MANOHAR JOSHI ETC. v. DAMODAR TATYABA @ DADASAHEB RUPWATE AND ORS

Citation: [1991] 1 S.C.R. 759

Court: Supreme Court of India

Bench: K.N. SINGH, KULDIP SINGH, P.B. SAWANT

Case summary

2 is challenged in the petition, among other things, on the ground of corrupt practices under sub-sections (2), (3) and (3A) of Section 123 of the ').

Judgment text

The Judgment of the Court was delivered by ~ SAWANT, J. These two petitions arise out of a common order dated 29th October, 1990 passed by the Bombay High Court in Election Petition No. 5 of 1990 and raise a common question of law. Hence they are disposed of by this judgment. 2. Leave is granted in both the petitions. The election petition in which the impugned order is passed was filed by a defeated candidate (Respondenf No. 1) against the elected p ·r--candidate (Respondent No. 2) and other contesting candidates challenging the validity of the election of respondent No. 2 to the Lok Sabha from the Bombay South Central Constituency in the election held on November 24, 1989. The election of respondent No. 2 is challenged in the petition, among other things, on the ground of corrupt practices under sub-sections (2), (3) and (3A) of Section 123 of the ').. Representation of the People Act, 1951 (hereinafter referred to as the · -"Act").

It appears from the impugned order that the High Court has reached a stage in the trial of the election petition where examinationin-chief and cross-examination of about 14 witnesses has been completed and various documents have been brought on record. It is at this stage that the impugned order has been made, the operative part. of which reads as follows:,.. "In this Election Petition, the Petitioner' seeks to set -y· aside the election of Respondent No. 1 on the ground of corrupt practice under Sections 123(3) and 123(3A) of the said Act. The Petitioner has led documentary and oral evidence. Respondent No. 1 has tendered documents but has led no oral evidence. The other Respondents have remained absent even though served. Petitioner and Respondent No. 1 have argued their respective cases.

The learned Advocate General has also drawn my attention t~ Section 99 of the said Act which requires this Court, whilst giving a finding that corrupt practice has been proved, to name all persons who have been proved at the trial to have , _ • been guilty of any corrupt practice and the nature of that J practice. This however must be after having given to such , persons notice to appear and show cause why he/they j should not be so named. ~- 1 At this stage, I am of the prima facie opinion that the charges alleged in the Petition of corrupt practices under Sections 123(3) and 123(3A) of the said Act have been proved to have been committed and that Mr. Bal Thackerary, Mr. Chhagan Bhujbal and Mr. Manohar Joshi Are (to use the w? rds of Supreme Court) collaborators in such ) corrupt practice. --"\ Accordingly, I direct that notices under Section 99 of the Representation of the People Act, 1951, shall be given to Mr. Bal Thackeray, Mr. Chhagan Bhujbal and Mr.

Manohar Joshi to appear before me on 3rd December, 1990, t -- been presented calling in question his election. The section requires · that before the returned candidate or such other party, as aforesaid, gives such evidence, he should have, within 14 days from the date of the commencement of the trial, given notice to the High Court of his intention to do so and that notice has to,be accompanied by the statement and particulars required by Section 83 in the case of an election petition and has to be signed and verified in the like manner. We have already referred to the relevant requirements of Section 83 with regard to the furnishing of the particulars of the corrupt practice. -~- 8.

Section 98 states that on the conclusion of the trial of an election petition, the High Court shall make an order (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any ).. -. other candidate to have been duly elected. Then follows Section 99 of which what is relevant for our purpose is sub-section (1) which reads as follows: "99. Other orders to be made by the High Court. -(1) At 766 SUPREME COURT REPORTS (1991] 1 S. C. R.

the time of making an order under section 98 the High Y Court shall also make an order- (a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording- (i) ·a finding whether any corrupt practice has or has not been proved· to have been committed at the election' ~ and the nature of that corrupt practice; and (ii) the names of all persons, if an·y,·who have been ,proved at the trial to have been guilty of any corrupt -~ practice and. the nature of that practice; and .. (b) fixing the total amount of costs payable and specifying the persons by and to whom costs shall be paid.

r-- Provided that a person who is not a party to the petition shall not be named in the order under sub-clause (ii) of clause (a) unless- (a) he has been given notice to appear before the High Court and to show cause why he should not be so named; -{ and (b) if he appears in pursuance of the notice, he has been given an apportunity of cross-examining any witness who ...... I has already been examined by the High Court and has given evidence against him, of calling evidence in his defence and of being heard. " -~ It is clear from the provisions of sub-clauses (i) and (ii) of clause ·(a) of sub-section (1), that at the time of deciding the petition, the Court has to record a findin·g that a corrupt practice is proved to have been committed and that it is committed by a particular person. The Court has not only to name the person but also the nature of the corrupt practice committed by him.

If the person is ·a party to the petition, it is not necessary to hear him separately before recording . _. /, . such finding. However, when he is not a party to the petition, before such serious finding is recorded against him, he must have the same opportunity as the party to the petition, to meet the allegations against him. In that respect, he stands on the same footing as the party to the petition against whom such a finding is to be recorded. He cannot be