Mithilesh Kumar Pandey v. Baidyanath Yadav and Ors .

The Judgmentof the Court was delivered hy . . ·- ' . .. • FAZAl L AWL!; J, By Orderddated}'fov 1 ember 29, Ijl83hwe h~dd a 0 l!cd.wed ... ·~ t e a,rrea . . e. now procee to give t 1e reasons JOT t e sai · r er. This election appeal is directed agains't an interlocutory. Order dated J~nuary 7, 1983 passed by the Patna High Court overruling a . preliminary objection taken by the appellant (ele'ct~d candidate) that the election petition of.the respondent (e!ectio1i petitioner) should be dismissed str.aightaway uiicter the: provisions of s:86 of the Represen- tation or' the People. Act. l 951-·a< .amended uptodate-(here'nafter referred to as the 'Act'.)., ' . The·appellant's case is'that in the general election held in· June. 1980 he fought ~s;a Congress (I) ~andid~te 'from Harlakhi Assembly · c.onsthu_ency in .Bihar in ·\vhich 'he._ was deCJared elected, 'd~fe;itini. the respondent who filed the. election petition in the. High Courl. He further subm.itted that the copy of the <;lection 'peti'tion served on . him contained ·tt Jarge ~)Uinbet ~f)nistakesin respecf of Persohs through whom corrupt practices were alleged w h.ave been practised by the appellant c!uring -'the. election.. He . contended that in view of the very large number of mistakes, which were of a very vital character; !he mandatory provisions. of s.81 (3) ·c;r the Act were not complied ·.with at' all,' which. infirmly by itself woulil be sufficient to dismi~s the election petition in /imine without going into . the merits of the .· . . -~ case. . / . ' The stand taken by the respondent ~~·s tbat the I].listakes were. · undoubiedly there ·but they were of a minor and significant nature ' . \ . . and did not affect his case on merit. The 1earned Judge .of the Hi,gh Court found as a fact that a large · . n\Jmber of mistakes were there in the copy of the election petition · 'supplied to i\1e ·appellantbut as they were ofa superficial and i;1signi­ ficant nature bordering on clerical or .typing.mistakes, on the whole there was a· substantial compliance of .the .provisions of s.81(3)' of. the Act. · The learned Jucig:' has entered into a detailed discussion. of '-i . \ • -.. i .. M-~· PANDEY"· DAIDYANATH (Faza/ Ali, J.j 281 the various d~cisions of this Court and also of High ·courts and has ,correctly held that the provisions .of s.81(3) are mandatory and if the court finds that. they have not been cornpl\ed with ii has no alte111ative bu\ to dismiss· the. election petition .straightaway, Unfortunately, · however, in the process of applying the principles laid ·d°'vn by this Court he bas completely· glossed over the nature of ilie 1:nistakes by describing them ·as merely cleri~al or typing ones. On· a perusal. of the aforcs~id mistakes (list~d at pp. 64-65 of tne"rarerbook) they .do not appear)o b<; so. ,Section 81(3) of-the Act run' <\rns: "~l. Presentafio"n of petitions ,. (3) Every election petition shall be acco~panied by. as many .copies thereof as there are respondents mentioned in th~ ·petition, and every such copy shall be attested 'by tb.e pe1;itioner under his O\v1r signature to be·.a true·copy of the Petition.~.' . The cunsequen.ce of nOn-compliance of thi.s. section l12s. been ·D mentio11ed in s.86(1) which may be ext~acfrd thus ' "86 .. Tfia/ of' c!e"cti"pn petitions .. (!). Tl1e High Court shall dismiss a1{ election petition which does not compJy.with"the prov'isions of sccticn 81 er • section 82 o'r sectiCn 117.' . . A pe1"usal of.the above reveals that the statute intended that" before an election peiition can be entertai1icd; the copy· sent 'to if.e elected candidate niµst be a true copy, failing which there would be a serious disobedience of the m~·ndate contained in s.81(3) whkh would be fatal_ to the maintainability of the said petition. \ It is now .\vc!I settled bv. a large catepa of aut.bc~it.ics -cf 1l1.is Co.uri that the elec!oral proc~ss by. ~vhcih th<"vcrdici of lhc .people has been given is a s·acrosanct en~ and cai1·not .1--:c:li_ghtly H~t at n<1ught unless ~he gi-Ounds 1nentioned ·in the Act for setting aside an election a1"e held to be'provcd. Jn these circumstaHcs. it is ffanifrct :11oat th provisions of s.81'(3) of the Act should be construed to the letter and spirit of the law because if the election petitioner d~es not give full.. ·and coo1plcte 'notice of the aflegation.s made against the return(d . candidate. he runs the . risk of hi~. pctit(cn, _being disrnis~(d in lfmine. , .. ·H 282 SUPREME COURT REPORTS . [1984] 2 s;c.R. A ·hi· the instant cas·e, it is the.a.dmitted case of the parties that the mistakes in the copy supplied to the. appellant rel.~ted to corrupt• ~ practices indulged in by him through various persons who liave been named at pages 64-65 of the Paperbook. In Murarkd Radhey Shylim Ram Kumar v. Roop Singh Rathore & Ors.<ll this Court made the . followit~g obs~rvations :-- • "Having'rcgard to the prov1s<0ns of Part VI.of the Act we are of the.viewthat the word "copy" does not mean an absolutely exaot copy. Tt means a .copy so true that · nobody ca.n by any possibility.misunderstand it.. The test whether. the· copy is a true one is whether any vari­ tion frora· the original_ is ·calculated to mislead an ordinary· person.'' . . In other, words, this Court merely mrant to indicaie that where the variation is- so minin1al and ins~gnificant that it is incapable of misleading any person as to the true purport of the allegation, it would be a substantial complia1ice of. the provisions of s.81 (3) cf the Act.. The High Court has largely relied on the ratio of this parti­ cular case. There can be no dispute. regarding the· principle laid down by this Court but the main difficulty.arises when· we approach the facts of a particular case in. order to find .out whether the copy .supplied to the returned candid~te is really a true copy or not • Tn Jagat Kio}wre Prasad Narain Singh v. Rajendra Kumar Poddar & Ors.121 the same principle was laid down. In this case, the mistake· was that in the election petition it was stated that rnrney was offered ·to one Jctba Kisku by Munshi Hansda but in the 'opv served on the returned candidate instead of M).Jnshi Hansda the name of Paul Hansda was mentioned. Apparently, the mistake was a verbal one but this court held that it was sufficient· to prejudice the defence and · accordingly came to the conclusion that the petition was liable to · .. -f ' y G be dismissed under s.86 of the Act. ·We shall presently show that in the instant case the mistak.es were of a greater nature than those with which this Coµrt was dealing 1-- (I) (1964] 3 S.C.R. 573. (2) [1971] I S.C.R. 821. . • -f. . . M.K. PANDEY l'. BAJDYANATH (Faza/ ,4/i, J.) . . , 283 with in the afore~id ~ase. Jn Satya'Nar~in v, Dhuja Ram & Ol's.<11 this Court clearly pointed out that where the first.part of s.81(3) was n.ot complied with .. the provision being a peremptory one, total nqnc, compliance with the same would. entail dismissal of the election peti­ tio'n under s.86 .of the Act. In a later case in' Shari[-ud-Din v. Abdul Gani Lonei2> this Court observed thus · "It· .is true that section 89(3) of ·the Act is purei'y procedural in character and that ordinarily prccedimil Jaw· should not be ·given that primacy by cuurts a~ would defeat the ends of justice, But if a Jaw even though it may be pro­ cedural in character insists that an act must be done in a ·particular mam,er .and further provides that certain con­ sequences should follow'ifthe act is not done.in that manner, courts have no.option but to enforce the law as it is." . ~ . . . In a la(<:st decision of the Court in M. Karunanidhi etc. etc. v.- H. V. Hrmde & Ors. etc. etc.,<3> the following observations were mad!': .. "It .is obvious that the photograph was a part of the \ ~verment contained in paragraph l S(b). Jn the absence · of the photograph the averment contained in paragraph 18(b) ·,vould be incomplete. The photograph referred to in paragraph 18(b) was therefore ai1 integral part of the election petition. It follows that there was total non-ccim­ plia'nce \vith the requirements of sub-s.(3) of s.81 ~f the Act by failure to. serve the appellant with a copy of the elcctidn ·petition."· · · ' On a careful consideration and scrutiuy of the Jaw on the subject, · the following principles are wen established :· - ' . · . · . I) that where the copy of the election petition. served on the returned candidate conta\ns only clerical or typo­ graphical mistakes whiCh are of no. comcquence, the petition cannot be ·dismissed straightaway under s.86 ·of the Act,· 2) A true copy _means a copy which is wholly and substan­ tially the same as the original and where there are insigni­ ficant or minimal' mistakes, the court may· not take notice thereof, ... (1)' [1974] 3 S.C.R. 20. (3) [1983) I SCALE 344. (2) [1980] 1 S.C.R. 1177. ' . . . E. .. .E 284 ·. -· ' SUPREME COURT REPORTS (1984] 2 $.C.R. 3) where the, copf contains importai1t omissions or dis­ crepancies of a vital nature,· which are likeiy to. cause · prejudice 'to the defence of the returned candidate;· it cannot be said that there has been a. s~bstantial com- . pliance of the provisions ofs.81(3) of.the ~ct. ~ . ~ 4) " Pri~1a facje, the ~tatute .use·s· the. words. "true copy" .. and the concept of'substai1tial compliance cannot be extended tdo .far to. include se1ious or vital itiisiakcs which :shed the character of a _true copy so that the copy furnished to the returned candidate cannot be said to be a true copy wiibin the meaning of s. 81(3) of ihe Aci,. ;nd . ' I 5) . . . ·... . \ - . . . . . ' .. As s.81(3) is meant to pr<ltect and safeguard the Bacrosanct. electoral process so as not to disturb the verdict of the .voters, there is no. room ,for giving a liberal or broad interpretation to the· provisions of the .s~id secti.on. , We might mention here• that in the instant case the mistakes in the copy· supplied .to the returned candidate related to corrupt practices' which, as has beert held by this Court in. a large number of cases, have to be proved to the hili just like a crii11inal charge and any mistake which co.ntains an eleme1it of vagueness would imme­ diately vitiate· the election petition and merit its dismissal. under. s.86 of the Ac( . . . A . . . In the view that. we lake, it.is not necessary for us t<i wade through a detailed dis<;ussion of the mistakes because a few mistakes pointed out by the Judge himself clearly reveal that they were .of a very vital and material nature so as to mislead the returned .. candidat~ . and prejudice him. in his defence. Schedule I to the election ·petition contained the.· list of ·persons through whon1 the corrupt practices were alleged to have been committed, An analysis of these mistakes may be pla~d in three cafego:fie~(l) where there is complete omission · of some ·names which have .been mentioned in the· election· petition but ·riot in. the copy'\upplie>[ to the returned candidate, (2) giving . absolutely .wrong names whic11 are bound to mislead the appellant . in his 'defence as· the persons bearing the wron·g names could not be t.raced out, and (3) some names given in the petition appear to be . . males but i(l the copy given to the appellant they ~ppear to be fe~ales_. Coming to the first category, a few ex~mples will suffice .to .·~ " M.K. PANDEY v. BAI~YANATH (Fazal Ali, i.) · Q85 illustrate· our point · SI. No. in .Name in the Name in the Schedule I orig;nal petitfon copy 17 · · Y ogendra Jha '. Omitted 37 Bufa.ri Devi Omitted .· ft. I. Omitted 188 Bal Bhogia 445 Ra1n<leo Pa'swan ·Omitted· 486 .. Jugeshwari Devi Omitted The omission ·of names cannot· be said to be a typing misiake but a very vital and serious one which is sufficient to entail the dismissal of the· election petition. Under the seco~d categoy (.giving wrong names), the following names may: be mentioned · . . . . . · . There are many more· mistakes given in schedule I but we have se!Ccted only those which are vitaL and may seriously prejudice the .'defence of the appellant ·because it will be very difficult for hini to find out the persons,' named in the copy supplied to him, who are said to have indulged in· corrupt pradices at his .instance .. 1~ . . . - . ·- Thus, on ,[n oyerall consiiierntion of the facts and circumstances .. ·- ~ -. ' A D. .F ' .. A .286 SUPREME COURT REPORTS [1984] 2 s.c.R. .. of this case, we. are unable to agree with. the High Court that the 'mistakes in the copy were either verbal, typographical 6r clerical.. The present case appears to be a much worse case than· Murarka · Radhey Shyam Ram Kumar,'s case (supra) where only a· slight.difference jn the title led this Co.urt to hold that' the mistake was a vital one . . . I We are, therefore, of the opinioq.that the High Court. committed · a· serious error of law in holding that there had been a substantial compliance of the provisions of' s.81(3) of the Act so a~ to exC!ude the. applica'tion of s.86 of the Act. For. the reasons given above, we allow the appeal and dismiss the election r.etitio1\ filed in the High C~urt but in the .circumstances without any order as to costs. As a result of our judgment, nothin.g now survive"s iii the High Court. · .. S.R. Appeal a/!'Oived. . . . .. ., ..