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PETITIONER:

CHANDRAKANTA GOYAL

Vs.

RESPONDENT:

SOHAN SINGH JODH SINGH KOHLI

DATE OF JUDGMENT11/12/1995

BENCH:

VERMA, JAGDISH SARAN (J)

BENCH:

VERMA, JAGDISH SARAN (J)

SINGH N.P. (J)

VENKATASWAMI K. (J)

CITATION:

1996 AIR 861 1996 SCC (1) 378

JT 1995 (9) 114 1995 SCALE (7)88

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

J.S. VERMA, J.:

This is an appeal under Section 116A of the

Representation of the People Act, 1951 (for short "the Act")

by the returned candidate against the judgment dated 1st &

2nd July, 1991 of H. Suresh, J. of the Bombay High Court in

Election Petition No. 19 of 1990 by which the election of

the appellant has been set aside on the ground under Section

100(1)(b) for commission of corrupt practices under sub-

sections (3) and (3A) of Section 123 of the Act. The

appellant was candidate of the Bhartiya Janata Party and

respondent was the candidate of the Janata Dal for election

to the Maharashtra Legislative Assembly from No. 33, Matunga

Constituency held on 27.2.1990. The appellant became

candidate at the election on 8.2.1990. The date of poll was

27.2.1990 and the election result was declared on 1.3.1990

at which the appellant was declared duly elected having

secured 31,530 votes while the respondent (election

petitioner) had secured 28,021 votes and the Congress

candidate secured 28,426 votes. The election petition was

filed on the ground under Section 100(1)(b) alleging

commission of corrupt practices under Sections 123(3) and

123(3A) of the Act. These corrupt practices were alleged on

the basis of certain speeches made on 29.1.1990 and

24.2.1990 by leaders of the political alliance of B.J.P. and

Shiv Sena which supported the candidature of the appellant

who was a B.J.P. candidate. In addition, speeches of the

appellant made on 8.2.1990 and 15.2.1990 were also relied

on. The gravamen of the charge of corrupt practices was that

these speeches amounted to appeal to the voters on the

ground of Hindu religion which is the religion of the

appellant.

The High Court rejected the claim made in the petition

that the speeches of the appellant made on 8.2.1990 and

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15.2.1990 amounted to the above corrupt practices. Learned

counsel for the respondent rightly made no attempt to assail

this finding of the High Court to support the judgment. We

have been taken through the contents of the speeches made by

the appellant on 8.2.1990 and 15.2.1990 in her election

campaign. We find nothing therein to doubt the correctness

of the High Court's finding that both these speeches are

innocuous and there is nothing in them to constitute any of

the corrupt practices under sub-sections (3) and/or (3A) of

Section 123 of the Act.

So far as the speeches of 29.1.1990 are concerned,

there can be no doubt that the same have no relevance in the

present context inasmuch as they were acts prior to the date

on which the appellant became a candidate at the election.

This being so, any speech made prior to the date on which

she became a candidate at the election cannot form the basis

of a corrupt practice by any candidate at that election

since any act prior to the date of candidature cannot be

attributed to her as a candidate at the election. For this

reason, the learned counsel for the respondent rightly made

no attempt to dispute this position. {See - Subhash Desai

vs. Sharad J. Rao and Others : 1994 Supp.(2) SCC 446.}

Any further discussion of the speeches given at the

meetings held on 29.1.1990 is, therefore, unnecessary.

The only remaining speeches for consideration are those

made at the meeting of 24.2.1990 by certain leaders of the

alliance. There was no speech made by

indulged in corrupt practices, it is

proper that such a notice be given.

Thereafter he must be given an

opportunity to cross-examine the

witnesses, if he so desires and he has

to be heard. But it is not mandatory

that in every matter the Court should

adopt proceedings under Section 99 of

the Act, 1951.

65. In the present case, I do not

propose to issue any such notice as I do

not intend to name them in these

proceedings. I understand that as far as

Bal Thackeray is concerned, there are

already such notices pending against

him. I am not aware whether any such

notice is pending against Pramod

Mahajan. But, I think, if one has regard

for the time that is consumed in such

electoral battles within the precincts

of the Court, particularly at the cost

of large number of other urgent matters

pending in this Court, I would say that

it is not expedient in the interest of

justice to issue such notices. A

pragmatic approach in all such matters

is the paramount need of the hour. I

would therefore say "thus far and no

further" in matters of this type, in a

situation like this, hoping that it is

for the leaders to reflect upon what

they have done, in their own conscience.

It is a sad commentary on our electoral

law, despite Court verdicts, election

campaigns are carried on in a manner

rendering the legal process socially

irrelevant."

(emphasis supplied)

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The learned trial Judge has not even recorded a clear

finding of the appellant's consent to the speeches given by

the other persons for which the returned candidate has been

held to be guilty without the compliance of Section 99 of

the Act. We have already held in the connected Civil Appeal

No. 4973 of 1993 - Manohar Joshi vs. Nitin Bhaurao Patil &

Anr. - decided today, that when a candidate is held to be

guilty of corrupt practice vicariously for an act done by

any person other than his agent with his consent, then the

ultimate finding to this effect has to be recorded only

after notice under Section 99 to that other person and an

inquiry held as contemplated therein, naming the other

person simultaneously for commission of such corrupt

practice. This order is to be made at the end of the trial

which is the effect of the combined reading of Section 98

and 99 of the Act. For this reason, deciding the election

petition and making an order under Section 98 against the

returned candidate without complying with the requirements

of Section 99 when the corrupt practice against the returned

candidate is held to be proved vicariously for the act of

another person by itself vitiates the judgment. It is also

clear that the court has no option in this matter and it is

incumbent to name such a person in the final verdict given

in the election petition under Section 98 of the Act after

making due compliance of Section 99.

The learned trial Judge acted contrary to law in

ignoring the mandate of Section 99 and taking the view that

there was an option to ignore the requirement of Section 99

to give notice to the makers of the speeches and to name

them as persons guilty of the corrupt practice even though

those speeches are made the foundation of the corrupt

practice held to be proved against the returned candidate.

The judgment is obviously vitiated since no concluded

finding on this question could have been recorded against

the returned candidate alone choosing to ignore the

requirement of Section 99 and without also naming the makers

of those speeches.

The question now is of the effect of the above defect

in the impugned judgment. Ordinarily in such a situation

after setting aside the impugned judgment the matter is to

be remitted to the High Court for deciding the election

petition afresh after complying with the requirements of

Section 99 of the Act by giving notice to the makers of the

speeches and holding the requisite inquiry. However, in the

present case, such a course would not be appropriate. No act

of the appellant herself is found to be offending and her

own speeches were held to be innocuous even by the High

Court. The only surviving allegations relate to speeches

made by some leaders of the political parties for which even

the High Court has not recorded a clear finding of

appellant's consent thereto and the High Court has merely

said that the consent may be implied from the fact that the

makers of the speeches were leaders of the political party.

As an abstract proposition of law it cannot be held

that every speech by a leader of a political party, who is

not an agent of the candidate set up by the party, is

necessarily with the consent of the candidate set up by that

party to make it superfluous to plead and prove the

candidate's consent, if that speech otherwise satisfies the

remaining constituent parts of a corrupt practice. The act

amounting to a corrupt practice must be done by `a candidate

or his agent or by any other person with the consent of a

candidate or his election agent'. A leader of a political

party is not necessarily an agent of every candidate of that

party. An agent is ordinarily a person authorised by a

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candidate to act on his behalf on a general authority

conferred on him by the candidate. Ordinarily, the agent is

the understudy of the candidate and has to act under the

instructions given to him, being under his control. The

position of a leader is different and he does not act under

instructions of a candidate or under his control. The

candidate is held to be bound by acts of his agent because

of the authority given by the candidate to perform the act

on his behalf. There is no such relationship between the

candidate and the leader, in the abstract merely because he

is a leader of that party. For this reason, consent of the

candidate or his election agent is necessary when the act is

done by any other person. Thus, even in the case of a leader

of the party, ordinarily, consent of the candidate or his

election agent is to be pleaded and proved, if the election

of the candidate is to be declared void under Section

100(1)(b) for the corrupt practice committed by the leader.

It is a different matter that the consent may be implied

more readily from circumstances such as conduct of the

candidate evident from his personal presence at that time

and place without any protest. On this scanty material and a

half-hearted presumption of consent drawn only from the fact

that the speeches were made by leaders of the party, which

is a constituent part of the corrupt practice and the

further fact that the Legislative Assembly for which that

election was held has been dissolved and the next general

election thereto has also taken place, a remand in the

present case is uncalled for.

For the aforesaid reasons, the appeal is allowed. The

impugned judgment is set aside resulting in dismissal of the

election petition. The appellant will get her costs

throughout from the respondent.