellant, a

BJP candidate, and the respondent a Congress

party candidate contested a legislative assembly election. Appellant was

duly elected. Respondent filed election petition before High Court alleging

G corrupt practices by the collaborators of the candidate while delivering

speeches on certain dates. Appellant was not made party to the petition.

High Court

on findingprima facie evidence of use of corrupt practice sent

noticee to the appellant u/s.

99 of Representation of

People Act, 1951,

without communicating to .him, the pleadings of corrupt practices and

H evidence -oral and documentary in proof thereof.

340

ABHIRAM SINGH v. C.D. COMMACHEN 341

Tl)e Supreme Court held in Manohar Joshi's case that the notice A

required the extract of pleadings of corrupt practices, evidence, oral and

documentary in proof thereof and the Judge is required to

give his prima

facie findings indicating the portions of speeches delivered by the speaker.

In a later judgment, the Supreme

Court held that the noticee gets the same

opportunity which

he would get if he were made party, hence communica· B lion of the material on record is not required.

The appellant in appeal to this Court challenging the order of the

High Court contended that the speeches by the collaborators were not

made

with his consent; therefore, corrupt practices have not been proved

and that the impugned judgment has not complied with the mandatory

C

requirements of notice u/s 99 as held in Manohar Joshi's case 2 and that

the findings u/s

123(3) and (3A) without compliance of requirements of

notice and opportunity under Section

99 vitiate the declaration that the

appellant's allegations are baseless.

Refering the matter to the

Constitution Bench, this Court

HELD : 1.1. When and under what circumstances speeches of the

leaders of the political party

or the appeal or any other person with the

consent

by a candidate or his election agent to vote or refrain from voting

D

on the ground of religion, race, caste or community or language, etc. or E

promotion or an attempt to promote feelings of enmity or hatred between

different classes of citizens of India

on the ground of religion, race, caste,

community

or language with the consent of the candidates or his election

agent for the furtherance of prospects of the election of the candidate

or

prejudicially effect the election of any candidate, constitutes corrupt

prac·

lice under sub-sections (3) or (3A) of Section 123 of the Representation of F

People Act. Its content and scope also require to be clearly laid down

authoritatively lest miscarriage of justice in interpretation of "corrupt

practice" involved in every election petition would ensue. The purity of

election process gets fouled and be fraught with deleterious effect in a

democratic polity.

(347-G-H;

348-A·B) G

Suryakant Venkatarao Mahadik v. Smt. Saroj Sandesh Naik (Bhosa/e ),

(1996) 1 SCC 384; Ramakant Mayekarv. Smt.· Celine D'Si/va, (1996) 1 SCC

399, (1996] 1 SCC 378; Prof Ramchandra G. Kapse Etc. v. Haribansh

Ramakbal Singh Etc., (1966] 1 SCC 206; Moreshwar Save v. Dwarkadas·

Yashwantrao Pathn·kar, (1996] 1 SCC 394 and Dr. Ramesh Yashwant H

342 SUPREME COURT REPORTS [1996) SUPP. 1 S.C.R.

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

referred to.

1.2. As to when the case is held proved in such cases has not been

specifically laid as

law. There appears to be some inconsistency in the view

in Dr. Prabhoo's

Case that consent to the speeches of collaborators, by the

B returned candidate should be inferred, and in other cases that consent is

required to

be proved. (347-E-F]

1.3. The decision in Manohar Joshi's case No. 2 and Dr. Prabhoo's Case are mutually conflicting. Which of the two views is co"ect is the question

C required to be decided by a larger bench. (347-DJ

Manohar Joshi v. Damodar Tatyaba and Dadasaheb Rupwate, (1991]

2 SCC 342 and Dr. Ramesh Yashwant Prabhoo v. Prabhakar Kashinath

Kunte & Ors., (1996] 1 SCC 130, referred to.

D CIVIL APPELLATE JURISDICTION Civil Appeal No. 37 of

E

F

1992.

From the Judgment and

Order dated 24.12.91 of the Bombay High

Court in E.P. No. 11 of 1991.

AM. Khanwilkar, Ramesh Singh and Ms. Bina Gupta for the Appel­

lants.

B.A. Desai, M.N. Shroff and

Ms. Reema Bhandari for the Respon-

dents.

The Judgment of the Court was delivered by

K. RAMASWAMY, J. After spending considerable time on diverse

question canvassed across the bar,

we are of the opinion that this appeal

requires to be posted before a Constitution Bench for deciding the ques-

G

lions that arise in the appeal. We would, however, indicate in brief the

facts, the findings recorded and the questions raised which impress us to

refer the matter for decision by the Constitution Bench. This appeal under

Section

116B of the Representation of the

People Act, 1951 (for short, the

'Act') arises from the judgment dated December

24, 1991 of the Bombay

H High Court passed in Election

Petition No. 11 of 1991.

ABHIRAM SINGH v. C.D. COMMACHEN !K. RAMASWAMY,J.] 343

The respondent, since deceased, his legal representatives have been A

brought on record and a notice as required under the Act, was also duly

published. He contested as a Congress Party candidate in the clcclion to

No. 40, Santacruz Legislative Assembly Constituency in 1990 for the

Maharashtra State Assembly. The appe.llant is the returned candidate who

filed his nomination on January 31, 1990 which was accepted on February

8, 1990. The poll was held on February 27, 1990. The result of the election

was declared on March 1., 1990 declaring that the appellant was duly

elected. The contested election

as a

BJP candidate and was also Vice

President of the Bombay Unit of the said party. He secured single largest

majority \Utcs white the respondent secured second largest. By judgment

dated December

19, 1991 the High Court allowed the election petition.

In paragraph

186, the High Court held that

"the voluminous oral as

B

c

well as documentary evidence leaves no room for doubt that the plank of

Hindutva/Hunduism/Hindu

was

used". In Paragraph 187 it is held that "it is

clear from the voluminous material on record that the campaign was on the D

basis of appealing for votes on the basis of 1st Respondent's community and

religion. i.e., the Hindu community and religion and that there was an

attempt to create enmity and hatred between different classes of citizens on

the basis of religion, community and caste particularly between the Hindus

and the Muslims". In paragraph 198 it is further held that "prima facic, it

does appear that the leaders have appealed for votes for the Hindu can­

didates of the

two parties on the basis of their religion and community.

Prima facie, it does appear that the leaders did attempt to create e'nmity

and hatred between different classes of citizen on the grounds of community

and religion". In paragraph 197, it is held that "(I)n my view, it will have to

be held that the tape recordings contain the speeches made at these

meetings. This of course

is subject to hearing the leaders of these two parties

on the Notices under

Section 99 of the Representation of the People Act,

1951 which have been issued to them in Election Petition No. 21 of 1990"

E

F

Shri A. M. Khanwilkar, learned counsel for the appellant, contended G

that in view of the decisions of this Court in Suryakant Venkatarao Mahadik

v. Smt. Saroj Sandesh Naik (Blwsa/e), (1996] 1 SCC 384; Ramakant

Mayekar v. Smt. Celine D'Silva, (1996] 1 SCC 399, (1996] 1 SCC 378; Prof

Ramchandra G. Kapse Etc. v. Ha1iba11sh Ramakbal Singh Etc., (1996] 1 SCC

206; Moreshwar Save v. Dwarkadas Yashwantrao Patluikar, (1996] 1 SCC

394 the findings recorded under Sections 123(3) and 123 (3A) of the Act H

344 SUPREME COURT REPORTS [1996J SUPP. 1 S.C.R.

A without con1pliance of the rcquiren1cnt~ of notice and opportunity under

Section 99 which was held to be a <lutv of the Court, vitiate the declaration

that the appdbnt's allegations are baseless. The speeches made hy the

leaders on February 10, 19YO, February 17, 1990

1 intervening night of

February 20 an<l 21, Fcbru:iry 2:1, 1990 \vithin the constituency and on

B

c

D

E

F

February 24, 1990 outside the cunslitucncy, \Vere not n1adc with hi:.. con­

sent. Therefore, corrupt practices have not been proved. By reason of the

ratio in Manohar Joshi v. Damodar Ta1yuba ~I Dadasaheb Rupwale, [ 1991J

2 SCC 342 (hereinafter referred to as "Manohar Joshi Case No. 2") this

Court had held that the court has to extract pleadings of corrupt practices,

evidence -oral and documentary in proof thereof and in the order the

Judge is required to indicate portions of his p1in1a facie findings of the

speaker appealing to the voters on the basis of religion etc. The court

should supply the pleadings, evidence -oral an<l documentary and the copy

of the order so as to enable noticce to adequately meet the ground on

which he

is proposed to be named in the order. This mandatory require-

ment has not been complied with. Therefore, the judgment

is clearly illegal.

He, therefore, requested

to remit the matter for taking the proceedings

under Section 99(1) proviso as interpreted in

Manohar

Joshi Case No.2,

Shri, B.A. Desai, learned counsel for the respondent, has controverted the

same.

P1in1a facie

1

the follo\ving three questions \vhich arc interwoven, arise

for decision in the case :

(i) whether the learned Judge who tried the case is required to

record prima facie conclusions on proof of the corrupt practices committed

by the returned candidate or his agents or collaborators (leaders of the

political party under whose banner the returned candidate contested the

election) or any other person on his behalf?

(ii) whether the consent of the returned candidate

is required to be

proved and if

so, on what bJ~is and under \Vhat circu1nstances the consent

G is held proved?

(iii) on reaching the conclusion that consent

is proved and

piima

facie corrupt practices are proved, whether the notice under Section 99(1)

proviso (a) should contain, like mini judgment extraction of pleadings of

corrupt practices under Section 123, the evidence -oral and documentary

H and findings on each of the corrupt practices by each of the co\laborators,

ABHIRAM SINGH v. C.D. COMMACHEN [K. RAMASWAMY, J.] 345

if there are more than one, and supply them to all of them for giving an A

opportunity to be complied with?

There is a common thread that runs through many a decision of this

Court

which mandates as duty of the High Court under sub-section (1) of Section 99, requiring at the time of making an order under Section 98 to

make an order recording the names of

all persons, if any, who have been

proved at the trial

to have been guilty of any corrupt practice and the

nature

of that practice. The High Court is required to refer names of all

persons proved guilty of any corrupt practice which have been proved at

the trial.

Under proviso to sub-section (1), the person who has not been a

party

to the petition has to be given notice to appear before the High Court

to show cause why he should not be named. If he appears pursuant to the

notice, he should be

given an opportunity of cross-examining any witness

who has already been examined and given evidence and of calling

evcdence

in his defence and of being heard.

B

c

D

In Dr. Ramesh Yeshwant Probhoo v. Prabhakar Kashinath Kunte &

Ors., [1996] 1SCC130, the scope of the content of the notice under Section

99(1), proviso (a) came up for consideration. Background facts to the said

decision are required

to be stated here. In Election Petition No. 1 of 1988

which is the subject matter of the above appeal, at the close of the trial, by

order dated

September 23, 1988, the learned Judge while holding that E

notice under Section 99 was necessary, the Court reached prima facie

finding that the charges alleged in the petition of the corrupt practices

under Section 123(3) and 123(3A) have been proved against the named

persons and directed notice to them

to show cause why they should not be

so named in the order of the election petition; the notice indicated that the

F

named person shall have opportunity to cross-examine the witnesses

al­

ready examined at the trial and gave evidence against him and of calling

evidence

in his defence and of being heard. Accompanying the notice, · photocopies of the petition, written statement, the issues, the evidence -

oral and documentary were supplied. In furtherance thereof, Shri Bal G

Thackeray had appeared on September 27, 1988 and contended that the

notice

was vague since the notice did not indicate as to which portions of

the speeches were believed and relied upon

to reach

prima facie con­

clusion. By order dated October 10, 1988, the learned Judge overruled the

objections

by a written order which was challenged in

Special Leave

Petition

No. 13163 of 1988. A Bench of two Judges of this Court by order H

346 SUPREME COURT REPORTS [1996] SUPP. l S.C.R.

A dated December 1, 1988 dismissed the petition holding that notice under

Section 99 was not required to specify all the portions of the speeches

indicated to be corrupt practices under sub-sections (3) and (3A) of

Section 123. However, liberty was given to Bal Thackeray to file an applica­

tion before the High Court seeking to specify those portions which accord-

B

ing to the Court p1ima facie come within the purview of sub-sections (3)

or (3A) of

Section 123. If such an application was made, the High Court

was directed to dispose of

it in accordance with law.

Subsequently, an application came to be made and by order dated

December

16, 1988 the learned Judge held that

Section 99 does not require

C the Court to analyse the evidence and specify either in the notice under

Section 99 or at any time prior to hearing the persons to whom notice had

been issued, "portion or portions thereof in its view prima facie to make

out the case which the noticee

is called upon to

answer". His position can

be no better than the elected candidate.

It was held that the noticee is not

D entitled to be specified by the Court of the portions of the speeches which

according to it

prima facie fall within the purview of sub-section (3) or (3A)

of

Section 123 either in the show cause notice under Section 99 or at any

time prior to

so showing cause. Accordingly, the High Court directed the

counsel appearing for the election petitioner

"to indicate on which portions

of the speeches or evidence he seeks to place reliance at the hearing of the

E election

petition" and directed him to furnish to the noticee or his advocate

xerox copy of those speeches, marking

in the margin thereof the portions

that are so stressed. Accordingly, it

was done. The

Special Leave Petition

No. 507 of 1989 filed against that order came to be dismissed by order

dated January

23, 1989 of another Bench of two Judges.

F

In the light of the above background, an argument was raised in the

appeal that the appellant was prejudiced for non-compliance of the proce­

dure under

Section 99. The Bench had held that "it is difficult to visualise

what prejudice

was caused to the noticee on these facts and how there

should be

any non-compliance of Section 99 of the Representation of the

G People Act in this situation" and it was held that, in short, the opportunity

which a party to the petition had at the trial to defend allegations of corrupt

practices

is to be given by such a notice to that person of defending himself

if he was not already a party to the petition. In other words, the noticee

has to be equated with a party to the petition for this purpose and has to

H be given the same opportunity which he would get if he was made a party

l

ABHIRAM SINGH v. C.D. COMMACHEN [K. RAMASWAMY, J.] 347

to the petition. This is the pragmatic test to be applied for deciding the

question of compliance of requirements of Section 99. The opportunity

required

to be given by virtue of proviso to sub-section (1) of

Section 99

is the same and not more than that available to a party to the petition to

defend himself in respect of corrupt practices. It was held, therefore, that

the grievance that the portion of the material which formed the record at

the trial

was not purposely communicated to the noticee, had no merit.

The earlier Bench

of three Judges in Manohar Joshi Case No. 2

(supra) in the same situation arising out of Election Petition No. 9 of

1990

from the same Court had held that notice should contain that portions of

A

B

the petition, written statement, oral and documentary evidence which is C

sought to be relied upon in support of the said charge or each of the said

charges and the

prima facie findings thereon

w!tich is the minimum

safeguard. In other words, a

mini judgment was required to be rendered.

The orders referred

to on the special leave petitions in Dr.

Prabhoo's case

were deemed to have been overruling .

It would thus be seen that the D

decision in

Ma11ohar Joshi's case No. 2 and Dr. Prabhoo's case are mutually

conflicting.

If this Bench was to take yet another view, it would create yet

another dimension. Which of the two views is correct is the question

required to be decided

by a larger Bench of five Judges.

In

Dr.

Prabhoo's case it was held that consent to the speeches of the E

collaborators by the returned candidate should be inferred and accordingly

in paragraphs

53 and 57 the Court inferred such a consent but in other

cases, it

was held that consent is required to be proved. There appears to

be son1e inconsistency in the above view. In any case as to when the case

is held proved has not been specifically laid as law. This requires to be F

authoritatively decided.

As stated earlier,

v.1h~n and under what circumstances, speeches of

the leaders of the political party or the appeal of any other person with the

consent

by a candidate or his election agent to vote or refrain from voting G

on the ground of religion, race, caste or community or language, etc. or

promotion or an attempt to promote feelings of enmity or hatred between

different classes of citizens of India on the ground of religion, race, caste,

community or language with the consent of the candidate or

his election

agent for the furtherance of the prospects of the election of the candidate

or prejudicially affect the election of any candidate, constitutes corrupt

H

A

B

c

D

348 SUPREME COURT REPORTS ( 19%( SUPP. l S.C.R.

practice under sub-sections (3) or (3A) of Section 123. Its content and

scope also require to be clearly laid down authoritatively lest miscarriage

of justice in interpretation of ncorrupt practicc

11

involved in every election

petition would ensue. The purity of election process gets fouled and be

fraught with deleterious effect in a democratic polity.

Thus, \Vithout expressing any opinion on these questions, \Ve are of

the view that the entire case requires to be heard and clecided by a larger

Bench of five Judges since the decision thereon impinges upon the purity

of election process .md req uircs to be decided authoritatively.

IV c, therefore, direct the Registry to place the case before our

learned brother, the Chief Justice for constituting a larger Bench of five

Judges, and, if possible, at an early date so that all the questions arising in

the present appeal could be decided authoritatively and expeditiously.

Thus, this reference order of in the above terms.

K.K.T.

Still pendine.