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Madhya Pradesh High Court · body

2001 DIGILAW 725 (MP)

Hari Singh Narwariya v. Rakesh Shukla

2001-10-05

R.B.DIXIT

body2001
ORDER This election petition has been filed under section 80,81,100,101 read with sections 123(4) and (8) of the Representation of People Act, 1951 (in short R.P.A.) alleging certain corrupt practices and booth capturing by the elected candidate Rakesh Shukla in respect of election held on 25.11.1998 for Mehgaon Constituency No. 10 Madhya Pradesh Vidhan Sabha election. 2. The returned candidate Rakesh Shukla has contested the petition and had moved application raising preliminary objections under Order 6 Rule 16 CPC and section 87 of R.P.A. and another application under order 6 Rule 5, CPC read with Section 87 of the R.P.A. Similar preliminary objections are also raised in written statement filed on behalf of returned candidate/respondent No.1. On the basis of preliminary objections certain preliminary issues were framed which includes issue Nos. 1 to 9, 13, 15,17 and 19. 3. The preliminary objections in brief are that this election petition does not conform to the provisions contained in Section 83(l)(c) and sub-section (8) of section 123 of R.P.A. It is alleged that the affidavit drawn in Form 25 under Rule 94-A of the Election Rules is defective and has not been verified properly. Similarly, the copies of Annexures are not properly verified under the signature of the petitioner. The pleadings regarding corrupt practices and booth capturing are vague and lacking in material particulars and does not constitute such corrupt practices or booth capturing as defined under the R.P.A. The petition in the circumstances deserves to be dismissed at the initial stage. 4. I have heard the learned counsel of the parties at length on the preliminary issues and carefully perused the record. 5. The learned counsel of the contested Respondent No. 1 has submitted that besides the grounds of dismissal mentioned in Section 86 of R.P.A., the petition can be dismissed for want of cause of action as well. Under section 83(2) of R.P.A. annexures being part of pleadings are also required to be verified like pleadings. Now in the present case according to para 15 (ii) of the petition Atar Singh has been mentioned as polling agent of respondent No.1. According to para (ii) of the verification part no description of Atar Singh has been provided. 6. Para 9 of the petition has been divided into three sub-paragraphs. Now in the present case according to para 15 (ii) of the petition Atar Singh has been mentioned as polling agent of respondent No.1. According to para (ii) of the verification part no description of Atar Singh has been provided. 6. Para 9 of the petition has been divided into three sub-paragraphs. However, in verification para (1) para 9 has been partly verified on knowledge and in para (iii) parag.raph 9 has been verified partly as believed to be true on the advice of the counsel. Now what part was verified on knowledge and which of the sub-paragraph is believed to be true on the advice of the counsel has not been mentioned and therefore the verification is defective. Further none of the annexures have been verified in the affidavit. In the circumstances these annexures cannot be read as part of the pleadings. The defects in the verification as pointed out hereinabove were separately raised in the applications and the same objections were also taken in the written statement? still the verification has not been corrected. 7. In so far as corrupt practices are concerned, an affidavit should contain the name of corrupt practice as well as the paticulars thereof. In the present petition in para 9 some of the corrupt practice has been pleaded but the same has not been properly verified. In para 10,11 and 12 some details of the Corrupt practice has been provided regarding publicly making false statement about the arrest of petitioner believing it to be false in relation to personal character of petitioner. However, about the announcement made by the Chief Electoral Officer and the news flashed by the All India Radio, there is no averment that such announcements were made with the consent of the retul1led candidate. In para 11 the allegations are that the petitioner had fired shots and that he is a dangerous man, however there is no allegation that petitioner was at Tested. This statement has not been verified in the affidavit. Para 13 of the petition which also contains some of the allegations regarding corrupt practice, but this para has not been verified at all in the affidavit. Similarly, annexures P-3 to P-9 have not been verified. The allegations regarding news of tiling gun shots as detailed in para 12 has not been verified in the petition. 8. Para 13 of the petition which also contains some of the allegations regarding corrupt practice, but this para has not been verified at all in the affidavit. Similarly, annexures P-3 to P-9 have not been verified. The allegations regarding news of tiling gun shots as detailed in para 12 has not been verified in the petition. 8. The allegations in para 15(i), (v) and (vi) have been verified as booth capturing. Booth capturing is the name of corrupt practice. However, the particulars of the corrupt practice have not been verified at all. The allegations of corrupt practice as contained in para 15 (ii), (iii) & (iv) have been verified on the information of others, but it has not been stated in the affidavit as to what is the name of corrupt practice and what are its particulars. In para 11 of the petition names of agents and workers and date, time and place regarding the commission of Corrupt practice by them are lacking. In case of booth capturing material particulars regarding the manner in which booth capturing took place is also lacking. What is alleged is fake voting, which does not amount to booth capturing. There is no particulars regarding the voters, who were stopped from voting and the consent of the retul1led candidate behind booth capturing was also not pleaded. 9. The learned counsel of the petitioner on the other hand has contested the aforesaid contentions on the ground that the pleadings are to be read as a whole and no conclusion can be drawn by reading an isolated paragraph tom out of the context. 10. After going through the pleadings as contained in the petition and the affidavit filed in support of it, I am of the opinion that the defects in so far as verification of the pleadings and details in the paragraph have been correctly pointed out. However, even after being informed through the applications and also by filing written statement in advance, the petitioner had taken no steps to corrupt the same. Thus, the verification of the pleadings and also of the affidavit thereof suffers with aforesaid defects and in the circumstances such pleadings in absence of verification are liable to be struck out. 11. However, even after being informed through the applications and also by filing written statement in advance, the petitioner had taken no steps to corrupt the same. Thus, the verification of the pleadings and also of the affidavit thereof suffers with aforesaid defects and in the circumstances such pleadings in absence of verification are liable to be struck out. 11. In so far as the Corrupt practice is concerned, it has been pleaded in the petition that Shri Uday Vijayvargiya, Chief Electoral Officer of Madhya Pradesh unautholisedly, falsely and illegally announced in a press-conference held by him on 25.11.1998 i.e. the date of polling at 7.45 a.m. at Bhopal that the petitioner has been altested because he fired several shots from his 12 bore gun, whereas in fact no such incident had taken place at all. The statement/announcement aforesaid by the Chief Electoral Officer was totally false and malafide and it had been issued in order to his deliberately prejudice the prospects of election of the petitioner. This announcement had made its disastrous effect because this news spread like a fire and it was flashed by all the correspondence present in the press conference and was also widely published. It was also /lashed on the All India Radio and Doordarshan in their regular as well as special bulletin. 12. The election agents and workers with the consent, request and authority of the respondent No. 1 had also spread this false news throughout the constituency in order to prejudice the minds of the voters. The respondent No. 1 had also exhorted the voters not to vote for petitioner as he is a bad character and a dangerous person and has no worth for the life and safety of the voters in the constituency. 13. From these pleadings mentioned hereinabove it is apparent that whatever allegations against respondent No.1 were made had the basis of the announcement by Chief Electoral Officer and not that respondent No.1 himself had created a false story of firing by the gun against the petitioner. Although the consent of respondent No. 1 has also been pleaded but merely reproduction of the legal phraseology regarding consent in itself will not constitute the consent unless its material particulars are provided. 14. There are allegations of making fake voting by seizing polling booth No. 110 to 114 in favour of respondent No. 1. Although the consent of respondent No. 1 has also been pleaded but merely reproduction of the legal phraseology regarding consent in itself will not constitute the consent unless its material particulars are provided. 14. There are allegations of making fake voting by seizing polling booth No. 110 to 114 in favour of respondent No. 1. It is alleged that petitioner tried to stop the agents and workers of respondent No. 1 but he was also dangerously attacked and beaten by them. However, the learned counsel of the respondent No.1 has contended that in so far as the beating of the petitioner and fake voting is concerned, they may constitute different offences punishable under different provisions of law, but it does not constitute booth capturing. 15. For the purpose of corrupt practices as defined under section 123 of the R.P.A. Sub-clause (4) envisaged under section 123 of R.P.A. is relevant to the present case, which runs as follows : "The publication 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 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." 16. Now it has to be noticed that in the petition itself what is primarily alleged against the respondent No.1 is that he and his workers or agents spread the news, which was already announced through media by the Chief Electoral Officer. What is lacking in the pleadings is "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," which is an essential ingredient to constitute Corrupt practice against respondent No.1. The fact of believing the statement to be false does not arise as it has already been announced through media by the Chief Electoral Officer. In the circumstances, in my considered opinion the matelial fact to constitute corrupt practice against respondent No.1 on this count is totally absent. The fact of believing the statement to be false does not arise as it has already been announced through media by the Chief Electoral Officer. In the circumstances, in my considered opinion the matelial fact to constitute corrupt practice against respondent No.1 on this count is totally absent. Besides, it has also to be noticed that though word 'consent' has been pleaded against respondent No. I but no material particulars have been supplied as to how such consent can be presumed against respondent No. 1. 17. In so far as allegation of booth capturing is concerned the explanation attached to the provisions of section 135A of R.P.A. includes, among other things, all or any of the following activities for the purpose of constituting booth capturing: "(a) seizure of a polling station or a place fixed for the poll by any person or persons, making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections; (b) taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and (prevent others from free exercise of their right to vote;) (c) (Coercing or intimidating or threatening directly,) any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote: (d) seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes; (e) doing by any person in the service of Government, or all or any of the aforesaid activities or aiding or conniving at. any such activity in the furtherance of the prospects of the election of a candidate. " 18. any such activity in the furtherance of the prospects of the election of a candidate. " 18. Now in so far as the present case is concerned, it has been argued by the learned counselor respondent No. I that although seizure of polling station has been alleged, however, how it was seized is nowhere metioned in reference to the explanation envisaged under section 135A of the R.P.A. Mere fake voting or beating of the candidate in itself does I not constitute a booth capturing as defined under aforesaid provision of section 135A of of R.P.A. There is no allegation in the petition regarding making polling authorities surrender....the ballot papers and voting machine or doing of any other act, which affect the orderly conduct of the election. 19. After going through the pleadings in para 15 of petition it is apparent that in reference to booth capturing it has been pleaded that Atar Singh when tried to stop the workers of respondent No. I from booth capturing he was also beaten and was fired a shot, however he luckily escaped. The Harijan voters of the constituency were also not allowed to cast their votes. The electorals of village Baharpura and Shersing Ka Pura were also not allowed to cast their votes by some of the polling agents of the respondent No. 1. In the circumstances although fake voting may not constitute booth capturing, however allegations may satisfy part of the explanation in clause (c) of section 135A of R.P.A. 20. It is argued for respondent No. 1 that booth capturing may be a punishable offence under sub-section (1) of section 135(A) of R.P.A. but it does not constitute a corrupt practice. While election of a candidate can only be declared void under section 100 of R.P.A. for commission of corrupt practice alone besides other grounds enumerated under section 100 of R.P.A., however, which does not include booth capturing. 21. The words 'material fact', as enumerated in a Division Bench decision of this Court in case of Hari Vishnu Kamath v. Election Tribunal Jabalpur reported in 1958 JLJ 1 = AIR 1958 M.P. 168 , means necessary for the purpose of formulating a complete cause of action; and if any one 'material' fact is omitted, the statement of claim is bad; it is liable to be struck out. The function of 'particulars' is quite different. The function of 'particulars' is quite different. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Thus the 'material fact' under the Act are what, under the Code of Civil Procedure is, the cause of action which has to be stated with completeness and unless there is a complete cause of action the plaintiff is not entitled to judgment. Indeed the plaint can be rejected if it does not disclose a complete cause of action. Where, however, the cause of action involves narration of particulars, these particulars have to be supplied with sufficient clarity and precision. They should not be vague and indefinite. 22. "Under the Representation of the People Act, details of Corrupt practice or averments too compendious for being included in the election petition" as observed by the Apex Court in case of Smt. Sahodrabai Rai v. Ram Singh Ahanvar reported in AIR 1968 SC 1079 , "may be set out in the schedules or annexures to the election petition. The law requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondents if the requirement regarding service of the election petition is to be wholly complied with. The trial of election petition has to follow as far as may be the provisions of the Code of Civil Procedure. Hence it is permissible to look into the Code of Civil Procedure to see what exactly would have been the case if this was a suit and not a trial of an election petition." 23. The trial of election petition has to follow as far as may be the provisions of the Code of Civil Procedure. Hence it is permissible to look into the Code of Civil Procedure to see what exactly would have been the case if this was a suit and not a trial of an election petition." 23. In case of Hardwari Lal v. Kanwal Singh reported in AIR 1972 SC 515 , the allegations regarding corrupt practice against successful candidate 'of obtaining and procuring or attempting to obtain and procure the assistance of certain named Government servants for the furtherance of the prospects of his election' by writing letters under his own signature without giving the material facts and the necessary particulars as to the nature of the assistance, the time and place where it was sought from each of the persons mentioned it was pointed out that it does not furnish any cause of action and it is no election petition in the eye of law. As such it is not maintainable. The gravamen of the charge of Corrupt practice within the meaning of S. 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action. 24. The Hon'ble Apex Court in its decision in case of Azhar Hussain v. Rajiv Candhi reported in AIR 1986 SC 1253 has made it clear that an election petition can be and must be dismissed under the provisions of Civil Procedure Code if the mandatory requirements enjoined by section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the election petition are not coimplied with. The Code of Civil Procedure applies to the trial of an election petition by virtue of section 87 of the Act. Since CPC is applicable, the Court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11 (a). Therefore that Section 83 does not find a place in section 86 of the Act which authorises dismissal of election petition in certain contingencies does not mean that powers under the CPC cannot be exercised. Therefore that Section 83 does not find a place in section 86 of the Act which authorises dismissal of election petition in certain contingencies does not mean that powers under the CPC cannot be exercised. An election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil P.C. and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a Corrupt practice is not an election petition at all. 25. It has been pointed out by the Hon'ble Supreme Court in case of E.A. Sapa, ETC. v. Singora and others reported in AIR 1991 SC 1557 that a charge of corrupt practice has a two-dimensional effect: its impact on the returned candidate has to be viewed from the point of view of the candidate's future political and public life and from the point of view of the electorate to ensure the purity of the election process. There can, therefore, be no doubt that such an allegation involving corrupt practice must be viewed very seriously and the High Court should ensure compliance with the requirements of section 83 before the pm1ies go to trial. While defective verification of a defective affidavit may not be fatal, the High Court should ensure its compliance before the parties go to trial so that the party required to meet the charge is not taken by surprise at the actual trial. It must also be realised that delay in complying with the requirements of section 83 read with the provisions of the CPC or the omission to disclose the grounds or sources of information, though not fatal would weaken the probative value of the evidence ultimately led at the actual trial. 26. The learned counsel of the petitioner has, however, urged that an election petition cannot be rejected merely on the ground of vagueness in material particulars or for improper verification of the pleadings. Reliance is placed on decisions of the Apex Court in case of H.D. Revanna v. G. Pittaswamy Gowda and others (1999) 2 Supreme Court Cases 217, V.S. Achuthanandan v. P.J. Francis and another (1999) 3 Supreme Court Cases 737, Malzendra Pal v. Ram Dass Malanger (2000) 1 Supreme Court Cases 261, Dr. Reliance is placed on decisions of the Apex Court in case of H.D. Revanna v. G. Pittaswamy Gowda and others (1999) 2 Supreme Court Cases 217, V.S. Achuthanandan v. P.J. Francis and another (1999) 3 Supreme Court Cases 737, Malzendra Pal v. Ram Dass Malanger (2000) 1 Supreme Court Cases 261, Dr. Vijay Laxmi Sadho v. Jagdish (2001) 2 Supreme Court Cases 247, G. Mallikarjunappa v. S/zamallur Shivaslzankarappa 2001 AIR SCW 1599 and Blwgwan Ramblzau Karankal v. Clzandrakant Batesinglz (iii) (2001) CLT 67. However, in so far as the present case is concerned it has to be noticed that even when being repeatedly pointed out through filing of the applications and raising preliminary objections in the written statement itself, the petitioner never bothered to remove the defects as found in verification of the pleadings and the affidavit, which has ultimately resulted in not disclosing a complete cause of action to formulate a Corrupt practice as alleged in the facts narrated in the election petition. It has been observed by the Hon'ble Apex Court in case of R.P. Moidutty v. P. T. Kunju Mohammed and another reported in AIR 2000 SC 388 that averments relating to corrupt practice have to be verified in compliance with mandatory requirement of Order 6 Rule IS CPC. Lack of particulars and want of affidavit in required form would render the petition liable to be rejected at threes hold. 27. It has further been made clear by the Apex Court in case of V. Narayanaswamy v. C.P. Thinmavukkarasu reported in AIR 2000 SC 695 that the existence of material facts, material particulars, correct verification and the affidavit are relevant and important when the petition is based on the allegation of corrupt practice and in the absence of those, the Court has jurisdiction to dismiss the petition. High Court has undoubtedly the power to permit amendment of the petition for supply of better material particulars and also to require amendment of the verification and filing of the required affidavit but there is no duty cast on the High Court to direct suo motu the furnishing of better particulars and requiring amendment of petition for the purpose of verification and filing of proper affidavit. 28. 28. Taking into consideration the defective pleadings and affidavit of the petitioner as well as the implications arising under various decisions of the Apex Court referred to hereinabove, I am of the opinion that since the petitioner has failed to supply material particulars of the corrupt practice against the returned candidate and also failed to remove the defects of the affidavit, this election petition is devoid of cause of action and is consequently dismissed at the threshold.