Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.10863 of 2017

ABDULRASAKH ….Appellant

versus

K.P. MOHAMMED & ORS. ..…Respondents

J U D G M E N T

SANJAY KISHAN KAUL, J.

The facts:

1. The democratic process of holding State elections was carried

out for the 14th Kerala Legislative Assembly on 16.5.2016 in which the

appellant contested from the Koduvally Assembly Constituency as an

independent candidate.  The results were declared on 19.5.2016 and the

appellant, having obtained the highest number of votes was declared as

elected.

2. Respondent Nos.1 & 2 who were stated to be the voters from the

same  constituency  filed  election  petitions  on  grounds  of  corrupt

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practices.  The challenge to the election of the appellant was laid under

Section 123(4) of the Representation of People Act, 1951 (hereinafter

referred to  as  the ‘said Act’)  alleging that  the appellant  made false

allegations against respondent No.3, a candidate, knowing the same to

be false.  Section 123(4) of the said Act reads as under:

“123. Corrupt practices. – The following shall be deemed to be corrupt practices for the purposes of this Act: -  

xxxx xxxx xxxx xxxx xxxx

(4) The publication by a candidate or his agent or by any other person [with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to  be  false  or  does  not  believe  to  be  true,  in  relation  to  the personal character or conduct of any candidate or in relation to the  candidature,  or  withdrawal,  of  any  candidate,  being  a statement reasonably calculated to prejudice the prospects of that candidate's election.”

3. The election petition is stated to have been filed on 1.7.2016 in

which certain defects are stated to have been pointed out.  It is the case

of the appellant that the petition was returned from the Registry and

was  re-presented  only  on  11.7.2016  by  which  time  the  prescribed

period of limitation of 45 days to file such an election petition had

expired on 3.7.2016 and, thus, the election petition was time barred.  It

is also the say of the appellant that the Registry had no power to return

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the election petition or permitting curing of any defects.  Even on re-

presentation,  the  petition  is  stated  to  have  been  defective  and  was

placed before the learned single Judge of the Kerala High Court, who

by the order dated 18.7.2017 granted one week’s time to respondent

Nos.1 & 2 to cure the defects.  It is thereafter that notice was issued to

all  the  respondents  in  the  election  petition  including  the  appellant

herein.

4. On account of the aforesaid two grounds and more the appellant

moved an application for summary dismissal of the election petition

under Section 86 of the said Act read with Section 151 and Order VI

Rule  16,  Order  VII  Rule  11  of  the  Code of  Civil  Procedure,  1908

(hereinafter referred to as the ‘said Code’).   The relevant provision,

being Section 86 (1) of the said Act, reads as under:

“86.  Trial  of  election  petitions.  –  (1)  The  High  Court  shall dismiss  an  election  petition  which  does  not  comply  with  the provisions of section 81 or section 82 or section 117.”

5. The objections filed by the appellant were, however, dismissed

vide impugned judgment dated 16.6.2017, by the learned single Judge

of  the  Kerala  High  Court  against  which  the  present  Special  Leave

Petition has been filed.

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Appellant’s contentions:

6. Mr. Rajeev Dhawan, learned Senior Advocate appearing for the

appellant  referred  to  the  office  notice  sheets  of  the  High  Court  to

canvas his case of the petition being beyond time.  He referred to the

fact that while the election petition was stated to have been presented

on 1.7.2016, it was also mentioned therein “E.P. filed: 11.07.16”.  The

date of issue of summons is 9.8.2016.  He also referred to the noting

where  eight  defects  were  enumerated and below that,  there  was an

endorsement of the counsel appearing for the original petitioner to the

effect that “defect cured” without any date and an endorsement of the

Deputy Registrar dated 7.7.2016.  The conclusion, he sought to derive

from these endorsements was the presentation and re-presentation of

the  petition  before  the  Registry,  without  it  being  placed  before  the

Court.

7. Learned Senior Advocate referred to the provisions relating to

presentation  of  an  election  petition  to  a  High  Court  contained  in

Chapter II of the said Act and the mandate for an election petition to

meet  with  the  same  in  the  context  of  the  objections  filed  by  the

appellant.  The relevant provisions read as under:

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“81.  Presentation  of  petitions.—(1)  An  election  petition calling in question any election may be presented on one or more of  the  grounds specified in[sub-section (1)]  of  section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates].”

xxxx xxxx xxxx xxxx xxxx

“[(3) Every election petition shall be accompanied by as many copies  thereof  as  there  are  respondents  mentioned  in  the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.]”

8. The defects pointed out by the Registry are as under:

“i. Sec 80A of the R.P. Act is not provision shown in the Election Petition.

ii. Pages 28 and 29 are not properly tagged in 1st set.

iii.  Mobile  phones produced as Annexure B, C,  G and L and Compact Disks produced as Annexure H, M and O are in sealed covers, cannot be scrutinized.

iv.  Mobile  phones  and  CD’s  which  are  material  objects  are marked as Annexures.

v. Annexure B, C, G and L (Mobile Phones), stated as “cannot be produced” in the verification made in copies.

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vi.  Page  57  which  is  English  translation  of  Annexure  K, produced as  Annexure  K-1 is  stated  as  English  translation  of Annexure H.

vii. No English translation of last four lines appearing at P 35 (Annexure  E/5)  is  seen  reproduced  at  P.39,  the  English translation of Annexure E.

viii.  In  one  of  the  additional  copies  of  Election  Petition Annexure Q is produced twice.”

9. Learned counsel took us through the written objections filed by

the  appellant  to  which  no  reply  is  stated  to  have  been  filed  by

respondent Nos.1 & 2.  In substance what was sought to be canvassed

before us by reference to the objections is as under:

i.  The  election  petition  is  barred  by  time  as  it  had  to  be

presented free from all defects before 3.7.2016.  The defects

were cured and the petition was re-presented on 11.7.2016.

ii.  That  the  process  of  returning  and  re-presentation  of  the

election petition in the Registry is alien to the process of an

election court.

iii.  Production  of  documents  in  the  sealed  cover  is

impermissible in law and is not acceptable.  The failure to hand

over the entire contents of the items produced in sealed cover

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is violative of Section 81(3) of the said Act and is violative of

the principles of natural justice.  The appellant was entitled to

the chip of the mobile phone apart from the CD of the relevant

portion,  the  latter  having  been handed  over.   Such  deprival

would cause prejudice to the appellant as is deprived of the

opportunity to know the entire contents.

iv.  The defects  have been cured by substituting the original

page 57 filed with the election petition and it is ante dated as

the papers have been signed subsequent to 1.7.2016.

v.  Annexure  E-1  was  incomplete  and  not  the  true  English

translation of Annexure E.

10. To buttress the submissions made,  learned counsel  referred to

the judicial pronouncements dealing with the aspects he was seeking to

canvas.  The same are dealt with as under:

i. Satya Narain v. Dhuja Ram &Ors.1 – it was observed that in

the absence of any provisions under the said Act and the Rules

made thereunder, the High Court Rules cannot confer upon the

1 (1974) 4 SCC 237 (para14)

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Registrar  or  the  Deputy  Registrar  any  power  to  permit

correction  or  removal  of  defects  in  an  election  petition

presented in the High Court beyond the period of  limitation

provided under the said Act.

ii. Sahodrabai Rai v. Ram Singh Aharwar2 - In the given facts

of  the  case  the  learned  Judge  trying  the  case  ordered  the

attendance of the Reader of the Deputy Registrar of the High

Court,  who had dealt  with the  election petition  and he  was

examined as a  court  witness.   A similar  course,  the counsel

contended, was liable to be followed in the present case when

there were doubts and allegations about the presentation and

re-presentation as was apparent from the office notes.

iii. M. Karunanidhi v. Dr. H.V. Hande & Ors.3 (para 29) – The

particular controversy related to the costing of the banners and

it was stated that the same was mentioned wrongly as there

were two election banners – one of them was a huge fancy

banner or hoarding on the left side of the road and the other on

2 (1968) 3 SCR 13 3 (1983) 2 SCC 473

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the right  was  a  smaller  election banner.   The appellant  was

present in the depiction of the two groups in both the banners.

A photograph of the fancy banner was filed but the copy of the

same  was  not  supplied.   This  was  held  to  be  fatal  to  the

petition.

To appreciate the contention of respondent Nos.1 & 2 herein, it

was stated that they were required to supply to the appellant

the proper photograph while only a black and white photocopy

had been supplied.

iv.  U.S. Sasidharan v. K. Karunakaran & Anr.4 (paras 14 &

32)  –  The  controversy  relating  to  non-supply  of  the  video

cassette with the election petition was examined and the video

cassette  being  an  integral  part  of  election  petition,  non-

furnishing of the copy was held to be fatal.

v.  Mithilesh  Kumar  Pandey  v.  Baidyanath  Yadav  &  Ors.5

(paras 11 & 15) – The Bench of  three Judges of this Court

examined the controversy emanating from the allegation that

4 (1989) 4 SCC 482 5 (1984) 2 SCC 1

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the copy supplied to the returned candidate was not really a

true copy.  In the said context the principles were laid down in

para 15 as under:

“15. On a careful consideration and scrutiny of the law on the subject, the following principles are well established:

(1)  that where the copy of the election petition served on the returned  candidate  contains  only  clerical  or  typographical mistakes which are of no consequence, the petition cannot be dismissed straightway under Section 86 of the Act,

(2) A true copy means a copy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the court may not take notice thereof,

(3)  where  the  copy  contains  important  omissions  or discrepancies  of   a  vital  nature,  which  are  likely  to  cause prejudice to the defence of the returned candidate, it cannot be said  that  there  has  been  a  substantial  compliance  of  the provisions of Section 81(3) of the Act,

(4) Prima facie, the statute uses the words "true copy" and the concept of substantial compliance cannot be extended too far to include serious or vital mistakes 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 within the meaning of Section 81(3) of the Act, and

(5)  As  Section  81(3)  is  meant  to  protect  and  safeguard  the sacrosanct electoral process so as to not disturb the verdict of the  voters,  there  is  no  room  forgiving  a  liberal  or  broad interpretation to the provisions of the said section.”

In  the  aforesaid  context,  it  was  stated  that  the  translations

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supplied by respondent Nos.1 & 2 did not make sense and the

access to the original chip is necessary as the allegation against

the appellant is of connivance in making of false allegations

against one of the candidates.

Respondent Nos.1 & 2’s contentions:

11. On the other  hand,  Mr.  Kapil  Sibal,  learned Senior  Advocate

appearing for the first two respondents (Original petitioners in the High

Court) at the threshold itself stated that he has no quibble with all the

legal  propositions  advanced  by  the  learned  senior  counsel  for  the

appellant  or  with  the  judicial  pronouncements  referred  to  aforesaid,

however,  what  was  sought  to  be  canvassed  was  an  incorrect

representation of what has actually transpired.  In this behalf learned

senior counsel, once again, drew our attention to the notings to contend

that  the mention of  “E.P. filed: 11.07.16” is obviously a mistake as

undisputedly  the  election  petition  was  presented  on  1.7.2016.   The

endorsement of the Deputy Registrar shows that the scrutiny took place

on 5.7.2016.  The eight defects noticed aforesaid were mentioned on

7.7.2016 whereupon the petition was placed before the learned Judge

on 18.7.2016 as an unnumbered election petition.  The learned Judge

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opined that the defects noted by the office are not material defects for

rejecting the petition in limine under the said Act (the parameters have

been set out in  Mithilesh Kumar Pandey6).  It is also noted that the

question whether CD have to be marked as material objects or exhibits

could be considered at the time of trial and since the mobile phone

cannot be produced along with each copy, copies of contents in the

phone which the petitioner  wants  to  rely upon have been produced

along with the copy of the election petition.  Sufficiency of this could

be considered later after appearance of the parties.  One week’s time

was granted to cure the minor defects as prayed.  Thereafter the defects

were cured within the time specified and the endorsement made by the

counsel for respondent Nos.1 & 2.

12. We  have  also  examined  the  impugned  judgment  passed  on

16.6.2017, which is a detailed one with supporting case law.  Sixteen

issues  were  framed out  of  which the  appellant  claimed  preliminary

hearing in  respect  of  issue  Nos.1  to  7.   The preliminary issues  are

reproduced as under:

“1. Whether the election petition is barred by limitation?

6 supra

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2.  Can the defects  in  the election petition be permitted to  be cured after the period of limitation prescribed under Section 81 of the Representation of People Act?

3.  Can  the  election  petition  be  returned  to  the  petitioner  for curing  defects  after  the  period  of  limitation  prescribed  under Section 81 of the Representation of People Act?

4. Is there power in this Court to permit representation delay to be  condoned  when  the  original  delay  in  presenting  election petition itself is not permissible to be condoned and when there is no provision for any delay condonation?

5.  Whether  the  defects  cured  and  corrections  made  in  the election petition after the period of limitation will relate back to the date of its presentation?

6. Whether defects cured and corrections made in the election petition  after  presentation  are  permissible  and  in  compliance with the mandatory requirements as provided in Sections 81 & 83  of  the  Representation  of  People  Act  and  Rules  framed thereunder?

7.  Whether  the  election  petition  is  maintainable  for  non- compliance of mandatory requirements as provided in Sections 81, 82, 83 & 117 of the Representation of People Act and Rules framed thereunder and other requirements of law?”

13. The  learned  single  Judge  then  on  examination  of  the  record

opined that the Registry, after presentation of the petition on 1.7.2016

had  not  returned  the  petition  to  the  first  two  respondents  but  was

posted before the Bench as per the correct practice, which passed the

order dealing with the objections.   On curing of  the minor  defects,

Civil Appeal No.10863/2017 Page 13 of 17

notice was issued to the appellant.

14.  The Kerala  High Court  Rules  (Rule 210)  itself  provided for

scrutiny by the Judge assigned to the case and not by the Registry.

There was no violation of this Rule.  The defects were also cured only

after  18.7.2016.   The  contents  of  the  conversation  recorded  in  the

mobile  phone  have  been  produced  as  annexures  and  CDs  and  the

mobile  phones  were  themselves  produced.   The  question  of

admissibility of evidence would, thus, have to be examined at the stage

of trial.  Similarly the photocopy of a photograph could only be a copy

taken from mobile phone and at this stage it could not be said that it

did not truly represent the contents of what was recorded in the mobile

phone, which was again a matter of evidence.

Conclusion:

15. We have examined the submissions of the learned counsel for

the  parties  and  do  not  find  any  merit  in  the  appeal.   The  minor

corrections permitted to be made vide order dated 18.7.2016 are by the

Court.   A  mountain  out  of  a  molehill  has  been  made  without

appreciating the office notings in the true perspective.  The Registry

was fully conscious that the eight defects pointed out by it could not be

Civil Appeal No.10863/2017 Page 14 of 17

permitted to be cured by the Registry itself and that is why the matter

was  directed  to  be  placed  before  the  concerned  Judge  as  an

unnumbered election petition.  On 18.7.2016, the learned Judge did not

find merit in some of the objections pointed by the Registry and to the

extent some minor corrections were required, which were not material,

one week’s time was granted to respondent Nos.1 & 2 to carry out the

corrections.  The needful was done within the stipulated time and it is

thereafter that notices were issued to the appellant.

16. The whole premise of the plea of the appellant is based on the

Registry  permitting  corrections  to  be  made  is,  thus,  fallacious  and,

thus, the presentation of the petition cannot be said to be beyond time

stipulated in Section 81(1) of the said Act.  There was, in fact, really no

occasion in these facts for the Court to examine the Registry officer as

was done in the case of Sahodrabai Rai7.

17. The issue of supply of copies has also been appropriately dealt

with as copies of a transcript and the CD were supplied as also the

translation thereof.  This is not the stage to verify as to whether the

translation correctly reflects what was said.  In any case it would be a 7 supra

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doubtful proposition whether it was mandated that a translation should

also be filed that being possibly a part of the requirement of the High

Court Rules since the record had to be in English.  It has rightly been

observed that  the phone has been filed and keeping the phone in a

sealed cover or the allegation of non-supply of the chip alleged to be

violative of Section 81(3) of the said Act is not a plea which can be

accepted.  At best these are all matters for trial.

18. We are conscious of the fact that the law relating to election is a

technical  one  as  it  amounts  to  a  challenge  laid  to  the  democratic

process determining the will of the people.  An eligible person whether

a  candidate  or  a  voter  coming  to  Court,  seeking  to  set  aside  any

election has to, thus, meet with the technical natures of the election

petition and the provisions prescribed under the said Act as otherwise it

would be fatal to the election petition at the threshold itself.  It is in

these circumstances that the principles have been succinctly set out in

Mithilesh Kumar Pandey8.  The observations in that case provide for

clerical  and typographical  errors  to  be  corrected.   Thus,  issues  like

mentioning of the correct number of annexures or tagging with the file,

8 supra

Civil Appeal No.10863/2017 Page 16 of 17

etc. would all fall within the said Section.

19. Similarly  copies  of  the  documents  have  been supplied  to  the

appellant and multiple copies of the phone or the chip (which is kept in

a sealed cover)  are  not  mandated to  be supplied  when the material

relied upon in the phone has been reproduced in CD and a transcription

also  provided.   The  defence  of  the  appellant  cannot  be  said  to  be

impaired in any manner.

20. We are, thus, of the unequivocal view that the pleas advanced on

behalf of the appellant are meritless and deserve to be rejected.

21. The appeal is accordingly dismissed leaving the parties to bear

their own costs.

..….….…………………….J.     (J. Chelameswar)

              ...……………………………J.         (Sanjay Kishan Kaul)

New Delhi. March 08, 2018.

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