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2008 DIGILAW 156 (BOM)

Dilip Gangadhar Sopal v. Rajendra Vithal Raut

2008-01-31

A.M.KHANWILKAR

body2008
KHANWILKAR A.M., J.: - By this Application, the respondent prays that election petition filed by the petitioner be dismissed under section 86(1) of the Representation of People Act, 1951 for non-compliance of provisions of section 81 (3) of the Act. 2. The sale ground on which this relief is pressed is that the petitioner has made reference to one pamphlet allegedly distributed by the respondent and his supporters, how- I ever, has failed to annex the said pamphlet t to the petition, though it formed integral part of the election petition. Although other issues have been raised in the application, the Counsel for the respondent has not pressed, the same at the time of argument. 3. To appreciate the above submission, it is apposite to advert to averments in paragraph-6-(E) to 6-(H) of the election petition. In paragraph-6-(E), the petitioner has stated about the press conference convened by the respondent, wherein according to the petitioner the respondent made a statement of fact that the petitioner was responsible for the assault on the respondent, which took place on 11th October, 2004. According to the petitioner that statement of fact made by the respondent in the said press conference was totally false. Inasmuch as, the assault was done by the respondent and his party workers on the party workers of the petitioner. According to the petitioner, the respondent was fully aware that the petitioner was not responsible since he was not present in the village at the relevant time. The petitioner asserts that the statement of fact made by the respondent that the petitioner was responsible for the said assault was made with an intention to attack the personal character of the petitioner with full knowledge that the statement was false and which he either believed it to be false or did not believe it to be true. According to the petitioner, statement so made by the respondent in the said press conference was made with a view to prejudice the election prospects of the petitioner at the said election. According to the petitioner, the said statement made by the respondent in the press conference is nothing short of corrupt practice within the meaning of section 123(4) of the Act and on account of which the result of the election insofar as• it concerns the respondent has material/affected. 4. According to the petitioner, the said statement made by the respondent in the press conference is nothing short of corrupt practice within the meaning of section 123(4) of the Act and on account of which the result of the election insofar as• it concerns the respondent has material/affected. 4. In paragraph-6(F) of the petition, petitioner has then asserted that the respondent had also got a pamphlet published wherein the statement of fact made in the press conference was repeated. According to the petitioner, in the said pamphlet the respondent got published his photograph with a bandage wrapped around his head and few blood stains on the shirt. That photograph was intended to convey to the v0ters that respondent was seriously injured. The petitioner then asserts that below the photograph the respondent published statements such as "Injured Rajabhau Raut"; "whose terror"; "who gives shelter to a known ground'; "who pressure is the business community"; "who indulges in financial irregularities and criminal activities". According to the petitioner the statement of fact so mentioned in the pamphlet were defamatory statements of facts in the nature of innuendo directly pointing an accusing finger at the petitioner without naming him. The petitioner has highlighted sentences as referred to earlier as objectionable statements in the said pamphlet. The petitioner asserts that the said statement in the pamphlet published in the backdrop of the press conference held by the respondent in which he had narrated the incident in question which was evident of the person against whom the said statements (appearing in the pamphlet) were attributed by the respondent. The petitioner then states that the Said, pamphlet was purportedly published by S1.1ri Keshav Ghogare who was the Election Again of the respondent and printed at Peasant offset, Barshi. Petitioner asserts that the said pamphlet was published at the instance of and on the instructions of the respondent himself. The petitioner also states that the said pamphlet has been shown in the election expenses of the respondent as submitted to the election officials. 5. In paragraph-6(G) of the petition, it is - asserted that the said statement of facts are - totally false to the knowledge of that respondent. That the criminal activities and pressurising and/or threatening conduct is that of the respondent and his agent. That the respondent is a hard-core shivsainik and indulges in criminal and antipodal activity which is well-known amongst the locals. That the criminal activities and pressurising and/or threatening conduct is that of the respondent and his agent. That the respondent is a hard-core shivsainik and indulges in criminal and antipodal activity which is well-known amongst the locals. The e petitioner then asserts that the respondent made those statement of facts in the nature j of innuendo and made with an accusing finger at the petitioner and no other person. Those statement of facts are not only false but are in relation to the personal character of the petitioner and/or in relation to the candidature of the petitioner, being statements reasonably calculated to prejudice the prospects of the petitioner's election. It is also stated that the respondent made those statement fully believing the same to be false and/or not to be true. Thereby indulging in corrupt practice within the meaning of section 123(4) of the Act as also in violation of the Model Code of Conduct. 6. In paragraph-6(H), the petitioner has asserted that the said pamphlets were distributed whole day on 12th October, 2004 (and 13th October, 2004 in large numbers, although the pamphlet indicates that only (1000 copies were printed. The petitioner has referred to the villages in which the said pamphlets were distributed. Besides the petitioner has also given the names of the persons who distributed the said pamphlets and of persons who received the same. After giving graphic details of distribution of the said pamphlet, the petitioner asserts that each of the statements of fact contained in the said pamphlet were false and which the respondent did not believe it to be true and were in relation to personal character or conduct of the petitioner, the statement being reasonably calculated to prejudice the prospects of the petitioner's election. 7. According to the respondent, the petitioner having made reference to the pamphlet ought to have annexed the said pamphlet to the petition itself, as the pamphlet formed (integral part of the petition. In absence thereof, the petition deserves to be dismissed f f for non-compliance of section 81 (3) of the Act. To buttress this submission, Counsel for the J f respondent has placed reliance on the decision of the Apex Court in the case of (M.t KarunanidhiVs. H.V. Handa & ors.), reported in 1983 DGLS (soft) 10: A.I.R. 1983 S.C. J 558: 1983 (2) S.C.C. 473 , in particular paragraph-41 thereof. To buttress this submission, Counsel for the J f respondent has placed reliance on the decision of the Apex Court in the case of (M.t KarunanidhiVs. H.V. Handa & ors.), reported in 1983 DGLS (soft) 10: A.I.R. 1983 S.C. J 558: 1983 (2) S.C.C. 473 , in particular paragraph-41 thereof. Counsel for the respondent a1so placed reliance on another decision of the Apex Court in the case of (U.S. Sasidharan Vs. K. Karunakaran & anr., 1989 DGLS (soft) 410: A.I.R. 1990 S.C. 924: 1989(4) S.C.C. 482 , in particular paragraphs-12, 14 and 15 thereof. 8. On the other hand, the Counsel for the petitioner would contend that the said pamphlet does not form integral part of the petition. This is so because, the petitioner has already incorporated the English translation of the relevant portion of the pamphlet in the election petition itself, on which the petitioner would rely to assert that the stated statement of facts were in the nature of innuendo directly accusing the petitioner without naming the petitioner as such, which was done purposely to prejudice the prospects of the petitioner's election and was a clear act of corrupt practice within the meaning of section 123(4) of the Act. Counsel for the petitioner has relied on the decision in the case of (Sardar Harcharan Singh Bra;- Vs. Sukh Darshan Singh and ors.)3, reported 2004 DGLS (soft) 776: 2004(11) S.C.C. 196 : A.l.R. 2005 S.C. 22, in particular paragraphs-12 and 130f the said decision. In addition, the Counsel for the petitioner has placed reliance on another decision of the Apex Court in the case of (Chandmkant Uttam Chodankar Vs. Dayanand Rayu Mandrakar & ors.), reported in 2004 DGLS (soft) 898 : 2005(2) S.C.C. 188 : A.1.R. 2005 S.C. 547. 9. I shall straightaway advert to the last decision relied upon by the petitioner, in particular, observations in paragraph-18 and 20 thereof. In the case of Chandrakant (supra), the Apex Court took the view that the delay of one month in applying for rejection of election petition on account of alleged defects due to non-compliance of sections 81 (3) and 83(I)(c) of the Act, such objection ought not to be entertained-as the same was taken after more than one month from receiving the copies of the Election petition from the Registry. In my opinion, this decision is of no avail to the issue on hand. 10. In my opinion, this decision is of no avail to the issue on hand. 10. The other decision pressed into service on behalf of the petitioner is the case of Sardar (supra) Harcharan (supra), is again of no avail. In paragraph-13 of the said decision, the Court went on to observe that the grounds of corrupt practice and the facts necessary to formulate a complete cause of action have been stated and• if particulars are also given in the petition, in such a case the deficiency in providing particulars cannot be ground for dismissing the election petition at the threshold. This proposition is of no avail to the petitioner. Because, the argument of the respondent is not of in complete particulars furnished in the petition, but is of non-compliance of section 81(3) of the Act, on account of not annexing the pamphlet, which formed integral part of the election petition. 11. That takes me to the legal position stated in the two decisions pressed into services on behalf of the respondent. The first decision is the case of M. Karunanidhi(supra). Counsel for the respondent placed emphasis on the observations in paragraph-41 of the said decision. To appreciate the context of observations in paragraph-41 of the decision of the Apex Court in M. Karunanidhi (supra), it is apposite to advert to the facts of I that case. In that case, the allegation in paragraph-18(b) of the petition related to an expenditure of about Rs. 50,000/- in erecting fancy banners throughout the constituency. c According to the petitioner in that case, there were such fancy banners, about 50 in ( number. The cost of each such banner was estimated to be not less than Rs. 1000/ -. It was averred in paragraph-18(b) of that petition that photograph of one such banner was ' filed along with the petition. There was specific averment in that petition that the photograph of the banner was filed along with the petition. However, admittedly, copy of the photograph of one such banner was not annexed to the copy of the petition furnished c to the respondent. In this backdrop the Apex Court proceeded to examine the argument regarding non-compliance of section 81(3) That is not the position in the present case. However, admittedly, copy of the photograph of one such banner was not annexed to the copy of the petition furnished c to the respondent. In this backdrop the Apex Court proceeded to examine the argument regarding non-compliance of section 81(3) That is not the position in the present case. In the present case, the petitioner instead, relies on the contents and relevant details of the pamphlet which have been translated and incorporated in the election petition, which according to the petitioner constitutes corrupt practice. 12. Reverting to the case of (supra) Karunanidhi (supra), objection taken before the High Court in that case was that of noncompliance with the requirement of sub-section (3) of section 81 of the Act on the ground that the copy of the Election petition served on the respondent was not accompanied by a copy of photograph of the alleged fancy banner which was annexed to the petition. The High Court relying on the decision of (Sahodrabai Rai Vs. Ram Singh AhanvatJ5, 1968 DGLS (soft) 27: A.I.R. 1968 S.C. 1079, held that the banner could not be treated as integral part of the election petition, but was a piece of evidence as to the nature and type of fancy banners erected by the appellant and failure to supply copy of the photograph to the appellant did not amount to breach of the provisions of subsection (3) of section 81 of the Act. It is this view, which was questioned before the Apex Court. The Apex Court from paragraph-27 of its decision, has analysed all aspects of the matter and then proceeded to conclude in paragraphs-41 and 43 that the opinion of the High Court deserved to be set aside; and instead it found that failure to annex copy of the photograph was noncompliance of sub-section (3) of the section 81 of the Act. Inasmuch as, the photograph of fancy banner was an integral part of the election petition and therefore, election petition deserved to be dismissed under section 86(1) of the Act. Observations in paragraph41 will, therefore, have to be understood in the context of the fact situation in the case before the Apex Court in the matter of M. Karunanidhi (supra). Inasmuch as, the photograph of fancy banner was an integral part of the election petition and therefore, election petition deserved to be dismissed under section 86(1) of the Act. Observations in paragraph41 will, therefore, have to be understood in the context of the fact situation in the case before the Apex Court in the matter of M. Karunanidhi (supra). As observed earlier, in that case, in the petition itself the petitioner had stated that copy of the photograph was annexed to the petition, but copy of the petition furnished to the respondent did not contain the said photograph-though annexed to the petition. 13. That takes me to the legal position stated by the Apex Court in the case of Sashidharan (supra). Counsel appearing for the respondent has placed emphasis on the observations in paragraphs-12, 14 and 15 of ] the said decision. Once again, it will be appropriate to advert to the facts of that case in which the said observations have been made. In that case, in paragraph-5(xi) of the election petition, the petitioner ha~ stated as follows: "5(xi)........Besides at the instigation of the first respondent a video cassette called "Malayude ( Purogathi" has been used in the constituency. The persons who speak are one Shri (Jose P. George, Government Pleader, Kerala High Court, 2. Shri Thomas Thottappally, Veterinary Doctor, Veterinary Polyclinic, Valiyaparambu. This is also a corrupt practice. The video cassette is produced herewith in a sealed cover." It is obvious that even in this petition there was clear assertion that the video cassette is produced –along with the petition in sealed cover. In the context of this assertion, question was raised before the High Court as to whether the video cassette formed integral part of the election petition. The High Court examined the said contention and found that the allegation in election petition would really show that the said document (read video cassette) formed integral part of the election petition. The High Court also opined that the copies of the notice, photograph also formed part of the election petition. That opinion was put in issue before the Apex Court. In paragraph-14 of the said decision, the Apex Court clearly found that in so far as the copies of the notice and photograph are concerned, the view taken by the High Court was not justified. That opinion was put in issue before the Apex Court. In paragraph-14 of the said decision, the Apex Court clearly found that in so far as the copies of the notice and photograph are concerned, the view taken by the High Court was not justified. In other words, the Apex Court found that non-supply of copies of the notice and photographs did not result in non-compliance of section 81(3) of the Act, as such. The only contention, which found favour with the Apex Court is on act, count of non-supply of the video cassette. Obviously that opinion was reached by the Apex Court on the basis of the assertions in the election petition paragraph-5(xi) itself, ( which mentions that the video cassette is produced along with the election petition. The Apex Court in paragraph-IS and 16 analysed the pleadings of the election petition and found that the contents of the cassette were not reproduced in the election petition but only the cassette was appended to the election petition, for which reason, it formed integral part of the election petition. It is on that basis the Apex Court proceeded to hold that it was a clear case of non-compliance of section 81(3) of the Act resulting in dismissal of the election petition under section 86(1) of the Act. 14. Reverting to the case on hand, the question is whether the pamphlet referred to in paragraph-6(F) would form integral part of the election petition. In response to the amended application, the petitioner has filed reply affidavit and has placed on record copy of the relevant pamphlet at Exh.1, along with the affidavit dated 22nd January, 2008. The fact which needs to be addressed at the threshold is whether the said pamphlet will have to be treated as integral part of the election petition. In my opinion, the answer is an emphatic no. The reason is that, the petitioner has nowhere mentioned in the election petition that copy of the pamphlet has been annexed to the election petition. Besides, the petitioner has reproduced the English translation of the relevant contents of the pamphlet, which according to the petitioner are directly pointing accusing finger to the petitioner without naming the petitioner, as such. The reason is that, the petitioner has nowhere mentioned in the election petition that copy of the pamphlet has been annexed to the election petition. Besides, the petitioner has reproduced the English translation of the relevant contents of the pamphlet, which according to the petitioner are directly pointing accusing finger to the petitioner without naming the petitioner, as such. The petitioner's case is that the said statement of facts were false to the knowledge of the respondent and have been made only with an intention to affect the election prospects of the petitioner, for which reason it constituted corrupt practice within the meaning of section 123(4) of the Act. On reading paragraph-6(F), I have no hesitation in taking the view that the petitioner has reproduced the relevant contents of the pamphlet, on which the petitioner intends to rely, which according to him, were intended to attack the personal character of the petitioner and are pointing finger at the petitioner without naming the petitioner, as such. In that case copy, of the pamphlet would be only a piece of evidence to substantiate the allegations contained in paragraph-6(F) of the petition. It would have been a different matter, if the petitioner was to merely state that the respondent also got same pamphlet published and circulated containing similar statements of facts made at the time of press conference, without pleading the contents of the pamphlet t in question in the election petition. Counsel for the petitioner has rightly pressed into service dictum in paragraph-16 of the decision of the Apex Court in the case of Sashidharan (supra), (which reinforces the above view. 15. Suffice it to observe that as the averments in paragraph-6(F) of the election petition reproduces the relevant contents of the pamphlet in the petition itself and those statement of facts, according to the petitioner, are in the nature of innuendo, copy of the pamphlet would only be a piece of evidence to prove the facts alleged by the petitioner. Whether the pamphlet contains the same statement of facts as reproduced in the election petition or differently worded is a matter for trial. Whether the pamphlet contains the same statement of facts as reproduced in the election petition or differently worded is a matter for trial. Indeed, if there are additional statement of facts appearing in the pamphlet than the one reproduced in the election petition, the petitioner, at best, would be permitted to proceed only in respect of those contents of the pamphlet which are already referred to in the election petition and the petitioner will have to establish that the same would constitute corrupt practice committed by the respondent, subject to proof. 16. Accordingly, I have no hesitation in 1 taking the view that there is no non-compliance of section 81 (3) of the Act, so as to reject the election petition at the threshold I under section 86(1) of the Act, as prayed by the respondent. 17. Hence this Application fails. The same is rejected. Application rejected.