Jharkhand High Court
Smt. Nirmala Devi vs Sri Mukhtar Abbas Naqvi & Anr on 15 March, 2018
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
E.P. No. 01 of 2016
Smt. Nirmala Devi ..... Petitioner
Versus
Sri Mukhtar Abbas Naqvi & Anr. ..... Respondent
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CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH
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For the Petitioner : Mr. Arvind Kr. Lall, Advocate. For the Respondent : Mr. M.C. Gupta, Advocate.
Mr. Vijay Gopal, Advocate.
Mr. Anupam Anand, Advocate.
Md. Aslam, Advocate.
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18/Dated: 15/03/2018 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.
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.
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:
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.
Learned counsel for the petitioner while referring to the provisions of Section 86(5) of the Representation of People -2- 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.
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 in -3- 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."
Learned counsel for the respondents is directed to reply on the next date.
List this case on 05.04.2018.
(Anant Bijay Singh, J.) Sunil/