Kamal Narain Sharma v. Dwarka Prasad Mishra — 1968 DIGILAW 100 (MP)

ORDER Shivdayal, J. 1. This appeal under section 116-A of the Representation of the People Act, 1951, (hereinafter called the Act), has arisen from an election petition filed by the appellant for a declaration that the election of Shri Dwarka Prasad Mishra (hereinafter called the (respondent) to the Madhya Pradesh Legislative Assembly from Kasdol Assembly constituency in the bye election held in May 1963, is void. 2. The appellant first contends that the trial of the petition was abruptly closed by the Tribunal and he was denied reasonable opportunity to fully cross examine the respondent. Secondly, his applications for leave to amend the petition were wrongly rejected by the Tribunal. Thirdly, admission of certain documentary evidence was wrongly refused by the Tribunal. Before we proceed to decided these preliminary points, we must consider the preliminary objections raised for the respondent; first, the appeal must be dismissed as barred by time; and, second, the appeal has become infructuous. 3. The judgment and order of the Tribunal is dated 28 December 1966. The appeal was filed in this Court on 1 July 1967. As provided in sub-section (3) of section 116-A of the Act, an appeal must be preferred within 30 days from the date of the order of the Tribunal. Application for certified copy was made on 29 December 1966. The copy was delivered to the appellant on 27 April 1967. This Court was closed for summer vacation from 7 May to 30 June 1967. This appeal was filed on the very day that the Court reopened after the vacation. 4. If the period from 29 December 1966 to 27 April 1967 and also the period from 7 May 1967 to 30 June 1967 are excluded under sections 12 (2) and section 4 of the Limitation Act respectively, from computation of the period of limitation, it must be held that this appeal was preferred within time. But, if either period is not so excluded, the appeal is clearly time barred. 5. Shri Dharmadhikari, learned counsel for the respondent, contends that neither section 12 (2) nor section 4 of the Limitation Act has any application to an appeal under section 116-A of the Act. This question will have to be examined in the light of the provisions contained in section 29 (2) of the Limitation Act, 1963. 5. Shri Dharmadhikari, learned counsel for the respondent, contends that neither section 12 (2) nor section 4 of the Limitation Act has any application to an appeal under section 116-A of the Act. This question will have to be examined in the light of the provisions contained in section 29 (2) of the Limitation Act, 1963. It reads thus:- "Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in section 4 to 24 (inclusive) shall apply in so far as, and to the extent to which, they are not expressly excluded by such special or local law." The applicability of this section to an appeal under section 116-A of the Representation of the People Act was examined from different angles, and a variety of arguments were considered by their Lordships in Vidyachran Shukla Vs. Khubchand Bahgel [ (1964) 6 SCR 129 ]. Although to that case the Limitation Act of 1908 was applicable yet, as there is no difference between Section 29 (2) of the 1908 Act and Section 29 (2) of the 1963 Act, so far as the application of section 12 is concerned, that case is authority where there is the question of applicability of section 12 of the 1963 Act read with section 29 (2) of that Act. Their Lordships held that by virtue of section 29 (2) the provisions of section 12 of that Act apply to any appeal under section 116 A of the Representation of People Act. That high and binding authority clinches the issue. For the same reasons it must be held that section 4 of the Limitation Act is also attracted with the aid of section 29 (2) of that Act. 6. It was an argument advanced by Shri Dharmadhikari that the appellant was not entitled to the exclusion of the period of Summer Vacation inasmuch as there was no absolute prohibition in the sense that no appeal could be filed during the summer vacation. In our opinion there is no substance in this argument. 6. It was an argument advanced by Shri Dharmadhikari that the appellant was not entitled to the exclusion of the period of Summer Vacation inasmuch as there was no absolute prohibition in the sense that no appeal could be filed during the summer vacation. In our opinion there is no substance in this argument. The order of the High Court was in these words: "No application or appeal will be received or filed during the Summer Vacation except the following:- (1) Jail Appeal Section 420 of the Code of Criminal Procedure. (2) Appeals accompanied by urgent applications. (3) Application of urgent nature accompanied by an urgent application. (4) Bail applications." In our opinion, the effect of that order was that no appeal (other than Jail Appeals under Section 420, Criminal Procedure Code) could be filed or received during the summer vacation. The exceptions were provided so that a relief which could not await the reopening of the Court after the Summer Vacation could be given by the Court during the Summer Vacation. Such relief’s are generally interim and are meant to preserve status quo. The procedure in such a case is that an interlocutory application is made, and since it can be made only in a pending appeal, the appeal is also permitted to be filed. But this exception could not take away the benefit under section 4, Limitation Act, which was available to an appellant who did not or could not file an appeal and whose appeal could not be received under the High Court's order: "No appeal will be received or filed during the Summer Vacation." 7. We hold that Vidhya Charan Shukla's case (supra) is equally applicable to Section 29 (2) of the Limitation Act, 1963, and, therefore, to an appeal under section 116-A of the Representation of People Act, 1951, the provisions of section 12 apply by virtue of section 29 (2) of the Limitation Act. We further hold that for the same reason section 4 of the Limitation Act also governs such appeal under Section 116-A of the Act. Therefore, in this case the appellant is entitled to the benefit of section 12 and also section 4 of the Limitation Act, 1963, and this appeal was filed within the prescribed time. 8. The second preliminary objection is based on two contentions. Therefore, in this case the appellant is entitled to the benefit of section 12 and also section 4 of the Limitation Act, 1963, and this appeal was filed within the prescribed time. 8. The second preliminary objection is based on two contentions. The first is that since new election has been held in the course of the general elections of February 1967 and the Assembly to which the respondent had been elected has been dissolved, no order under section 100 or 98 of the Act can now be made and the election petition and the pending appeal have, therefore, become infructious. Incidentally, it was argued that the respondent ceased to be a 'returned candidate' as soon as fresh election was held and at one particular time there can be only one returned candidate from a particular constituency, In our opinion, this contention is untenable. 9. The result of the bye-election was declared on 5 May 1963. The election petition was presented to the Election Commission on 19 June 1963 and was decided by the Tribunal on 26 December 1966. Application for certified copy of the judgment was made on the very next day, but was supplied to the petitioner on 27th April 1967. The High Court was closed from 7 May 1967 to 30 June 1967. This appeal was preferred on 1 July 1967. In the meantime that is, in February 1967, general election were held. 10. It seems to us clear that a legal proceeding cannot be put an end to as having become infructuous, if the determination of any question in issue will have operative effect on the right of the parties or will subject them to a penalty. 11. The scheme of the Act is that section 123 defines corrupt practices for the purposes of the Act. Under section 100, commission of any corrupt practice is a ground for declaring the election to be void. Section 98 empowers the Tribunal to declare the election of all or any of the returned candidates to be void. 11. The scheme of the Act is that section 123 defines corrupt practices for the purposes of the Act. Under section 100, commission of any corrupt practice is a ground for declaring the election to be void. Section 98 empowers the Tribunal to declare the election of all or any of the returned candidates to be void. And, section 99 further enjoins the Tribunal to record a finding whether a corrupt practice has or has not been proved to have been committed at the election and the nature of the corrupt practice and also to record the names of all persons, if any, who have been found proved at the trial to have been guilty of that corrupt practice and the nature of that practice. Sections 140 and 141 then enact that a corrupt practice as specified in section 123 entails a disqualification for membership of Parliament or of legislature of every State and a further disqualification for voting at any election for a period of six years counting from the date on which the finding of such practice takes effect under the Act. Thus, it will be seen that the consequence of the finding that the returned candidate has committed a corrupt practice is not merely that he ceases to be a member of the Assembly, but also that be incurs certain disqualifications. Further more, apart from the returned candidate, every other person, who is named under section 99, will also incur such disqualifications. 12. An election petition in which there are allegations of corrupt practices cannot be dismissed as infructuous merely because during its pendency, the returned candidate has ceased to be a member of the Legislature or because the Assembly to which he was returned has been dissolved. The matter would be different, if the allegations in the election petition are not of the commission of a corrupt practice, but it is based on other grounds enumerated is section 100 of the Act. 13. The expression "returned candidate" is defined in section 79 (f) of the Act thus:" 'Returned candidate" means a candidate whose name has been published under section 67 as duly elected." This means that once a candidate is declared a returned candidate, he does not cease to be so for the purposes of an election petition until that petition is finally decided. This will be so inspite of the returned candidate having ceased, for any reason, to be a member of the Assembly, or the Assembly itself having been dissolved. His election can, therefore, be declared to be void under section 98 and for the purpose of that section, he continues to be a returned candidate. 14. We are not persuaded to accept Shir Dharmadbikari's contention that section 99 of the Act is dependant upon section 98 and, therefore, the petition can be dismissed as infructuous as in the circumstances of the present case, and there would remain no occasion for making an order under section 99. We are clearly of the opinion that the opening words of section 99 "at the time of making an order under section 98" are merely indicative of the stage at which the Tribunal will record an order under that section. To put it differently, an order under that section can be made only in the final decision of the Tribunal but not at an interlocutory stage. Moreover, as we read section 98, it is omnibus in its scope and it will include every final order. Once the trial bas commenced, it must be concluded by as order either under clause (a), or under one of the other clauses (b) and (c). If the order does not come either under clause (b) or clause (c), it must necessarily fall within clause (a). The expression "dismissing the election petition" is wide and comprehensive enough to include dismissal of all kinds, and for any reason whatever. In this view of the matter, even if the election petition is to be dismissed as infructuous in the sense that now neither the petitioner nor any other candidate can be declared to have been duly elected, nor can a bye-election be held, such order will still tantamount to dismissal within the meaning of section 98 (a) and an order under section 99 (1) (a) will have to be made. 15. Shri Dharmadhikari relied on Yamuna Prasad Vs. Jagdish Prasad Khare [13 ELR 1]. But in that case, their Lordships did not bold that the election petition became infructuous only because during the pendency of the appeal to the Supreme Court, the Assembly ceased to exist. 15. Shri Dharmadhikari relied on Yamuna Prasad Vs. Jagdish Prasad Khare [13 ELR 1]. But in that case, their Lordships did not bold that the election petition became infructuous only because during the pendency of the appeal to the Supreme Court, the Assembly ceased to exist. While dismissing the appeal the Supreme Court remarked that the Court was "reluctant to decide an important legal question of this kind in this appeal" It appears that the question which arose in that appeal was how the wasted votes which were of a large magnitude, would have been distributed between the successful candidate and the person who got the next largest number of votes. Their Lordships observed:- "The question that arises is whether having regard to the decision in Vashist Narain's case [10 ELR 30], this was a permissible mode of deciding the matter and whether such evidence was relevant and admissible. This is a question which we do not think, it is expedient for us to decide in the circumstances of this case as they exist at present. The Vindhya pradesh Assembly to which the successful candidate was elected is now no longer in existence and the new elections are coming in very shortly. The result of our decision one way or the other has no direct value to the parties concerned and that is emphasised by the fact that the respondents have not appeared before us.........we are reluctant to decide an important legal question of this kind......" It is obvious enough that that decision of their Lordships is not apposite to this case. 16. Shri Dharmadhkari further relied on the following statement in 14 Halsbary (Simonds) 286 (para 509):- "A parliamentary petition drops by the fact that parliament is dissolved while the petition is pending." This statement is based on two cases, Carter Vs. Mills [(1874) LR CP 117] and Marshall Vs. Jamesx [(1874) LR 9 CP 702]. There is nothing to show in the report that in the former case there was any allegation of a corrupt practice. In the latter case, the question was whether costs could be taxed. What is more, we will not be guided by the old parliamentary practice of England on which an order of the dropping off an election petition could be made. Our procedure is governed by the Representation of the People Act and the Code of Civil Procedure. 17. In Sanjeevayya Vs. What is more, we will not be guided by the old parliamentary practice of England on which an order of the dropping off an election petition could be made. Our procedure is governed by the Representation of the People Act and the Code of Civil Procedure. 17. In Sanjeevayya Vs. Election Tribunal [ AIR 1967 SC 1211 ], their Lordships held that an election petition for declaration that the election of a returned candidate be declared void has to be continued and disposed of according to law notwithstanding the resignation of the returned candidate. It has been observed thus:- "When an election petition has been referred to a Tribunal by the Election Commission and the former is seized of the matter, the petition has to be disposed of according to law. The Tribunal has to adjudge at the conclusion of the proceeding whether the returned candidate has or has not committed any corrupt practice at the election and, secondly, it has to decide whether the second respondent should or should not be declared to have been duly elected. A returned candidate cannot get rid of an election petition filed against him by resigning his seat in the Legislature whatever the reason for his resignation may be." With the utmost respect, we would adopt the same reasoning to a case where the returned candidate ceases to be a member of the Legislative Assembly to which he was elected by reason of such Assembly having been dissolved. 18. For the reasons stated above, we are of the view that once the Election Tribunal becomes seized of an election petition it is statutory obligation of the Tribunal to give a decision on all matters which arise under the Act, unless it is shown that the determination of any such matter has been rendered unnecessary or that the Tribunal's power to deal with it has been abrogated. As a combined effect of sections 98 and 99 of the Act, it is not only to be seen whether any relief appropriate under section 100 or 101 should be granted or not, but also to record a finding whether any corrupt practice has or has not been proved to have been committed at the election, because that will entail future disqualifications under sections 140 and 141 of the Act. Even if it can be said that in consequence of the dissolution of the Assembly and fresh election having been held, the necessity for making a declaration that the election is void in respect of the seat to which the election petition relates, may not subsist, but the need for recording a finding under section 99 about commission of corrupt practices is not taken away. 19. In the present case, the election has been challenged on the ground of corrupt practices as defined in section 123 of the Act. It is alleged that the respondent, through his agent, offered Rs.50,000 to the appellant for withdrawing from the contest (sub-section 1); false statements were published against the appellant (sub-section 4); the respondent hired or procured vehicles for conveyance of electors (sub-section 5); and the respondent incurred or authorised expenditure in excess of the prescribed limits (sub-section 6). The petition or the appeal cann0tt therefore be dismissed as infructuous. 20. The second limb of the respondent's second preliminery objection is that since in the fresh general elections, the respondent has been returned from another constituency (Katangi) to the Legislative Assembly which was reconstituted in March 1967, it is only the Governor who, in exercise of his powers under article 192 of the Constitution, can unseat him by declaring that he has incurred a disqualification; and the Election Tribunal or the High Court, an appellate authority, has no jurisdiction to adjudicate upon the matter. In our opinion, this contention is misconceived. 21. It is true that the effect of a finding recorded under section 99 of the Act that a member of the Legislative Assembly committed a corrupt practice is that, by virtue of Article 191 of the Constitution, read with section 70 and 140 of the Act, he becomes disqualified for continuing as such member. It is also incontrovertible that it is the Governor who alone is the competent authority to adjudicate on the question whether such a member has become subject of a supervening disqualification, although his decision has to be in accordance with the opinion of the Election Commission. (See Brindaban Vs. Election Commission [ (1965) 3 SCR 53 ]. But, it is the Tribunal or the appellate Court, and not the Governor, which will decide whether a corrupt practice has been committed or not. (See Brindaban Vs. Election Commission [ (1965) 3 SCR 53 ]. But, it is the Tribunal or the appellate Court, and not the Governor, which will decide whether a corrupt practice has been committed or not. This is because section 7 comes into play only when a finding that a corrupt practice was committed has been recorded "in proceedings for questioning the validely or regularity of an election." 22. Indeed, we do not see that Shri Dharmadhikari's argument has any bearing on the question whether an election petition or an election appeal becomes infructuous if during its pendency the Assembly has been dissolved. It is not as if the Tribunal had any power under Article 192 of the Constitution, which cessed to operate because of the dissolution of the Assembly. It cannot be deduced from 'anything contained in Articles 191 and 192 of the Constitution, or section 7, 92 and 140 of the Act, that the applicability of these provisions is confined to corrupt practices committed during the election at which such member was returned to the Legislative Assembly. Therefore, the dissolution of the Assembly and its reconstitution makes no difference to the question whether he has become subject of the disqualification under sections 140 and 141 of the Act. 23. Both the preliminary objections are overruled. The respondent did not press his preliminary objection that the security filed in this Court was not according to law. 24. This brings us to the preliminary points raised by the appellant, which we have stated at the outset. The first is that the cross-examination of the respondent was abruptly closed and the petitioner was wrongly denied reasonable opportunity to fully cross-examine him. To appreciate this contention, it is useful to see what path was traversed by this case. 25. The election petition was presented to the Election Commission on 19 June 1963. The Election Commission entrusted the petition for trial to Shri S.R. Vyas, District Judge, Raipur. In this written statement dated 26th August 1963, the respondent raised an objection that the affidavit filed by the petitioner in support of the election petition was invalid. On 31st October 1963, the Tribunal overruled the objection. The respondent then filed a petition under Article 226 of the Constitution which was allowed on 15 April 1964 by a Division Bench of this Court [ 1964 JLJ 472 ]. On 31st October 1963, the Tribunal overruled the objection. The respondent then filed a petition under Article 226 of the Constitution which was allowed on 15 April 1964 by a Division Bench of this Court [ 1964 JLJ 472 ]. Aggrieved by that order the petitioner preferred an appeal to the Supreme Court. On 17 August 1965, the Supreme Court allowed the appeal and set aside the order of this court and the case was remanded to the Election Tribunal, Raipur, for hearing the election petition on merits [1966 JLJ 293 (SC)] Since in the meantime, Shri S.R. Vyas, District Judge, as transferred from Raipur, a new Tribunal was constituted at Raipur for the trial of this particular election petition. 26. Thus, the respondent's objection occupied two years. The trial then commenced at Raipur. The new Tribunal examined the witnesses produced by the petitioner upto 8 July 1966, on which date the petitioner closed his case. The respondent applied for issuance of commission for his own examination at Bhopal. This request was opposed by the petitioner but his objection was overruled. The Tribunal issued a commission to the District Judge, Bhopal for the cross• examination of the respondent as his own witness. The learned District Judge appointed Shri M.J. Waswani Advocate as Commissioner. The examination-in-chief commenced on 11 August 1966 and was continued on 12th 13th, 15th and 17th August. On the last mentioned date an adjournment was sought on behalf of the respondent on an administrative ground. The prayer for adjournment was opposed by the petitioner, but the Commissioner allowed the request and fixed the 1st September. However, before that date, that is, on 30th August, another application for adjournment was made on the ground of the respondent's illness. The Commissioner at once accepted this request and fixed 5th October and intimated the Tribunal as also the petitioner telegraphically. The statement of the respondent was then recorded from the 5th to the 8th October, on which date the examination-in-chief concluded. From the 10th to 13th October, the respondent was cross-examined. The cross-examination remained unconcluded. On the 14th October, Shri Ram Panjwani, learned counsel for the respondent, moved the Commissioner for referring his application to the Tribunal for decision and for suspending the cross-examination of the respondent. From the 10th to 13th October, the respondent was cross-examined. The cross-examination remained unconcluded. On the 14th October, Shri Ram Panjwani, learned counsel for the respondent, moved the Commissioner for referring his application to the Tribunal for decision and for suspending the cross-examination of the respondent. The learned Commissioner heard arguments on this application on the 14th and 15th October and, by his order dated 17 October 1966, he granted the application and referred the matter to the Election Tribunal seeking certain directions. ORDER Shivdayal, J. 1. This appeal under section 116-A of the Representation of the People Act, 1951, (hereinafter called the Act), has arisen from an election petition filed by the appellant for a declaration that the election of Shri Dwarka Prasad Mishra (hereinafter called the (respondent) to the Madhya Pradesh Legislative Assembly from Kasdol Assembly constituency in the bye election held in May 1963, is void. 2. The appellant first contends that the trial of the petition was abruptly closed by the Tribunal and he was denied reasonable opportunity to fully cross examine the respondent. Secondly, his applications for leave to amend the petition were wrongly rejected by the Tribunal. Thirdly, admission of certain documentary evidence was wrongly refused by the Tribunal. Before we proceed to decided these preliminary points, we must consider the preliminary objections raised for the respondent; first, the appeal must be dismissed as barred by time; and, second, the appeal has become infructuous. 3. The judgment and order of the Tribunal is dated 28 December 1966. The appeal was filed in this Court on 1 July 1967. As provided in sub-section (3) of section 116-A of the Act, an appeal must be preferred within 30 days from the date of the order of the Tribunal. Application for certified copy was made on 29 December 1966. The copy was delivered to the appellant on 27 April 1967. This Court was closed for summer vacation from 7 May to 30 June 1967. This appeal was filed on the very day that the Court reopened after the vacation. 4. If the period from 29 December 1966 to 27 April 1967 and also the period from 7 May 1967 to 30 June 1967 are excluded under sections 12 (2) and section 4 of the Limitation Act respectively, from computation of the period of limitation, it must be held that this appeal was preferred within time. 4. If the period from 29 December 1966 to 27 April 1967 and also the period from 7 May 1967 to 30 June 1967 are excluded under sections 12 (2) and section 4 of the Limitation Act respectively, from computation of the period of limitation, it must be held that this appeal was preferred within time. But, if either period is not so excluded, the appeal is clearly time barred. 5. Shri Dharmadhikari, learned counsel for the respondent, contends that neither section 12 (2) nor section 4 of the Limitation Act has any application to an appeal under section 116-A of the Act. This question will have to be examined in the light of the provisions contained in section 29 (2) of the Limitation Act, 1963. It reads thus:- "Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in section 4 to 24 (inclusive) shall apply in so far as, and to the extent to which, they are not expressly excluded by such special or local law." The applicability of this section to an appeal under section 116-A of the Representation of the People Act was examined from different angles, and a variety of arguments were considered by their Lordships in Vidyachran Shukla Vs. Khubchand Bahgel [ (1964) 6 SCR 129 ]. Although to that case the Limitation Act of 1908 was applicable yet, as there is no difference between Section 29 (2) of the 1908 Act and Section 29 (2) of the 1963 Act, so far as the application of section 12 is concerned, that case is authority where there is the question of applicability of section 12 of the 1963 Act read with section 29 (2) of that Act. Their Lordships held that by virtue of section 29 (2) the provisions of section 12 of that Act apply to any appeal under section 116 A of the Representation of People Act. That high and binding authority clinches the issue. Their Lordships held that by virtue of section 29 (2) the provisions of section 12 of that Act apply to any appeal under section 116 A of the Representation of People Act. That high and binding authority clinches the issue. For the same reasons it must be held that section 4 of the Limitation Act is also attracted with the aid of section 29 (2) of that Act. 6. It was an argument advanced by Shri Dharmadhikari that the appellant was not entitled to the exclusion of the period of Summer Vacation inasmuch as there was no absolute prohibition in the sense that no appeal could be filed during the summer vacation. In our opinion there is no substance in this argument. The order of the High Court was in these words: "No application or appeal will be received or filed during the Summer Vacation except the following:- (1) Jail Appeal Section 420 of the Code of Criminal Procedure. (2) Appeals accompanied by urgent applications. (3) Application of urgent nature accompanied by an urgent application. (4) Bail applications." In our opinion, the effect of that order was that no appeal (other than Jail Appeals under Section 420, Criminal Procedure Code) could be filed or received during the summer vacation. The exceptions were provided so that a relief which could not await the reopening of the Court after the Summer Vacation could be given by the Court during the Summer Vacation. Such relief’s are generally interim and are meant to preserve status quo. The procedure in such a case is that an interlocutory application is made, and since it can be made only in a pending appeal, the appeal is also permitted to be filed. But this exception could not take away the benefit under section 4, Limitation Act, which was available to an appellant who did not or could not file an appeal and whose appeal could not be received under the High Court's order: "No appeal will be received or filed during the Summer Vacation." 7. We hold that Vidhya Charan Shukla's case (supra) is equally applicable to Section 29 (2) of the Limitation Act, 1963, and, therefore, to an appeal under section 116-A of the Representation of People Act, 1951, the provisions of section 12 apply by virtue of section 29 (2) of the Limitation Act. We hold that Vidhya Charan Shukla's case (supra) is equally applicable to Section 29 (2) of the Limitation Act, 1963, and, therefore, to an appeal under section 116-A of the Representation of People Act, 1951, the provisions of section 12 apply by virtue of section 29 (2) of the Limitation Act. We further hold that for the same reason section 4 of the Limitation Act also governs such appeal under Section 116-A of the Act. Therefore, in this case the appellant is entitled to the benefit of section 12 and also section 4 of the Limitation Act, 1963, and this appeal was filed within the prescribed time. 8. The second preliminary objection is based on two contentions. The first is that since new election has been held in the course of the general elections of February 1967 and the Assembly to which the respondent had been elected has been dissolved, no order under section 100 or 98 of the Act can now be made and the election petition and the pending appeal have, therefore, become infructious. Incidentally, it was argued that the respondent ceased to be a 'returned candidate' as soon as fresh election was held and at one particular time there can be only one returned candidate from a particular constituency, In our opinion, this contention is untenable. 9. The result of the bye-election was declared on 5 May 1963. The election petition was presented to the Election Commission on 19 June 1963 and was decided by the Tribunal on 26 December 1966. Application for certified copy of the judgment was made on the very next day, but was supplied to the petitioner on 27th April 1967. The High Court was closed from 7 May 1967 to 30 June 1967. This appeal was preferred on 1 July 1967. In the meantime that is, in February 1967, general election were held. 10. It seems to us clear that a legal proceeding cannot be put an end to as having become infructuous, if the determination of any question in issue will have operative effect on the right of the parties or will subject them to a penalty. 11. The scheme of the Act is that section 123 defines corrupt practices for the purposes of the Act. Under section 100, commission of any corrupt practice is a ground for declaring the election to be void. 11. The scheme of the Act is that section 123 defines corrupt practices for the purposes of the Act. Under section 100, commission of any corrupt practice is a ground for declaring the election to be void. Section 98 empowers the Tribunal to declare the election of all or any of the returned candidates to be void. And, section 99 further enjoins the Tribunal to record a finding whether a corrupt practice has or has not been proved to have been committed at the election and the nature of the corrupt practice and also to record the names of all persons, if any, who have been found proved at the trial to have been guilty of that corrupt practice and the nature of that practice. Sections 140 and 141 then enact that a corrupt practice as specified in section 123 entails a disqualification for membership of Parliament or of legislature of every State and a further disqualification for voting at any election for a period of six years counting from the date on which the finding of such practice takes effect under the Act. Thus, it will be seen that the consequence of the finding that the returned candidate has committed a corrupt practice is not merely that he ceases to be a member of the Assembly, but also that be incurs certain disqualifications. Further more, apart from the returned candidate, every other person, who is named under section 99, will also incur such disqualifications. 12. An election petition in which there are allegations of corrupt practices cannot be dismissed as infructuous merely because during its pendency, the returned candidate has ceased to be a member of the Legislature or because the Assembly to which he was returned has been dissolved. The matter would be different, if the allegations in the election petition are not of the commission of a corrupt practice, but it is based on other grounds enumerated is section 100 of the Act. 13. The expression "returned candidate" is defined in section 79 (f) of the Act thus:" 'Returned candidate" means a candidate whose name has been published under section 67 as duly elected." This means that once a candidate is declared a returned candidate, he does not cease to be so for the purposes of an election petition until that petition is finally decided. This will be so inspite of the returned candidate having ceased, for any reason, to be a member of the Assembly, or the Assembly itself having been dissolved. His election can, therefore, be declared to be void under section 98 and for the purpose of that section, he continues to be a returned candidate. 14. We are not persuaded to accept Shir Dharmadbikari's contention that section 99 of the Act is dependant upon section 98 and, therefore, the petition can be dismissed as infructuous as in the circumstances of the present case, and there would remain no occasion for making an order under section 99. We are clearly of the opinion that the opening words of section 99 "at the time of making an order under section 98" are merely indicative of the stage at which the Tribunal will record an order under that section. To put it differently, an order under that section can be made only in the final decision of the Tribunal but not at an interlocutory stage. Moreover, as we read section 98, it is omnibus in its scope and it will include every final order. Once the trial bas commenced, it must be concluded by as order either under clause (a), or under one of the other clauses (b) and (c). If the order does not come either under clause (b) or clause (c), it must necessarily fall within clause (a). The expression "dismissing the election petition" is wide and comprehensive enough to include dismissal of all kinds, and for any reason whatever. In this view of the matter, even if the election petition is to be dismissed as infructuous in the sense that now neither the petitioner nor any other candidate can be declared to have been duly elected, nor can a bye-election be held, such order will still tantamount to dismissal within the meaning of section 98 (a) and an order under section 99 (1) (a) will have to be made. 15. Shri Dharmadhikari relied on Yamuna Prasad Vs. Jagdish Prasad Khare [13 ELR 1]. But in that case, their Lordships did not bold that the election petition became infructuous only because during the pendency of the appeal to the Supreme Court, the Assembly ceased to exist. 15. Shri Dharmadhikari relied on Yamuna Prasad Vs. Jagdish Prasad Khare [13 ELR 1]. But in that case, their Lordships did not bold that the election petition became infructuous only because during the pendency of the appeal to the Supreme Court, the Assembly ceased to exist. While dismissing the appeal the Supreme Court remarked that the Court was "reluctant to decide an important legal question of this kind in this appeal" It appears that the question which arose in that appeal was how the wasted votes which were of a large magnitude, would have been distributed between the successful candidate and the person who got the next largest number of votes. Their Lordships observed:- "The question that arises is whether having regard to the decision in Vashist Narain's case [10 ELR 30], this was a permissible mode of deciding the matter and whether such evidence was relevant and admissible. This is a question which we do not think, it is expedient for us to decide in the circumstances of this case as they exist at present. The Vindhya pradesh Assembly to which the successful candidate was elected is now no longer in existence and the new elections are coming in very shortly. The result of our decision one way or the other has no direct value to the parties concerned and that is emphasised by the fact that the respondents have not appeared before us.........we are reluctant to decide an important legal question of this kind......" It is obvious enough that that decision of their Lordships is not apposite to this case. 16. Shri Dharmadhkari further relied on the following statement in 14 Halsbary (Simonds) 286 (para 509):- "A parliamentary petition drops by the fact that parliament is dissolved while the petition is pending." This statement is based on two cases, Carter Vs. Mills [(1874) LR CP 117] and Marshall Vs. Jamesx [(1874) LR 9 CP 702]. There is nothing to show in the report that in the former case there was any allegation of a corrupt practice. In the latter case, the question was whether costs could be taxed. What is more, we will not be guided by the old parliamentary practice of England on which an order of the dropping off an election petition could be made. Our procedure is governed by the Representation of the People Act and the Code of Civil Procedure. 17. In Sanjeevayya Vs. What is more, we will not be guided by the old parliamentary practice of England on which an order of the dropping off an election petition could be made. Our procedure is governed by the Representation of the People Act and the Code of Civil Procedure. 17. In Sanjeevayya Vs. Election Tribunal [ AIR 1967 SC 1211 ], their Lordships held that an election petition for declaration that the election of a returned candidate be declared void has to be continued and disposed of according to law notwithstanding the resignation of the returned candidate. It has been observed thus:- "When an election petition has been referred to a Tribunal by the Election Commission and the former is seized of the matter, the petition has to be disposed of according to law. The Tribunal has to adjudge at the conclusion of the proceeding whether the returned candidate has or has not committed any corrupt practice at the election and, secondly, it has to decide whether the second respondent should or should not be declared to have been duly elected. A returned candidate cannot get rid of an election petition filed against him by resigning his seat in the Legislature whatever the reason for his resignation may be." With the utmost respect, we would adopt the same reasoning to a case where the returned candidate ceases to be a member of the Legislative Assembly to which he was elected by reason of such Assembly having been dissolved. 18. For the reasons stated above, we are of the view that once the Election Tribunal becomes seized of an election petition it is statutory obligation of the Tribunal to give a decision on all matters which arise under the Act, unless it is shown that the determination of any such matter has been rendered unnecessary or that the Tribunal's power to deal with it has been abrogated. As a combined effect of sections 98 and 99 of the Act, it is not only to be seen whether any relief appropriate under section 100 or 101 should be granted or not, but also to record a finding whether any corrupt practice has or has not been proved to have been committed at the election, because that will entail future disqualifications under sections 140 and 141 of the Act. Even if it can be said that in consequence of the dissolution of the Assembly and fresh election having been held, the necessity for making a declaration that the election is void in respect of the seat to which the election petition relates, may not subsist, but the need for recording a finding under section 99 about commission of corrupt practices is not taken away. 19. In the present case, the election has been challenged on the ground of corrupt practices as defined in section 123 of the Act. It is alleged that the respondent, through his agent, offered Rs.50,000 to the appellant for withdrawing from the contest (sub-section 1); false statements were published against the appellant (sub-section 4); the respondent hired or procured vehicles for conveyance of electors (sub-section 5); and the respondent incurred or authorised expenditure in excess of the prescribed limits (sub-section 6). The petition or the appeal cann0tt therefore be dismissed as infructuous. 20. The second limb of the respondent's second preliminery objection is that since in the fresh general elections, the respondent has been returned from another constituency (Katangi) to the Legislative Assembly which was reconstituted in March 1967, it is only the Governor who, in exercise of his powers under article 192 of the Constitution, can unseat him by declaring that he has incurred a disqualification; and the Election Tribunal or the High Court, an appellate authority, has no jurisdiction to adjudicate upon the matter. In our opinion, this contention is misconceived. 21. It is true that the effect of a finding recorded under section 99 of the Act that a member of the Legislative Assembly committed a corrupt practice is that, by virtue of Article 191 of the Constitution, read with section 70 and 140 of the Act, he becomes disqualified for continuing as such member. It is also incontrovertible that it is the Governor who alone is the competent authority to adjudicate on the question whether such a member has become subject of a supervening disqualification, although his decision has to be in accordance with the opinion of the Election Commission. (See Brindaban Vs. Election Commission [ (1965) 3 SCR 53 ]. But, it is the Tribunal or the appellate Court, and not the Governor, which will decide whether a corrupt practice has been committed or not. (See Brindaban Vs. Election Commission [ (1965) 3 SCR 53 ]. But, it is the Tribunal or the appellate Court, and not the Governor, which will decide whether a corrupt practice has been committed or not. This is because section 7 comes into play only when a finding that a corrupt practice was committed has been recorded "in proceedings for questioning the validely or regularity of an election." 22. Indeed, we do not see that Shri Dharmadhikari's argument has any bearing on the question whether an election petition or an election appeal becomes infructuous if during its pendency the Assembly has been dissolved. It is not as if the Tribunal had any power under Article 192 of the Constitution, which cessed to operate because of the dissolution of the Assembly. It cannot be deduced from 'anything contained in Articles 191 and 192 of the Constitution, or section 7, 92 and 140 of the Act, that the applicability of these provisions is confined to corrupt practices committed during the election at which such member was returned to the Legislative Assembly. Therefore, the dissolution of the Assembly and its reconstitution makes no difference to the question whether he has become subject of the disqualification under sections 140 and 141 of the Act. 23. Both the preliminary objections are overruled. The respondent did not press his preliminary objection that the security filed in this Court was not according to law. 24. This brings us to the preliminary points raised by the appellant, which we have stated at the outset. The first is that the cross-examination of the respondent was abruptly closed and the petitioner was wrongly denied reasonable opportunity to fully cross-examine him. To appreciate this contention, it is useful to see what path was traversed by this case. 25. The election petition was presented to the Election Commission on 19 June 1963. The Election Commission entrusted the petition for trial to Shri S.R. Vyas, District Judge, Raipur. In this written statement dated 26th August 1963, the respondent raised an objection that the affidavit filed by the petitioner in support of the election petition was invalid. On 31st October 1963, the Tribunal overruled the objection. The respondent then filed a petition under Article 226 of the Constitution which was allowed on 15 April 1964 by a Division Bench of this Court [ 1964 JLJ 472 ]. On 31st October 1963, the Tribunal overruled the objection. The respondent then filed a petition under Article 226 of the Constitution which was allowed on 15 April 1964 by a Division Bench of this Court [ 1964 JLJ 472 ]. Aggrieved by that order the petitioner preferred an appeal to the Supreme Court. On 17 August 1965, the Supreme Court allowed the appeal and set aside the order of this court and the case was remanded to the Election Tribunal, Raipur, for hearing the election petition on merits [1966 JLJ 293 (SC)] Since in the meantime, Shri S.R. Vyas, District Judge, as transferred from Raipur, a new Tribunal was constituted at Raipur for the trial of this particular election petition. 26. Thus, the respondent's objection occupied two years. The trial then commenced at Raipur. The new Tribunal examined the witnesses produced by the petitioner upto 8 July 1966, on which date the petitioner closed his case. The respondent applied for issuance of commission for his own examination at Bhopal. This request was opposed by the petitioner but his objection was overruled. The Tribunal issued a commission to the District Judge, Bhopal for the cross• examination of the respondent as his own witness. The learned District Judge appointed Shri M.J. Waswani Advocate as Commissioner. The examination-in-chief commenced on 11 August 1966 and was continued on 12th 13th, 15th and 17th August. On the last mentioned date an adjournment was sought on behalf of the respondent on an administrative ground. The prayer for adjournment was opposed by the petitioner, but the Commissioner allowed the request and fixed the 1st September. However, before that date, that is, on 30th August, another application for adjournment was made on the ground of the respondent's illness. The Commissioner at once accepted this request and fixed 5th October and intimated the Tribunal as also the petitioner telegraphically. The statement of the respondent was then recorded from the 5th to the 8th October, on which date the examination-in-chief concluded. From the 10th to 13th October, the respondent was cross-examined. The cross-examination remained unconcluded. On the 14th October, Shri Ram Panjwani, learned counsel for the respondent, moved the Commissioner for referring his application to the Tribunal for decision and for suspending the cross-examination of the respondent. From the 10th to 13th October, the respondent was cross-examined. The cross-examination remained unconcluded. On the 14th October, Shri Ram Panjwani, learned counsel for the respondent, moved the Commissioner for referring his application to the Tribunal for decision and for suspending the cross-examination of the respondent. The learned Commissioner heard arguments on this application on the 14th and 15th October and, by his order dated 17 October 1966, he granted the application and referred the matter to the Election Tribunal seeking certain directions.