Daulat Ram Chauhan v. Anand Sharma

FAZAL ALI, J. This election appeal is directed against a judg­ ment dated December 28, 1982 of the Single Judge of the Himachal Pradesh. High Court, WPO was assigned as an election Judge under the provisions of the Representation of the People Act (hereinafter referred to as the 'Ac.t'). The appe~I arises out of an election to the Himachal Pradesh Legislative Assembly from the Simla constituency. The poll was held on M;y 19, 1982 and the result was dedared on May 21, 1982 whereby the appellant was declared elected by a margin of 2745 . votes. The respondent, Anand Sharma. filed an election petition in the High Court challenging the election of the appellant on the·ground that he (appellant) was· guilty of indulging in Stveral corrupt practices as envisaged .by the provisions of the Act. The High Court, after .going through the entire evidence of th\: parties and considering the documents, came to the conclusion that the allegations of corrupt practices against the appellant· were fully proved and accordingly set aside his election, hence this appeal to this Court by the elected candidate, Daulat Ram Chauhan. We may also ·mention here that two other candidates; besides others, K.D. Batish and Poora!i Chand .Sood (hereinafter referred to as 'Balish' and 'Sood' respectively) were also in the field but they had withdrawn. Mr. Shanti Bhushan, appearing for the appellant, raised a pre­ liminary objection which, according to him, if accepted, was sufficient to dismiss the election petition of the respondent in /imine. We had decided to go into the validity of the preliminary objection because. if it was accepted then the election petition would have to be dis­ missed and it would no.t be necessary to hear the appeal on merits but if the preliminary objection was overruled the~ the appeal would .have to be heard on merits. . The only important point raised by the counsel for the appellant before us is that as the election petitioner (respondent) had alleged that Batish and Sood, committed corrupt practices with the consent ·of the appellant and yet they were not made parties to the election petition, the High Court should have dismissed the ~lection petition in limine under the provisions of s.82(b) read with s.86 of the Act. It is not disputed before us that Batish and Sood were candidates for election to the Simla constituency and that they were not made ·parties to the election petition filed by the respondent in the High · Court. Section 82(b) runs thus : "82. Parties to the petition A petitioner shall join as respondents to his petition. (b) any other candidate against whom allegations of corrupt practice are made in the petition." Section 86 provides that where there is a violation of s. 82, the High Court shall dismiss the petition. The dominant question for consideration is as to whether or not the respondent had alleged that Balish and Sood indulged in corrupt practice as defined in s.123 of the Act. Mr. Bhandare, appea­ ring for the respondent, however submitted that the allegations made against the aforesaid persons pid not amount to corrupt practice as contemplated by s.123 because from the avertments ma~e by the respondent there is nothing to show that these two persons had indul­ ged in corrupt practice either at the instance or with the consent of the appellant, or his election agent. In view of the arguments of the parties the matter lies within a very narrow compas.s because Mr. Shanti Bhushan with his usual . , - ingenuity and brevity has invited us to consider the effect of the allega- ,. .... E tions made in para 16 of the election pertition read with para 4, which " according to him, is a sort of an index to para 16. It appears that an additional issue regarding the allegation contained in para 16 was • raised in the High Court in the following terms : ~ "Whether any allegations of corrupt practices have been made in the petition against Sarva Shri Kali Das Balish. and Puran Chand Sood who were admittedly candidates at the election. lf so, to what effect?" However, this additional issue was later on not pressed on liehalf of the respondent and it was conceded that the court may take G it as established that no allegations· of corrupt practices were made against Batish ~nd Sood: ln this view of the matter, the High Court without going into the issue decided it against the appellant. The ' counsel for the appellant submitted that once an issue was raised it was not open to the parties to make any concession as, according to H law, the issue had to be tried whether pressed or not. In support of his contention, the learned counsel relied 0n a, decision <5f this Court ' -. ,. . ~\ ~ ' t D.R. CHAUHAN v. ANAD SHARMA (Faza/A/i, J.).. 423 in Udhav Singh v. Madhav.Rao Scindia'" .where the Court made the following observations while interpreting section 82 of the Act :- . "Behind this provision is a fundamental principle .;;if natural justice viz., that nobody should be ·. condemned unheard. A charge of corrupt practice against a candidate, if .established, ~ntails · serious penai consequences. It .has : the effect of debarring hiin from being a candidate· ... at an election 'for a considerably long period. That is, why, s.82(b) ia· clear, ·perempiory terois, obligates. an election-petti.oner to join as respondent to his petition, a candi.date against . whom allegations of any corrupt practice are made in the petition. Disobedience of this mandate, inexorably attracts. s.86 which commaiJds. the High Court, in equally imperative . language, to~ "dismiss an election petition which does n0t comply with th~ provisions uf section 82." The Tespondent ca~not by_ consent, express or tacit, ~aive t~ese ·provisions or Condone ~ a non~compHance ~ith .the imperative of s.R2(b). Even inaction, lat~hes or delay on the part of the respondent in pointing out the lethal defect of hon-joinder cannot relieve the Court of the statutory obligation cast on it by s.86. As soon as the : non-com­ piia.nce with S:82(b) comes or is broughtto the notice of the cour.t, no' matter in what'inanrier and at w)lat stage, during . the penq.ency o.fthe pe.tit.ion, it is bound to dismiss the petition in unstinted obedience to the.C:ommai:d of s. 86." This Court furth~r held that orice allegations of corrupt' practice were made against a candidate it was incumbent on the election petit­ tioner t~ join hnn as a party and faiiure to ·do so would autcmatically lead to the dismissal of ·bis petition under s. ·86. There can be no · doubt that this is' the combine.d effect ofs.82(b) and s.86 9f the Act. '·. ·n But before s.82(b). o~ s:86 could come into play in the instant case, it must be pro.ved whether. or ·not the allegation of corrupt ~pctices . G made against . Batish ·and Sood am9unted to . corrupt practice as · .contemplated by the provi.sions of sA23 of the· Act.. It was ·thus argued that the 'a]legations made. in para· ]6 come within s.123(2) which may be extracted thus :- , · · .H (I) ['1976] i S.C.R. 246: . ' ... •, ' \ ' ..i ' . 424 SUPREME COURT REPORTS , [1984] 2 $.C.R. "123. Corrupt practices-The following shall be deemed to be corrupt practices for. the purposes of this Act :- · . (2). Undue influence, that is to say, any direct or indire,ct interferente or attempt to interfere on the part of the can­ didate or his agent, or of any other·person with the consent of the candidate.or his election age~t with the free exercise of · . any electoral right :" It is manifest that in order that an act of the candidate concerned may amount to an allegation of corrupt practice', it must be committed . .4 C · either by the candidate l\imself, his agent or by any other person ~.· with the conse11t of the candidate or his election agent. Jn . order to ~ determine whether the ingredients of s. 123 have been fulfilled in the present case, it. may ?e necessary to wade t11rough the contents of para 6, the relevant portions of which may be extracted thus : "16. That ·after tlie conclusion of the meeting, a rally was organised by the respondent, which passed through the main bazar of Simla town. ·Jn the rally also, t11e following persons of the Bhartiya Janata Party participated : . . . · The persons· in the rally including the respondent raised the . following slogans· :- f 'INDIRA KAISi HAI PHULAN DEVI JAISl HAI' 'DESH KA NETA KAISA HO ATTAL BIHARI JAlSA HO' 'JITEGA BHAl JlTEGA DAULAT RAM CHAUHAN JJTEGA' The aforesaid libelous slogans and displaying of pamphlets were made to alienate the v<>ters from the petitioner.'.' · An analysis of the aforesaid extracts shows that there is ·no clear and specific allegation that Batish and Sood' took active part in . · raising libelous slogan and displaying the pamphlets with the express ).. I D. R .. CHAUHAN v. ANAD .SHARMA (Faza/ Ali, J.) 425 or implied consent of the· appellant or of his election agent. It is common knowledge.that whenever.there is a rally or a crowd or a gathering, ~ a nuinber of persons attend or· participate in the same but that by itself would not give rise to .an irresistible inference that their partici­ pation or presence was at the. instance of the· person in whose favour the crowd gathered or the .. ralfy was organised. Mr. Shanti Bhushan however stressed the fact that'the words."persons in the rally including the respondeni ·raised the Jibelou.s slogan" would lead to an inevitable conclusion that the persons who participated ·in the rally raised· the slogan with the express or implied consent of the· appellant.. We, _,. are, however, unable to• draw this inference because it is well settled that an allegation of corrupt practice must be proved like a criminal y~charge without admiWng of any doubt. ' :;. .. \ . In Haji C.H. Mohammad Koya v. T.K.S.M.A. M1it/111koya11 ' this Court made the following observations : "It is well settled by Jong course of decisio.ns of this A' Court that such practices must be clear!~ alleged with all D the necessary particulars and· proved .nM by the standard . ·",of preponderance of probabilites but beyond reasonable doubt." · ' . I . . Jn these circumstances, therefore, before s.82 could apply it was incumbent. o'n the part of respondent to allege that the appellant had • · given his consent to Sood or Balish for raising' the slogan. There .is _.., ·:also no allegation in the passage, extracted above, that Bat~h or' Sood had .obtained the consent of the appellant or his election agent .. • \ . Reali~ing the futi.lity and the frailty of his argu~ents M~. Shanti ~ Bhushan tned to call mto· aid the averments made m ·para ll of the electio'n petition, .ihe relevant portion of which may be extracted F ·thus: .4 ":~ . "That the respondent, his election ·agent and other pmons with the consent of the respondent or his election apnt have committed several corrupt practices with the full . knowledge and conseni of t.he respondent and his. election agent, which have prejudiciously affected the election of the petitioner .... The. catalogue of corrupt practices committed ·by the respondent, his election agent and other persons with "the consent of the respondent and his election agent (I) (1979J 1 S.C.R . . 664 . : SUPREME COURT REPORTS [1984} 2 S,C.R· . . . ' A is detailed hereinafter." . . . ~1 Even if this allegation is taken a tits face ·value, there is no mention at all about Sood or Batish having taken the consent 0f the appellant ;.: for· indulging in corrupt practices. Strong reliance was placed on .the second part° of the. recitals which disclose t.hat there was a ca ta'' logue of corrupt practices committed by the appellant. his election agent. and othei persons as detailed iii· the petition. The learned· counsel for the appellant wants us to read para 4 in conjunct;on wit)1~ para 16 and then to arrive at the. conclusion that libelous slogans .. were shouted t)y Sood and Ratish with the consent or the appellant: · .' .. We arc however· not .in a position. to acccp( this s0mewhat complex 1. · ·process of reasoning. · In our opinion, such a· disjointed scheme of · averring· particulars so tnat one· has to read one.part of the allegation\ wilh an0ther ari.d then. by joining the two pr0duce a particular result to infer an allegation of corrupt practice is not contemplated bys. 123 · · .. ~ . of the Act and is in fact foreign to the principle of giving all necessary particulars and statement of facts, viz,, time, place,_ ma1iner, mode and the consent of the candida,te or h.is election agent. Suen an -,i. approach w~uld naturall)I suffer from the vfoe of vagueness. Jt is even against the well settled rules of pleadings .to interpret or read °Suc.h a s;:rious allegation as that of fraud by joining one. port.ion of th~ al\cg1t;0n with another and then connect the head of one wi.th tho t1i1 of the other in order to. present. a composite picture. The · da'ng~r of ina~ing such an approach· would r~aily amount tQ basing the. decision of 'the court on pure conjectures or spcculatioir and is . )>.. agai1'st •the very spirit and ienor of s.82(b) of the Act. This scdion contains a salutary provisign. which is. that nobody should be con­ demned unheard so as. to amount to an in. fraction of th.e well settled r..I.. practice of audi alteram partem (rules of natural justice) and require·s ... • that an 11lle-gatio11 m~st be prnved to ·the hilt in the presence. of the · · person.affected, failing wh;ch the electio,n petit:on w0uld stand.dis- missed. lf such a conscque.1ce were to follow it is obvious.that 'the -allega.tions n1ust be interpreted as they are a~d n'ot by adding or f .subtracting one frein the other. · · · . ' . . . . . • Moreover, the scheme followed by the respondent would itself show.that the allcgationi.inJiara 4 .are not meanfto be an inde~ pr glossary for the recitals in para.16 because wherever other corrupt·· practices have. been· averred, it has been clearly ment_ioned' in those ·very averments that the consent of the. appel\ailt or his ekcfion.age1\t . }.. .was obtained. In: para ·J6, however, this is completely absent. For · instance, in para.IS where the respondent has made a cleat allegation . . . . . ;'. D: R. CHAUHAN v. ANAD SHARMA (Fazd/ Ali, J.) 427 --I regardi,ng th~ slanderous campaig~ against him, he has in th~ dearest . A possible terms mentioned that these acts were committed by the appellant, his.election agent and workers with his tacit consent. .In this connection, the relevant portio.n of the averineht may be extracted thus .. : "That the respondent, his workers and .election ~gent did not c.hoose to rest there and it appears l\ad devised well­ knit and calculated slanderous campaign against the petitioner. ·-The respondent,. his election agent and wo.rkers with his · .• '( consent to further the prospects of the responde_nt by denig- -· rating the petitioner in the eyes of pepple launched a character assasinatimi ..... : The· re.spondent, his agent 'and workers knew that the contents contained in Annexure 'G'. are fa!Se and the respondent does not beHeve it to be true."· ). - ..l!'. If, therefore, the intention of the respondent was to allege corrupt ·practice as contempiated by Jaw against ·.Ba ti sh and. Sood, the. aver- c. ment in para 16 should have been either.identical or of the nature of D averments co~tained in para J8{which is-in respyct of other persons). This is ·yet another reason why w.e cannnt accept the ·argument or Mr. Shanti Bhushan that the .averments of pa1'a 16. must be read· ...(.with the averments made in para 4. . . \ '. In Samantl'{. Balakrishna etc. v. George Fernandez & Ors.1'' this · E .... ~urt poinfrd out thus : · · . . . .. -t .. "But the corrupt practices are vie.wed separately accor­ ding as to who ·commits them. The first class consists of. corrupt practices committed by the candidate or his· election, agent.or any other person with the consent of the. candidate or his elcctlon agent. These, if established,. void the election without any further condition. being fulfille.d. In the scheme of election law they ate separate corrupt practices which cannot' be sai<l to grow out of the material facts relat~d to another•person. · 1'11blication of false state­ ments by an agent is one cause of action, publication of false statements by.the candidate is quite a diffetrent cause (I) [1969] 3 S.C.R. 603. . H. ' ofactiou. -Such a ·cause of aetion 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 cause off action. . - • .. Since a single corrupt practice committed by the can­ didat<l'. by his election agent or by another person with the · consent of the ~andidate or his election agent is fatal to the election, the case must be specifically pleaded and strictl:; proved .. If it has not been pleaded as part of the material facts, particulars of such corrupt pi actice cannot be supplied later on."' We must remember that in .order to constitute corrupt practice, . · which entails not only the dismissal of the elct;.on petition but also other serious consequences like disbarring the candidate concerned from contest·ng a fµture election for a period of six years, the allega­ tions must be very strongly and narrowly construed to the very spirit and, letter of the law. In other ivords, in order to· constitute corrupt practices, the followi11g necessary particulars, statement of facts and essential ingredients. must be coi)tained in the pleadings :'-- (I) ·nirect and detailed nature of corrupt.practiCe as defined in the Act, · (2) details of every important particular must be stated giving the time, place, names of persons, use of words and expressions, etc. · · (3) it must clearly appear. from the allegations that the corrupt practices alleged were indulged in by (a) the · candidate himself (b) his autho.rised election agent or any other person with his expres~ or implied consent. • ~· A person may, .due to sympathy or on his own, support the candidature of a particular candidate but unless a close and direct nexus is proved between the act of the person and the con.sent given J. to him by the candidate or his election agent,· the· same would. not amomH to a pleading of corrupt practice as con tern It cannot be left to time, chance or corijecture for l b ' . , 1 an inference by adopting.an.involved process of reasoning. In fine, the allegation must be so clear and specific that the inference of corrupt . .l. "· D. R. CHAUHAN V. ANAD SHARMA (Faza/ .A/i, J.) 429 . practice will irresistibly admit ?f no doubt or qualm. As a logical conseguence of the principles enunciated by us, jt follows that where the .allegation of fradulent practice is open to two equal possible inferences, the pleadings of corrupt practice must fail. For instance, A, or in this case Sao~ or Batish; joined or participated . . or was present in an election rally or crowd and may have shouted B slogans on his own without taking the consent of the candidate con­ cerned, this would. not be. a corrupt practice within the. meaning of s.1J3(2) because the element of consem is wholly wanting . ( , Applying these tests to the averments ·'made. in para 16, th~ .. .• \ . position is as follows. : . c ·"· That Batish and Sood doubtless .participaled in the rally and may have shouted libelous slogans but there is nothing to show that they were ejther the election agents or workers of the appellant or that · they participated 6r shouted skigans with the express or. implied con- sent of the candidate. · In these circumstances, it is difficult to accept the argument of Mr. Shanti Bbushan that·reading the averments in para 4 alongwith p~ra 16, the irresistibfo inference would be that Sood and Batish had ·shouted the slogans with. the consent of th.e appellant. The fundamental core and tlw pivotal basis· of the argument ·Of the appellant tliat in view of the specific allegations of corrupt practices having been made by the respondent and yet Batish and Sood were not made parties to the election petitioi:ds not proved and, therefore, the requiremeni of s.8!2(b) read with s.86 Of the A~t has not . F been fulfilled in this case so as to reject the election petition at the very behest . We are, therefore, in agreement with the argun1ents of Mr. Bhandare, counsel for the respondent, that the averments contained in para 16 cannot by any ;!retch of ·imagination be construed to. constitute allegations ·of corrupt practice as envisaged by s.123(2) . of the Act. The additional issue is, therefore, decided against the appelli'nt. ' For the reasons· given· above; the preliminary. objection raised H by Mr. Shanti Bhushan is overruJ¢ and it is held that the election ... 430 SUpRBME COURT. REPORTS • (1984]2 $.C.R. A · petition was not .liable to be dismis.sed in ljmine under s.86 of the Act. The appeal will now. be posted for hearing. on: merits .in respect of ~ · · otheF iss\jes. · . · B N. V.K. Preliminary ob jection over·ruied. . . .. , . .... ·. 4. ,. •