Jharkhand High Court
Smt. Nirmala Devi vs Sri Mukhtar Abbas Naqvi on 15 January, 2019
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
E.P. No. 01 of 2016
Smt. Nirmala Devi ...... Petitioner
Versus
1.Sri Mukhtar Abbas Naqvi
2. Mahesh Poddar ...... Respondents
CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH
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For the Petitioner :Mr. Arvind Kr. Lall, Advocate For the Respondent No.1 :Mr. M.C. Gupta, Advocate Mr. Chandra Prakash, Advocate For the Respondent No. 2 : Mr. V. Shivnath, Sr. Advocate Mr. Piyush Poddar, Advocate Mr. Anupam Anand, Advocate Mr. Aslam, Advocate ............
I.A. Nos. 8837/2017 & 8872/2017 C.A.V on : 18/12/2018 Pronounced on:15/01/2019
1. I.A. No. 8872 of 2017 dated 16.11.2017 filed under Section 86(5) of the Representation of People Act, 1951 on behalf of the petitioner is pressed. Further, an I.A. No. 8837 of 2017 has been filed under Section 151 of the C.P.C. on behalf of petitioner with a prayer to keep the C.Ds., two in numbers, and other documents, filed in sealed cover in safe custody, during the trial of election petition.
2. Rejoinder has been filed on behalf of respondent no. 1 objecting the application filed under Section 151 of C.P.C. vide I.A. No. 8837/2017 on behalf of the petitioner.
3. A reply has been filed on behalf of respondent no. 2 to I.A. No. 8837/2017 filed on behalf of the petitioner with a prayer to dismiss the application with heavy cost and for a direction to return the documents.
Both the I.As. are taken up for hearing.
Section 86(5) of the Representation of People Act, which reads as under: 2
86. (5) The High Court may, upon such terms as to costs and otherwise as it may deed 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.
4. Learned counsel for the petitioner while referring to the provisions of Section 86(5) of the Representation of People Act and also the averments made in para-9 onwards of the Election Petition No. 01/2016 submitted that the election petitioner has pleaded the material fact indicating that corrupt practice was exercised by the winning candidate namely Mukhtar Abbas Naqvi and Mahesh Poddar (respondents) in the Rajya Sabha Election and now by filing I.A. No. 8872/2017, he has only amplifying to bring on record certain evidence which is annexed as Schedule to I.A. Learned counsel for the petitioner further made prayer by filing application under Section 86(5) of the Representation of People Act for keeping all documents including CDs and other documents in box in safe custody.
5. Learned counsel for the petitioner has referred to the following paragraphs of the election petition which reads as under:
"10. That the details and the particulars of the corrupt practice committed by the respondents are given in the succeeding paragraphs of this petition.
11. That Bhartiya Janta Party (herein after called B.J.P in short) is a recognized political party for the whole of India by the Election Commission of India. Its election symbol is 'Lotus'.
12. That the respondents were candidates set up by the BJP to contest the Rajya Sabha election from Jharkhand State Assembly constituency and the 3 other candidate Basant Soren was the candidate set by the political party Jharkhand MUkti Morcha.
13. That B.J.P had returned a total of 43 members to the Jharkhand Legislative Assembly in the last general election 2014, whereas the Indian National Congress has 07 elected members in the Jharkhand State Assembly.
14. That the voting in the Rajya Sabha Election is based upon with the system of Proportional representation by means of single transferable vote. And as such for getting success in the two Rajya Seats for both the respondents one MLA's vote was crucial.
15. That it is stated that in Jharkhand State Sri Raghubar Das as the leader of the House is the Chief Minister of Jharkhand was entrusted with the task of working out a strategy and finding out ways and means for the success of the respondents in the election to the Rajbya Sabha which was going to take place on 11.06.2016.
16. That as a part of the strategy Sri Raghubar Das had set up a top officer of the State namely Sri Anurag Gupta, IPS, Additional Director General of Police (Special Branch) of Jharkhand to manage the horse trading and by way of corrupt practice to get the both BJP candidates to win the election in question. As such in the capacity of a senior police officer Mr. Anurag Gupta made a telephonic message to the petitioner and her husband Sri Yogendra Sao to visit his official chamber three days ago from the date of poll and offered a bribe of Rs. One Crore to the petitioner and her husband in case the petitioner refrains herself f rom the voting, as because if the petitioner who is the official elected member of the Congress Party refrains from the voting in the ensuing Rajya Sabha Elections then there was a 4 better chance for the both the respondents to get success in the election. Mr. Gupta has clearly told the petitioner that he was offering the proposal at the instance of the Chief Minister Mr. Raghubar Das as well as of both the respondents. Mr. Gupta. Further said that in case the petitioner refuses to accept the offer then she and her husband shall be indulged in false criminal cases and the future political career shall be put to be damaged, because the petitioner and her husband Sri Yogendra Sao (Former MLA and Former Cabinet Minister)) are actively agitating against the exploitation, red tapism in their constituency..
17. That however, the petitioner and her husband managed to come out of the office of Mr. Anurag Gupta, ADG, Special Branch.
18. That again just one day before the date of poll ie. On 10.06.2016 at 10.00 hrs, the said Mr. Anurag Gupta, ADGP, Special Branch called the petitioner and her husband in his residence and again offered for Rs. One Crore in cash in case the petitioner refrains herself from voting for which the petitioner refused to accept such offer.
19. That it is further stated that however, one Mr. Ajay Kumar, the official Advisor to the Chief Minister Mr. Raghubar Das, called the petitioner and her husband Sri Yogendra Sao in his residence and clearly asked and requested and petitioner to accept the offered amount of Rs. One Crore and to abstain in Booth next day for voting. He further informed that the same offer has been given to some other MLAs of the opposition party and independent MLAs. The name of such MLAs has not been disclosed by him.
It is further stated that the said Mr. Ajay Kumar tried to persuade the matter by saving inter alia that as per the instructions of the 5 Chief Minister and the respondents he was offering that in case the petitioner make herself abstained in voting then both the BJP candidates shall be able to get success in the election for Rajya Sabha and further all the false criminal cases against the petitioner as well as against the husband of the petitioner would be withdrawn by the State and there would be a better settlement with the NTPC in presence of the Chief Secretary and other senior officers of the said NTPC against whom the petitioner has spread public agitation against their corruption to grab the land and exploitation of the people at large in the petitioner's Barkagaon Assembly Constituency. The petitioner clearly said that in order to maintain the purity of election and Democratic system in India she would not be indulged in such type of offer and refused to accept such offer and returned her residence.
20. That on the same date after some time Mr. Anurag Gupta ADGP Special Branch, Jharkhand informed the petitioner and her husband Sri Yogendra Sao that the Chief Minister Mr. Raghubar Das is inclined to visit the residence of the petitioner situated at Sector III Quarter No. F-44 Dhurwa, Ranchi at about 07.00 P.M, and as per the information the Chief Minister Sri Raghubar Das accompanied by Mr. Ajay Kumar, Advisor visited the residence of the petitioner at around 07.00 P.M on 10.06.2016 (i.e just one day before the date of polling) and stayed there for some time and requested the petitioner and her husband that in case the petitioner refrain herself from voting then she will get a sum of Rs, Five Crore in cash and all the false criminal cases against her and her husband would be withdrawn and there would be no further raid in order to arrest them and the petitioner might cast her vote in the Rajya Sabha Election on next day 6 then the State Prosecution shall indulge the petitioner in more false criminal cases..
It is stated that at the time of visit of the Chief Minister in the residence of the petitioner warrant of arrest against the petitioner and her husband was pending for its execution more over the petitioner's husband is in exile as per the Orders of the Government as "Tadipar" from Hazaribagh District and in spite of this fact the Chief Minister visited the residence of the petitioner even after knowing the whole facts of the cases and as such he offered such offer to the petitioner in order to get the respondents win the election as returned candidates in the election in Question.
21. That these threat of Sri Raghubar Das the Chief Minister had its desired effects in the minds of the petitioner who had to cast her respective vote in favour of the contesting candidates as per her choice strictly as per her Congress Party guidelines.
22. That this threat of Chief Minister in connivance and consent with the respondents has made the petitioner afraid and she became nervous, but however, on next date of poling she made courage and entered into the election booth area at about -03.00 P.M and cast her vote accordingly she refused to be absent or refrained from such voting.
23. That it is stated the action of the respondents and the Chief Minister as well as Mr. Anurag Gupta and Ajay Kumar amount to interference with the free exercise of the electoral rights of the MLAs which is a corrupt practice under section 123 (2) of the R.P. Act, 1951.
24. That Mr. Raghubar Das as well as the aforesaid Mr. Anurag Gupta IPS, ADGP, Special Branch and Mr. Ajay Kumar Advisor to the Chief Minister 7 has no power or authority on behalf of the BJP to issue any direction/threat of the kind as mentioned in the fore joining paragraphs. They are neither the president nor the Secretary nor any other office bearer of the BJP or Congress Party. Any direction issued by them is outside the purview of any law. The direction in question is ineffective, invalid and has no binding force.
25. That it was issued at the behest of the Chief Minister and with the consent of the respondents with a view to threatening and frightening the petitioner (an elector) with injury of being indulged in false and frivolous criminal cases etc in case she violated the direction/ threatening given by Sri Raghubar Das as well as Mr. Anurag Gupta, Additional Director General of Police (Special Branch) Jharkhand as well as Mr. Ahjay Kumar the Official Advisor to the Chief Minister.
26. That it is stated that even on the date of polling ie. On 11.06.2016 the State Administration on the instruction of the Chief Minister and the Senior Police Officers surrounded the residence of the petitioner at Dhurwa so that the petitioner may not be able to come out of the house and accordingly shall not be able to cast her vote in the Rajya Sabha election, but however, any how the petitioner managed to reach the premises of the Vidhan Sabha at about 03.00 P.M, just one hour before closing of the voting time to cast her vote. On arrival there the aforesaid Ajay Kumar tried to stopped and obstructed her for voting by saying inter alia that whatever has been promised and offered by the Chief Minister and others shall be fulfilled if she stops for just one hour and refrain herself from voting. But ignoring such obstruction the petitioner entered into the Booth and cast her vote accordingly.8
27. That it has come to the information that similar play was made with other MLAs and as such two more MLAs were not able to cast their respective votes and accordingly both candidates of BJP got success in the election to the Rajya Sabha. One single vote was very much crucial for getting success by the both the respondents set up by Bhartiya Janta Party. There was no possibility for both the BJP candidates to get success in the election, but since corrupt practice has been committed by the respondents in connivance with the Chief Minister and other senior officers under the Government hence the election of the returned candidates ie, respondents as liable to be declared set aside with consequential relief as prayed in this election petition.
28. That it is stated that the Telephonic talk between the petitioner's husband with Mr. Anurag Gupta ADGP Special Branch as well as as with Mr. Ajay Kumar Advisor to the Chief Minister has been duly recorded and also the visit of Chief Minister Raghubar Das into the residence of the petitioner on 10.06.2016 at around 7.00 pm has also been recorded through Spy cam Camera and the all version of the Chief Minister and Ajay Kumar has been recorded which can be heard and be seen through the process of electronic gadget and on perusal and appreciation of the same it shall be crystal clear that as to how the Chief Minister and other Government Officers had threatened the petitioner as well as offering the money in order to refrain herself from voting in the Rajya Sabha Election so that respondents may get success in the election.
29. That in view of the matter since corrupt practice has been committed by the Both returned respondents and their authorised persons ie. Sri Raghubar Das and the aforesaid two government official the result of the 9 election has been materially affected and as such the election of the respondents as returned candidates is liable to be set aside with its consequential effect as per the relief prayed by the petitioner through this election petition."
6. During course of argument, learned counsel for the petitioner has relied on the judgment of Hon'ble Supreme Court reported in AIR 1991 SC 1557 (F.A. Sapa Etc. Vs. Singora and Others), wherein in para-18 Hon'ble Supreme Court has held as follows:
"18. Before the amendment of the R. P. Act by Act 27 of 1956, Section 83(3) provided for an amendment of an election petition insofar as 'particulars' of corrupt practice were concerned. By the 1956 amendment this provision was replaced by Section 90(5) which in turn came to be deleted and transferred as sub-section (5) of Section 86 by the Amendment Act 47 of 1966. Section 86(5) as it presently stands empowers the High Court to allow the 'particulars' of any corrupt practice alleged in the petition to be amended or amplified provided the amendment does not have the effect of widening the scope of the election Petition by introducing particulars in regard to a corrupt practice not previously alleged or pleaded within the period of limitation in the election petition. In other words the amendment or amplification must relate to particulars of a corrupt practice already pleaded and must not be an effort to expand the scope of the inquiry by introducing particulars regarding a different corrupt practice not earlier pleaded. Only the particulars of that corrupt practice of which the germ exists in the election petition can be amended or amplified and there can be no question of introducing a new corrupt practice. It is significant to note that Section 86(5) permits 'particulars' of any corrupt practice 'alleged 10 in the petition' to be amended or amplified and not the 'material facts'. It is, therefore, clear from the trinity of clauses (a) and (b) of Section 83 and subsection. (5) of Section 86 that there is a distinction between ,material facts' referred to in clause (a) and 'particulars' referred to in clause (b) and what Section 86(5) permits is the amendment/ amplification of the latter and not the former. Thus the power of amendment granted by Section 86(5) is relatable to clause (b) of Section 83(1) and is coupled with a prohibition, namely, the amendment will not relate to a corrupt practice not already pleaded in the election petition. The power is not relatable to clause (a) of Section 83(1) as the plain language of Section 86(5) confines itself to the amendments of 'particulars' of any corrupt practice alleged in the petition and does not extend to 'material facts'. This becomes crystal clear on the plain words of the closely connected trinity of Ss. 83(1)(a), 83(1)(b) and 86(5) and is also supported by authority. See Samant N. Balkrishna v. George Fernandez, (1969) 3 SCR 603 and D. P. Mishra v. Kamal Narayan Sharma, (1971) 1 SCR 8. In Balwan Singh v. Lakshmi Narain, (1961) 22 ELR 273 this Court held that if full particulars of an alleged corrupt practice are not supplied, the proper course would be to give an opportunity to the petitioner to cure the defect and if he fails to avail of that opportunity that part of the charge may be struck down. We may, however, hasten to add that once the amendment sought falls within the purview of Sec. 86(5), the High Court should be liberal in allowing the same unless, in the facts and circumstances of the case, the Court finds it unjust and prejudicial to the opposite party to allow the same. Such prejudice must, however, be distinguished from mere inconvenience, vide Raj Narain v. Indira Nehru Gandhi, (1972) 3 SCR 84. This much for the provisions of Section 83(1)(a) and (b) and Section 86(5) of the R.P. Act."11
7. Learned counsel for the petitioner has referred the provisions of section 83 of Representation of People Act, 1951 which reads as under:
"83. Contents of petition.- (1) An election petition-
(a) Shall contain a concise statement of the material facts on which the petitioner relies ;
(b) 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
(c) Shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings;
[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.]"
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition].
8. From perusal of election petition, it appears that he has already pleaded the ingredients of corrupt practices particulars thereof.
9. It has been submitted that in the interlocutory application he has only amplifying the allegation which is permissible under Section 86(5) of the Representation of People Act, so the aforesaid interlocutory application is fit to be allowed.
10. I.A. No. 8872 of 2017 has been filed on behalf of the petitioner under section 86(5) of the Representation of the People Act, 1951 in which following pleadings amplifying the facts and prayer has been made:
"2. That in the present election petition, a specific allegation of corrupt practice has been made in various paragraphs, so much so that the respondents in connivance with the Chief Minister and the ADG Police 12 Shri Anurag Gupta and others procured, abetted and attempted to procure assistance in furtherance of the prospects of the election. It has also been alleged that bribe of Rupees one crore was offered to the petitioner and some other elected MLAs of the opposition parties and independent MLAs to abstain from the process of voting which would facilitate smooth election of both the respondent candidates. It has been further alleged that undue influence by way of threat was casted on the election petitioner and the other opposition parties' MLAs, if they refuse to abstain from voting. Various other types of inducements/ offers were given by the agents and persons of respondents acting in their connivance to influence the election. Some particulars have already been stated in the election petition, however, the present petition is filed to provide other detailed particulars and facts in support of concerning the corrupt practice alleged in the present election petition in order to amplify and amend wherever necessary in a manner for ensuing a fair and effective trial of the petition and to give due justice to the parties.
3. That as per the allegations of the corrupt practices alleged in the election petition stated above attracts the provisions contained in Section 123(1) (2) and (7) of the Representation of the People Act, 1951 and the impugned elections to the Rajya Sabha is therefore fit to be declared void under section 100(1) (b) of the Representation of the People Act, 1951 and both the returned candidates made respondents herein and the persons named in the election petition be subjected to consequential treatment by holding them guilty of commission of corrupt practices under the provisions of the Representation of the People Act, 1951.
4. That the above said Election Petition was filed complying with the provisions of Section 81 or Section 82 or Section 117 of the Representation 13 of the People Act, 1951 by properly adumbrating material facts by several averments and allegations relating to commission of corrupt practice committed by or on behalf of the respondents, but, in view of the statement made in the respective W.S fled by the respondent no particulars in regard to such averments or allegations it is advised to the petitioner to give further details or the statements already made in the election petition.
5. That the W.S. filed by the respondent no. 2 was filed beyond the time granted by this Hon'ble Court and thus, fit to be rejected. The petitioner is advised not to make any comment over the statement made by the respondent no. 2.
6. That to provide the detailed particulars in regard to the averments made in paragraph 13 of the above said Election Petition, it is stated that total strength of the Jharkhand Legislative Assembly is 81 members, out of which the B.J.P had total 43 members. The two respondents were candidates set up by the BJP to contest the Rajya Sabha election from Jharkhand State Assembly constituency (as said in paragraph 12 of the above said Election Petition). The voting in the Rajya Sabha Election is based upon the system of proportional representation by means of single transferable vote, and as such for getting success in the two Rajya Sabha seats for both the respondents even a single MLA's vote was crucial (as said in paragraph 14 of the above said Election Petition). For winning both the seats the BJP had a requirement of total 54-55 MLAs. To reach this target either BJP had to get votes from cross-voting or to make other parties' MLAs abstained f rom voting in the election to lower down the qualifying points for election of each candidate. There were three contesting candidates for 2 seats. The respondent nos. 1 and 2 were of the BJP and one was of the opposition parties.14
7. That to be more precise, the total strength of the Jharkhand Legislative Assembly is 81 members and after calculating the points, the points required for winning a seat of Rajya Sabha was 2701 (81x100+1=2701) for one candidate and for second candidate further 2007, for which minimum 55 MLAs were required for the BJP to win both the seats. The manner to count value of votes has been provided under Rule 76 of the Conduct of Elections Rules, 1961. The BJP did not have that magic figure, and to achieve that target, they resorted to bribery and undue influence to lure other party MLAs. Thus, the petitioner and other MLAs were also pressurized and influenced to abstain from voting or to cast their respective votes in favour of the two respondents (BJP candidates) for which they resorted to various corrupt practices and offers of Rupees one crore to rupees five crores were made by the BJP candidates or their agents and other persons in connivance.
8.That to provide the detailed particulars in regard to the averments made in paragraph 16 of the above said Election Petition, it may be respectfully stated that the petitioner and her husband were threatened to face series of criminal cases to ruin their political career, in case the petitioner refused to accept the offer made at the instance and in connivance of the BJP candidates by various high ranking officers including the Chief Minister. As a prize to abstain in support of the BJP candidates offers of Rs. One crore to Rs. 5 crores and closure of all the pending criminal cases were made. This averment may be corroborated from the fact that several criminal cases were lodged against the petitioner and her husband just before and after the Rajya Sabha election. To mount more pressure, just before the Rajya Sabha election, several criminal cases were lodged against the petitioner and her husband by misusing official position of the ADG, 15 Mr. Anurag Gupta, on the instruction of the CM, Mr. Raghubar Das, acting in collusion with and on behest of the BJP candidates even before the Rajya Sabha election. The list of those false criminal cases were being given in tabular form below:
List of the criminal cases lodged against the petitioner's husband just before Rajya Sabha Election, 2016 in the State of Jharkhand S. P.S. Case No. Under Section Date I.
1. Barkagaon P.S. 9 of Bihar Control of the Use and 02.05.16 Case NO. Play of Loudspeakers Act, 1955 122/16 (G.R. No. 1245/16 (Hazaribagh)
2. Barkagaon P.S. 147/148/149/341/323/337/338/ 02.05.16 Case NO. 307/353/504/120B/42 123/16 (G.R. 7 of the I.P.C No. 1246/16 (Hazaribagh)
3. Keredari P.S. 147/148/149/341/323/353/504/427 12.05.16 Case No. 32/16 of I.P.C (G.R. No. 1356/16) (Hazaribagh) 4 Barkagaon P.S. 337/353/153AA/307/120B/427/504 17.05.16 Case NO. of I.P.C 135/16 (G.R. 16 No. 1422/16 (Hazaribagh)
5. Barkagaon P.S. 147/148/149/341/342/332/333/337/ 17.05.16 Case NO. 307/120B of I.P.C 136/16 (G.R. No. 1423/16 (Hazaribagh) List of the criminal Cases lodged against the petitioner and/or her husband just after Rajya Sabha Election, 2016 in the State of Jharkhand after she filed the election Case.
S. P.S. Case Under Section Date I. No. 1. Barkagaon 147/148/149/341/342/353/188/34 29.09.16 P.S. Case Of the I.P.C and Section 57(3) of NO. 225/16 the Coal Mines Regulation Act (G.R. No. and Section 48(6) of the Mines Act. 2711/16 (Hazaribagh) 2. Barkagaon 147/148/149/341/342/353/120B/18/ 30.09.16 P.S. Case 8/109 of I.P.C Section 57(3) of the
NO. 226/16 Coal Mines Regulation Act and Section 48 (6) of (G.R. No. the Mines Act 2737/16 (Hazaribagh) 3 Barkagaon 147/148/149/341/342/323/324/325/326/307 02.10.2018 17 P.S. Case 332/333/353/188/427/109/224/225/337/338/120B NO. 228/16 Of I.P.C & Section 27 of Arms Act (G.R. No. 2736/16 (Hazaribagh)
4. Barkagaon 188/414 of I.P.C 12.04.17 P.S. Case NO. 277/17 (G.R. No. 1053/17)
5. Barkagaon 115/118/385/387/307/120B of I.P.C 26.04.17 (Urimari) Ss. 25(1-b) Aa/26/35 of Arms Act & Sec. 17 of Hazaribagh C.L.A. Act P.S. Case No. 76/17 (G.R. No. 1175/17)
9. That with regard to the averments made in paragraph 20 of the Election Petition, it is stated that after the result of the election, Crime Control Act were applied thrice upon the petitioner's husband as a punishment for not obeying the dictates of the CM, who was working as an agent of the BJP candidates and in their collusion and had left no stone unturned to ensure victory of their candidates. Mr. Anurag Gupta and Mr. Ajay were working as instrumental in this conspiracy.
10. That respondents became successful and were elected to the Rajya Sabha seats, simply because two MLAs of the opposite political camps, 18 abstained from casting their respective votes in the Rajya Sabha election.
This lowered down the points required for winning the seat of Rajya Sabha from 2701 points to 2634 points and due to this act the respondent no. 2 , by getting points from the second preferential votes transferred from the respondent no. 1 got elected. In fact the Respondent No. 2 got only 24 (2400 points) first preferential votes, while his rival opposition candidate had received 26 (2600 points) first preferential votes in the Rajya Sabha election. Thus, it is apparent that in case the two abstaining MLAs or even one would have attended and voted the opposition candidate would have won the election but due to undue influence and corrupt practice resorted to by the respondents the result was altered.
11. That further particulars in regard to the averments made in paragraph 19 and 27 of the above and Election Petition, it is stated that Shri Pradip Yadav, M.L.A, and Secretary General of the Jharkhand Vikas Morcha (Pro) who was also a voter in the Rajya Sabha election, had also apprised the Chief Election Commissioner, Election Commission of India even before voting through his letter no. 136/JVM/16 dated 07.06.2016 about the nefarious acts of corrupt practice of undue influence by lodging false criminal cases against the opposition M.L.As (voters) and their going to cast their votes besides offers were made to weaken those cases and huge cash to those M.L.As if they favour the B.J.P candidates, but unfortunately, action was not taken in time.
12. That after the Rajya Sabha election, 2016, Shri Babu Lal Marandi, President of the Jharkhand Vikas Morcha (Pro) and four other leaders also complained to the Chief Election Commissioner, Election Commission of India through his letter no. 138/JVM/2016 dated 15.06.2016 about the B.J.P candidates' nefarious acts of corrupt practice by referring names of 19 some opposition M.L.As (voters) who were unduly influenced from exercising their franchise. Allegations were made that heavy cash transactions, misuse of government machinery and resorting threats by and on behalf of the BJP party and their candidates were made. This time the Election Commission of India took action and finding the allegations prima facie true f rom the preliminary enquiry upon taking a statements of Shri Chamara Linda, M.L.A and also the petitioner, directed the Chief Secretary, Jharkhand to initiate disciplinary action against the accused personnel/ government officials and also to lodge criminal cases under relevant provisions including the prevention of corruption act against accused persons, vide its letter no. 318/CS-JH/2/2016-BIEN dated 13.06.2017. But no action till date has been taken perhaps because the Chief Minister Shri Raghuvar Das is himself head of a State BJP Legislative Party and allegations are a directly against him."
11. I.A. No. 8837 of 2017 has been filed under section 151 of the C.P.C for filling of certain relevant documents as under:
(I) The information sent by the Election Commission of India dated 29.08.2017 with all annexure and details obtained through Right to Information Act regarding the action taken by the ECI in connection with the corrupt practice committed by the Respondents and others ...................... .........44 pages.
(II) The unaudited Audio CD ......... One CD
(III) The unaudited Video CD ......... One CD
12. Objection of the Respondent No. 1 to the I.A. No. 8837 of 2017 has been filed stating as under:
"1(One). That under the circumstances the petitioner is not entitled to file the alleged purported documents mentioned in paragraph no. 1 of the 20 application and documents unauthorizedly filed in the Registry can not be taken on record for the legal reasons which will be explained to the Hon'ble Court by the counsel of the respondent at the time of arguments. The authenticity of the alleged documents and contents thereof are not admitted in substance. It is also not admitted that the Audio CD & Video CD are unaudited and transcript of these documents attached with the CDs are not correct.
2(two) That the contents of the paragraph 2(two) are denied. 3(Three) That the contents of paragraph 3 (Three) of this application are denied. The petitioner has no right to file any documents in the manner these are filed or proposed to filed in future.
4(Four) That the contents of paragraph 4(Four) of the application are not admitted.
5(Five) That under the circumstances, it is submitted that the petitioner's application is liable to dismissed with heavy cost with further direction to return these purported documents to the counsel for the petitioner. 6(Six) That the affidavit to the application in defective and is not in according to the law, and thus the application is also liable to be rejected on this ground alone.
7(seven) The Election petition is liable to be rejected under U/s 86(1) Eighty six (one) of the Representation of the People Act 1951 (Nineteen fifty one) record with order 7(seven) rule 11( eleven) of the Civil Procedure Code without any further tax of the Election Petition."
13. Reply on behalf of the respondent no. 2 to the interlocutory application being I.A. No. 8837 of 2017 filed by the petitioner is as under:
1(one) That the election petition in which the I.A application has 21 been filed under reply is liable to be dismissed u/s 86(1) of the Representation of the People Act, 1951 (hereinafter referred to as the Act, 1951)).
2.(Two) That the election petition does not comply with the provisions of section 81 (Eighty One) and 117 (One Hundred and Seventeen) of the Act, 1951.
3.(Three) That the original petition has not been presented in person along with requisite numbers of attested in person along with requisite numbers of attested true copy by the petitioner herself as is required under the Act, 1951, nor as required under C.P.C and Jharkhand High Court Rules, 2001 as amended from time to time, the election petition as per copy available to this respondent does not disclose the number of attested true respondent does not disclose the number of attested true copies filed along with election petition. If the election petition ie Memo of election petition presented or filed not in duplicate, as prescribed under Jharkhand High Court Rules, the election petition should not be deemed to be duly instituted in the High Court on that day. Thus, election petition has not been presented within 45 days as prescribed u/s 81 of the Act, 1951. 4 (Four). That the election petition does not comply as per the provisions of sub-rule (2) (Two) & (3)) (three) of the orders -6 (Six) Rule-2 (Two) of Code of Civil Procedure. The pleading in the election petition is not signed by the election petitioner at the end of the prayer in the election petition.
5.(Five) That adequate concise statement of material fact and the allegation to declare the election of this respondent to be void are not given in the election petition and the pleadings are incomplete.
6(Six) That the petitioner has not mentioned the necessary facts to establish her locus standi to file the election petition. 22
7. (Seven). That the petitioner is not entitled to file the alleged purported documents as mentioned in Paragraph-1 of the application under reply and the documents unauthorizedly has been filed before the registry cannot be taken on record because of the fact that the legal reasons has not been explained to the Hon'ble High Court about the authenticity of alleged documents as given in Paragraph-1 (one) and contents thereof are not admitted in substance as referred to the documents and contents thereof, are not admitted that audio C.D and Video are unaudited and transcription of these documents attached with the C.D are not admitted to be correct. With reference to the statement made in para-2 of the application under reply, it is submitted that they are denied and not admitted.
8. (Eight). That with reference to the statements made in par-3 (three) of the application under reply it is submitted that the contents in the said documents are denied by this respondent. The election petition has no right to file any documents in the manner these are filed or proposed to be filed in future.
9. (Nine). That with reference to the statement made in Para-4(Four) of the application under reply it is submitted that the contents of para-4 are not admitted by this respondent.
10. (Ten). That under the circumstances, it is submitted that the petitioner's application is liable to be dismissed with heavy cost with a further direction to return those documents to the petitioner.
11.(Eleven). That affidavit filed along with the application under reply is itself defective and has not been filed in accordance with law and it does not satisfy the form as provided under Order-19 (Nineteen) of the Code of Civil Procedure, thus the application is liable to be dismissed on this ground alone.
23
12. (Twelve). That election petition itself is liable to be dismissed under Order-7 (Seven), Rule-11 (Eleven) of the Code of Civil Procedure as the election petition is not filed in duplicates. Further, the election petition itself is barred in law as is liable to be rejected u/s 86 (Eighteen (1) (One) of the Act, 1951."
14. Objection on behalf of respondent no. 1 in the matter of I.A. No. 8872 of 2017 is quoted below:
"1.(One) That under the circumstances the petitioner is not entitled to file the application to rectify the alleged shortcomings in the affidavit and verification mentioned in paragraph no. 1 (one) of the application and in the election petition is liable to be rejected under Section 86(1) Eighty Six (one) of the Representation of People Act, 1951 (Nineteen Fifty -One) (hereinafter referred as the Act) read with Order VII (Seven) Rule 11 (Eleven) of the Civil Procedure Code (hereinafter referred as the "C.P.C") without any further trial of the election petition. These objections have been already taken in the written statement filed by the respondent no. 1. That the affidavit to the application is defective and is not in accordance with the law and thus the application is also liable to be rejected on this ground alone. The counsel of the respondent at the time of argument on the above noted I.A will explain this in detail.
2.(two) That this objection and the affidavit thereto are being filed only to oppose the amendment application under Sectiion 86(5) Eighty Six (five) of the Act. These should not be treated as the reply of the respondent no. 1 to the new plea and particulars tried to be raised by above noted application. The respondent no. 1 (one) will exercise his right to file additional written statement, if any of the amendment sought by the petitioner is/are finally allowed by the Hon'ble Court and duly 24 incorporated in the election petition by the petitioner. The respondent No. 1 (one) will give detail reply to the allegations made in the I.A and the Schedule No. 1( One) in his additional written statement, if the Hon'ble Court allows any of the amendment.
3.(three) That, the contents of paragraph No. 2 (two) of the application are not admitted as stated therein. What was stated or alleged in the election petition can be duly verified from the contents of election petition, which is on record of the case. The respondent no. 1 (One) is advised to state that the petitioner at this belated stage, after both the respondents have filed their respective written statements long ago, should not be allowed to file alleged detailed particulars and facts which are also not related to the ground taken in the election petition which has been explained in the written statement of the answering-respondent. The office of the Registrar of the High Court has also pointed out the defect in the election petitioin that no ground has been mentioned in the election petition.
7.(seven) That, in reply to the contents of paragraph No. 6 (six) & 7 (seven) of the application the respondent no. 1 (one) is advised to state here that the alleged "detailed particulars" are in fact, material facts in absence of which the cause of action is not complete. The averments in the original election petition do not disclose the triable issue. As such, the election petition should be dismissed at the preliminary stage. The allegations of various corrupt practices, bribery, undue-influence etc are denied. That such an amendment should not be allowed by the Hon'ble Court. It is true that quota is ascertained under Rule 76 (Seventy Six) of the Conduct of Election 76 (Seventy Six) of the Conduct of Election Rules.
8. (Eight) That, in reply to the contents of paragraph No. 8 (eight) of the application, the answering respondent is advised to state that in absence of 25 alleged grounds of corrupt practice in the original election petition, the all or any of the assertions made in the paragraph under comment, cannot be introduced by the amendment application under Section 86(5) Eighty Five ( Five) of the Act. However, the allegations made in paragraph under comment, are not admitted by the answering-respondent. In any case, the answering-respondent has not given his consent to any one for the alleged acts mentioned in the application and in its prayer and the scheduled 1(one)). The answering respondent is further adivised to state that the relevant material facts c annot be supplied after limitation to file election petition has expired. The answering-respondent is unable to make comment on the criminal cases mentioned in the two charts in absence of copies of the First Information Reports of those cases.
9. (nine). That, the contents of the paragraph no. 9 (nine) of the application are not admitted. It is denied that the Chief Minister or any one else were agents of the answering -respondent. The answering respondent never gave his consent for the alleged corrupt practices mentioned in the application or in the election petition. There was no conspiracy by the respondent as alleged in the election petition and in the application.
10. (ten). That, in reply to the paragraph no. 10 (ten) of the application, it is not admitted that the respondents became successful and were elected to Rajya Sabha seats, simply because two M.L.A, s of the alleged opposite political camps abstained from casting their respective votes in the Rajya Sabhya election. That from the allegations made in the paragraph under reply, it is clearly admitted by the petitioner that the respondent no. 1(one) did not get any benefit of the alleged two absentee M.L.As as he has received 2900 (two thousand nine hundred) points) much higher than 2701 (two thousand seven hundred one) required fro winning the seats of Rajya 26 Sabha when all would have voted, and then third candidate will with two additional voters could have reached to the figure of 2800 points against the figure of the respondent no. 1 of 2900. Similarly, the respondent no. 1 (one) would not have got any additional benefit even if the petitioner had absented from casting her vote in the election (though she has admittedly casted her vote according to her choice) and as such, the result of the election so far it relates to the respondent no. 1 (one) could not have been altered even if the allegations are assumed to be true, though the respondent no. 1(one) denies all such allegations. In any case under the circumstances the petitioner should delete the name of the respondent no.
1 (one) from the array of the parties in the election petition. The respondent no. 1(one) has not resorted to the alleged acts in any manner as allegd in the application or in the election petition.
13. (thirteen). That the contents of paragraph No. 13 (thirteen) and of Schedule 1 (one) of the application are not admitted. The answering- respondent has not committed any corrupt practices as alleged in the application or as alleged in the Schedule 1 (one) or in the election petition, and he has not given his consent to any one directly or any kind with any one, as alleged to be done by the respondents.
15. (fifteen). That, the prayer made under the paragraph No. 15 (fifteen) of the application are not admitted. The petitioner is directly and indirectly by this application is trying to introduce the particulars of corrupt practices not previously alleged in the election petition. The prayer for allowing "rectification in I affidavit and verification wherever necessary" is vague. It implies that the petitioner wants that first the Hon'ble Court to direct her as to what rectification by her in the affidavit and the petition is liable to be dismissed for such shortcoming at this stage. In any case the prayer is 27 defective as it is not pointed out that as to which specific amendment be permitted to be incorporated at which place in the original election petition."
and it has been submitted by the learned counsel for the respondent no. 1 that the aforesaid interlocutory application is liable to be dismissed.
15. Learned counsel for the respondent no. 2 filed reply to the I.A. No. 8872 of 2017 filed on behalf of petitioner in which following grounds have been taken;
"3.(three). That this objection and the affidavit hereto is filed only to oppose the amendment application in the election petition as the petitioner has to give all details of the allegation in the Election Petition itself but by filing the I.A. under reply the petitioner admits that full details were not given in the election petition itself and therefore the petitioner has filed an amendment application under reply.
4. (Four). That with reference to the statements made in Para-2 (Two) of the application under reply it is submitted that what has been stated in the election petition can be duly verified from the contents of the election petition which is on record. The respondent no. 2 (two) has been advised to state that the petitioner has filed the application under reply at belated stage after both the respondents have filed their respective written statements. The election petitioner should not be allowed to file the details of particular which are not related to the grounds taken in the election petition. The Registry of this Hon'ble has also pointed out that the defect to the effect that no ground has been mentioned in the election petition.
5. (Five). That with reference to the statements made in Para-4 (Four) and 5 (Five) of the application under reply it is stated that they are denied, this respondent has not desired the petitioner to give particular. On the contrary 28 this respondent has prayed for dismissal of election petition itself under Sub Section (One) of Section 86 (Eighty Six) of the Representation of People Act, 1951 (Nineteen Hundred and Fifty One).
6. (Six). That with reference to the statements made in Para -6 (Six) & 7 (Seven) of the application under reply it is stated that the same are not admitted. This Hon'ble Court earlier have also taken on record the written statement filed by this respondent. This respondent has already taken objection to the maintainability of the election petition. It is also stated that the alleged details of particulars are belated and afterthought according to the averments in the election petition. The petitioner has not disclosed in the Election Petition that triable issue and as such the Election Petition is liable to dismissed.
7. (Seven). That the allegation of the alleged various corrupt practices, bribery, undue influence mentioned in the application under reply are also denied.
8. (Eight). That with reference to the statements made in Para -8(Eight) of the application under reply it is stated that in the absence of the alleged ground of corrupt practices in the Original Election Petition or any of the assertion made subsequently cannot improve the maintainability of the election petition. The answering respondent further advised to state the limitation for filing the election petition has long expired. The answering respondent is unable to comment on the Criminal Cases in two charts given by the petitioner in absence of the copies of the First Information Reports.
11. (Eleven). That to the statements made in Para- 11 (Eleven), 12 (Twelve), 13 (Thirteen) and 14 (Fourteen) of the application under reply are not admitted and the same are strongly and expressly denied.
12. (Twelve). That with reference to the statements made in Para-15 29 (Fifteen) of the application under reply it is stated and submitted that the petitioner is by way of this application is trying to introduce particulars of corrupt practices in a fresh manner which was never previously alleged in the election petition"
and it has been submitted by the learned counsel for the respondent no. 2 that the aforesaid interlocutory application is liable to be dismissed.
16. Learned counsel for the respondent no. 1 while relying on judgment in the case of " Commissioner of Income-Tax, Bareilly -Vs- M/s. Kisan Sekhari Chini Mills Ltd" reported in 2000 (2) SCC 294 para 26 & 27 submitted that close scrutiny of the averment made in the election petition it cannot be said that the petitioner has pleaded material particulars pertaining to alleged corrupt practices pertaining to allegation of corrupt practices, and it cannot be allowed to make amendment in the pleading as the election petition does not comes under the provision of Section 86 (5) of the Representation of Peoples Act, 1951.
17. Learned counsel for the respondent no. 1 relied on judgment in the case of "Samant N. Balkrishna Vs. George Gernandez" reported in AIR 1969 SC 1201 para 29 which reads as under:
"Para 29. Having dealt with the substantive law on the subject of election petitions we may now turn to the procedural provisions in the Representation of the People Act. Here we have to consider Ss. 81, 83 and 86 of the Act. The first provides the procedure for the presentation of election petitions. The proviso to sub-section alone is material here. It provides that an election petition may be presented on one or more of the grounds specified in sub-sec. (1) of S. 100 and S. 101. That as we have shown above creates the substantive right. Section 83* then provides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also 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. The Section is mandatory and requires first a concise statement of material facts and then requires the fullest 30 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 facts 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 does 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 compete 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 Section 86 although the penalty of dismissal is taken away. Subsection (5) of that Section provides: * Section 83: (1) An election petition-31
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) 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
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings:
[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.] (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 facts 32 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."
18. Learned counsel for the respondent no. 1 also relied upon judgement in the case of " Ram Sukh Vs. Dinesh Aggarwal" reported in (2009) 10 SCC 541, para 4, 9 and 10 and submitted that the aforesaid interlocutory application is fit to be rejected.
19. Learned counsel for the respondent no. 2 has also relied on judgement in the case of " Ram Sukh Vs. Dinesh Aggarwal" reported in " (2009) 10 SCC 541.
20. Learned counsel for the respondent no. 2 has submitted that going through the contents of affidavit made in election petition and I.A. application, and as per the provision of Section 83 of the Representation of Peoples Act, 1951, the election petition is liable to be dismissed as threshold as election petition was not verified in proper way and not supported, it was incomplete cause of action. In support of his contention, learned counsel for the respondent no. 2 relied on judgement in the case of " P.A. Mohammed Riyas Vs. M.K, Raghavan & Ors" reported in 2012 (5) SCC 511, which reads as under:
"Para 39. Although, during the hearing of the Petition, a question was raised regarding the maintainability of the Petition for want of a complete cause of action and the same was accepted by the High Court which dismissed the Election Petition, the learned Single Judge of the High Court took the view that the Election Petition did not make out a complete cause of action as it was not in conformity with Form 25 annexed to the Rules.
40. This brings us to the next question that in order to protect the purity of elections in the manner indicated, it was the duty of the State to ensure that the candidates in the elections did not secure votes either by way of an undue influence, fraud, communal propaganda, bribe or other types of corrupt practices, as specified in the 1951 Act.33
41. The provisions of Chapter II of the 1951 Act relate to the presentation of election petitions to the High Court and Section 83 which forms part of Chapter II deals with the contents of the Election Petition to be filed. For the purpose of reference, Section 83 is extracted hereinbelow :-
83. Contents of petition.
(1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) 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
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
As will be seen from the Section itself, the Election Petitioner is required to set forth full particulars of any corrupt practice that he alleges and the names of the parties involved therein and it further provides that the same is to be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of proceedings.
43. What is important is the proviso which makes it clear that where the Election Petitioner alleges any corrupt practice, the Petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof and the schedule or annexures to the Petition shall also be signed by the Petitioner and verified in the same manner as the Petition. In other words, when corrupt practices are alleged in an Election Petition, the source of such allegations has to be disclosed and the same has to be supported by an affidavit in support thereof.
34
44. In the present case, although allegations as to corrupt practices alleged to have been employed by the Respondent had been mentioned in the body of the Petition, the Petition itself had not been verified in the manner specified in Order VI Rule 15 of the Code of Civil Procedure. Sub- Section (4) of Section 123 of the 1951 Act defines "corrupt practice" and the publication of various statements against the Respondent which were not supported by affidavit, could not, therefore, have been taken into consideration by the High Court while considering the Election Petition. In the absence of proper verification, it has to be accepted that the Election Petition was incomplete as it did not contain a complete cause of action.
45. Of course, it has been submitted and accepted that the defect was curable and such a proposition has been upheld in the various cases cited by Mr. Venugopal, beginning with the decision in Murarka Radhey Shyam Ram Kumar's case (supra) and subsequently followed in F.A. Sapa's case (supra), Sardar Harcharan Singh Brar's case (supra) and K.K. Ramachandran Master's case (supra), referred to hereinbefore. In this context, we are unable to accept Mr. Venugopal's submission that despite the fact that the proviso to Section 83(1) of the 1951 Act provides that where corrupt practices are alleged, the Election Petition shall also be accompanied by an affidavit in the prescribed form, it could not have been the intention of the legislature that two affidavits would be required, one under Order VI Rule 15(4) CPC and the other in Form 25. We are also unable to accept Mr. Venugopal's submission that even in a case where the proviso to Section 83(1) was attracted, a single affidavit would be sufficient to satisfy the requirements of both the provisions.
46. Mr. Venugopal's submission that, in any event, since the Election Petition was based entirely on allegations of corrupt practices, filing of two affidavits in respect of the self-same matter, would render one of them redundant, is also not acceptable. As far as the decision in F.A. Sapa's case (supra) is concerned, it has been clearly indicated that the Petition, which did not strictly comply with the requirements of Section 86(1) of the 1951 Act, could not be said to be an Election Petition as contemplated in Section 81 and would attract dismissal under Section 86(1) of the 1951 Act. On the other hand, the failure to comply with the proviso to Section 83(1) of the Act rendered the Election Petition ineffective, as was held in Hardwari Lal's case (supra) and the various other cases cited by Mr. P.P. Rao. 35
47. In our view, the objections taken by Mr. P.P. Rao must succeed, since in the absence of proper verification as contemplated in Section 83, it cannot be said that the cause of action was complete. The consequences of Section 86 of the 1951 Act come into play immediately in view of Sub-Section (1) which relates to trial of Election Petitions and provides that the High Court shall dismiss the Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the 1951 Act. Although, Section 83 has not been mentioned in Sub-Section (1) of Section 86, in the absence of proper verification, it must be held that the provisions of Section 81 had also not been fulfilled and the cause of action for the Election Petition remained incomplete. The Petitioner had the opportunity of curing the defect, but it chose not to do so."
21. After going through the arguments advanced on behalf of respondent nos. 1 & 2, pleadings in the application being I.A. No. 8872 of 2017 and I.A. No. 8837 of 2017 filed on behalf of the petitioner, judgement reported in AIR 1991 SC 1557 (F.A. Sapa Vs. Singora and Others", provision of Sections 83 and 86 of Representation of People Act, which has been discussed hereinabove. I am of the considered view that the statements made on behalf of respondent nos. 1 & 2 in reply of I.A. No. 8872 of 2017 and I.A. No. 8837 of 2017 is fit to be rejected, in as much as from perusal of pleadings made in Election Petition No. 01/2016 especially from close scrutiny of paragraph nos. 10 & 28, pleadings of corrupt practices has been made and by filing application being I.A. No. 8872 of 2017 in terms of provision under section 86 (5) of the Representation of People Act, further implication has been made and no fresh cause of action has been introduced. Similarly, I.A. No.8837 of 2017 has been filed to keep the C.Ds, two in numbers and other documents in safe custody.
22. So far as submissions made on behalf of respondent nos. 1 & 2 regarding verification of contents of the affidavit in Election Petition and I.A. No. 8872 of 2017 in terms of provision 83 of Representation of People Act and Rule 325, 36 Rule 68(1), Rule 31, Rule 81 and Rule 86 of the High Court of Jharkhand Rules is concerned, admittedly, I am deciding interlocutory applications being I.A. No. 8872 of 2017 and I.A. No. 8837 of 2017 and not holding trial and these objections will be determined and seen when issues shall be framed in terms of Order 14 Rule 2 of the C.P.C. This stage has not come, so judgement cited on behalf of respondent nos. 1 &2 cannot be considered at this stage. So, in view of discussions made hereinabove, I am of the considered view that the petitioner has been able to make out his case in I.A. No. 8872 of 2017 by amplifying the facts and not introducing fresh facts. Accordingly, I.A. No. 8872 of 2017 is allowed subject to deposition of cost of Rs. 5,000/- (Rupees Five thousand) to be deposited by the petitioner in the bank account of Jharkhand State Legal Services Authority, Bank of India, High Court Branch, A/C No. 495810110004435, IFSC Code No. BKID0004958 latest by 28.01.2019 and file receipt of deposition of amount before the office
23. Let I.A. No. 8872 of 2017 be part of pleadings contained in Election Petition No. 01 of 2016.
24. Further, I.A. No. 8837 of 2017 also stands allowed. Let C.Ds and others documents be kept in safe custody.
25. Case is now listed for framing of issues.
26. List this case on 19.02.2019 at 2.15 p.m. Parties are directed to file their respective issues.
Satyarthi/- (Anant Bijay Singh, J.)