Bombay High Court
Sohan Singh Jodh Singh Kohli vs Chandrakanta Goyal on 13 October, 1990
Equivalent citations: AIR1991BOM343, (1991)93BOMLR260, AIR 1991 BOMBAY 343, (1991) 2 BOM CR 216
ORDER
1. This Chamber Summons has been taken out by the Respondent for the purpose of dismissal of this Election Petition No. 19 of 1990 under the provisions of S.86 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") for non-compliance with Ss. 81 and 83 of the Act and for non-disclosure of any cause of action. There is also another prayer for striking off certain paras of the pleadings under O.6, R. 16 of the Code of Civil Procedure, as according to the Respondent the pleadings contain scandalous, frivolous, vague, vexatious, irrelevant and unnecessary or otherwise prejudicial statements, which have no bearing on the grounds pleaded in the election petition.
2. Similar Chamber Summonses have been taken out by the Respondents in each of the matters, in all 9, including this Chamber Summons and they have been placed for hearing. In most of these matters, Mr. M.P. Vashi has appeared for the petitioners and in two matters, Mr. Kotwal has appeared for the Petitioners. On behalf of the other side, the Respondents have been represented by Mr. Sathe, Mr. Singh, Mr. Pandit and Mr. Tulzapurkar. In all these Chamber Summonses, the arguments are more or less the same and the questions involved arc also the same. Hence I have heard all the Advocates on either side in detail and my reasons are being given, here, though ultimately 1 propose to pass separate orders in each of the Chamber Summonses.
3. I may also mention that by and large in each of these election petitions, the case of the petitioner is that the successful candidate has committed corrupt practices within the meaning of Ss. 123(3) and 123(3A) of the Act.
4. In each of these petitions, the petitioners have broadly set out certain facts which took place just prior to the date of the declaration of the election. They have also set out certain facts during the date of scrutiny of nomination forms and the declaration of results of the election. They have also set out certain facts which took place immediately after the results of the election were declared.
5. In this particular matter, though the Respondent has asked for striking off this election petition u/S.86 of the Act, he has also filed a written statement dealing with the allegations contained in the petition. How-
ever, Mr. Sathe has made it clear that filing of this writ petition (Sic) has no relevance inasmuch as if the petition discloses no cause of action or if the petition does not comply with the requirements of S. 81 or S.83, then the Petition is liable to be dismissed u/S. 86 read with S. 87 of the Act and further read with o.7, R. 11 of the Code of Civil Procedure.
6. In the affidavit in support of the Chamber Summons, the Respondent has set out as to how the petition is vague in several paras and as to how these paragraphs do not give the necessary particulars. On the basis of these contentions, the Respondent has pleaded that the petition should be dismissed.
7. In the petition, in paras 5 to 9 there are various averments regarding various facts prior to 30th January 1990. Particularly, the statements are to the effect that since last about four to five years, certain serious national problems have cropped up in the States like Jammu and Kashmir, Punjab, etc. Instead of helping the Union Government in tackling those problems of these States, parties like Bhartiya Janata Party (BJP), Shiv Sena, etc. have tried to exploit the said problems to have political mileage and election gains. Very many organisations, like the Rashtriya Swayamsevak Sangh and Vishwa Hindu Parishad, which were totally dormant have suddenly become very active politically and otherwise, purportedly championing the cause of Hindus. The petition then refers to the controversy that has arisen in respect of Ram Janmabhoomi-Babri Masjid. Thereafter, the petition says that the BJP and Shiv Sena has tried to exploit the plank of protecting Hindu religion. Then it refers to an election campaign for the Maharashtra Legislative Assembly from Vile Parle Constituency, Greater Bombay, which was held on 13th December 1987. In the said election, one Dr. Ramesh Y. Prabhoo was sponsored and put up as its candidate by the said Shiv Sena Party. The said Dr. Ramesh Y. Prabhu as well as their leader Bal Thackeray and other Shiv Sena leaders had campaigned in the said election by appealing to the voters in the name of Hindu religion. In the said election, the said Dr. Prabhoo was elected. Because of corrupt practices committed by him in the said election, his election was challenged and by a judgment and order dated 7th April 1989 the same was set aside by this Court. Thereafter, when the 9th Lok Sabha elections were to be held all over India in November 1989, the said two parties BJP and Shiv Sena decided to have an alliance, as both the parties were purportedly championing the cause of Hindus and wanted to fight the elections on the common plank of Hindutva, As per the understanding arrived at between the said two parties, it was decided that a single candidate of the said two parties was to be put up in the Assembly Elections all over the State of Maharashtra. Various public meetings, functions, interviews and press conferences were held by the leaders of both the parties appealing to the eleetors to vote for the single candidate of the BJP-Shiv Sena alliance. In various election materials such as public advertisements, posters, banners, wall paintings, audio cassettes and other means of election campaigning, it was mentioned that the single candidate of either of the two parties was a candidate of the BJP-Shiv Sena alliance. The petition relates to the fact as to how they decided for the Parliamentary elections and how various-meeting were conducted together and how the leaders of the two parties addressed the public jointly on different occasions. The petition also refers to the various speeches made by Bal Thackeray and other leaders of Shiv Sena party. The petition also refers to the press report which had appeared in the Marathi daily "Samna", of which Bal Thackeray is the editor. It also refers to a certain interview given by Bal Thackeray, which came to be published in an English fortnightly magazine 'Onlooker' dated 30th Sept. 1989. A copy of the said interview has been annexed to the petition and marked as Exhibit 'B'. Similar copy of a report which appeared in the Marathi daily "Samna" has also been exhibited to the petition. The petition then refers to certain subsequent meetings which took place in the month of Nov. 1989 and the petitioner Says that the speeches were all tape-recorded by the police authorities and were also taken in shorthand and the petitioner craves leave to refer to and rely upon the said press report, tape-recorded speeches taken by the police in shorthand, etc. It then refers to certain incidents, which took place in Sept. 1989 and also sometime in Oct. 1989, wherein attempts were made to convert certain incidents as Hindu-Muslim controversy. Some of the incidents have been reported in the Marathi daily "Samna" and the petitioner relies on the said report. It then refers to a 'Dharna' that took place on or about 17th October 1989 by the said two parties to protest against the price rise, unemployment, corruption, etc. At the said Dharna, various leaders of the two parties made speeches. Bal Thackeray stated that Hinduism was a question of life and death and that there was an attack on and risk for the country of the green colour (referring to Muslims) and that they would not keep quiet. The proceedings of the said meeting were also reported in the said Marathi daily "Samna" dated 18th October 1989. All these facts have been referred to by the Petitioner to show that the BJP and Shiv Sena have systematically exploited various unfortunate disputes mentioned in the petition so as to seek votes during the Parliamentary Elections and the elections in question in the name of "Hindutva", that is, Hindu religion.
8. The petitioner further says that the said two parties thus put up joint candidates in all the 288 Assembly Constituencies. The petitioner, therefore, submits that thereby every candidate can be said to have exploited the basic concept and plank on which the said two parties were jointly contesting the elections for the Assembly. It further means that the candidate accepted Bal Thackeray, Pramod Mahajan, Kirit Somaiya as their leaders and consented to the said leaders making an appeal to vote for the candidates of the said alliance. It further means that the candidates have accepted and adopted the philosophy and ideology of the leaders of the alliance and particularly of Bal Thackeray such as : (a) Hindustan and Hindu religion are in danger, (b) that only the alliance can protect Hindus and Hindu religion, (c) that the Congress (I) and Janata Dal have failed to protect and will not protect Hindus, and Hindu religion and that, therefore, their candidates are unfit to be elected, (d) that Hindus have suffered and will continue to suffer indignity, (e) that the problems in States like Jammu and Kashmir, Punjab and Assam have arisen because of the pampering of the minorities, (0 that Hindus must come together and fight the attack on them and their religion and say with pride that they are Hindus, (g) that Hindus owed a duty to their religion and, if necessary, must give their lives for it, (h) that minorities, particularly the Muslims were treated more favourably for their votes than Hindus.
9. The petitioner says that the Repondent being a candidate of the said alliance has accepted this ideology and philosophy of the alliance. In para 9 of the petition, petitioner refers to a joint public meeting which was held at Girgaum Chowpatty on 29-1-1990 for the purpose of launching election campaign of the candidate of the said alliance in the City of Bombay. The said meeting was addressed by the leaders of the said alliance, namely, Bal Thackeray, Chagan Bhujbal (both Shiv Sena leaders), Pramod Mahajan, Prem Kumar Sharma, Kirit Somaiya (all BJP leaders) and others. At the said meeting, all the 34 candidates contesting the election from the city of Bombay, including the Respondent herein were present. Para 10 of the petition refers to the fact that the proceedings of the said meetings have been reported in various newspapers and the report which appeared in the Times of India dated 30th January 1990 has been annexed and marked as Exhibit 'D' to the petition. In para 11 of the petition, it has been stated that the petitioner learnt that the police authorities have tape-recorded the speeches made by Bal Thackeray and other leaders of the said alliance at the said public meeting, the police have also taken down the said speeches in shorthand and the petitioner has craved leave to refer to and rely upon the said speeches taken in shorthand by the police as and; when produced. In para 12 of the petition, the petitioner has set out the most offending parts of the speeches made by Bal Thackeray and other leaders of the said alliance as under:
"(a) Hindutva is not a wave, but the same is our breath and the same cannot stop, that is why Hindutva is ours.
(b) Congressman even if your 42 ancestors (generations) come down, we will not leave 'Hindutva'.
(c) Dadasaheb Rupwate has filed an election petition because we had campaigned on the plank of Hindutva. Rupwate is Buddhist. He does not want to leave his caste. (Does not want to behave himself) then why we should leave our Hindu religion.
(d) Muslim nations are coming together on the issue of Kashmir but our Central Government continues to pamper the Muslims. We resent this.
(e) We do not accept the Prime Minister who meets the Imam.
(f) Though the question of Kashmir and Punjab is serious, the Home Minister of Hindustan visits Malegaon and other Muslim populated areas because of the need for their votes.
(g) Those who accuse us as communal, have they criticised communalism?
(h) Day by day the demands of Muslims are increasing. We will not allow partition of the country once again. If you have courage try and have war with us.
(i) After coming in power, Mr. V.P. Singh did not go to meet (to take blessings) Shri Shankaracharya, did not ring the bells in the temple. However, he went down on his knees before the Imam.
(j) To save Kashmir and Punjab, we are compaigning in the name of Hindutva. Even the Courts will not be able to stop us."
10. In para 13, the petitioner refers to the fact that the speeches made at the public meetings have been published in the Marathi daily known as "Samna", which Mr. Thackeray had himself launched. It then sets out that more than 1.5 lakhs copies of the said newspaper 'Samna' have been circulated. It also refers to the editorial written by Bal Thackeray. It then says that the said newspaper 'Samna'was, therefore, used as a mouth-piece for fighting elections in question. In para 14 of the petition, it has been stated that the proceedings of various public meetings addressed by the leaders of the said alliance all over Maharashtra have been widely reported in the said newspaper "Samna". There is a chart annexed to the petition showing the particulars of the meetings which were addressed by the said leaders. In para 15, the petitioner sets out some of the offending portions of press reports and they are as follows:--
"(a) The Muslims should join the mainstream for their own benefit -- in our rule Muslims will get justice.
(c) I am warning those who speak against our religion, gods and idols and who hurt our sentiments (Bal Thackeray).
(d) Only Bal Thackeray can say that the Muslims who like Pakistan should return to Pakistan.
(g) If Jijamata would not have been born in Maharashtra, then we all would have been sitting and offering 'Namaz'.
(j) Because of Pawar's secularism the stones of Peers (Muslim saints) are worshipped and protected, whereas our old temples of Bhavani Mata are demolished."
11. In para 16 of the petition, the petitioner refers to a public meeting which took place on 8th February 1990 at 11.00 p.m. next to Sangam Nagar Police Station. The meeting was addressed by Shiv Sena and BJP leaders whose names have been mentioned and also by the Respondent herself. It then sets out that in the said speech, one Pramod Thakur, a Shiv Sena Corporator, made an attack on the personal character of the petitioner. It then says that the Respondent herself was present at the said meeting and she did not protest about such a statement and, therefore, the Respondent has consented to such derogatory remarks. In para 17, the petitioner says that in the said meeting, the Respondent made an appeal to vote for her in the name of her religion, that is, Hindu religion. She stated that the mosque in Ayodhya was constructed by the people of other countries and not by the people of Hindustan. She further stated that those who are pro-Hindus are nationalists and that is why the alliance of Shiv Sena should be elected. The petitioner sasys that the speeches are recorded by the Antop Hill Police Station in the election diary and she has obtained a certified copy of the said election diary in Marathi. She craves leave to refer to and rely upon the said election diary dated 8th Feb. 1989 as and when produced by the police authorities. In para 18, the petitioner says that the Respondent had held a meeting to inaugurate her election booth at Punjabi Camp, Sion. The said meeting was addressed by various Shiv Sena and BJP leaders and the Respondent herself was present at the said meeting which was held on 15th February 1990 at about 8.20 p.m. There was an appeal to the voters to elect the candidates of the allience, who fight for Hindutva. Again, the petitioner says that the Police have recorded the speech made by the leaders and he has obtained a certified copy of the election diary and craves leave to refer to and rely upon the same when produced. So also, the petitioner craves leave to refer to and rely upon the Marathi Daily 'Nava Kal' dated 17th February 1990 as and when produced.
12. In para 19, the petitioner says that a similar joint public meeting was also held at Shivaji Park, Dadar, Bombay, on 24th Feb. 1990. At the said meeting, most of the candidates of the BJP and Shiv Sena, including the Respondent herein were present. The said meeting was addressed by the leaders of the alliance. At the said meeting, Bal Thackeray reiterated that the said alliance was contesting the election in the name of Hindu religion and to fight for Hindutva. The proceedings of the said meeting have been widely reported in various dailies, whose names have been mentioned and the petitioner craves leave to refer to and rely upon the said press reports as and when produced. In para 20, the petitioner sets out some of the offending statements made at the said meeting. Para 21 says that the proceedings at the said meeting were tape-recorded and taken down in shorthand by the police. The petitioner craves leave to refer to and rely upon the said tape-recorded speeches and the speeches taken in shorthand by the police as and when produced. In para 22, it has been mentioned that the speeches made by the alliance leaders in the City of Bombay as well as in different parts of Maharashlra were widely reported in Marathi daily "Samna", which is the mouth piece of the Shiv Sena as well as in other newspapers. It has also been stated that from the said press reports, an impression is sought to be created by the alliance leaders that other parties were pampering other religions, particularly the Muslims and, therefore, the voters should not vote for those parties. References were made to gods and goddesses which are worshipped in a particular region, for example, Ma Bhavani in Tuljapur, Ma Jagadamba in Kolhapur etc. and the impression which is sought to be created is that the alliance leaders are blessed by such gods and goddesses and, therefore, such candidates should be voted in order to please the gods and goddesses. In para 23, it has been stated that such appeals have been read by the voters in the said Constituency and it had the effect on the voters to vote on the basis of religion of the candidate. The Respondent herein being a Hindu and the petitioner being a Sikh, he suffered a disadvantage in this election. In para 24, it has been stated that after the election results were announced the alliance leaders announced that it was the victory of Hindutva and their success in the elections.
13. In para 25, it has been stated that in addition to the holding of public meetings, the said alliance had also taken out video cassettes and audio cassettes. The video cassettes were titled "Challenge and Appeal, Shiv Sena" and the other called "Ajinkya". The petitioner says that the said cassettes show that the alliance has scant respect for the religious beliefs and practices of other religions like Muslims, Christians, etc. Not only the other religions have been ridiculed but the followers thereof are termed as "traitors" and "betrayers". The Petitioner says that he will rely upon the said cassettes as and when produced. In para 26, the Petitioner refers to the audio cassettes wherein the speeches of the said alliance like Bal Thackeray etc. have been recorded and the cassettes have been played in the said Constituency in various streets after 6-30 p.m. and regularly exhibited at or near the places of residence of some of the active workers of the said alliance in the said Constituency. The Petilioner craves leave to refer to and rely upon the said audio cassettes as and when produced. Para 27 of the petition refers to various posters containing objectionable statements. In para 28, the petitioner submits that the Respondent has made unfair appeal to the voters in order to vote for the petitioner as he was a Sikh and in that connection he had made a complaint to the police and he craves leave to refer to and rely upon a letter addressed by the police on 22nd June 1990.
14. In paras 29 and 30, the petitioner says that the Respondent and her agents had with the consent created an atmosphere of terrorism in the area which were and believed to be the strong-holds of the petitioner. One of such areas is Punjabi Colony in Sion-Koli-wada. It also refers to other areas. It also refers to certain incidents which took place on the day of polling at about 3-00 p.m. and that the police authorities have registered the entire incident under C.R. No. 81 of 1990. Para 30 refers to the arrests of certain persons who indulged in the incidents referred to therein. In para 31, the Petitioner complains that voters have not been allowed to exercise their franchise freely or without any fear. In para 32, the petitioner makes reference to the Presiding Officers of the respective polling stations to extend the time for polling, which was not granted. In para 33, he submits that the aforesaid facts clearly prove that the Respondent and her agents with her consent have indulged into corrupt practices listed u/S. 123 of the Act. The remaining paras are not material for the purpose of this Chamber Summons. The petitioner, therefore, prays that the election of the Respondent is liable to be declared null and void on the ground of the said alleged practices. There is a concise statement setting out the corrupt practices and also setting out the matters supporting statements by the Respondent and her leaders at different times as referred to in the petition and also various other facts as set out in the petition. Thereafter, there is an affidavit as required under Form 25, in which the Peti-
tioner has stated that the statements made in paras 27, 28 and 31 of the election petition about the commission of corrupt practices mentioned therein, namely, creating undue influence and intimidation, appealing to the voters to vote for the Respondent in the name of her religion and promoting and/or attempting to promote feelings of enmity or hatred between the voters on grounds of religion, race, caste, community or language and her agents making statements with her consent about the personal character and conduct of the petitioner, which are false, are true to his personal knowledge. In the last para it is stated that the statements made in the remaining paras are true to his information and he believes the same to be true.
15. In the affidavit of the Respondent in support of the Chamber Summons, the Respondent contends that the allegations made in paras 8, 9, 10 and 12 of the petition are vague and they do not give particulars such as the names of persons who addressed the meetings, the contents of the speeches which were made with the consent of the returned candidate, etc. Similarly, with regard to the allegations made in paras 13, 14 and 15 of the election petition, it has been stated that the allegations are vague and the description of the alleged meeting addressed by Bal Thackeray and others, and the contents of the speeches which were made by the said leaders have not been set out and whatever has been incorporated in the petition has been incorporated out of context and that, therefore, there are no facts about the alleged corrupt practices and hence there is no cause of action.
16. Similarly, with reference to paras 16 and 17 of the petition, it has been contended that the allegations are vague and the cause of action is not disclosed with regard to those allegations contained in the said paras. The Respondent further says that reference to police diaries in the said paras without furnishing copies of the said police diaries has rendered the said proceedings an incomplete cause of action and the same is liable to be struck off.
17. Similarly, with regard to allegations contained in para 18, it is stated that election diaries maintained by the police have not been furnished to the petitioner and, therefore, the cause of action is incomplete and the petition should be dismissed. So also is the plea with regard to the statements contained in paras 19, 20 and 21 of the petition. Similarly, with regard to paras 22 and 23 of the petition, it is stated that the press reports have not been disclosed and, therefore, there is no cause of action. With regard to allegations contained in para 25, the contention is that the video and audio cassettes have not been annexed to the petition. It is submitted that the contents of the said video cassettes or the audio cassettes have not been disclosed at the time of filing of the petition and copies of the said video cassettes or the audio cassettes have not beer-given to the Respondent when the petition was served and hence the petition does not satisfy the mandate of Ss. 81, 82 and 83 of the Act.
18. Similarly, with regard to paragraphs 27 and 28 of the petition, the contention is that the said paras vaguely refer to posters and their particulars have not been given and, therefore, the cause of action is again incomplete. So also the N/C complaint and the letter addressed by the police have not been disclosed and the contents of the said letter have not been disclosed and that, therefore, the cause of action is incomplete. So also with regard to the averments made in para 29, the contention is that the allegations are vague and particulars have not been given. With regard to allegations in paras 30 and 31, it is contended that the allegations do not disclose material facts, which could constitute corrupt practices. The remaining paras of the petition are irrelevant. Therefore, the Respondent submits that the election petition does not disclose any cause of action. In particular, the Respondent points out that the petition makes reference at several places to the video cassettes, audio cassettes, police diaries, press reports and other particulars, without furnishing copies thereof. It is, therefore, submitted that the copy of the election petition, which is furnished without such documents is not complete and cannot be said to be a true copy of the election petition. It is, therefore, submitted that this petition should be dismissed.
19. In the remaining paras of the affidavit, it has been briefly set out as to how the petition contains the various vague and irrelevant allegations and they are to be struck off under 0.6, R. 16 of the Code of Civil Procedure.
20. Broadly, the arguments are as follows:
(A) That the petition contains reference to number of reports of speeches, diary entries at the Police Station, shorthand notes of the speeches, video and audio cassettes, etc., but their contents have not been set out in the petition. Therefore, relying on the case of M. Karunanidhi v. H. V. Handa, , the submission is that these items become an integral part of the petition and since they have not been supplied as required u/S. 81(3) of the Act, the Petition is liable to be dismissed u/S. 86(1) of the Act.
(B) With regard to many allegations regarding holding of meetings, or giving speeches, or circulating books or booklets, etc., the particulars have not been given such as when, at what time the speeches were given and the number of persons who spoke, their names and addresses, the contents of the speeches made by each of them. Though certain particulars have been given in respect of certain meetings and certain incidents, all the particulars of all the meetings and events and incidents, including the whole of the speeches, wherever given, have not been mentioned in the petition. Relying mainly on the case of Azhar Hussain v. Rajiv Gandhi, , the submis-sion is that if a single material fact is missing, that is enough for dismissal of the entire petition.
(C) The petition contains reference to certain facts prior to the nomination of the candidate and also to facts after the declaration of the results. All such statements are irrelevant, vexatious, scandalous and, therefore, all those paras are to be struck off under Order VI, R. 16, C.P. Code. In that context, the contention is that the relevant period is between 8th Feb. 1990 when the nomination list was announced and 27th Feb. 1990, being the date of polling, and there can be no material fact relating to corrupt practices beyond these dates.
(D) There are certain things which are alleged to have been done by persons other than the Respondent's election agents and there is no proper plea of consent. The plea of consent must expressly set out, when, how and in what manner the consent was obtained by and between the Respondent and those persons.
21. I may mention that Advocates have referred to large number of authorities of the Supreme Court, as this matter has been argued with all the other Chamber Summonses. It may not be necessary for me to refer to each and every case. By and large, in none of the cases, I find any express conflict inter se in any of the ratio laid down by the Supreme Court.
22. S.83 of the Act says that an election petition shall contain a concise statement of the material facts on which the petitioner relies and it shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice and thereafter it says that it shall be signed, verified, etc. as provided therein.
23. Therefore, certain questions arise : What are material facts and what are particulars? What are the consequences of not incorporating the material facts in the petition? If material facts are mentioned, but particulars are not fully set out, is the petition liable to be dismissed? If the petition refers to a document, but the contents thereof are not incorporated in the petition, to what extent such a document can be said to be a material fact? If the document is not a material fact, but only a piece of evidence, or a particular of a corrupt practice, and if the document is not annexed nor its contents are given, is the petition liable to be dismissed u/S. 86(1) of the Act? All these questions are not new and they have been answered by the Supreme Court in any number of judgments.
24. In the case of Mrs. Sahodrabai Rai v. Ram Singh Aharwar, , a three-Judges Bench headed by Justice Hidayatullah has dealt with these questions in this manner. The relevant passage in this behalf is as follows (at pp. 1082-83 of AIR):
"Even if this be not the case, we are quite clear that sub-sec. (2) of S. 83 has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put in not in the election petition but in the accompanying schedules or annexures. We can give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then 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. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. The pamphlet therefore must be treated as a document and not as a part of the election petition in so far as averments arc concerned. When the election petitioner said that it was to be treated as part of her election petition she was merely indicating that it was not to be thought that she had not produced the document in time. She was insisting upon the document remaining with the petition so that it could be available whenever the question of the election petition or its contents arose. It would be stretching the words of sub-sec. (2) of S. 83 too far to think that every document produced as evidence in the election petition becomes a part cf the election petition proper. In this particular case we do not think that the pamphlet could be so treated. We are, therefore, of the opinion that whether or not S. 86(1) is mandatory or directory there was no breach of the provisions of the Representation of the People Act in regard to the filing of the election petition or the service of the copies thereof and the order under appeal was therefore erroneous."
25. This is repeated and further explained by the same learned Judge in the case of Samant N. Balakrishna v. George Fernandes, . The relevant observations in this behalf are as follows (at pp. 1212-13 of AIR):
"The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between material facts and particulars? The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material fact will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or docs not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words 'material facts' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly the petition used to be in two parts. The material facts had to be included in the petition and the particulars in a schedule. It is inconceivable that a petition could be filed without the material facts and the schedule by merely citing the corrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule but the distinction remains. The entire and complete cause of action must be in the petition in the shape of material facts, the particulars being the further information to complete the picture. This distinction is brought out by the provisions of S. 86 although the penalty of dismissal is taken away. Sub-sec. (5) of that section provides:
(5) "The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition,"
The power of amendment is given in respect of particulars but there is a prohibition against an amendment "which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition". One alleges the corrupt practice in the material facts and they must show a complete cause of action. If a petitioner has omitted to allege a corrupt practice, he cannot be permitted to give particulars of the corrupt practice. The argument that the latter part of the fifth sub-section is directory only cannot stand in view of the contrast in the language of the two parts. The first part is enabling and the second part creates a positive bar. Therefore, if a corrupt practice is not alleged, the particulars cannot be supplied. There is however a difference of approach between the several corrupt practices'. If for example the charge is bribery of voters and the particulars give a few instances, other instances can be added; if the charge is use of vehicles for free carriage of voters, the particulars of the cars employed may be amplified. But if the charge is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa. In the scheme of election law they are separate corrupt practices which cannot be said to grow out of the material fact related to another person. Publication of false statements by an agent is one cause of action, publication of false statements by the candidate is quite a different cause of action. Such a cause of action must be alleged in the material facts before particulars may be given. One cannot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice. They constitute different causes of action."
The Supreme Court then observes that the learned Judge in the High Court did not keep the distinction between material facts and particulars in mind although the language of the statute is quite clear and makes a clear-cut division between the two. The learned Judge then observes:
"He seems to have been persuaded to such a course by a reading of the rulings of this Court and the High Court."
Thereafter the learned Judge deals with several cases of the Supreme Court and other Courts and then summarises the law as follows (at p. 1216 of AIR):
"37. From our examination of all the cases that were cited before us we are satisfied that an election petition must set out a ground or charge. In other words, the kind of corrupt practice which was perpetrated together with material facts on which a charge can be made out must be stated. It is obvious that merely repeating the words of the statute does not amount to a proper statement of facts and the section requires that material facts of corrupt practices must be stated. If the material facts of the corrupt practice are stated more or better particulars of the charge may be given later, but where the material facts themselves are missing it is impossible to think that the charge has been made or can be later amplified. This is tantamount to the making of a fresh petition."
26. In other words, the law appears to be this : The petition itself must contain the material facts constituting the particular corrupt practice. The details of the corrupt practice could be in the petition or in a schedule as was the practice in the past. If documents are annexed to the petition, the documents become an integral part of the petition and then copies of such documents should also be served on the respondents. But where documents are not annexed, but referred to and relied on, they are all evidence and inspection can be had. Just because documents arc referred to and relied on, but the contents are not incorporated in the petition, such documents do not become an integral part of the petition. The obligation on the part of the petitioner is to give a complete copy of the petition together with such documents as are annexed to the petition, as they form integral part of the petition, to the respondents. Similarly, u/S.82, the parties to the petition should be properly arraigned. If the requirements of Ss. 81 and 82 are not complied with, the petition is liable to be dismissed u/S. 86(1) of the Act. But significantly S.83 is not included in S. 86(1) of the Act. As we have seen S.83 provides for the contents of the petition it must contain material facts and particulars. The material facts constitute a charge. If the particulars of the incidents and the details of the charge are not given fully, u/S. 86(5) of the Act, the petitioner can seek amendment or amplification of the particulars. S. 86(5) is as follows:
"(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition."
What is the meaning of the words: "allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner..." It means that if there are material facts as set out in the petition, so as to have a complete cause of action, even if particulars are to be amended or amplified atcr on, the same can be allowed. Similarly, the question of proving the case by evidence, oral or documentary would come later on. But, of course, the Supreme Court has held that if the material facts so as to constitute a complete cause of action is not set out, such a petition is liable to be dismissed even though S. 86(1) of the Act does not say so. That can be done on the basis of S. 87 read with 0.7, R. 11, Code of Civil Procedure that if a petition is without a cause of action, the same can be rejected at the very threshold itself. That is the law as far as this contention is concerned.
27. This, in fact, is the ratio of all the cases cited across the bar.
28. In the case of Hardwari LAl v. Kanwal Singh, , we have got the following observations at page 519:
"Material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the Cause of action. Sixth, in stating the material facts it will not do merely to quote. the words of the section because then the efficacy of the material facts will be lost. The fact which constitutes a corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Seventh, an election petition without the material fact relating to a corrupt practice is not election petition at all."
28A. The Respondent heavily relied on the case of M. Karunanidhi v. H. V. Handa, . Here, the charge was u/S. 129, sub-sec. (6) of the Act referring to explanation in contravention of S. 77 of the Act. The question related to non- furnishing of a copy of photograph of a certain fancy banner which contained an election slogan, the size of which would have given an estimate of the price of such banners. The Supreme Court, after referring to Sahodrabai's case (supra) observed that decision was not applicable to the facts and circumstances of the case before them. Thereafter the Court taking into account the test to be applied in determining whether the photograph referred to is an integral part of the election petition or was merely a piece of evidence in proof of the allegations contained therein and they said that that depends on whether it is a part of the pleadings. Upon that view being taken, they came to the conclusion that the photograph was not merely a document accompanying the election petition, but was a part and parcel pleaded in para I8(b) of the petition and that is how the Supreme Court held as follows (at p. 574 of AIR) :
"41. It is obvious that the photograph was a part of the averment contained in para 18(b). In the absence of the photograph the averment contained in para 18(b) would be incomplete. The photograph referred to in paragraph 18(b) was therefore an integral part of the election petition. It follows that there was total non-compliance with the requirements of sub-s. (3) of S.81 of the Act by failure to serve the appellant with a copy of the election petition. In Ch. Subbarao's case, if there is a total and complete non-compliance with the provisions of sub-section (3) of Section 81, the election petition could not be treated an "election petition presented in accordance with the provisions of this Part"
within the meaning of Section 80 of the Act.
Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan."
As regards Sahodrabai's case (supra), the learned Judge said as follows "The decision in Sahodrabai's case supra, was that since the election petition itself reproduced the whole of the pamphlet in a translation in English, the pamphlet filed along with the petition had to be treated as a document and not as a part of the election petition and that being so, the Court observed that it would be stretching the words of subsection (3) of Section 81 and sub-section (2) of Section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper."
29. But this very case of Karunanidhi (supra) came to be considered in a latter Supreme Court judgments in the case of A. Madan Mohan v.
Kalavakunta Chandrasekhara, . After referring to Karunanidhi's case, the Supreme Court reiterated what is stated in Sahodrabai's case and said as follows:
"This decision in no way departs from the ratio laid down in Sahodrabai's case."
In this case also it was contended that certain documents formed an integral part of the petition and that they had not served the same on the petitioner, that is the respondent. The documents were in a schedule. They were filed in the Court and the Court observed that: "It is always open to the respondent to inspect them and find out the allegations made in the petition." And the Court held that the documents or the schedules formed an integral part of the petition. That test is the same. Full material facts constitute a complete cause of action and if the particulars are not complete or the documents are not complete or the documents referred to and relied on, which are in the nature of particulars, or incidents or in the nature of evidence, there is no obligation on the petitioner to serve such documents or particulars which are left out, on the other side. The other side, the respondent can always seek inspection of them. The respondent can always be asked for better particulars and in an appropriate case, the Court may give suitable directions in order to see that there is no vagueness in any of the petitions or the elections.
30. It is in this sense if the case of U. S. Sasidharan v. K. Karunakaran, , on which the entire Chamber Summons is based, is looked into, it becomes clear that it does not say anything different from Sahodrabai's case or Samant's case (supra). The test in this case, as in all other cases, is whether the petition contains all material facts so as to constitute a particular corrupt practice, and whether particulars of such corrupt practice have been given or not. In other words, can it be said whether there is a complete cause of action or not. In the above case, the charge was under Section 123(7) of the Act that two Government servants made certain speeches as and by way of election propaganda. The particulars of the speeches were not given in the petition. The video cassette which was relied on, was not given to the respondent. It was in this sense the petition did not contain a complete cause of action. A reference, in this connection; can be made to para 5 of the judgment wherein the averments contained in the election petition, are set out, and they are as follows "5. In paragraph 5(xi) of the election petition, the appellant inter alia 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 arc one Shri Jose P. George, Government Pleader, Kerala High Court, 2. Shri Thomas Thottappally, Veterinary Doctor, Veterinary Polyclinic, Valiyamparambu. This is also a corrupt practice. The video cassette is produced herewith in a sealed cover."
This would at once show that the material facts were in the cassette only and they were not in the petition. And in this context, the Court made the following observations "17. There may be another situation when a copy of the document need not be served on the respondent along with the election petition. When a document has been filed in the proceedings, but is not referred to in the petition either directly or indirectly, a copy of such document need not be served on the respondent. What Section 81(3) enjoins is that a true copy of the election petition has to be served on the respondents including the elected candidate. When a document forms an integral part of an election petition containing material facts or particulars of corrupt practice, then a copy of the election petition without such a document is not complete and cannot be said to be a true copy of the election petition. Copy of such document must be served on the respondents."
This paragraph has been projected in these Chamber Summonses out of context and on the basis of an artificial construction of what the Supreme Court says. The true import of the judgment is that the petition must contain material facts relating to a particular charge. If the material facts are not there or if it is deficient by any single material fact, then, in such a case it does not become a complete cause of action and that, therefore, the petition is liable to be dismissed. The single material fact may be in a document or a video cassette or any other material. If that is absent, then, of course, the ground is not complete and the charge cannot be sustained. The Court will not permit filling up of any lacuna so as to have a complete cause of action at a later stage when such a cause of action was not there at the time the petition was filed. But if does not say anywhere that if the material facts constituting a complete cause of action have been set out, just because particulars are not given, the petition should be dismissed under Section 86(1) of the Act.
31. Mr. Vashi has drawn my attention to some of the judgments to show as to what should be the approach of the Court in all these matters. In the case of Raj Narain v.
Smt. Indira Gandhi, , the Supreme Court explains the scope of Section 86(5) of the Act. After setting out how the case was pleaded, the Supreme Court observed as follows (at P. 1307 of AIR) :
"From these decisions, it follows that facts stated in the petition relating to any corrupt practice must be sufficient to constitute a cause of action. In other words the facts must bring out all the ingredients of the corrupt practice alleged. If the facts stated fail to satisfy that requirement then they do not give rise to a triable issue. Such a defect cannot be cured by any amendment after the period of limitation for filing the election petition. But even if all the material facts are stated in the election petition, for a proper trial better particulars may still be required. If those particulars are not set out in the election petition, they may be incorporated into the election petition with the permission of the Court even after the period of limitation. The controversy in this case is whether the election petition discloses a cause of action for trying Issue No. 1.
We think it does. The allegations made in paragraphs 2, 5 and 6 of the petition, if read together do show that the allegation against the respondent is that she obtained the assistance of Yashpal Kapur, a gazetted officer, to support her candidature by organising her electioneering work. These allegations bring out all the ingredients of the corrupt practice alleged though they are lacking in better particulars such as the date on which the respondent became a candidate and the date on which Yashpal Kapur was entrusted with the responsibility of organizing the electioneering work of the respondent. The absence of those particulars does not per se invalidate the charge. They can be supplied even now with the permission of the Court."
Thereafter, dealing with the approach of the Court with regard to rules of pleadings, this is what the Supreme Court says (at p. 1307 of AIR) :
"20. Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the Court to ascertain that principle and implement it. What then is the principle underlying Section 86(5)? In our opinion the aim of that section is to see that a person accused of a corrupt practice must know precisely what he is accused of so that he may have the opportunity to meet the allegations made against him. If the accusation made is nebulous and is capable of being made use of for establishing more than one charge or if it does not make out a corrupt practice at all then the charge fails at the very threshold. So long as the charge levelled is beyond doubt, Section 86(5) is satisfied; rest is mere refinement. They either pertain to the region of particulars or evidence. That section is not designed to interdict a mere clumsy pleading like the petition before us. The purpose of that section is to see that every charge of corrupt practice should be brought before the Court before the prescribed period of limitation and none thereafter so that the trial of the case may not be converted into a persecution by adding more and more charges or by converting one charge into another as the trial proceeds."
In the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, , the Supreme Court observes that if any ground of insufficiency of particulars is made out by any party, the Court can direct such particulars. In any event, the Court says that the law does not require the whole evidence to be set out in the petition in the form of particulars. Similarly, the case of Sri Harasingh Charan Mohanty v.
Surendra Mohanty, , this is what the Supreme Court says (at P. 54 of AIR):
"It is one of the accepted principles that pleadings must contain and contain only a statement in a summary form of material facts on which the party bases his claim or defence and facts which are merely evidence of material facts, though necessary to be proved at the trial, need not be pleaded, but if it is a material fact it should be pleaded. In our view material facts as set out above have been stated, as such any omission to set out in the pleadings the evidence that has been led in this case to establish that the respondent was not concerned with the impugned corrupt practice cannot be looked at with suspision."
32. In the case of K. M. Mani v. P. J. Antony, , the Supreme Court says that the petition must be read as a whole, and not to disjoint it, or to tear a line here or a line there, from the context. In Raj Narain's case (supra), the Supreme Court has again emphsised the approach of the Court that the petition must be read reasonably as it should be and that while a corrupt practice has got to be strictly proved from that it does not follow that the pleadings in an election proceeding should receive a stricter construction. And the relevant observations are as follows "While a corrupt practice has got to be strictly proved but from that it does not follow that a pleading in an election proceeding should receive a strict construction. This Court has held that even a defective charge does not vitiate a criminal trial unless it is proved that the same has prejudiced the accused. If a pleading on a reasonable construction could sustain the action, the Court accept that construction. The Courts are reluctant to frustrate an action on technical grounds. The charge of corrupt practice in an election is a very serious charge. Purity of election is the very essence of real democracy. The charge in question has been denied by the respondent. It has yet to be proved. It may or may not be proved. The allegations made by the appellant may ultimately be proved to be wholly devoid of truth. But the question is whether the appellant or someone who prepared his brief did not know the language of the law. We have no hesitation in answering those questions in the negative."
33. One of the allegations here is that certain video cassettes and audio cassettes belonging to respondent's party or the leader had not been given to the respondent. Nowhere have they denied the existence of such video cassette or audio cassette. In fact, this is within the knowledge of the respondent herself. And in that context, the Supreme Court in the case of Balwan Singh v. Lakshmi to say (at p. 774 of AIR) :
"...it was not intended to require the petitioner in an election dispute to set out the particulars of facts within the special knowledge of the other party, and expose the petition to a penalty of dismissal if those particulars could not be given."
34. Now let us see what are the material facts in the petition? The charge is that the respondent had indulged in the corrupt practices of (a) appealing for votes on the ground of her religion, which is proscribed by Section 123(3) of the Act, (b) of promoting and/or attempting to promote feelings of enmity and hatred between different classes of the citizens of India on the ground of religion and community which is proscribed by Section 123(3A) of the Act. Unlike an offence under the Indian Penal Code the ingredients of the charges or grounds have not been set out in the Act itself, as, naturally it depends on facts of each case. The material facts pleaded in the petition are :
(i) That there has been a systematic attempt on the part of BJP-Shiv Sena alliance to project Hindutva as the only saviour for all the ills and disturbances in the country,
(ii) all the other parties betrayed Hindu community by pampering other religious minorities,
(iii) Therefore, it became necessary to form an alliance to defeat those other parties, and thereby to promote and secure Hindu religion,
(iv) The Muslims should join the mainstream for their own benefit. In our rule, Muslims will get justice.
(v) It is on this plank BJP-Shiv Sena decid ed to contest the election and decided to put up the present respondent and other candi dates.
(vi) This was announced in a public meeting on the eve of the declaration of election, and several leaders addressed the public at large to vote for them.
(vii) It is on this basis various interviews were given which the press reported.
(viii) Thereafter in several meetings speeches were given containing several offending statements which would set up one community as against the other.
(ix) The statements prima facie indicate an attempt on the part of the leaders of BJP-Shiv Sena, whose names are mentioned, to promote feelings of enmity and hatred between Hindus and Muslims.
(x) The respondent was present in some of the meetings when the leaders addressed the voters as above and the speeches were given with her consent, and in any event she had not objected to the same.
(xi) the respondent and her leaders publicly acknowledged after the results were declared that they succeeded because of the plank of Hindutva.
These are the material facts constituting the cause of action, namely, the two grounds mentioned above. Can it be said that these facts are not sufficient to constitute the cause of action, namely, the two grounds referred to above.
35. Now, what are the particulars ? The particulars are : the time, the date when speeches were delivered on different occasions. The particulars are the mode of canvassing, either by video cassettes or audio cassettes, by banners, posters, publications, circulars, press reports, interviews, etc. If the particulars are not sufficient, parties can call for particulars. Similarly, the petitioner himself can amend or amplify the particulars. The word "amplify" appearing in Section 86(5) of the Act would suggest that it is wider than Order 6, Rule .17, Code of Civil Procedure, "though the restriction, as it always is that a new cause of action or a new corrupt practice cannot be introduced.
36. Mr. Sathe, however, submitted that every material fact which gives rise to cause of action under Section 123(3) and Section 123(3A) of the Act is independent of each other and failure of pleading contents of anyone of them is fatal to election petition. Speeches at public meetings, posters, banners, video cassettes, audio cassettes, advertisements are various material facts which are independent of each other, which give rise to cause of action under Section 123(3A) of the Act and not pleading the contents thereof or not supplying the documents, the contents of which are not pleaded in the election petition, will amount to non-compliance of provisions of Sections 81 and 83 of the Act and the petition should be dismissed in view of the mandatory provisions contained in Sections 86 and 87 read with Order VII, Rule 11 of the Code of Civil Procedure. He also submitted that pleadings which are irrelevant, vexatious, vague, etc. be struck off under Order 6, Rule 16, Code of Civil Procedure.
37. I am afraid, I cannot accept this submission. The Supreme Court has clearly spelt out the dichotomy between the material facts and the particulars. They are distinct. Mr. Sathe is confusing the two. There may be various corrupt practices under different headings, for example, the charge could be hiring or procuring of any vehicle or vessel by a candidate or his agent for the use of such vehicle or vessel for the free conveyance of any elector or the members of his family, etc. under Section 123(5) of the Act. If that is the charge, the material facts would be the hiring of the vehicles, if it is by any person other than the candidate or his election agent, with the consent of the candidate or his election agent. The further material fact would be using such vehicle for the free conveyance of the electors to the polling booth or from any polling station. These facts constitute the cause of action. But the particulars would be the number of cars or the vehicles, the name of the driver, and if necessary, the name of the elector who was carried in the said vehicle, the time, date, etc. These are all particulars. Similarly, in the present case, under Section 123(3A) the charge could be of promotion of, or attempt to promote, feelings of enmity or hatred between different communities on grounds of religion, caste, community, or language by a candidate or his agent or any other person with his consent. If the charge is that of different communities by making speeches, the number of meetings held at different places on different dates prescribing the same are not separate corrupt practices. They are all the particulars of one and the same corrupt practice. Similarly, if various pamphlets and banners are issued for promoting communal hatred, each banner or each pamphlet would not constitute a separate corrupt practice. They are all instances or particulars of the same corrupt practice which is impugned. Issuing of a video cassette or an audio cassette or display of the same at different meetings are not separate corrupt practices. The promotion of feelings of hatred amongst different communities is the corrupt practice. The mode with which it is carried out is one of the particulars of such a corrupt practice. Appeal to the voters on basis of religion is a corrupt practice. The mode, the manner, the media, are all particulars. There is no ground to challenge an election petition because a particular media is used. It is true that full particulars must be given with exactitude, but as far as. possible, as the Section itself says. And that is all. If the particulars are inexact, the respondent must say in what manner, the particulars are deficient and the respondent can call upon the petitioner to furnish better particulars.
38. It is here, what Mr. Vashi submits becomes somewhat relevants in the present petition. Mr. Vashi points out that in the present case, the respondent has filed her written-statement. There is no plea anywhere in the whole of the written-statement that the respondent was unable to deal with the allegations contained in the petition. By and large, the respondent has dealt with the petition and with regard to certain allegations, there is not even a denial of the allegations contained in the petition. If the particulars were not sufficient, the respondent could have asked for particulars before filing any written-statement. Mr. Sathe submits that his client was compelled to file written-statement because time was expiring for the purpose of filing written-statement. Mr. Sathe also submits that the written-statemenl would not make any difference, inasmuch as, if the petition is otherwise deficient and would fall within the vice of Section 86(1) read with Section 87 of the Act, the petition can still be dismissed. Mr. Sathe also draws my attention to the fact that in the Chamber Summons itself, he sought leave that time be extended for the purpose of filing written-statement. But what is relevant in the present case is that from all facts and circumstances as mentioned above, it cannot be said that there is any deficiency with regard to any material facts constituting a complete cause of action. As mentioned above, if the deficiencies are with regard to particulars, the particulars can still be asked for before the trial begins.
39. Consent is one of the ingredients in this case. This has been pleaded in paragraphs 29 and 33 of the petition that the corrupt practice was committed by the persons other than the respondent and the allegation is that it was committed with the consent of the respondent. Mr. Vashi points out that there is no denial of this plea in the written-statement, as such. The consent pleaded is with regard to the speeches delivered by the leaders of BJP-Shiv Sena alliance and particularly the speeches given by Bal Thackeray when the respondent was also present on the dias. Mr. Vashi drew my attention to the case of Boddepalli Rajagopala Rao v. N. G. Ranga, and he relies on the following passage (at p. 275 of AIR) :
"Proof of express consent is not necessary; inference of such consent may be raised from the circumstances. Prior knowledge of the contents and the knowledge that it is likely to be published may raise an inference of consent, if the candidate deliberately keeps quiet and does not stop the publication if it be within his power."
It is true that ultimately the consent has to be proved, if the respondent denies such a consent, Mr. Sathe, in this connection, has relied on the case of Sri Hara Singh Charan Mohanty v. Surendra Mohanty, . What it says that if the petitioner relies on a corrupt practice committed by any agent other than an election agent, he must prove that it was committed by him with his consent or with the consent of his election agent. Consent, however, cannot be inferred from close friendship or other relationship or political affiliation. That was the case where Biju-Patnaik, a close friend of Mohanty, the successful candidate, with the clear general political affiliation between the two, both working for the cause of Utkal Congress, gave a speech, appealing to a certain religious symbol. The Court held that this was not sufficient to infer consent as such a consent cannot be inferred from a more close friendship or other relationship or even political affiliation. But, I think, the question of consent, has to be decided at the time of final hearing of the case.
40. Mr. Sathe heavily relied on the case of Raj Narain's case, (supra). But it is clear from that case that the particulars required in that case were with regard to the allegations under Section 123(7) of the Act. In the case of consent, as is referred to in any case falling under Section 123(7), where a Government servant's assistance is procured with the consent of a candidate or his election agent, a stricter standard to plead and proof is called for, because a Government servant is not supposed to assist a candidate in elections at all. But in the case of a leader of a candidate or of his party giving a speech in support of the candidate, I do not think it i difficult to infer consent, if the speeches were delivered either in the Constituency or in support of the candidate on the platform along with the candidate. I am yet to see a candidate who would dissent and deny what his own leader speaks. In the present case it is not the case of the petitioner that an outsider to BJP-Shiv Sena alliance addressed the meeting containing the offending statements.
41. This leaves me with the final argu-
ment, which cropped up at the last stage of the arguments, namely, that on a similar petition, it appears that my brother Judge M. S. Deshpande, silting at Nagpur, has dismissed the petition. Mr. Sathe has been able to procure an ordinary copy of the said Judgment in the Election Petition No. 3 of 1990, Gev Mancharsha Awari v. The Returning Officer, West Nagpur Legislative Assembly Constituency, Nagpur, delivered by the learned Judge on 27th/28th September, 1990. 1 cannot understand how this Judgment can be pressed into service in support of the Chamber Summons. What happened in this case was that the petitioner made an application for leave to amend the petition by inserting additional paragraphs, by which the petitioner reflected the places where the very video cassettes and audio cassettes referred to in the petition, were played. The amendment sets out in detail the particulars. It is significant to note that the respondent had categorically admitted the cassette named "Ajinkya" was used in the election campaign of the respondent. However, the respondent made an application for dismissal of the petition on the ground that the particulars and the video cassettes were not given and the video cassette and audio cassettes were also not supplied to the respondent. The learned Judge, after hearing the parties and in the circumstances of the case, dismissed the application made by the petitioner for amending the petition. But it is equally worthwhile to note that despite the admission on the part of the respondent that such a video cassette "Ajinkya" was used in the election campaign in support of the respondent, he sought an amendment to take away the admissions made by him by inserting the word "deny" where the word "admitted" was pleaded earlier. The learned Judge granted the said application made by the respondent and finally dismissed the application made by the petitioner and also dismissed the petition. It has been argued by the present respondent that this Judgment is binding on me. With respect, I do not agree. The Judgment must be confined to the facts of the case. The question involved before me is materially different from the question that was argued before the learned Judge. In any event, as set out above, the Supreme Court had made the legal position very clear, namely, that if material facts are set out so as to have a complete cause of action, the deficiency of particulars should not matter. The Supreme court has made a categorical distinction between material facts and particulars and the petition cannot be dismissed just because a particular procedural requirement is not complied with. Even otherwise precedent is not a matter of race between two Courts. It is a matter of principle. If a principle is decided by a higher Court, or by a Court of concurrent jurisdiction, the same shall be followed. The principle in this case is laid down by the Supreme Court. Either we follow it or we do not follow it. Mr. Sathe says that it is a question of interpretation and even if there is a misinterpretation, the same shall be followed. I thought that it is always a question of application of the principle laid down by the Supreme Court. It is in that sense, I am bound to follow what the Supreme Court says, which 1 have endeavoured to do.
42. Mr. Sathe points out that I have not dealt with the case of Azhar Hussain v. Rajiv Gandhi, , which was also referred to and relied on by Mr. Sathe to contend that the particulars of various facts have to be specifically pleaded and as the same are not pleaded, the petition is liable to be dismissed. Here again, the relevant passage which lays down the ratio, as in all other cases, is as follows (at p. 1258 of AIR):
"This Court in Samant's case, , has expressed itself in no unclear terms 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. So also in Udhav Singh's case, , the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts.
In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) --An election petition therefore can be and must be dismissed if it suffers from any such vice."
The rest is a matter of details pertaining to each case. The principle is the same.
43. In the result, the Chamber Summons is liable to be dismissed. I, therefore, pass the following order:
The Chamber Summons is dismissed with costs.
I further direct that the parties must comply with the discovery and inspection within four weeks from today. The main petition to appear on board on 3-12-1990.
44. Order accordingly.