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REPORTABL E

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.4189         OF     2012   (Arising out of SLP(C) NO.30417 of 2009)

Ishwardas Rohani    … Appellant  Vs.

Alok Mishra & Ors.    … Respondents

J     U     D     G     M     E     N     T   

ALTAMAS     KABIR,     J.   

1. Leave granted.   

2. The Respondent No.1 herein, Shri Alok Mishra,  

contested the 2008 elections to the Madhya Pradesh  

State Assembly as a candidate of the Indian

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National Congress Party from Cantt. Legislative  

Assembly No.99 Constituency, Jabalpur.  He was  

defeated in the elections by the Appellant herein  

as a candidate of the Bharatiya Janata Party.  The  

said Respondent filed Election Petition No.22 of  

2009, challenging the election of the Appellant on  

the ground of corrupt practice, as contemplated in  

Sub-Sections (1)(A) and (B), (2), (6) and (7) of  

Section 123 of the Representation of the People  

Act, 1951, hereinafter referred to as the “1951  

Act”.

3. The grounds relating to corrupt practice, as  

alleged by the Respondent No.1 herein, inter alia,  

were to the following effect :  

(i) as an Ex-M.L.A. and Ex-Speaker of the Vidhan  

Sabha and being a close associate of the Chief  

Minister of the State, the Appellant was able  

to exert undue influence on the Collector, the  

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District Returning Officer and other  

authorities for procuring their assistance for  

the furtherance of his prospects in the  

elections;   

(ii) that on 2nd November, 2008, when the Respondent  

No.1 was returning to Jabalpur from New Delhi,  

as the authorized candidate of the Indian  

National Congress, his supporters, who came to  

meet him at the railway station, were arrested,  

whereas the very next day, no action was taken  

against the supporters of the Appellant herein  

who had deployed as many as 300 vehicles in the  

election rally organised on the occasion of the  

filing of his nomination, although, permission  

had been given for use of only 27 vehicles.  

The Appellant was allowed to erect “welcome  

gates” at various places and used unauthorized  

vehicles and also put up flags, hoardings and  

posters on electric poles and even on temples,  

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despite the objections raised by the Respondent  

No.1 herein;

(iii) during his election campaign, the Appellant  

distributed school bags reflecting the name of  

the Appellant, as also his party flag amongst  

the children of the voters and huge amounts of  

money were also paid through cheques under the  

garb of financial assistance by Garib Sahayata  

Samiti. Apart from the above, clothes, sweets,  

blankets, cheques for amounts of Rs.500/- to  

the female voters and identity and ration  

cards, were distributed amongst the voters by  

the supporters of the Appellant, but no action  

was taken either against the Appellant or his  

agent for resorting to such corrupt practice.  

Accordingly, in the election petition the  

Respondent No.1, inter alia, prayed for a  

declaration that the election of the Appellant  

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herein, Ishwardas Rohani, be declared as void  

and he be declared as the returned candidate.

4. In the pending Election Petition No.22 of 2009,  

an Application, being I.A.No.58 of 2009, was filed  

on behalf of the Appellant herein, under Order VII  

Rule 11 read with Order VI Rule 16 of the Code of  

Civil Procedure, hereinafter referred to as  

“C.P.C.”, praying that the Election Petition filed  

by the Respondent No.1 be rejected, inter alia, on  

the ground that except for making vague allegations  

of corrupt practice, the Respondent No.1 (Election  

Petitioner) had failed to disclose material facts  

and particulars in respect thereof.  Another ground  

of challenge was that the Respondent No.1 had  

failed to comply with the provisions of Section  

81(3)(a) and (b), which are mandatory and in the  

absence whereof no cause of action could be said to  

have been available to the Election Petitioner to  

seek any relief thereunder.   

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5. I.A.No.58 of 2009, which was filed by the  

Appellant under Order VII Rule 11 read with Order  

VI Rule 16 C.P.C. for rejection of the Election  

Petition or for a direction to set out pleadings  

specified thereunder, was taken up for hearing by  

the Madhya Pradesh High Court on 16th July, 2009.  

After considering the facts involved in the  

Election Petition, as also in the Application filed  

under Order VII Rule 11 read with Order VI Rule 16  

of the C.P.C., the High Court was of the view that  

although, the allegations of corrupt practice had  

not been properly drafted, the Election Petition  

could not be rejected on the said ground.  As far  

as the Application under Order VI Rule 16 C.P.C. is  

concerned, the High Court observed that non-

revision of the voters list is not a ground set out  

in Section 100 of the 1951 Act for declaring an  

election to be void.  The High Court also observed  

that violation of the Model Code of Conduct cannot  

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also be treated as a ground for declaring an  

election to be void.  On the said understanding of  

the law, the High Court allowed the Appellant’s  

I.A.No.58 in part and directed the Appellant to :  

(i) delete the pleadings relating to voters’  list  

and Model Code of Conduct;  

(ii) move an appropriate application for amending  

the pleadings in the light of the objections  

raised by the Respondent No.1 and the defects  

as pointed out in paragraph 2, subject to the  

limits circumscribed by law.  The High Court  

also added that after amending the pleadings  

suitably, the Appellant would also verify the  

same by furnishing an affidavit under Order VI  

Rule 15(4) C.P.C. and further verify the  

pleadings relating to corrupt practice by  

filing a proper affidavit in the prescribed  

Form No.25, as prescribed under Rule 94-A and  

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appended to the Conduct of the Election Rules,  

1961.  

6. Aggrieved by the directions given by the High  

Court in I.A. No.58, directing the Respondent No.1  

herein to delete the pleadings relating to the  

voters’ list and the Model Code of Conduct and to  

move an appropriate application for amending the  

pleadings in the light of the objections raised by  

the Appellant herein, the said Appellant has filed  

the Special Leave to Appeal challenging the said  

directions dated 5th October, 2009, in Election  

Petition No.22 of 2009.

7. Appearing for the Appellant, Ishwardas Rohani,  

Dr. Rajeev Dhawan, learned Senior Advocate,  

submitted that all the allegations relating to  

corrupt practice were in respect of periods prior  

to the date of the notification of the elections,  

namely, 29th October, 2008, when the Election  

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Petitioner, Shri Alok Mishra,  was not yet a  

candidate, nor was the Appellant herein.  Dr.  

Dhawan pointed out that the elections were notified  

for the Jabalpur Cantt. Legislative Assembly  

Constituency No.99 on 29th October, 2008.  On 3rd  

November, 2008, the Election Petitioner, Mr. Alok  

Mishra, filed his nomination papers and the polling  

was held on 27th November, 2008.  The results of the  

election were thereafter announced on 8th December,  

2008, in which the Appellant was declared to have  

been elected.  Dr. Dhawan termed the period between  

29th October, 2008, when the elections were  

notified, till 8th December, 2008, when the results  

were declared, as the “active”  period, when the  

conduct of the elected member could be faulted.  

Dr. Dhawan submitted that the Election Petition had  

been filed by the Respondent No.1 herein within the  

period of 45 days, as specified under Section 81 of  

the 1951 Act.  However, the directions given by the  

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High Court to amend the Election Petition were not  

permissible in law as such amendment would be  

beyond the period of limitation, as prescribed.  

Following such directions of the High Court, the  

Election Petitioner filed an Application under  

Order VI Rule 17 CPC praying for various amendments  

for providing material facts.  

8. Dr. Dhawan urged that given the consequences of  

disqualification, allegations of corrupt practice  

would have to be strictly construed, as was held in  

the case of Surinder     Singh   Vs. Hardial     Singh    

[(1985) 1 SCC 91], wherein it was, inter alia,  

observed that for more than 20 years the position  

had been uniformly accepted that charges of corrupt  

practice have to be equated with criminal charges  

and the proof thereof would not be preponderance of  

probabilities as in civil matters, but proof beyond  

reasonable doubt as in criminal trials.  Reference  

was also made to the decision in Dhartipakar     Madan    

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Lal     Agarwal   Vs. Rajiv     Gandhi[  (1987) Supp. SCC 93],  

wherein it was observed as follows :-

“Allegations of corrupt practice are in  the nature of criminal charges, it is  necessary that there should be no  vagueness in the allegations so that the  returned candidate may know the case he  has to meet. If the allegations are vague  and general and the particulars of corrupt  practice are not stated in the pleadings,  the trial of the election petition cannot  proceed for want of cause of action. The  emphasis of law is to avoid a fishing and  roving inquiry. It is therefore necessary  for the Court to scrutinise the pleadings  relating to corrupt practice in a strict  manner.”

In this regard, Dr. Dhawan referred to the  

provisions of Section 8A of the 1951 Act, which  

sets out the harsh consequences of having been  

found guilty of corrupt practice by an order under  

Section 99 of the 1951 Act.   

9. Submissions were also advanced by Dr. Dhawan in  

regard to the distinction between “material facts”  

and “material particulars”, which does not appear  

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to me to be very material for a decision in this  

case.  What is necessary is that the material facts  

must disclose the plaintiff’s cause of action or  

may be the source for the defence of the defendant.  

What is relevant is that the facts as set out in  

the Election Petition must not be vague and must be  

such as to enable the Respondent to deal with and  

give a proper response.  Dr. Dhawan contended that  

as has been held by this Court in Anil     Vasudev    

Salgaonkar Vs. Naresh     Kushali     Shigaonkar   [(2009) 9  

SCC 310], the failure to state even a single  

material fact will entail dismissal of the Election  

Petition.  Furthermore, it is also essential that  

any action which is attributed to an elected  

candidate and goes to constitute an allegation of  

corrupt practice, must be shown to have been done  

with the consent of the candidate, which, as was  

observed in Surinder     Singh  ’s case (supra), is a  

lifeline to link up the candidate with the action  

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of the other person which may amount to corrupt  

practice.  

10. Turning to another branch of his submissions,  

Dr. Dhawan submitted that where corrupt practices  

are alleged, details supporting such allegations  

have to be pleaded.  Referring to the decision of  

this Court in R.P.     Moidutty   Vs. P.T.     Kunju     Mohammad    

[(2000) 1 SCC 481], Dr. Dhawan referred to  

paragraph 14 of the judgment, wherein it has been  

observed as follows :-

“The legislature has taken extra care  to make special provision for pleadings in  an election petition alleging corrupt  practice. Under Section 83 of the Act  ordinarily it would suffice if the  election petition contains a concise  statement of the material facts relied on  by the petitioner, but in the case of  corrupt practice the election petition  must set forth full particulars thereof  including as full a statement as possible  of (i) the names of the parties alleged to  have committed such corrupt practice, (ii)  the date, and (iii) place of the  commission of each such practice. An  election petition is required to be signed  

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and verified in the same manner as is laid  down in the Code of Civil Procedure, 1908  for the verification of pleadings.  However, if the petition alleges any  corrupt practice then the petition has  additionally to be accompanied by an  affidavit in Form 25 prescribed by Rule  94-A of the Conduct of Elections Rules,  1961 in support of the allegations of such  corrupt practice and the particulars  thereof. Thus, an election petition  alleging commission of corrupt practice  has to satisfy some additional  requirements, mandatory in nature, in the  matter of raising of the pleadings and  verifying the averments at the stage of  filing of the election petition and then  in the matter of discharging the onus of  proof at the stage of the trial.”

11. In fact, in this regard, Dr. Dhawan also  

referred to Section 83(1)(b) of the 1951 Act, which  

indicates that full particulars of any corrupt  

practice that the Petitioner alleges and other  

details regarding such corrupt practice has to be  

set forth in the Election Petition and the  

verification must disclose the exact source of the  

information. Reference was also made to the  

decision in V.     Narayanaswamy   Vs. C.P.  

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Thirunavukkarasu [(2000) 2 SCC 294], where similar  

sentiments have been expressed.

12. Dr. Dhawan urged that having regard to the  

above, the Election Petition filed by the  

Respondent No.1 should have been dismissed by the  

High Court, without giving an opportunity to the  

Election Petitioner to rectify some of the defects,  

outside the period of limitation, as prescribed  

under Section 81 of the 1951 Act.  

13. Dr. Dhawan, learned senior counsel, contended  

that all the alleged instances referred to in the  

Election Petition regarding alleged corrupt  

practice on the part of the Appellant were outside  

the “active period”  when the Respondent No.1 was  

not even a candidate and consequently the same  

could not be taken into consideration for the  

determination of the Election Petition in view of  

Section 81 of the 1951 Act, which stipulates that  

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such a Petition may be presented 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.

14. Replying to Dr. Dhawan’s submissions, Mr.  

Rakesh Khanna, learned Senior Advocate, appearing  

for the Respondent No.1, pointed out that the  

allegations relating to corrupt practice made  

against the Appellant, are contained in paragraph  

10 of the Election Petition and despite the  

observations made by the High Court, the same  

conveyed the manner in which financial allurements  

and the distribution of gifts were made, as also  

the issuance of cheques by the Appellant from the  

Indus Ind Bank near Shastri Bridge, 124, Napier  

Town, Jabalpur.  Mr. Khanna contended that although  

Dr. Dhawan had referred to the issuance of cheques  

as being a fishing expedition, but, in fact, the  

details relating to the cheques are in the custody  

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of the Indus Ind Bank and are easily available.  

Mr. Khanna submitted that the details of the cheque  

books and the cheque numbers have also been  

provided in paragraph 9 of the Election Petition  

which disclosed the strategy adopted by the  

Appellant for garnering votes in the election.

15. Referring to the decision of this Court in  

Sardar     Harcharan     Singh     Brar   Vs.   Sukh     Darshan     Singh    

[AIR 2005 SC 22], which also involved the  

provisions of Section 83 of the 1951 Act, Mr.  

Khanna pointed out that even if all the bundles of  

information which constitute the cause of action  

for the Petition were not available in the Election  

Petition, the same could not be dismissed at the  

threshold. Mr. Khanna submitted that in Sardar  

Harcharan     Singh     Brar  ’s case (supra), this Court had  

occasion to consider the observations made in the  

decision in the case of Raj     Narain   Vs. Smt.     Indira    

Nehru     Gandhi   [(1972) 3 SCC 850], which, inter alia,  

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laid down that while a corrupt practice has to be  

strictly proved, it does not follow that a pleading  

in the election petition should receive a strict  

consideration.  The charge of corrupt practice in  

an election petition is a very serious charge and  

has to be proved. It may or may not be proved.  The  

allegations may be ultimately proved or not proved.  

But the question for the Courts is whether a  

petitioner should be refused an opportunity to  

prove his allegations merely because the petition  

was drafted clumsily.   

16. Mr. Khanna submitted that it was in such  

context that it was observed that opportunity to  

prove should not be refused and the Court should be  

reluctant to stay an action on technical grounds.  

In the said case it was further recorded that  

“material facts”  as referred to in Section 83 of  

the 1951 Act show that the grounds of corrupt  

practice and the facts necessary to formulate a  

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complete cause of action, must be stated, but the  

Election Petition is not liable to be dismissed in  

limine because full particulars of the corrupt  

practices alleged were not set out.  If an  

objection was taken and the Tribunal was of the  

view that full particulars had not been set out,  

the Petitioner had to be given an opportunity to  

amend or amplify the particulars.  It is only in  

the event of non-compliance with such order to  

supply the particulars, that the charge, which  

remained vague, could be struck down.  Mr. Khanna  

pointed out that a note of caution had been sounded  

to the effect that rules of pleadings are intended  

as aids for a fair trial and for reaching a just  

decision. An action at law should not be equated  

with a game of chess.  Provisions of law are not  

mere formulae to be observed as rituals.  Beneath  

the words of a provision of law, generally  

speaking, there lies a juristic principle.  It is  

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the duty of the Court to ascertain that principle  

and implement it.   

17. Mr. Khanna submitted that in Sardar     Harcharan    

Singh     Brar  ’s case (supra), it was pointed out that  

the views expressed in Raj     Narain  ’s case (supra)  

had been subsequently reiterated in various other  

cases set out in paragraph 11 of the judgment.  

18. Drawing a parallel with the facts of this case,  

Mr. Khanna submitted that the High Court had passed  

the impugned order in complete consonance with the  

views expressed in Sardar     Harcharan     Singh     Brar  ’s  

case (supra).

19.   Mr. Khanna next referred to the decision of a  

three Judge Bench of this Court in F.A.     Sapa     &     Ors.    

Vs. Singora     &     Ors.   [(1991) 3 SCC 375], wherein the  

requirements of furnishing material facts and full  

particulars, within the meaning of Section 83(1) of  

the 1951 Act, in order to establish corrupt  

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practice, was considered in detail. After  

considering the various decisions rendered earlier,  

including that in Raj     Narain  ’s case (supra), on the  

question of verification, Their Lordships held that  

Clause (c) of Sub-Section (1) of Section 83 of the  

1951 Act, provides for an Election Petition to be  

signed by the petitioner and verified in the manner  

laid down by the Code of Civil Procedure for the  

verification of the pleadings. It was noted that  

under Section 83(2) any schedule or annexure to the  

pleading must be similarly verified. Referring to  

Order VI Rule 15 of the Code, Their Lordships took  

note of Sub-Rule (2) which provides that the person  

verifying has to specify with reference to the  

numbered paragraphs of the pleading, what he  

verifies on his own knowledge and what he verifies  

upon information received and believed to be true.  

The verification has to be signed by the person  

making it and must state the date on and the place  

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at which it was signed.  However, Their Lordships  

also went on to say that the defect in the  

verification could be of a formal nature and not  

very substantial, or one which substantially  

complies with the requirements, or that which is  

material but capable of being cured.  Mr. Khanna  

submitted that the bottom line of the aforesaid  

decision was that any defect in the verification  

was not fatal to the entertainment of the Election  

Petition at the threshold and as indicated in  

Sardar     Harcharan     Singh     Brar  ’s case (supra), an  

opportunity ought to be given to the Election  

Petitioner to cure such defect.   

 20. Mr. Khanna submitted that the submissions  

advanced by Dr. Dhawan in, relation to the order  

passed by the High Court, were contrary to the  

decisions rendered by this Court in Sardar  

Harcharan     Singh     Brar  ’s case (supra) and also in  

F.A.     Sapa  ’s case (supra), and all that the Court  

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had directed was in keeping with the spirit of the  

said decisions which contemplated that an Election  

Petition, where corruption had been alleged, should  

not be thrown out on a purely technical ground,  

such as defect in verification of the pleadings,  

and without giving an opportunity to the Election  

Petitioner to cure such defect.   

21. From the decisions cited by learned counsel for  

the respective parties, one line of decisions  

rendered by this Court suggests that since an  

Election Petition has serious consequences under  

Section 8A of the 1951 Act, the provisions of the  

Act have to be strictly construed and,  

particularly, in cases where corruption is alleged,  

any omission in the pleadings to mention such  

corrupt practice would render the Election Petition  

not maintainable.  On the other hand, as indicated  

immediately hereinbefore, the other line of  

decisions suggests that since the issue involved in  

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an Election Petition alleging corrupt practice, was  

of great public interest, an Election Petition  

should not be rejected at the threshold, but an  

opportunity should be given to the Election  

Petitioner to cure the defects which are curable.  

In the instant case, what has been contended by Dr.  

Dhawan is that in the absence of a cause of action  

or incomplete cause of action for the Election  

Petition on account of the verification thereto not  

being in conformity with the provisions of Order VI  

Rule 15 of the C.P.C. the Election Petition was  

liable to be dismissed.  Such submission is not  

acceptable to me in the light of the decisions in  

Sardar     Harcharan     Singh     Brar  ’s case (supra) and also  

in F.A.     Sapa  ’s case (supra), despite the fact that  

in F.A.     Sapa  ’s case it was indicated that if the  

affidavit of schedule or annexure forms an integral  

part of the Election Petition itself, strict  

compliance would be insisted upon.   

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22. I am inclined to agree with the trend of  

thinking in F.A.     Sapa  ’s case, where it had been  

indicated that a charge of corrupt practice has a  

two dimensional effect, namely, its impact on the  

returned candidate has to be viewed from the point  

of view of the candidate’s future political and  

public life and from the point of view of the  

electorate to ensure the purity of the election  

process.  Accordingly, there has to be a balance in  

which the provisions of Section 81(3) of the 1951  

Act are duly complied with to safeguard the  

interest, both of the individual candidate, as well  

as of the public.  In this case, while accepting  

the case made out by the Appellant regarding the  

deficiencies in the Election Petition, the Division  

Bench of the High Court, in my view, did not commit  

any error in directing the Election Petitioner to  

cure the defects in the Election Petition, which  

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had been brought out during the hearing of the  

Election Petition.   

23. The decisions cited on both sides, lay down the  

law in regard to Election Petitions and how  

Election Petitions are to be presented and the  

procedure to be strictly followed in filing such  

Election Petitions, in which corruption, in  

particular, is the allegation made against the  

returned candidate. There is little doubt that the  

provisions have to be strictly construed, but that  

does not mean that any defect in the Election  

Petition cannot be allowed to be cured in the  

public interest.  If after an opportunity is given,  

still no steps are taken by the Election Petitioner  

to cure the defects which are noticed, then the  

rigours of the procedure indicated by the 1951 Act,  

come into effect with full vigour.

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24. I, therefore, see no reason to interfere with  

the order of the High Court appealed against and  

the appeal is, accordingly, dismissed.

25. There will, however, be no order as to costs.   

………………………………………………………J.    (ALTAMAS KABIR)

New Delhi Dated : 03.05.2012

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REPORTABLE

IN THE SUPREME COUR OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.      4189                         OF     2012   [Arising out of SLP (C) NO.30417 OF 2009]

Ishwardas Rohani      ….Appellant

Versus

Alok Mishra & Ors.                 ….Respondents

J     U     D     G     M     E     N     T   

Chelameswar,     J.   

Both the petitioner (herein after referred to as ‘the  

returned candidate’) and the 1st respondent (herein after referred to  

as ‘the election petitioner’) contested the General Election to the  

Legislative Assembly of the State of Madhya Pradesh from the  

Jabalpur Cantonment Constituency.  The returned candidate was  

the candidate of the Bharatiya Janata Party.  The election petitioner  

was the candidate of the Indian National Congress, who lost the  

election with a margin of 24731 votes to the returned candidate.  

The election petitioner questioned the validity of the election of the  

returned candidate by Election Petition No.22 of 2009 on the file of  

the High Court of Madhya Pradesh.  In the said petition, the election  

petitioner not only sought a declaration that the election of the  

petitioner is void, but also sought a further declaration that;

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“the  petitioner  No.1  as  Return  candidate  and  directed to be unseated Respondent No.1.”

It is further prayed:

“The Hon’ble High Court further kindly be directed  the Respondent to declare the petitioner as Elected  candidate.”

Certain other reliefs are also prayed for in the election petition, the  

details of which are not necessary for our purpose.  The said  

election petition was filed on 20-01-2009, admittedly, within the  

period of limitation prescribed for the said purpose.  On 16-06-

2009, I.A.No.58 of 2009 was filed by the petitioner herein (returned  

candidate) under Order 7 Rule 11 of the Code of Civil Procedure,  

seeking the dismissal of the election petition on the following  

grounds:

(a) The  allegations  of  corrupt  practice  lacks  material facts and particulars, inasmuch as it is  not disclosed on what date and time the alleged  corrupt practice had been committed;

(b) The  mandatory  affidavit  in  Form  25  of  the  Conduct  of  Election  Rules  does  not  fulfil  the  mandatory contents as required in law;

(c) Election  Petitioner  has  not  filed  affidavit  as  required under the provisions of CPC;

(d) The  copy  of  the  petition  supplied  by  the  Respondent  No.1  to  the  Petitioner  is  not  identical to the copy of the petition filed and the  documents annexed to the election petition have  not duly been verified by the Respondent No.1;

(e) The  averments  contained  in  a  number  of  paragraphs are frivolous in nature and does not  disclose  any  cause  of  action  against  the  Petitioner herein.”

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2. The abovementioned IA was partly allowed by the  

impugned Judgment on 05-10-2009.  The operative portion of the  

Judgment is as follows:

“Consequently, the I.A. is allowed in part.  In the result,  the petitioner is directed to –

(i) delete the pleadings relating to voter list and  Model Code of Conduct.

(ii) move  an  appropriate  application  for  amending the pleadings  in  the light  of the  objections raised by the respondent no.1 and  the defects as pointed out in Para 2 (above)  subject to the limits circumscribed by law.”

Hence, the present S.L.P.

3. Before I proceed to examine the correctness of the  

conclusion reached by the High Court, I deem it necessary to  

extract para 2 of the Judgment under appeal in toto:

“2. At the outset,  it  may be remarked that the election  petition is not a good piece of drafting.  A bare perusal  thereof would reveal that not a single paragraph is free  from  grammatical  and  typographical  errors  and  omissions.   Even  provisions  of  law  have  not  been  correctly  referred to.   For example : sub-section (1)(A)  and (B) have been mentioned as sub-section (A) and (B)  Section  123.   This  apart,  there  is  apparent  conflict  between  contents  of  some  of  the  annexures  and  the  corresponding pleadings.  Moreover, some averments are  mere mechanical repetitions of the facts already pleaded  [See  Para  2  (wrongly  numbered  as  1),  3A  and  7].  Further, the petitioner has used certain uncommon words  such as Cambal, Chadar & Floor-Sari.  It appears that the  petitioner  is  labouring  under  a  misconception  that  an  election petition must be drawn up in English language  whereas  it  is  well  settled  that  in  Madhya  Pradesh,  an  election  petition  drafted  in  Hindi  language  would  be  maintainable (Vijay Laxmi Sadho v. Jagdish AIR 2001  SC 600 referred to).  Although, these defects would not  provide  any  reasonable  ground  for  rejection  of  the  

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petition  in  limine  yet,  the  negligent  and  indifferent  manner in which the petition has been drafted and filed  without even reading it, deserves to be deprecated.”  

4. In my view, the election petition is not only a bad piece  

of drafting, but also it is difficult to state with precision as to what  

exactly is the substance of the complaint in the election petition.  

The absurdity of the election petition can only be understood by  

reading it, but cannot be explained.  There are vague allegations  

that the returned candidate committed corrupt practices falling  

under Sections 123 (A) and (B), 123 (2), (6) and (7) of the  

Representation of the People Act, 1951 (henceforth referred to as  

‘the R.P. Act’.).  To demonstrate the utter chaos of the pleadings, I  

extract a passage from the election petition:

“………………   Since  the  Respondent  No.1  have  wrongly  and  illegally  adopted  the  corrupt  practices  by  distributing  the  amount  in  cash  as  well  as  through the  Cheque,  Article,  Cloths,  Ornaments,  Ornament’s  Jewellery and other article further he has also command  on the Respondent Distt.  Election Officer and taken the  Assistance from police and other authority, so that it is  apparent  that  respondent  No.1  Iswardas  Rohani  has  committed milled corrupt practices, which is same under  Section 123A, B, 123(2) and also giving threat and other  provision of this act have also been violating therefore,  his Election is deserve to be declare void.”

5. On the basis of such pleadings, of which the above is  

only a sample, the respondent invites an adjudication that corrupt  

practices falling under Section 123(2), (6), (7) and 123(A) and (B)  

of the R.P. Act, have been committed.  There are no Sections  

numbered 123(A), (B) in the R.P.Act, 1951.  The High Court,  

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however, generously construed such reference to Sections 123(A)  

and (B) occurring under para 13 of the election petition as  

references to Section 123(1)(A) and (B).

6. The substance of the chaotic pleadings in the election  

petition is culled out by my learned brother as follows:

“The ground relating to corrupt practice, as alleged by  the  Respondent  No.1  herein,  inter  alia, was  to  the  following effect :

(i)  as  an  ex-M.L.A.  and  Ex-Speaker  of  the  Vidhan  Sabha and being a close associate of the Chief Minister  of  the  State,  the  Appellant  was  able  to  exert  undue  influence  on  the  Collector,  the  District  Returning  Officer  and  other  authorities  for  procuring  their  assistance  for  the  furtherance  of  his  prospects  in  the  elections.;

(ii) that on 2nd November, 2008, when the Respondent  No.1 was returning to Jabalpur from New Delhi, as the  authorised candidate of the Indian National Congress,  his  supporters,  who came to meet him at the railway  station,  were arrested,  whereas  the very next  day,  no  action was taken against the supporters of the Appellant  herein who had deployed as many as 300 vehicles in the  election rally organised on the occasion of the filing of  his  nomination,  although,  permission  had  been  given  for use of only 27 vehicles.  The Appellant was allowed  to  erect  “welcome gates”  at  various  places  and used  unauthorised vehicles and also put up flags, hoardings  and  posters  on  electric  poles  and  even  on  temples,  despite  the objections  raised by the Respondent No.1  herein;

(iii)  during  his  election  compaign,  the     Appellant  distributed  school  bags  reflecting  the  name  of  the  Respondent  No.1,  as  also  his  party  flag  amongst  the  children of the voters and huge amounts of money were  also paid through cheques under the grab of financial  assistance by Garib Sahayata Samiti.   Apart from the  above, clothes,  sweets, blankets,  cheques for amounts  of Rs.500/- to the female voters and identity and ration  cards,  were  distributed  amongst  the  voters  by  the  supporters  of  the  Appellant,  but  no action  was taken  either against the Appellant or his agent for resorting to  

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such  corrupt  practice.   Accordingly,  in  the  election  petition the Respondent No.1,  inter alia, prayed for a  declaration  that  the  election  of  the  Appellant  herein,  Ishwardas  Rohani,  be  declared  as  void  and  he  be  declared as the returned candidate.”

7. For the purpose of deciding the present petition, I shall  

also presume that the election petitioner intended to complain that  

various corrupt practices, i.e., bribery falling under Section 123 (1)

(A) and (B); unduly influencing the voters, falling under Section  

123(2); incurring or authorising expenditure in contravention of  

Section 77 –  corrupt practice under Section 123(6) and procuring  

the assistance from the employees of the State, falling under  

Section 123(7), were committed.

8. Before examining the correctness of the Judgment  

under appeal, a brief survey of the Scheme of the relevant  

provisions of the R.P. Act, 1951, would be useful.  Section 100  

provides the grounds on which an election could be declared void.  

The said Section, insofar as it is relevant for our present purpose,  

reads as under:

“Subject to the provisions of sub-section (2) if the High  Court is of the opinion –

(a) …………………….

(b) that any corrupt practice has been  committed  by  a  returned  candidate or his election agent or  by  any  other  person  with  the  consent  of  a  returned  candidate  or his election agent;….

(c) ……………………..

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(d) that the result of the election, in  so far  as  it  concerns  a  returned  candidate,  has  been  materially  affected—

(i)…………………

(ii) by any corrupt practice committed in  the interests of the returned candidate by  an agent other than his election agent.

(iii)…………………

(iv)……………….

The High Court shall declare the election of the returned  candidate to be void.”

It can be seen from the above that the election of a returned  

candidate can be declared void, if the High Court is satisfied;

(A) that any corrupt practice has been committed either by the  

returned candidate or his election agent or any other  

person with the consent of either the candidate or his  

election agent;

(B) that any corrupt practice has been committed by any agent  

other than the election agent.

In the case of the satisfaction of the High Court of the 1st of the  

abovementioned two contingencies, the High Court can  

straightaway declare the election of the returned candidate to be  

void.  Whereas in the 2nd of the abovementioned contingencies, the  

High Court must also be satisfied that such commission of the  

corrupt practice has materially affected the result of the election  

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because the corrupt practices falling under the later category are  

committed without the consent of the returned candidate or his  

election agent.  

9.    The meaning of the expressions “candidate”, “election  

agent” and “agent other than the election agent” is required to be  

ascertained.  Part VI of the R.P. Act deals with disputes regarding  

elections.  Part VII of the R.P. Act deals with corrupt practices and  

electoral offences.  Section 79, with which part VI commences,  

contains the definitions of various expressions employed in Part VI  

and Part VII of the R.P. Act.  Section 79, insofar as it is relevant for  

the present purpose, reads as follows:

“In this Part and in Part VII unless the context otherwise  requires,-

(a)……………….

(b) “candidate” means a person who has  been  or  claims  to  have  been  duly  nominated  as  a  candidate  at  any  election;”               

The expression “election agent” is not defined therein.  But, Section  

40 provides for the appointment of “election agent”.  It stipulates  

that a candidate at an election can appoint any person, who is not  

subject to any disqualification stated in Section 411, to be his  

1  41.  Disqualification  for  being  an  election  agent.-  Any  person  who  is  for  the  time  being  disqualified  under  the  Constitution  or  under  this  Act  for  being  a  member  of  either  House  of  Parliament or the House or either House of the Legislature of a State or for voting at elections,   shall, so long as the disqualification subsists, also be disqualified for being an election agent at any  election.

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election agent2.  Therefore, the expression “election agent”  

occurring under Section 100 must be understood to be only an  

election agent appointed by the candidate under Section 40.  The  

meaning of the phrase “agent other than the election agent”  

requires an examination.  Sections 46 and 47 of the Act, provide for  

the appointment of polling agents3 and counting agents4,  

respectively, by the contesting candidates at an election.  I am  

conscious of the fact that the phrase may take within its sweep  

other persons also, but for the purpose of the present case, it is not  

necessary to explore the full contours of the phrase.   

10. Section 123 of the R.P. Act deals with corrupt practices.  

It declares 10 activities to be corrupt practices.  They are; (i)  

bribery; (ii) undue influence; (iii) appeal in the name of religion;  

(iv) promotion of enmity or hatred between different classes of  

citizens on grounds of religion, race, caste, community, etc.; (v)  

propagation or glorification of the practice of sati; (vi) publication of  

any false statement in relation to the personal character of any  

candidate, etc. reasonably calculated to prejudice the prospects of  

that candidate’s election; (vii) hiring or procuring vehicles for the  

2  40. Election Agents.- A candidate at an election may appoint in the prescribed manner any one  person other than himself to be his election agent and when any such appointment is made, notice  of the appointment shall be given in the prescribed manner to the returning officer.

3  46. Appointment of polling agents.- A contesting candidate or his election agent may appoint in  the prescribed  manner such number of  agents and relief  agents as may be prescribed  to act  as  polling agents of such candidate at each polling station provided under section 25 or at the place  fixed under sub-section (1) of section 29 for the poll.

4  47. Appointment of counting agents.- A contesting candidate or his election agent may appoint in  the prescribed manner one or more persons, but not exceeding such number as may be prescribed,   to  the  present  as  his  counting  agent  or  agents  at  the  counter  of  votes,  and  when  any  such  appointment  is  made notice of  the appointment  shall  be given in the prescribed manner to the  returning officer.

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free conveyance of any elector to the polling station; (viii) incurring  

expenditure in contravention of Section 77; (ix) obtaining or  

procuring any assistance of various categories of persons specified  

under sub-section (7); and (x) booth capturing.   

It must be mentioned that each one of the sub-sections of Section  

123, deals with a distinct corrupt practice, which contemplates  

commission or omission of an act or acts indicated therein either by  

the candidate or his agent or any other person with the consent of  

either the candidate or his election agent.  The only sub-section,  

which does not refer to the election agent or any other person is  

sub-section (6), i.e., the corrupt practice of incurring or authorising  

the expenditure in contravention of Section 77.

11. It is argued by the learned senior counsel Dr. Rajeev  

Dhawan appearing for the returned candidate that the allegations of  

corrupt practice contained in the election petition fall into two  

categories; (1) corrupt practices attributed to the returned  

candidate; and (2) corrupt practices attributed to other persons.  

The learned counsel argued that the returned candidate cannot be  

subjected to the pain of going through the trial of the election  

petition on these allegations for the following reasons:

(i) the allegations of commission of corrupt practices either pertain  

to the period anterior to 03-11-2008; or, (ii) lack in material facts  

to constitute any corrupt practice satisfying the description of any  

one of the corrupt practices enumerated under Section 123.  

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12. Coming to the allegations of corrupt practice said to  

have been committed by certain named and unnamed persons in  

the election petition the learned counsel argued that, once again,  

the allegations are vague, without any reference to the dates on  

which such acts were committed and do not disclose any cause of  

action.  Further, there is no allegation in the election petition that  

such named persons, who are alleged to have committed certain  

corrupt practices, did so with the consent of either the returned  

candidate or his election agent.  Interestingly, the election petition  

does not even contain any specific allegation against the election  

agent of the returned candidate.  Even the name of the election  

agent is not mentioned.   

13. On the other hand, the learned counsel for the election  

petitioner submitted that the election petition contained all the  

material facts required to be pleaded for establishing the  

commission of corrupt practices.  Such pleadings are required to be  

scrutinized liberally in the larger interests of the purity of election  

system as was done by the High Court.  The learned counsel also  

submitted that in view of the fact that what is at stake is the purity  

of the election system, the High Court rightly directed the election  

petitioner to move an appropriate application for the amendment of  

the pleadings.  I am only reminded of a caution given by this Court  

in Kunwar Nripendra Bahadur Singh vs. Jai ram Verma and others,  

(1977) 4 SCC 153:

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“21. …………, the provisions of the election law which  have  got  to  be  construed  strictly,  must  work  with  indifference  to  consequences,  immediate  or  mediate……………..”     

14. Admittedly, the returned candidate filed his nomination  

on 03-11-2008.  It is only with effect from that date the petitioner  

became a candidate for the election in dispute.  Goes without saying  

that an election agent could have been appointed by the returned  

candidate only after filing his nomination.  To be guilty of  

committing a corrupt practice, the returned candidate or his election  

agent or some other person duly authorised either by the returned  

candidate or his election agent must have committed some act or  

omission contemplated under one of the clauses under Section 123  

of the R.P. Act, after the 03-11-2008, but before the completion of  

the election process.   

15. It was so held by this Court in Mohan Rawale vs.  

Damodar Tatyaba, (1994) 2 SCC 392.  It was a case where the  

election of the appellant before this Court was called in question by  

the respondent therein on the ground that the appellant committed  

corrupt practices falling under Section 123(2), (3) and (3)(A).  The  

returned candidate raised various preliminary objections regarding  

the maintainability of the election petition.  One of the objections  

was that the various allegations said to be constituting corrupt  

practices, pertain to a period long anterior to the date of the  

nomination of the returned candidate and, therefore, it was argued  

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by the returned candidate that even if these allegations were to be  

proved, they would not amount to the commission of a corrupt  

practice by the returned candidate.  Such an objection did not find  

favour with the Bombay High Court.  Reversing the conclusion of  

the Bombay High Court, this Court held at para 6 as follows:

“………………  The view fails  to take note of and give  effect to the substitution of the definition of the expression  “candidate” in Section 79(b).  All sub-sections of Section  123  of  the  Act  refer  to  the  acts  of  a  ‘candidate’  or  his  election agent or any other person with the consent of the  candidate or his election agent.  The substituted definition  completely excludes the acts by a candidate up to the date  he is nominated as a candidate. …………………..”

16. The allegations in the election petition on hand are  

required to be examined in the light of the principle of law laid down  

by this Court.

17. Para 1 of the election petition narrates the incidents that  

are alleged to have occurred from 30-10-2008 to 02-11-2008 and it  

reads as follows:

“That, the context of the situation is that the petitioner  was  out  of  City  at  Jabalpur  he  was  at  Delhi  for  confirmation  of  his  Ticket  from  Indian  National  Congress Party, the same was confirmed on 30.10.2008  from his  Party on  1.11.2008 the  petitioner  No.1 was  come  from  Delhi  on  2.11.2008,  the  petitioner  come  from Delhi  to  Jabalpur  by Mahakohal  Express Train,  after receiving the information from the petitioner his  supporter were reach to the Jabalpur Railway station,  where  a  number  of  person  have  received  to  the  petitioner  after  come-out  from  the  Railway  Station  there  was  crowd of  the  supporter  who  were  reached  there by own vehicle or by hire that very day District  Returning  Officer,  Respondent  and  his  observer  including the police men and authority an subordinate  officer, who have been authorised by the State Election  Commission  on  the  instance  of  Respondent  no.1  

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Speaker  of  State  Legislative  Assembly  they  have  wrongly and illegally misused their power and seized  the  personal  vehicle  of  petitioner  supporter  and  confined to the police station Cantt.  And police station  Civil  Lines  with  the  intention  to  demoralize  and  breaking the support with the help of police dispute of  that  Gathering  was  not  political  movement  nor  any  object  to  moved  in  the  shape  of  Rally,  but  all  of  a  sudden it was happen, the Respondent No. 1 winning  candidate  have  declare  his  Rally  for  submitting  the  Election nomination form for this very purpose.  The  Respondent  Nod.1  have  arranged  as  much  as  300  Vehicle in that Rally Respondent and his subordinate  officer (observer) who ere watching the Gathering and  strand of vehicle in the Rally they have never raised any  objection, nor seized any of the vehicle, despite of the  permission was obtain for only 27 vehicles for used in  the Election, but 10 time’s more vehicles were present  in the Rally on the date of submitting his nomination  form the Respondent his  subordinate  and police have  not acted fairly and Reasonably in the Election of Cantt  Constituency and they are working/acting in support of  Respondent  No.1,  who is  speaker  of  State  legislative  Assembly and having infalance on the Respondent on  the Distt.  Election Officer including all the Executive  Officer, who are working in district Jabalpur including  the  police  Officer,  they  have  exercise  the  colour  of  power in  favour of  Respondent  No.1 and against  the  petitioner,  the  complaint  was  made  to  the  Chief  Election Commission and State Election Commission,  but  they  have  not  taken  any  action  against  the  Respondent No.1.”

The gist of this paragraph appears to be (giving some allowance to  

the bad drafting) that while the returned candidate was permitted  

to take out a rally with a large number of vehicles without any  

objection from anybody, the vehicles of the election petitioner’s  

supporters were seized on the 02-11-2008 when they took out a  

rally from the Jabalpur railway station after the election petitioner’s  

return from Delhi.  Assuming all the allegations extracted above to  

be true and such allegations constitute on 02-11-2008 (I only  

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assume for the limited purpose), the returned candidate had not yet  

filed his nomination.  Even according to the election petitioner the  

returned candidate filed the nomination on 03-11-2008:

“That on the next day 3.11.2008 the Respondent No.1 had  proceeded to fill up the nomination farm / paper.  ………..”  

That apart, from a reading of the above-extracted portion, the  

allegation appears to be that the vehicles of the election petitioner  

and his supporters were seized by the State Election Commission  

and its officers, but not the returned candidate:

“that very day District Returning Officer, Respondent and  his  observer  including  the  police  men  and  authority  an  subordinate officer, who have been authorised by the State  Election Commission on the instance of Respondent No.1  Speaker of State Legislative Assembly they have wrongly  and illegally misused their power and seized the personal  vehicle of petitioner supporter and confined to the police  station  Cantt.   And  police  station  Civil  Lines  with  the  intention to demoralize and breaking the support with the  help of police ………………….”

Therefore, looked at either way, the returned candidate cannot be  

legally accused to be guilty of any activity falling within the scope of  

any one of the corrupt practices enumerated under the sections of  

the R.P. Act, 1951, as, on 02-11-2008, the returned candidate had  

not yet filed his nomination.

18. Coming to the allegation that the returned candidate  

being a Member of the Legislative Assembly and also the Speaker  

at the relevant point of time, was able to exert undue influence on  

the Collector, who was the District Returning Officer, and other  

authorities for procuring their assistance for the furtherance of his  

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prospects in the elections-allegations are too omnibus.  Such  

allegations are to be found in para 3 of the election petition.  The  

vagueness of the pleading is better extracted than explained:

“PROCURING  ASSISTANCE  FROM  GAZETTED  OFFICER:  It is respectfully submit that the Bhartiya Jana Party is the  Rulling Party in the State and also have its influence to all  the  Executive  Officer,  who  are  serving  in  the  State  of  Madhya Pradesh.   They are directly  or indirectly  having  relation with the Respondent No.1 who is Speaker of State  Legislative Assembly and during last five year the Govt. of  Bhartiya Janta Party was dealing their power and handling  the same with the help of all the Gazetted Officer including  the  Collector  of  the  District  including the  Police  Officer  Shri  Shivraj  Singh  Chouhan  is  the  Chief  Minister  of  Madhya Pradesh and has got hold over the Administrative  Machinery during the Election period they have directly or  indirectly  supported  to  the  Respondent  No.1  who  is  Speaker of State Assembly the ‘lure’ work in a Better way  than the command to the Administrative Officer and there  subordinate to them with the Aid an Assistance of Chief  Minister  Shivraj  Singh  Chouhan,  the  Respondent  No.1  having very thick Relationship with the Respondent.   So  that  the  District  Election  Officer,  Jabalpur  was  regularly  oblige to the Respondent No.1 by way of supporting the act  of Respondent No.1 and objecting the same act by illegal  manner,  the  Respondent  have  performed  several  act  to  oblige the Respondent No.1 the same are as under;”   

Further, there are five sub-paras (A) to (E) in para 3.  Sub-para (C)  

deals with some alleged irregularities in the preparation of the  

voters list, which can never be the subject matter of an election  

petition and the High Court rightly5 directed the deletion of those  

5  see Kunwar Nripendra Bahadur Singh vs. Jai Ram Verma and others = (1977) 4 SCC 153 :  25. Thus in a catena of cases this Court has consistently taken the view that the finality of  

the electoral roll cannot be challenged in an election petition even if certain irregularities had taken  place in the preparation of the electoral roll or if subsequent disqualification had taken place and the  electoral roll had on that score not been corrected before the last hour of making nominations. After  that dead-line the electoral roll of a constituency cannot be interfered with and no one can go behind  the entries except for the purpose of considering disqualification under Section 16 of the 1950 Act.

26. The election could be set aside only on the grounds mentioned in Section 100 of the  1951 Act. In this case reliance was placed under Section 100(1)(d)(iii) for invalidating the election on  the ground of reception of void votes. We have already shown that the electoral roll containing the  particular names of voters was valid and there is, therefore, no question of reception of any vote  which was void. There is, thus, no substance in that ground for challenging the election.

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allegations.  Sub-para (D) deals with the objection of the petitioner  

regarding employment of Electronic Voting Machines.  These too are  

the vague allegations with which the returned candidate is no way  

concerned.  Sub-paras (A) and (B), once again, repeat the  

allegations contained in para 1 of the election petition, i.e.,  

allegations regarding the seizure of the vehicles of the election  

petitioner and his supporters, etc.  Para 4 of the election petition,  

once again, exclusively deals with the complaint regarding the  

preparation of the voters list.   

19.  Paras 5 and 6 contain the allegations of distribution of  

cash, cheques, clothing material and school bags to the children.  

The allegations in para 5 pertain to the distribution of “cloths”  on  

17-10-2008 and cash to 200 persons on 21-10-2008 and a cheque  

drawn on the IndusInd Bank, Shastribridge, Jabalpur, for an  

amount of Rs.500/- in favour of Shiv Durga Utsava Sammittee on  

08-10-2008.  Assuming for the sake of arguments that all the  

abovementioned allegations are true and constitute some corrupt  

practice, all these allegations pertain to a period prior to the filing of  

the nomination, i.e., 03-11-2008, by the returned candidate.

20. Para 6, once again, contains allegations of the returned  

candidate issuing cheques, the numbers of which are given without  

disclosing in whose favour such cheques were given, but it is  

relevant to notice that even according to the election petitioner,  

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such cheques were given some time prior to 30-10-2008, because it  

is alleged in para 6 that the election petitioner lodged a complaint  

dated 30-10-2008, marked as Annexure P-12 to the petition, with  

regard to the issuance of the cheques.  Obviously, the cheques  

must have been issued prior to that date.  At the cost of repetition  

it must be stated that by 30-10-2008, the returned candidate had  

not filed his nomination:

“That the Respondent No.1 have issued the Cheque to the  several  other person.  Even after notification issued by  the  Election  Commission and prior  to  the  date,  he has  given  the  cheque  to  the  several  other  person from the  month  of  Sept.  2008,  Oct.  2008,  Nov.  2008  and  Dec.  2008 continuously cheque of IndusInd Bank was issued  the  same was encashed by the  person the  Cheque No.  mentioned  in  list  submitted  the  Cheque  No.348127  to  348150 and 716616 to 716894 approximately 200 cheque  were  given  to  get  vote  from the  Voter  the  list  of  the  Cheque  is  filed  with  the  complaint  dated  30.10.2008,  marked  as  ANNEXURE  P-12  with  the  petition.   The  petitioner have also submitted the facts.  The Respondent  No.1 with the help of their reliable Ward member, Punch  and  Surpanch  through  the  worker  the  amount  was  distributed on 29.10.200, even in the Eve of Depawali.  The Respondent No.1 have distributed the amount in the  Box  of  Sweet  with  Sweet  also  the  petitioner  have  submitted  the  Complaint  before  the  Respondent,  Distt.  Election Officer,  but no action was taken by the Distt.  Election Officer, Respondent, even they are supporting to  the Respondent No.1 this Complaint dated 30.10.2008 is  already filed as Annexure P-12, but no action was taken.”  

21. Para 7, once again, repeats the allegations contained in  

para 1 of the election petition.

22. Para 8 contains vague allegations regarding the erection  

of welcome gates.  Assuming for the sake of arguments that the so-

called “welcome gates” were erected without the permission of the  

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District Election Officer, as alleged by the election petitioner, I  

simply fail to understand, under what Head of corrupt practice such  

an activity could be brought.

23. Para 9, once again, contains some vague allegations  

regarding distribution of clothing material, etc.  Just to demonstrate  

the vagueness of the pleading, I extract the paragraph:

“………, further the Respondent No.1 have alsogiven the  number of Article to the Women of the Cantt. Constituency  in  which  he  had  distributed  the  Payal,  Long,  Bichhiya,  Clothes,  Cambal  and  other  thing  the  complaint.   The  Respondent No.1 have also distributed the Cash amount to  the several person or Sammittee the petitioner have made  the complaint in time to time before the district  Election  officer  and  State  Election  Commission  and  Superior  Authority,  by  they  have  not  acted  upon  nor  taken  any  action against the Respondent No.1 nor made any inquiry  on the Complaint submitted by the petitioner and his Party  supporter  or  agent  the  complaint  dated  17.10.2008,  21.10.2008,  23.10.2008,  30.10.2008,  31.10.2008,  13.11.2008  and  14.11.2008.   Even  the  Respondent  have  distributed  the  amount  by  Cheque  during  the  Course  of  Election from 1.9.2008 to upto December 2008, from two  cheque  book  as  Cheque  No.716886  of  this  series  and  Cheque book No 348130 upto 100 and more cheque from  the  Series  was  distributed  by  the  Respondent  No.1  in  favour of Voter or there benefited person.  So in this way  the  Respondent  No.1  have  adopted  the  corrupt  practices  during the Election or before the notification he was trying  to gain Vote from the Voter a any cost.”

24. In my opinion, if a returned candidate is asked to face  

trial of an election petition, such as the one, which is the subject  

matter of the instant S.L.P., it would be an absolute travesty of  

justice and opposed to all the settled principles of law regarding the  

election disputes.  It was held in Rahim Khan vs. Khurshid Ahmed  

and others, (1974) 2 SCC 660, as follows:

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“9. ……….  An election once held is not be treated in a  lighthearted manner and defeated candidates or disgruntled  electors  should  not  get  away  with  it  by  filing  election  petitions  on  unsubstantial  grounds  and  irresponsible  evidence,  thereby  introducing  a  serious  element  of  uncertainty  in  the  verdict  already  rendered  by  the  electorate.  An election is a politically sacred public act, not  of one person or of one official, but of the collective will of  the whole constituency.  Courts naturally must respect this  public  expression  secretly  written  and  show  extreme  reluctance to set aside or declare void an election which has  already  been  held  unless  clear  and  cogent  testimony  compelling the Court to uphold the corrupt practice alleged  against the returned candidate is adduced.  Indeed election  petitions  where  corrupt  practices  are  imputed  must  be  regarded as proceedings of a quasi-criminal nature wherein  strict proof is necessary.  The burden is therefore heavy on  him who assails an election which has been concluded.”

25. Coming to the pleadings in an election petition, an  

election petition is required to contain all the material facts, which,  

either if proved or went uncontraverted, would be sufficient to  

constitute the cause of action for setting aside the election of the  

returned candidate on one or some of the grounds specified under  

Section 100 of the R.P. Act.  It is held repeatedly by this Court that  

allegations of corrupt practice are in the nature of criminal charges.  

In Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi, 1987 Supp SCC  

93, this Court examined the nature of the allegations of corrupt  

practice and the effect of the vagueness of the pleading in an  

election petition and held as follows at para 108:

“Allegations  of  corrupt  practice  are  in  the  nature  of  criminal  charges,  it  is  necessary  that  there  should  be  no  vagueness in the allegations so that the returned candidate  may know the case he has to meet.  If the allegations are  vague  and  general  and  the  particulars  of  corrupt  practice are not stated in the pleadings, the trial of the  election  petition  cannot  proceed  for  want  of  cause  of  

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action.  The  emphasis  of  law is  to  avoid  a  fishing  and  roving inquiry.  It is therefore necessary for the Court to  scrutinise  the  pleadings  relating  to  corrupt  practice  in  a  strict manner.”

Emphasis Supplied

Again, in Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar,  

(2009) 9 SCC 310, it was held as follows:

“57. It is settled legal position that all “material facts” must  be pleaded by the party in support of the case set up by him  within  the  period  of  limitation.   Since  the  object  and  purpose is to enable the opposite party to know the case he  has to meet with, in the absence of pleading, a party cannot  be allowed to lead evidence.  Failure to state even a single  material  fact  will  entail  dismissal  of  the  election  petition.  The election petition must contain a concise  statement  of  “material  facts” on  which  the  petitioner  relies.”

Emphasis Supplied

The distinction between ‘material facts’ and ‘material particulars’ fell  

for the consideration of this Court repeatedly.  In Samant N.  

Balakrishna vs. George Fernandez and others, (1969) 3 SCC 238,  

this Court held as follows:

“29.  ……….  What  is  the difference  between material  facts and particulars?  The word ‘material’ shows that the  facts necessary to formulate a complete cause of action  must be stated.  Omission of a single material fact leads  to  an  incomplete  cause  of  action  and the  statement  of  claim  becomes  bad.   The  function  of  particulars  is  to  present as full a picture of the cause of action with such  further information in detail as to make the opposite party  understand  the  case  he  will  have  to  meet.  …………………….”

In Anil Vasudev Salgaonkar (supra), this Court reiterated the  

difference between the material facts and particulars:

“58. There is no definition of “material facts” either in the  Representation of the People Act, 1951 nor in the Code of  Civil Procedure.  In a series of judgments, this Court has  

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laid down that all facts necessary to formulate a complete  cause of action should be termed as “material facts”.  All  basic and primary facts which must be proved by a party to  establish  the  existence  of  cause of  action  or  defence  are  material  facts.   “Material  facts” in other words mean the  entire bundle of facts  which would constitute a complete  cause of action.  …………….”

The absolute necessity of mentioning all the material facts in an  

election petition is reiterated:

“48.  ……………..   It  is,  however,  absolutely  essential  that  all  basic  and  primary facts which must be proved at the  trial by the party to establish the existence of  a  cause  of  action  or  defence  are  material  facts and must be stated in the pleading by  the party.”

26. Though the failure to give the ‘material particulars’ has  

not been held to be fatal, the failure to give ‘material facts’  has  

always been held to be fatal to the election petition.   

27. The Judgment under appeal recorded a finding that the  

election petition contained all material facts.  At para 12 of the  

Judgment, the learned Judge recorded as follows:

“12. Keeping in view the criteria for distinguishing material  facts from material particulars, it can safely be concluded  that the election petition contains material facts in respect  of other corrupt practices alleged to have been committed  by  the  respondent  no.1.   It  is  true  that  the allegations  suffer  from  lack  of  certain  material  particulars  particularly as to the consent of the returned candidate  or his election agent but, as explained in Rai Naraian’s case  (supra), this Court may allow the deficient particulars to be  amended or elaborated.”

Emphasis Supplied

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And opined that it is permissible to allow amendment of the election  

petition to enable the election petitioner to supply the particulars.  

Such a conclusion, according to the High Court, is warranted on the  

basis of a Judgment of this Court in Sardar Harcharan Singh Brar  

vs. Sukh Darshan Singh and others, (2004) 11 SCC 196.  It was a  

case where the appellants before the Court filed election petition  

challenging the election of the respondent to the Panjab Legislative  

Assembly.  One of the grounds in the said election petition is that  

the respondent obtained the assistance of a public officer, thereby  

committing a corrupt practice under Section 123 (7) of the R.P. Act.  

One of the issues framed was whether the election petition lacked  

material facts and, therefore, did not disclose any cause of action.  

The High Court found the said issue against the election petitioner.  

On appeal, this Court reversed the conclusion of the High Court,  

holding as follows:

“13. Having  gone through the  contents  of  the  election  petition, we are satisfied that the High Court has not been  right  in  directing  the  petition  to  be  dismissed  at  the  threshold by forming an opinion that the averments made  in the election petition were deficient in material facts. It  is  not  necessary  to  burden  this  judgment  with  reproduction  of  the  several  averments  made  in  the  election petition. The High Court has already done it. The  test  laid  down  in  the  several  authorities  referred  to  hereinabove and in particular in the case of  Raj Narain  (supra) is fully satisfied. The grounds of corrupt practice  and the facts necessary to formulate a complete cause of  action have been stated.”

While arriving at such a conclusion, this Court relied upon Raj  

Narain vs. Smt. Indira Nehru Gandhi and another, (1972) 3 SCR  

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841.  At para 9, this Court ‘summarised’  the principles emanating  

from Raj Narain (supra) as follows:

“9. Some of the principles elaborated in Raj Narain v. Smt.   Indira  Nehru  Gandhi  and  Anr.     [1972]  3SCR841  ,  are  relevant for our purpose. Dealing with the corrupt practice,  the Court held that :

(i) While a corrupt practice has got to be strictly proved, it  does not follow that a pleading in an election proceeding  should  receive  a  strict  construction.  Even  a  defective  charge does not vitiate a criminal trial unless it is proved  that the same has prejudiced the accused. If a pleading on a  reasonable construction could sustain the action, the court  should accept that construction. The courts are reluctant to  frustrate an action on technical grounds.

(ii) The charge of corrupt practice in an election petition is  a very serious charge and has to be proved. It may or may  not be proved. The allegations may be ultimately proved or  not  proved.  But  the question for the courts  is  whether  a  petitioner should be refused an opportunity to prove those  allegations  merely  because  the  petition  was  drafted  clumsily. Opportunity to prove should not be refused.

(iii) If the allegations made in an election petition regarding  a corrupt practice do not disclose the constituent parts of  the corrupt practice alleged, the same will not be allowed to  be proved and those allegations cannot be amended after  the period of limitation for filing an election petition, but  the  court  may  allow  particulars  of  any  corrupt  practice  alleged in the petition to be amended or amplified.

"Material  facts"  in  Section  83 of  the  Representation  of  People Act, 1951 shows that the ground of corrupt practice  and the facts necessary to formulate a complete cause of  action must be stated. The function of the particulars is to  present a full picture of the cause of action so as to make  the  opposite  party  understand  the  case  he  has  to  meet.  Under Section 86(5) of the Representation of People Act if  the corrupt practice is alleged in the petition the particulars  of such corrupt practice may be amended or amplified.

(iv)  An election  petition  is  not  liable  to  be dismissed in  limine because full particulars of corrupt practice alleged  were not set out. If an objection was taken and the Tribunal  was of the view that full particulars have not been set out,  the petitioner : has to be given an opportunity to amend or  

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amplify  the  particulars.  It  is  only  in  the  event  of  non- compliance with such order to supply the particulars, that  the charge which remained vague could be struck down.”

28.  Raj Narain and Indira Gandhi contested from Rae  

Bareilly constituency in the General Election to the Lok Sabha held  

in March, 1971.  Raj Narain lost the election and challenged the  

election of Indira Gandhi.  After the issues were framed in the  

election petition, an application was filed by Indira Gandhi to strike  

out issues No. 1 to 3 therein.  Raj Narain filed an application to  

amend the election petition.  His application was rejected and the  

application of Indira Gandhi was allowed by the High Court on the  

ground that he was seeking to add material facts beyond the period  

of limitation for filing the election petition.  Raj Narain carried the  

matter to this Court.  This court examining the question whether  

the High Court was justified in striking out of the first issue, i.e.,  

whether Indira Gandhi obtained the assistance of Yashpal Kapur, a  

gazetted officer in the service of the Government of India, in  

furtherance of the prospects of her election, held as follows:

“10.  The  appellant's  contention  is  that  the  respondent  after she became a candidate in the election in question  obtained the services of Yashpal Kapur when he was still  a  gazetted  officer  in  the  Government  of  India  for  the  furtherance of the prospects of her election. In order to  establish that plea, he must plead and prove: (1)  That  the  respondent  obtained  the  assistance  of  Yashpal Kapur when he was a gazetted officer; (2)  That  the  assistance  obtained  by  her  was  for  the  furtherance of the prospects of her election and (3) That she obtained that assistance after she became a  candidate.”

Emphasis Supplied

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And at para 13, this Court recorded that in order to establish his  

plea, Raj Narain had to establish that the assistance of Yashpal  

Kapur was obtained when he was still a government servant and at  

the time such an assistance was obtained Indira Gandhi had  

become a candidate.  This Court after examining the relevant  

averments of the election petition, which were extracted in extenso,  

recorded a finding that the election petition nowhere stated as to  

when Indira Gandhi had become a candidate.  It was, in this  

context, this Court observed at para 16 as under:

“………………..  But if the petition is read reasonably, as  it should be, it is clear that the allegation of the petitioner  is that the service of Yashpal Kapur were obtained by the  respondent when she had already become a candidate and  when she so obtained his assistance, Yashpal Kapur was  still a gazetted officer. It is true that one of the ingredients  of  the  corrupt  practice  alleged  i.e.  that  when  the  respondent obtained the assistance of Kapur, she was a  candidate  is  not  specifically  set  out  in  the  petition  but  from  the  allegations  made;  it  flows  as  a  necessary  implication. While a corrupt practice has got to be strictly  proved but from that it does not follow that a pleading in  an  election  proceeding  should  receive  a  strict  construction.  This Court has held that  even a defective  charge does not vitiate a criminal trial unless it is proved  that the same has prejudiced the accused. If a pleading on  a  reasonable  construction  could  sustain  the  action,  the  court  should  accept  that  construction.  The  courts  are  reluctant to frustrate an action on technical grounds. The  charge of corrupt practice in an election is a very serious  charge.  Purity  of  election  is  the  very  essence  of  real  democracy.  The charge in question has been denied by  the respondent. It has yet to be proved. It may or may not  be  proved.  The allegations  made by the  appellant  may  ultimately be proved to be wholly devoid of truth. But the  question is  whether  the appellant  should be refused an  opportunity  to  prove his  allegations?  Should  the  Court  refuse to  enquire  into those allegations  merely  because  the appellant or someone who prepared his brief did not  know the language of the law. We have no hesitation in  

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answering  those  questions  in  the  negative.  The  implications of the rule of law are manifold.”

All that this Court held is that the particulars of a corrupt practice  

can be supplied by amendment provided that the basic facts  

constituting the corrupt practice are pleaded. This Court held in Raj  

Narain (supra):

“It  is  true  that  one  of  the  ingredients  of  the  corrupt  practice alleged i.e. that when the respondent obtained the  assistance  of  Kapur,  she  was  a  candidate  is  not  specifically set out in the petition but from the allegations  made; it flows as a necessary implication.”

The fact that Indira Gandhi was a candidate at the election in  

dispute would be a logical implication of the fact that it was her  

election, which was under challenge.  The observations were not  

meant to dilute the long established principles of pleadings in the  

election disputes but were limited to the context.  

29.  This Court in Sardar Harcharan Singh Brar (supra), in  

my opinion, also came to the same conclusion.  Principle No.(iii)  

stated in para 9 of Sardar Harcharan Singh Brar (supra) makes it  

abundantly clear.    

30. In my opinion, the election petition on hand hopelessly  

lacks in stated the material facts constituting the various corrupt  

practices mentioned in the election petition to enable the  

declarations sought by the election petitioner.  The conclusion  

recorded by the High Court (extracted at para 27 supra) that;

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“It is true that the allegations suffer from lack of certain  material particulars particularly as to the consent of the  returned candidate or his election agent.   ……….”

In my opinion is wholly erroneous in law.  Consent by the candidate  

or his election agent is an essential material fact, which is required  

to be pleaded and proved when the allegation is that somebody  

other than the candidate or his election agent committed a corrupt  

practice.  The election petition on hand, in my opinion, is incapable  

of being read as disclosing any cause of action on the basis of any  

known cannon of interpretation of documents - whether a rule of  

reasonable construction or any other construction.  In view of the  

conclusion reached above, I do not propose to examine the other  

submissions regarding the legal fact of the non-filing of an affidavit  

in Form No.25 and absence of proper verification of the pleadings  

and annexures.   

31. I may also mention here that though the learned  

counsel for the election petitioner did not bring to our notice  

(obviously he was not briefed in this regard), Dr. Rajeev Dhawan,  

learned counsel for the returned candidate placed before us a  

photocopy of an application seeking the amendment of the election  

petition pursuant to the directions of the High Court.  I do not  

propose to examine the content of the said application except to  

take note of the fact that the same appears to have been presented  

on 02-05-2011.  Even otherwise, any such application could,  

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obviously, have been filed only after 05-10-2009, which is the date  

of Judgment under appeal.  In view of the fact that the results of  

the election in question were declared on 08-12-2008, the  

application was filed beyond the period of limitation prescribed  

under the R.P. Act, to challenge the election.  In view of my  

conclusion that the election petition, as originally presented, did not  

contain the necessary material facts to constitute the cause of  

action to challenge the election of the returned candidate, the  

abovementioned application filed by the election petitioner, even if  

it contain the necessary material facts, cannot be allowed as it  

would amount to permitting the amendment of the election petition  

beyond the period of limitation.   

32. I, therefore, not only grant leave in the S.L.P., but also  

allow the appeal and dismiss the election petition.     

………………………………….J. ( J. CHELAMESWAR )

New Delhi; May 3, 2012.

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