Madhya Pradesh High Court
Balmukund Singh Gautam vs Smt.Neena Vikram Verma on 20 October, 2015
E.P. No.23/2014
20.10.2015
Shri AM Mathur, learned Sr. Counsel with Shri Abhinav
Dhanodkar, learned counsel for the petitioner.
Shri CL Yadav, learned Sr. Counsel with Shri OP Solanki,
learned counsel for the respondent.
A question was raised before both the Counsels by this Court and their respective views were sought on the following question:-
2. "At what stage of trial, notices are to be issued to the persons, who have been proved at the trial guilty of any corrupt practice and who are to be named under section 99 (1) (a) (II) of the Representation of People Act, 1951".
3. Learned Senior Counsel appearing for the petitioner referred judgment of Hon'ble the Supreme Court in the case of Dwarka Prasad Mishra Vs. Kamal Narayan Sharma and another reported in 1970 MPLJ 872. In this case, for Shyamacharan Shukla, who was then printer, proprietor, publisher and keeper of the Mahakoshal Press, a Hindi daily was sought to be named under section 99 of the Representation of the People Act (hereinafter referred to as the 'Act'). Hon'ble the Supreme Court made following observations in paragraphs 36 to 38 of the judgment:-
36. It is however necessary, before we finally decide this appeal, to deal with the application which is made by the respondents who were on their own application impleaded in this appeal Mr. Chagla counsel for those respondents contends that the Court was bound to name Shyamacharan Shukla, printer, publisher, proprietor and keeper of Mahakoshal Press-a Hindi daily-under section 99 of the Representation of the People Act, 1951. Section 99 (1) of the Act, as it then stood, provided:
(1) At the time of making an order under section 98 the Tribunal shall also make an order--
(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording--
(i) a finding whether any corrupt practice has or has not been proved to have been committed by, or with the consent of, any candidate or his agent at the election, and the nature of that corrupt practice; and
(ii) the names of all persons, if any,who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and
(b)................................
Provided that a person who is not a party to the petition shall not be named in the order under sub-
clause,(ii)of clause (a) unless-
(a) he has been given notice to appear before the Tribunal and to show cause why he should not be so named; and
(b) if he appears in pursuance of the notice he has been given an opportunity of cross-examining any witness who has already been examined by the Tribunal and has given evidence against him, of calling evidence in his defence and of being heard."
The High Court recorded in paragraph 199 (4) & (5) of their judgment their conclusion as follows :
"(4) It is proved that the Mahakoshal a Hindi daily, published from Raipur, and Shyamacharan Shukla, who was its proprietor, publisher, printer and keeper of the Press, were both agents of the respondent within the meaning of section 123 of the Act.
(5) It is proved that three false statements (Annexures 1, 11, 111) were published in the Mahakoshal, issues of the 12th and 26th April and 4th May, 1963, in relation to-the personal character and conduct of the petitioner; that all the three were false;
and that the respondent did not believe any of them to be true. It is held that they were statements of the fact and that they were reasonably calculated to prejudice the election prospects of the petitioner.
At the hearing an application was made before the High Court that a proceeding should be drawn up under S. 99 of the Act against Shyamacharan, Shukla and a notice should be issued to him why he should not be named as having committed corrupt practice under s. 123 (4) of the Act. The High Court observed that the three statements (Annexures I, II & III) were published in the Mahakoshal of which Shyamacharan Shukla was the proprietor, publisher, printer and keeper. The High Court further observed that Shyamacharan Shukla was the agent of Mishra within the meaning of section 123 (4) but Shyamacharan Shukla was not and could not be made a party to the election petition. But the High Court was of the view that when the appeal was placed for hearing in April 1968, Mishra had raised certain preliminary objections and Sharma had also urged those preliminary contentions all of which were decided by the order dated May 4, 1968, and it was the, duty of Sharma on that occasion to satisfy the High Court, prima facie, that Shyamacharan Shukla had committed a corrupt practice under S. 123 (4) of the Act so that notice could be issued to him 'and opportunity to which he was entitled under section 99 of the Act may have been made available to him. But that was not done and in the opinion of the Court for avoiding further delay the application should be rejected.
37. We are unable to agree with the view so propounded by the High Court. Under section 99 of the Act the Court has no discretion in the matter, if the Court was of the view that any person who is proved at the trial to have been guilty of any corrupt practice, not to name that person. It is true that preliminary objections were argued at an earlier stage, but Sharma could not before the appeal was heard ask the Court to issue a notice under section 99 of the Act on the footing that his case which was rejected by the Tribunal will be accepted. The duty under the Act is cast upon the Court or the Tribunal, and on the ground that the party has not applied for a notice, the High Court could not avoid the obligation imposed by statute to take proceeding under section 99, against the person proved at the trial to have been guilty of corrupt practice and to name him. We fail also to appreciate the ground on which the High Court has referred to delay been an "outweighing factor". Shyamacharan Shukla was however not a party to the proceeding and before he could be named a notice must go to him under section 99 of the Act.
38. We direct that, the proceeding be remanded to the High Court and the High Court do give notice to Shyamacharan Shukla under section 99 of the Representation of the People Act, 1951 to appear and to show cause why he should not be named for committing corrupt practices. If Shyamacharan Shukla appears in pursuance of the show cause notice he will be entitled to an opportunity of cross-examining witnesses who have already been examined by the Tribunal and has given evidence against him and he will be entitled to give evidence in his defence and of being heard. The High Court to report to this Court within three months from the date on which the papers are received by it.
4. Placing reliance on the observations made by Hon'ble the Supreme Court, learned Senior Counsel for the petitioner submits that in para 37 of the judgment, the words used are 'who is proved at the trial to have been guilty of any corrupt practice' implies that first finding has to be given by the Court that the person to be named is guilty of any corrupt practice and thereafter, notice to be issued to him and after giving him opportunity to cross examine the witness, who deposed against him and also adducing necessary evidence on his behalf, final finding about him should be given.
5. Learned Senior Counsel appearing for the respondent however, disagrees with the submissions made by learned Senior Counsel for the petitioner. He placed reliance on the judgment of Hon'ble the Supreme Court in the case of Mahohar Joshi Vs. Nitin Bhaurao Patil and another reported in AIR 1996 Supreme Court 796. In this case, Hon'ble the Supreme Court dealt with the effect of non-
compliance of section 99 of the Act. From paragraphs 49 to 58, Hon'ble the Supreme Court laid down the principles governing procedure under section 99 of the Act. The relevant paragraphs of the judgment be reproduced here as under:-
49. Before we take up for consideration the corrupt practice attributed to the appellant himself in para 30 of the election petition based on his own speech on 24.2.1990, it would be appropriate at this stage to refer to the argument based on Section 99 of the R.P. Act. Non- compliance of Section 99 of the R.P. Act.
50. Admittedly, no notice was given to Bal Thackeray, Pramod Mahajan or any other person against whom allegation was made of commission of corrupt practice in the election petition, even though the High Court has held those corrupt practices to be proved for the purpose of declaring the appellant's election to be void on the ground contained in Section 100(1)(b) of the R.P. Act. We would now indicate the effect of the combined reading of Sections 98 and 99 of the R.P. Act and the requirement of notice under section 99 to all such persons before decision of the election petition by making an order under Section 98 of the R.P. Act.
51. The combined effect of Sections 98 and 99 of the R.P. Act may now be seen. These provisions are as under:-
"98. Decision of the High Court.- At the conclusion of the trial of an election petition the High Court shall make an order -
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned candidates to be void; or
(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.
99. Other orders to be made by the High Court. - (1) At the time of making an order under section 98 the High Court shall also make an order -
(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording -
(i) a finding whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of that corrupt practice; and
(ii) the names of all persons, if any, who have been proved at the trial to have been quality of any corrupt practice and the nature of that practice; and
(b) fixing the total amount of costs payable and specifying the persons by and to whom costs shall be paid:
Provided that a person who is not a party to the petition shall not be named in the order under sub-clause (ii) of clause (a) unless -
(a) he has been given notice to appear before the High Court and to show cause why he should not be so named; and
(b) if he appears in pursuance of the notice, he has been given an opportunity of cross-
examining any witness who has already been examined by the High Court and has given evidence against him, of calling evidence in his defence and of being heard.
(2) In this section and in section 100, the expression "agent" has the same meaning as in section 123."
52. The opening words in section 98 are "At the conclusion of the trial of an election petition the High Court shall make an order". There can be no doubt that section 98 contemplates the making of an order thereunder in the decision of the High Court rendered `at the conclusion of the trial of an election petition'. Declaration of the election of any returned candidate to be void in accordance with clause (b) is clearly to be made in the decision of the High Court rendered at the conclusion of the trial of an election petition and not at an intermediate state. Clauses (a), (b) and
(c) in section 98 contemplate the different kinds of orders which can be made by the High Court in its decision at the conclusion of the trial which has the effect of disposing of the election petition in the High Court. There is nothing in section 98 to permit the High Court to decide the election petition piecemeal and to declare the election of any returned candidate to be void at an intermediate stage of the trial when any part of the trial remains to be concluded.
53. Sub-section (1) of section 99 begins with the words "At the time of making an order under section 98 the High Court shall also make an order" of the kind mentioned in clauses (a) and
(b) therein. It is amply clear that the order which can be made under clauses (a) and (b) of sub- section (1) of section 99 is required to be made `at the time of making an order under section 98'. As earlier indicated, an order under section 98 can be made only at the conclusion of the trial. There can be no doubt that the order which can be made under sub-section (1) of section 99 has, therefore, to be made only at the conclusion of the trial of an election petition in the decision of the High Court made by an order disposing of the election petition in one of the modes prescribed in clauses (a), (b) and (c) of section
98. This alone is sufficient to indicate that the requirement of section 99 is to be completed during the trial of the election petition and the final order under section 99 has to be made in the decision of the High Court rendered under section 98 at the conclusion of the trial of the election petition.
54. Clause (a) of sub-section (1) of section 99 provides for the situation "where any charge is made in the petition of any corrupt practice having been committed at the election". In that case, it requires that at the time of making an order under section 98, the High Court shall also make an order recording a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of that corrupt practice; and the names of all persons, if any, who have been proved at the trial to have been quality of any corrupt practice and the nature of that corrupt practice. Clause (b) further requires the fixing of the total amount of costs payable and specifying the person by and to whom costs shall be paid. The net result is that where any charge is made in the petition of any corrupt practice having been committed at the election, the High Court shall `at the time of making an order under section 98' also make an order recording a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of that corrupt practice; and where the charge of corrupt practice has been found proved, it must also record the names of all persons, if any, who have been proved at the trial to have been quality of any corrupt practice and the nature of that practice. thus the trial is only one at the end of which the order made by the High Court must record the names of all persons, if any, who have been proved at the trial to have been quality of the corrupt practice and the nature of that practice.
55. It follows that the High Court cannot make an order under section 98 recording a finding of proof of corrupt practice against the returned candidate alone and on that basis declare the election of the returned candidate to be void and then proceed to comply with the requirement of section 99 in the manner stated therein with a view to decide at a later stage whether any other person also is quality of that corrupt practice for the purpose of naming him then under Section 99 of the R.P. Act. It is equally clear that the High Court has no option in the matter to decide whether it will proceed under section 99 against the other persons alleged to be quality of that corrupt practice along with the returned candidate inasmuch as the requirement of section 99 is mandatory since the finding recorded by the High Court requires it to name all persons proved at the trial to have been quality of the corrupt practice. The expression "the names of all persons, if any, who have been proved at the trial to have been quality of any corrupt practice"
in sub-clause (ii) of clause (a) of sub-section (1) of section 99 clearly provides for such proof being required `at the trial' which means `the trial of an election petition' mentioned in section 98, at the conclusion of which alone the order contemplated under section 98 can be made. There is no room for taking the view that the trial of the election petition for declaring the election of the returned candidate to be void under section 98 can be concluded first and then the proceedings under section 99 commenced for the purpose of deciding whether any other person is also to be named as being quality of the corrupt practice of which the returned candidate has earlier been held quality leading to his election being declared void.
56. The rationale is obvious. Where the returned candidate is alleged to be quality of a corrupt practice in the commission of which any other person has participated with him or the candidate is to be held vicariously liable for a corrupt practice committed by any other person with his consent, a final verdict on that question can be rendered only at the end of the trial, at one time, after the inquiry contemplated under section 99 against the other person, after notice to him, has also been concluded. Particularly, in a case where liability is fastened on the candidate vicariously for the act of another person, unless that act is found proved against the doer of that act, the question of recording a finding on that basis against the returned candidate cannot arise. Viewed differently, if the final verdict has already been rendered against the returned candidate in such a case, the opportunity contemplated by section 99 by an inquiry after notice to the other person is futile since the verdict has already been given. On the other hand, if the question is treated as open, a conflicting verdict after inquiry under section 99 in favour of the notice would lead to an absurdity which could not be attributed to the legislature.
57. The plain language of Section 98 and 99 of the R.P. Act indicates the construction thereof made by us and this is also supported by the likely outcome of a different construction which is an absurd result and must, therefore, be rejected. The High Court has overlooked the obvious position in law in taking a different view. No notice under section 99 was given by the High Court before making the final order under Section 98 of the R.P. Act declaring the election to be void. This is a fatal defect.
58.This alone is sufficient to indicate that apart from the reasons given earlier, the election of the appellant in the present case could not be declared void by making an order under section 98 on the ground contained in Section 100(1)(b) of the R.P. Act without prior compliance of section 99. Absence of notice under Section 99 of the R.P. Act vitiates the final order made under Section 98 by the High Court declaring the election to be void.
6. Further, he relies on the judgment of Hon'ble the Supreme Court in the case of Pramod Mahajan Vs. Smt. Celine D'Silva and another reported in AIR 1996 Supreme Court 826. In paragraph 12 of this judgment, Hon'ble the Supreme Court explained the view taken in the case of Dwarka Prasad Mishra (supra) and observed thus:-
The High Court appears to have misread the decision of this Court in D.P. Mishra vs. Kamal Narayan Sharma and Anr., 1971 (1) SCR 8, to form the opinion that the course adopted by it was permissible under Section 99 of the R.P. Act. The question in that case was of the failure to issue notice under Section 99 of the R.P. Act to a person alleged to have committed the corrupt practice for which the returned candidate also was guilty. The High Court, in the appeal, did not comply with the requirement of section 99 for avoiding further delay. This Court rejected that view as incorrect and held as under :
"We are unable to agree with the view so propounded by the High Court. Under section 99 of the Act the Court has no discretion in the matter, if the Court was of the view that any person who is proved at the trial to have been guilty of any corrupt practice, not to name that person. It is true that preliminary objections were argued at an earlier stage, but Sharma could not before the appeal was heard ask the Court to issue a notice under section 99 of the Act on the footing that his case which was rejected by the Tribunal will be accepted. The duty under the Act is cast upon the Court or the Tribunal, and on the ground that the party has not applied for a notice, the High Court could not avoid the obligation imposed by statute to take proceeding under section 99 against the person proved at the trial to have been guilty of corrupt practice and to name him. We fail also to appreciate the ground on which the High Court has referred to delay being an "outweighing factor". Shyamacharan Shukla was however not a party to the proceeding and before he could be named a notice must go to him under section 99 of the Act.
We direct that the proceeding be remanded to the High Court and the High Court do give notice to Shyamacharan Shukla under section 99 of the Representation of the People Act, 1951, to appear and to show cause why he should not be named for committing corrupt practices. If Shyamacharan Shukla appears in pursuance of the show cause notice he will be entitled to an opportunity of cross- examining witnesses who have already been examined by the Tribunal and has given evidence against him and he will be entitled to give evidence in his defence and of being heard....."
There is nothing in this decision to support the view taken by the High Court that it could decide the election petition and make an order under Section 98 declaring the election of the returned candidate to be void and then proceed under Section 99 of the R.P. Act against the other persons.
7. Accordingly, as observed by by Hon'ble the Supreme Court in the case of Pramod Mahajan (supra), notices are to be issued during trial and not at conclusion of the trial as submitted by learned Senior Counsel for the petitioner. In this view of the matter, the question is answered that notices are to be issued during trial and when a particular witness is examined, who deposes against a particular person involving him in commission of corrupt practice then, the person should be given an opportunity to cross examine the witness. After petitioner and respondent close their evidence, these persons called the notices' should be given an opportunity to adduce their evidence in defence and finally while passing final order under section 98 of the Act though persons, who proved to be guilty of corrupt practice should be named under section 99 of the Act. In the present case, following persons are named in the petition and, therefore, they should be given notice:-
(i) Gajendra Singh Baghel
(ii) Vikram Verma
(iii) Ashok Jain
(iv) Sanjay Vaishnav
(v) Devendra Patel
(vi) Anku Agrawal
(vii) Vinod Soni
8. Petitioner is directed to supply necessary details and pay PF for issuance of notices to these persons within a week under section 99 of the Act. Alongwith the notice relevant portion of the petition where allegations are made against the above persons, should also be enclosed. Petitioner is directed to supply copies of the relevant portion for service of notice.
9. This apart, the petitioner is directed to name any other person to whom notice is to be issued. It is further observed that apart from these persons if name of any other person would evolve during recording of the evidence he will also be given notice immediately after recording of evidence of that particular witness.
10. The question is answered, accordingly.
11. On 08.10.2015, learned Senior Counsel appearing for the petitioner submits that he would file an application under Order 18 Rule 3(a) of CPC.
12. Office is directed to list the matter on 29.10.2015 for consideration of the application filed by the petitioner under Order 18 Rule 3(a) of CPC.
(Alok Verma) Judge Kratika/-