PETITIONER:
BASHIR MUSA PATEL
Vs.
RESPONDENT:
SATYAWAN GANPAT JAWKAR & ORS.
DATE OF JUDGMENT: 02/12/1996
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT
HEADNOTE
JUDGMENT
ORDER
Leave granted.
This appeal by special leave arises from the order of the learned single Judge of the Bombay High Court, made on 11/22-2-1991 in Election Petition No.13/90. It is not necessary to adumberate all the corrupt practices alleged to have been committed by the appellant mentioned in the election petition filed by the respondents. It would appear that the appellant had filed an application to dismiss the election petition on a preliminary ground that the required particulars of corrupt practices are lacking in the election petition and, therefore, no cause of action has been furnished to proceed further in the election petition. That objection was over-ruled. Subsequently, a petition has been filed to dismiss the election petition itself. In the impugned order, the learned Judge while holding that "the particulars are lacking" has held that what is missing from the petition are "merely particulars" and held that under Section 86(5) of the Representation of People’s Act, the Court has discretion to direct the party to furnish the particulars. Accordingly, he directed to furnish the particulars as mentioned in the operative part of the order which reads thus:
"(1) In para 5 of the Petition in
respect of each instance set out
under sub-para (a) to (e) the
petitioner shall state whether the
instances set out therein have been
managed by Respondent No.1, or his
Election Agent or by supporters of
Respondent No.1 with the consent of
Respondent No.1. If it is alleged
that it is done by supporters,
Petitioner to state the names of
the supporters and if the names are
not available to state that the
names are not available.
(2) In para 6(a) of the Petition,
the names of the three persons who
had come to cast bogus votes to be
supplied. If such names are not
available, Petitioner to state that
the names are not available.
(3) In para 6(b) of the Petition,
Mr. Chinoy had, during the course
of his argument, clarified that it
was not the case of the Petitioner
that delible ink for marking
fingers was used because it was so
managed by Respondent No.1 or his
Election Agent or any of his
supporters with the consent of the
Petitioner or Respondent No.1. The
Petitioner to so state in the
Schedule now to be given. Further
the Petitioner must give the names
of hirelings and goondas of
Respondent No.1, if available. If
not available to so state. The
Petitioner to also give the names
of the Presiding and Polling
Officers at the various Booths
mentioned therein and who according
to the Petitioner, have been
favouring and/or openly supporting
Respondent No.1. The Petitioner
also to state whether the acts of
Booth capturing was managed by
Respondent No.1 and/or/ his
Election Agent and/or supporters
(whose names must be supplied if
available) with the consent of
Respondent No.1 or his Election
Agent;
(4) In para 6(c) of the Petition in
respect of each instances set out
in sub-paras (i) to (v) the
Petitioner to give the same
particulars as those set out
hereinabove in respect of para 6(b)
viz. whether it is managed by
Respondent No.1 and/or his Election
Agent and/or supporters of
Respondent No.1 with the consent of
the Respondent No.1 or his Election
Agents, the names of the parties
(if available), including the name
of the persons (a) who have cast
bogus votes, (b) who prevented the
Petitioner’s Chief Election Agent
at the point of revolver, (c) who
removed Book No.17 (d) who
threatened the Petitioner’s Polling
Agent with murder.
It being clarified that the
Petitioner need not for the present
give the names of marathi speaking
persons who were not permitted to
go to the Polling Stations. This is
a possibility exists of these
witnesses being approached.
(5) In respect of para 7 of the
Petition, Mr. Chinoy has clarified
that the Petitioner does not have
and will not lead any positive
evidence to show that the instances
set out in this para have been
managed or committed by Respondent
No.1 or his Election Agent and/or
any supporters of Respondent No.1
with the consent of the Respondent
No.1 or his Election Agent. Mr.
Chinoy however clarifies that one
of the arguments of the Petitioner
will be that these have materially
affected the result of Election of
Respondent No.1 and that the
natural and only inference would be
that they were managed by
Respondent No.1 or his Election
Agent or by his supporters with the
consent of Respondent or his
Election Agent.
(6) As regards para 9 of the
Petition, apart from the two
Registration Numbers of the
Vehicles mentioned in this
paragraph and two further
Registration Numbers of Vehicles
mentioned in Exhibit ‘J-I; to the
Petition, if the petitioner is
relying upon or has any other
Registration Numbers of these
vehicles also. The petitioner must
also state, if available, the Booth
numbers to which the voters were
carried by to and by which vehicle.
If available, the Petitioner must
give the names of the voters whom
accordingly to the Petitioner, have
been carried to the Polling Booths
in those vehicles. The petitioner
to also stated whether the
hirelings and/or grounds, and/or
his Election Agent and/or
supporters of Respondent No.1 with
the consent of Respondent No.1
and/or with the consent of his
Election Agent. If it is alleged
that it is by supporters, the
Petitioner must give names of the
supporters, if available. If not to
so state.
(7) Mr. Chinoy has clarified that
even though there is reference to
pamphlets and wall posters in para
10A of the Petition for the case
made out in this para the
Petitioner is only relying upon the
pamphlets Exhibit ‘X’ to the
Petition.
(8) In respect of para 10B, the
Petitioner to state whether the
Issue and circulation of pamphlets
(Exhibit ‘Y’) was by Respondent
No.1 and/or by his Election Agent
and/or supporters (with names, if
available) with the consent of
Respondent No.1 and/or his Election
Agent. The Petitioner to state when
and where the pamphlets mentioned
in sub-paras (a) and (b) were
circulated. The Petitioner also to
underline portions of Exhibits ‘X’
and ‘Y’ which according to him
amounts, to campaigning on ground
of religion and/or creation and/or
promotion of enmity and hatred
between two classes of citizen. If
it is the case of the Petitioner
that the entire documents does so,
then the Petitioner to so state.
(9) In-sub-paras (c) and (e) the
Petitioner to give details like
time and place where the speeches
were made and the names of
speakers. The Petitioner also to
give the names and dates of the
newspaper relied upon by them. The
Petitioner to give similar details
in respect of Press Conference and
the campaigns mentioned in sub-para
(e). The petitioner also to give in
respect of each speech the gist of
the speech which according to the
Petitioner amounts to campaigning
in the name of religion and/or
creating or promoting feelings of
enmity and/or hatred. In case, a
speech or Press Conference or a
campaign is by a person other than
Respondent No.1 the Petitioner to
state whether the same is with the
consent of Respondent No.1 and/or
his Election Agent.
(10) The same particulars as set
out hereinabove in respect of
pamphlets and the speeches also to
be supplied in respect of
Advertisement, paintings, posters,
banners, referred to in para 10A of
the Petition."
This direction is now the subject matter of this appeal. Shri Khanwilkar, learned counsel for the respondent, in fairness, has stated that the Court cannot give a new cause of action by directing to furnish the particulars which are not already part of the election petition but he sought to sustain the order stating that these are only amplifications of the material allegations made of the corrupt practices in the election petition. Therefore, they are no new facts or constitute no new cause of action. We do not agree with the learned counsel. These facts do furnish the further particulars filling up the gaps which are found in the election petition. Having found that these particulars are missing, the learned Judge has committed an obvious error in giving the direction to furnish those particulars; in other words, providing an opportunity to the respondents to fill in the gap which would gravely prejudice the appellant at the trial. Under this situation, the impugned direction stands set aside and it would be open tot he learned Judge to proceed with the trial of the matter in accordance with law.
The appeal is accordingly allowed. No costs.