Madhya Pradesh High Court
Kamal Patel vs Ram Kishore Dogne on 29 April, 2015
(1)
Election Petition No. 24/2014
HIGH COURT OF MADHYA PRADESH : JABALPUR
Election Petition No. 24/2014
Kamal Patel
Vs.
Ram Kishore Dogne and others
As Per : G.S.Solanki, J.
Shri R.P. Agrawal, Senior Counsel with Shri Anuj Agrawal,
Advocate for the petitioner.
Shri Imtiyaz Hussain, Advocate for respondent No. 1.
Shri S.K. Kashyap, Advocate for respondent No. 6.
Smt. Sushma Pandey, Advocate for respondent No. 11.
Order reserved on : 5.12.2014
Order passed on : 29.4.2015
ORDER
1. This order shall govern disposal of I.A. No. 7/2014, I.A. No. 42/2014, I.A. No. 40/2014 and I.A. No. 10588/2014.
2. I.A. Nos. 7/2014 and 42/2014 : I.A. No. 7/2014 has been filed by respondent No. 1 under Order 6 Rule 16 read with Section 151 of the CPC read with Section 87 of the Representation of the People Act, 1951 (hereafter referred to as the Act) along with I.A. No. 42/2014, which is rejoinder to I.A. No. 7/2014, inter-alia on the ground that the petitioner has pleaded in his petition Para No. 13 that respondent No. 6 Vikrant Joshi had filed his nomination paper as an independent candidate to contest the election from 135, Harda Constituency of M.P. State Legislative Assembly. Respondent No. 1 had paid an amount of Rs. 3 Lakhs in cash to respondent No. 6 on 22.11.2013 as a direct inducement to withdrawn his candidature in favour of respondent No. 1. Due to aforesaid inducement from respondent No. 1 to respondent No. 6, respondent No. 6 filed an application to the Returning Officer on 22.11.2013 at about 2:25 (2) Election Petition No. 24/2014 PM for withdrawal of his candidature, which amounts to corrupt practices under Section 123(1)(A)(a) of the Act. It is not in dispute that the last date of withdrawal of candidature was 11.11.2013. The provision of Section 123(1)(A)(a) read with Section 37 thereof makes it evidently clear that the words "withdraw or not" in Section 123(1)(A)(a) refer to withdrawal under Section 37 and not thereafter and in this view of the matter, even if the pleadings in Para 13 are taken as they are, it would not provide a ground for allowing the election petition holding such allegations to be corrupt practice. Even otherwise, the petitioner has not disclosed the source of such information. Thus, the pleadings made in Para 13 are unnecessary, scandalous, frivolous, vexatious and amount to abuse of process of Court, therefore, the same are liable to be struck off.
3. By way of filing the rejoinder I.A. No. 42/2014 to I.A. No. 7/2014, it is submitted that the pleadings made in Paras 11 (a),
(b), (c) and (d), which are said to relate to corrupt practice as regards distribution of apples by or at the instance of respondent No. 1, are self contradictory because the function was not arranged by or at the instance of respondent No. 1 and the apples were not distributed by or at the instance of respondent No. 1. A reference to polling booth has also no relevance because the polling booths were yet to come in the existence. The inquiry reports belie the entire story of the petitioner. Further, the elements of bargain are missing in the pleadings, which are sine qua non for imputing the charge of corrupt practice under Section 123(1)(b) of the Act, therefore, these pleadings are frivolous and deserve to be struck off.
4. It is further submitted that so far as pleadings made in Para-12 are concerned, there is no pleading in regard to consent of respondent No. 1, therefore, the same amount to abuse of process of Court and deserve to be struck off.
5. It is further submitted that the pleadings made in Para -14 are again bundle of self contradictory statements. The petitioner has disclosed that exemption from personal appearance before (3) Election Petition No. 24/2014 the trial Court has been granted to him and that Criminal Revision No. 1834/2011, in which the order passed by the trial Court on 20.7.2011, has been impugned, is pending before the High Court. All these pleadings fall within the domain of misrepresentation of facts and tend to prejudice fair trial of the petitioner, therefore, they deserve to be struck off.
6. It is further submitted that the pleadings made in Para 15 of the election petition do not involve respondent No.1 at all.
7. In Para 16 of the election petition, the petitioner has failed to incorporate substantive pleadings to make the statement sensible. It lacks the names of the supporters of the petitioners, place and time of the meetings and name of at least some voters belonging to Muslim community, who attended the so called speeches. The statements are silent as to the extent of prejudice suffered by the petitioner. The pleadings are incomplete and tend to embarrass and delay the fair trial of the petition, therefore, they deserve to be struck off.
8. It is further submitted that the pleadings claimed in relief clause (iii) of the election petition is not covered under Section 84 of the Act and it also deserves to be struck off being frivolous.
9. In the reply to the aforesaid application, the petitioner has submitted that 135, Harda Constituency of M.P. State Legislative Assembly is mostly inhabited by Brahmins and respondent No. 6 is also Brahmin, he had withdrawn his candidature in favour of respondent No. 1 even though after the last date of withdrawal of his candidature. Thus, from the aforesaid it emerges that he was out of contest of election and on such withdrawal from contesting, number of Brahmin votes went in favour of respondent No.1, which is apparent from the fact that respondent No. 6 had obtained only 445 votes and all his Brahmin votes were cast in favour of respondent No. 1 and that too on payment of Rs. 3 Lakhs. In this view of the matter, respondent No. 1 is guilty of corrupt practice.
10. As far as pleadings made in Paras 11 (a), (b), (c) and (d), 12, 14, 15 and 16 are concerned, there is no ambiguity or (4) Election Petition No. 24/2014 deficiency in the aforesaid pleadings, therefore, they are not unnecessary, scandalous, frivolous or vexatious, they do not tend to prejudice or embarrass the trial and they also do not amount to abuse of process of Court, therefore, the applications are liable to be dismissed.
11. Learned counsel appearing for respondent No. 1 has vehemently argued that it is an admitted fact on record that respondent No. 6 had filed an application for withdrawal of his candidature to contest the election after scheduled date for withdrawal i.e. 11.11.2013. It is further submitted that the provision of Section 123(1)(A)(a) read with Section 37 of the Act makes it evidently clear that the words "withdraw or not" in Section 123(1)(A)(a) refer to withdrawal under Section 37 and not thereafter. It is further submitted that even if the pleadings of Para No. 13 are taken as they are, they would not provide a ground for corrupt practice. Counsel has placed reliance on a decision of the Apex Court in Kalya Singh Vs. Genda Lal and others - AIR 1975 SC 1634 and Umed Vs. Raj Singh and others - 1975 SC 43.
12. Learned counsel for the petitioner has submitted that the Court should not, as a rule, decide an important point, relevancy of any matter on the application to strike out as irrelevant. The jurisdiction which is given to the Court by Order 6 Rule 16 is one which ought to be exercised with great care and caution. He has placed reliance on the decision of All India Report Limited, Bombay Vs. D.P. Datar - AIR 1951 Nagpur 412 (para 6) and Tenant Vs. Mitchel - AIR (2012) 1925 Calcutta 860.
13. I have heard the learned counsel for the parties at length and gone through the application and reply thereof. It is true that at the time of deciding an application under Order 6 Rule 16, it is not necessary to decide an important point or relevancy of any matter but at the same time it should be kept in mind that in the pleadings made in the election petition in general and the pleadings relating to corrupt practice, the petitioner shall make (5) Election Petition No. 24/2014 concise statement of material facts on which the petitioner relies and shall set forth the particulars of corrupt practice which the petitioner has alleged including as full statement as possible of the names of the parties, alleged to have committed such corrupt practice along with the date and place of commission of such practice as provided under Section 83 of the Act.
14. Considering the aforesaid specific law on the point of pleading regarding corrupt practice, it appears necessary to reproduce pleadings of Para - 13 of the election petition. Para - 13 of the election petition reads thus :-
13. Corrupt Practice as regards inducing respondent No. 6 Shri Vikrant Joshi to contest election from 135, Harda Constituency of the M.P. State Legislative Assembly:-
(i) That, 135, Harda Constituency of M.P. State Legislative Assembly consists of large numbers of Brahmin voters. The respondent no. 6 is a young person and is having considerable influence amongst the Brahmin voters of the Constituency.
(ii) The respondent no. 6 had filed his nomination paper as an independent candidate on 8.11.2013 from the said Constituency. The respondent no. 1 induced the respondent no. 6 to withdraw from the election in his favour so that the Brahmin voters of the Constituency may vote for him (respondent no. 1).
(iii) That, the petitioner has come to know that the respondent no. 1 has paid an amount of Rs. 3 lacs in cash to the respondent no. 6 as a direct inducement to withdraw from his candidature in favour of the respondent no. 1. The said amount was paid by the respondent no. 1 to the respondent no. 6 on 22.11.2013 in the morning.
(iv) That, after receiving the said amount, the respondent no. 6 submitted an application to the Returning Officer of 135, Harda, M.P. State Legislative Assembly for withdrawal of his candidature in favour of Congress candidate, i.e. respondent no. 1. A copy of such letter submitted by the respondent no. 6 to the Returning Officer on 22.11.2013 at about 2.25 p.m. is filed herewith and marked as Annexure P/10.
(6)Election Petition No. 24/2014
(v) The aforesaid inducement by the respondent no. 1 to respondent no. 6 to withdraw his candidature from the said Constituency amounts to corrupt practice under Section 123(1)(A)(a) of the Act, therefore, the election of the respondent no. 1 deserves to be declared as void under Section 100(1)(b) of the Act.
15. A bare reading of aforesaid Para 13 makes it clear that respondent No. 6 had withdrawn from contesting the election of 135, Harda Constituency of M.P. State Legislative Assembly on 22.11.2013 and the last date for withdrawal of candidature was 11.11.2013. In these circumstances, the withdrawal of respondent No. 6 was not in accordance with the provision of Section 37 of the Act. Thus, the law laid down by the Apex Court in the case of Umed Vs. Raj Singh and others (supra) is fully applicable to the instant case. It further reveals from the aforesaid pleadings of Para 13 that there is no averment in regard to the fact that money was paid to respondent No. 6 as a consideration for votes promised or as a bargain for getting votes. Inducement to respondent No. 6 to withdraw from the election in favour of respondent No. 1 does not amount to inducement to the electors. This fact further finds support from withdrawal of application itself (Annexure P-1) wherein it has been specifically stated that respondent No. 6 has withdrawn from contesting the election and further stated that he is supporting the candidature of respondent No. 1. It further reveals from the aforesaid pleading and application for withdrawal that it was money paid to respondent No. 6 to retire him from contest and to do propaganda to persuade the voters to vote for respondent No. 1. If it is presumed that respondent No. 6 has made propaganda and appealed in favour of respondent No. 1, inspite of it the voters were left free not to respond his persuasion to cast vote in favour of respondent No. 1 or in favour of someone else.
16. Learned counsel for the petitioner has submitted that respondent No. 6 has filed his written statement and pleaded (7) Election Petition No. 24/2014 that he has a great influence over the Brahmin voters of 135, Harda Constituency of M.P. State Legislative Assembly. As a result of withdrawal of his candidature, a large number of Brahmin voted in favour of respondent No. 1 due to his canvassing in favour of respondent No. 1, therefore, there is prima facie case under Section 123(1)(A)(a) of the Act for corruption committed by respondent No. 1.
17. I am not convinced with the aforesaid argument of learned counsel for the petitioner because primarily it is not a pleaded case of the petitioner in Para 13 of the election petition and further, if the aforesaid pleading is taken into account, it only speaks that after withdrawal, respondent No. 6 made canvassing in favour of respondent No. 1 along with his companions, therefore, it does not make any difference because there is no nexus with the money paid by respondent No. 1 to respondent No. 6 for the purpose of inducing the voters because, as mentioned hereinabove, the voters/electors were free not to respond to the canvassing of respondent No. 6. In these circumstances, the law laid down by the Apex Court in Kalya Singh Vs. Genda Lal and others (supra) is applicable to the instant case. The pleadings made in Para 13 of the election petition do not attract the provision of Section 123(1)(A))(a) of the Act. They are unnecessary, frivolous and amount to abuse of process of Court, therefore, liable to be struck off under Order 6 Rule 16 of the CPC.
18. As far as pleadings of Paras 11 and 12 are concerned, in the aforesaid paragraphs, the date and time on which respondent No. 1 is said to have distributed the apples to the voters of the Constituency to induce them to vote in his favour, have been specifically mentioned. It is also mentioned that this incident was witnessed by the local residents namely Rajeev Kamedia, Jagdish Jevlya, Govindji Lamrod and Santosh Jevlya and they also made a video recording of the distribution of apples to the voters of the Constituency. It is further submitted that Surendra Jain, the election agent of the petitioner had made (8) Election Petition No. 24/2014 a complaint to the Returning Officer on 10.11.2013 along with the video recording and on the basis of aforesaid complaint, investigation was made and FIR was also lodged under Section 177E and 188 of the Indian Penal Code. The facts of the instant case are totally different than the case relied upon by learned counsel for respondent No. 1 in Dhartipakad Madanlal Agrawal Vs. Rajiv Gandhi - AIR 1987 SC 1577 and Abraham Kuriakose Vs. P.T. Thomas - AIR 1992 Kerala 19. In these circumstances the pleadings made in Paras 11 and 12 cannot be said to be unnecessary or frivolous and they are not liable to be struck off.
19. Coming to the pleadings made in Paras 14 and 16 of the election petition; it has been specifically pleaded in Para 14(iii) that respondent No. 1 was aware of the fact that petitioner has already been discharged in the case of alleged murder of Durgesh Jat vide order dated 20.7.2011 and inspite of such personal knowledge, he displayed a hoarding that the petitioner is an accused in a criminal case and the aforesaid publication was made by placing the hoarding to demonstrate before public at large that the petitioner is a person of criminal background and thereby prejudiced the prospects of his election. It has been further pleaded that Photographs of respondent No. 1 and other office bearers of his party were also depicted on the aforesaid hoarding. The petitioner made complaint against the aforesaid offending hoarding then the Election Commission got the flex from the hoarding removed. It has been further pleaded that the publication of aforesaid hoarding by respondent No. 1 was relating to personal character and conduct of the petitioner knowing fully well that the same was absolutely false, therefore, the conduct of respondent No. 1 comes under the purview of Section 123(4) of the Act.
20. Learned counsel for respondent No. 1 has submitted that respondent No. 1 had published on those facts, which were truthful, therefore, he has not committed any corrupt practice. He has placed reliance in Joseph M. Puthussery Vs. T.S.John (9) Election Petition No. 24/2014
- AIR 2011 SC 906 and Pratap Singh Vs. Hardwari Lal - AIR 1970 SC 1500.
21. Learned counsel appearing for the petitioner has submitted that it is yet to be proved that the contents of the hoarding were false and respondent No. 1 does not believe it to be true, therefore, the law laid down in Joseph M. Puthussery Vs. T.S.John (supra) is not applicable to the instant case.
22. It is true that in the cases of Joseph M. Puthussery Vs. T.S.John (supra) and Pratap Singh Vs. Hardwari Lal (supra), full evidence was led by the parties while in the instant case, the evidence is yet to be led. Further, so far as pleadings of Para 16 of the election petition are concerned, it has been specifically pleaded that respondent No. 1 and other persons who were engaged in canvassing of respondent No. 1, had leveled specific allegations in regard to personal character of the petitioner for which, the petitioner still has an opportunity to prove that respondent No. 1 believed that the contents of the hoarding were false or same were not believed to be true. The facts of Pratap Singh Vs. Hardwari Lal (supra) are totally different than the instant case. In that case the published contents were related to political status or reputation of the candidate but in the instant case the petitioner was projected as a criminal, which allegation was related to his personal character and conduct. In these circumstances, the pleadings of Para 14 and 16 cannot be said to be vexatious or scandalous and they are not required to be struck off.
23. So far as pleadings of Para 15 are concerned, they relate to promotion of feeling of enmity and hatred against the Vishnoi community by publication/distribution of pamphlets. It has been specifically pleaded that one Uma Shankar Vishnoi, General Secretary of the Kisan Congress, which is a Kisan Wing of the Indian National Congress had distributed the pamphlets along with the member of Vishnoi community so as to cause feeling of enmity and hatred among them and to make them hostile and persuade them not to vote for the petitioner. The aforesaid (10) Election Petition No. 24/2014 circulation has been witnessed by Dinesh Jhuriya and Shri Prem Chand.
24. A bare perusal of pleadings made in Para 15 of the election petition makes it clear that the allegation has been made against one Uma Shankar Vishnoi but nothing has been pleaded in regard to the fact that he had published the aforesaid pamphlets with the consent of the candidate or his election agent, which is mandatory requirement under Section 123(3A) of the Act. Thus, the basic requirement of Section 123(3A) has not been fulfilled. In these circumstances, the pleadings of Para 15 are unnecessary and same amount to abuse of process of Court and therefore, same are liable to be struck off.
25. Coming to the relief clause (iii); since the petitioner has claimed the relief that he be declared as member of the M.P. State Legislative Assembly From 135, Harda Constituency of M.P. State Legislative and further complied with the provisions of section 82 of the Act, therefore, it is very much covered under Section 84 of Act and cannot be said to be unnecessary or frivolous.
26. In view of the aforesaid discussion, I.A. Nos. 7/2014 and 42/2014 are partly allowed. The petitioner is directed to strike off the pleadings of Para 13 and 15 from the election petition.
27. I.A. No. 40/2014: This application has been filed by respondent No. 1 under Order VII Rule 11 of the CPC read with Section 86 and 87 of the Act solely on the ground that the petitioner has not pleaded cogent material facts anywhere that the result of the election, in so far as it relates to the returned candidate, has been materially affected by any corrupt practice committed by the returned candidate or by agent or by his election agent or any other person with the consent of respondent No. 1 or his election agent. It has been pleaded that the allegations made in Paragraphs 11, 12, 13, 14, 15 and 16 do not disclose any triable cause of action due to lack of material pleadings of facts, therefore, the petition is liable to be dismissed at the threshold.
28. In reply to the aforesaid application, it is submitted by the petitioner that the petitioner has specifically pleaded that (11) Election Petition No. 24/2014 respondent No. 1 himself distributed the apples and some persons witnessed the aforesaid incident. Further it has been specifically pleaded that the petitioner was discharged from trial, which fact was very well in the knowledge of the respondent No. 1 and despite that he published such hording, which he knew to be false. It is specifically pleaded that respondent No. 1 and his canvassers have made specific allegation against the personal character of the petitioner and tried to create hatred in the community. The petitioner has further submitted that in Para - 17 of the election petition, it has been specifically pleaded that aforesaid corrupt practice committed by respondent No. 1 has materially affected the election of respondent No. 1, therefore, the aforesaid pleadings made in the election petition very well disclose the triable cause of action and same require a full dressed trial, therefore, the application is liable to be dismissed.
29. I have gone through the pleadings of Paras 11 (i) to (iv), 12, 14
(i) to (v), 16 (i) & (ii) and 17 of the election petition. All these pleadings are in consonance with Section 83 of the Act. They contained concise statements of material facts along with the particulars of corrupt practice including as full statement as possible of the time and place and names of persons by whom and before whom such corrupt practice is said to have been committed. In these circumstances, it cannot be said that the aforesaid pleadings do not disclose any triable issue or cause of action. Thus, I.A. No. 40/2014 being without force, is hereby dismissed.
30. I.A. No. 10588/2014: This application has been filed by the petitioner seeking amendment in the election petition.
31. It is submitted by the petitioner that although detailed pleadings with full particulars have been made in relevant paragraphs spelling out corrupt practices by respondent No. 1 while contesting the election, however, the petitioner craves leave of this Court to amend the petition by adding the following contents after sub-paragraph iii of paragraph 13 at the end :-
"The respondent No. 6 himself told the petitioner on 16.1.2014 that the first respondent had paid a (12) Election Petition No. 24/2014 sum of Rs. 3 lacs in consideration of his withdrawal from the contest and to induce Brahmin Voters in favour of the respondent No. 1 and accordingly, the respondent No. 6 had filed an application in that behalf before the Returning Officer".
32. It is further submitted that the aforesaid proposed amendment is necessary to avoid any technical objection, therefore, the petitioner may be permitted to incorporate the aforesaid proposed amendment.
33. In reply, respondent No. 1 has submitted that the petitioner has not shown any cogent reason for not incorporating the said facts in the petition itself. It is further submitted that when on 20.3.2014, an application under Order 6 Rule 16 has been filed by respondent No. 1 for striking out the pleadings of Para 13 of the election petition, reply of the aforesaid application was filed by the petitioner on 27.3.2014 wherein also the fact of proposed amendment has not been mentioned. It is further submitted that in the existing Para 13 of the election petition, source of information has not been disclosed. The proposed amendment is an afterthought having been sought only after the petitioner managed to get a written statement of respondent No. 6 in his favour. It is further submitted that Section 87 of the Act and proviso to Order 6 Rule 17 of the CPC prohibits amendment in pleading of facts which were well within the knowledge of the petitioner at the time of filing of the petition, therefore, the application is liable to be dismissed.
34. I have gone through the pleadings of Para 13 of the election petition, wherein it has been specifically pleaded that the petitioner has come to know that respondent had paid an amount of Rs. 3 lacs to respondent No. 6 as an inducement to withdraw from his candidature in favour of respondent No.1. As per proposed amendment, respondent No. 6 himself told the petitioner on 16.1.2014 that respondent No. 1 had paid a sum of Rs. 3 lacs in consideration of his withdrawal from the contest and to induce Brahmin voters in favour of respondent No.1, which shows that the aforesaid fact was very well in the knowledge of the petitioner at (13) Election Petition No. 24/2014 the time of filing the election petition and same could have been pleaded in the petition itself. Further, the petitioner has not shown any sufficient ground why he did not plead the aforesaid fact at the time of filing the election petition. In these circumstances, the proposed amendment appears to be an afterthought. Apart from that, the proposed amendment is with regard to corrupt practice, same ought to have been pleaded within 45 days in view of Section 81 of the Act, and therefore, the application is also barred by limitation. Further, at the time of partly allowing the application I.A. No. 7/2014 under Order 6 Rule 16 read with Section 151 of the CPC read with Section 87 of the Representation of the People Act, 1951 along with I.A. No. 42/2014, which is rejoinder to I.A. No. 7/2014, as mentioned hereinabove, this Court has already directed the petitioner to strike off the pleadings made in Para 13 and 15 of the election petition being unnecessary and frivolous, therefore, the proposed amendment cannot be allowed to be incorporated in Para 13 of the election petition.
In view of the aforesaid discussion, I.A. No. 10588/2014 is liable to be dismissed and is hereby dismissed.
The respondents are directed to file written statement. List on 23.6.2015.
(G.S.Solanki) Judge PB