Supreme Court of India
MANOHAR JOSHI ETC.versusDAMODAR TATYABA @ DADASAHEB RUPWATE AND ORS.
- Citation
- 1991 INSC 69
- Decided
- 11 March 1991
- Disposal
- Appeal(s) allowed
- Bench
- K N SINGH
Holding
A notice issued under section 99 to a person who is not a party to an election petition must spell out the precise corrupt practice alleged and the specific evidence relied upon; otherwise the notice is void.
Summary
In the 1989 Lok Sabha election, a defeated candidate challenged the election of the winner on grounds of corrupt practices under sections 123(2), (3) and (3A) of the Representation of the People Act, 1951. The Bombay High Court, after finding the charges proved, issued notices under section 99 to three persons, including Manohar Joshi and Chhagan Bhujbal, to show cause why they should not be named as collaborators. The appellants contended that the notices were vague, failing to specify the exact corrupt practice alleged or the evidence relied upon, thereby violating the proviso to section 99. The Supreme Court held that when a person who is not a party to an election petition is to be named, the notice must state the precise charge and the documentary/ oral evidence supporting it; an omnibus notice is invalid. The Court set aside the High Court’s order and directed that proper, detailed notices be issued, allowing the appeals.
Issues considered
- The requirement under section 99 of the Representation of the People Act, 1951, that a notice to a non‑party must specify the exact corrupt practice alleged and the evidence relied upon.
- Whether the Bombay High Court erred in issuing a vague, omnibus notice without detailing the charges against the appellants.
- The extent to which sections 82, 83, 97, 98, 107 and related provisions impose a duty to give full particulars to persons named under section 99.
- The effect of the earlier Supreme Court order dated 1 December 1988 on the present case.
Legislation cited
- Representation of the People Act, 1951s. 107, s. 123(2), s. 123(3), s. 123(3A), s. 146, s. 3(A), s. 82, s. 83, s. 97, s. 98, s. 99
Subjects
Representation of the People ActSection 99Corrupt practiceElection petitionNotice requirementQuasi‑criminal proceedingDisqualificationProcedural fairnessNon‑party
Judgment
MANOHAR JOSHI ETC.
v.
A.
.._---..,. DAMODARTATYABA@DADASAHEBRUPWATEANDORS.
MARCH 11, 1991
[K.N. SINGH, KULDIP SINGH AND P.B. SAWANT, JJ.] B
Representation of the People Act, 1951: Sections 99, 123(2), (3)
and 3(A)-Corrupt practice-Allegations of-Person summoned
___,..i..,___ should know precise charge to be met-Notice to such person to spell
out precise corrupt practice and portions of documentary evidence
relied upon to sustain such.
c
In the 1989 elections to the Lok Sabha, respondent No. 2 was
declared elected from the Bombay South Central Constituency. One of
the defeated candidates (respondent no. 1) f"Iled an election petition
challenging the validity of the election of respondent no. 2 inter alia on
the ground of corrupt practices under sub-section (2), (3) and (3A) of D
section 123 of the Representation of the People Act, 1951.
The High Court having reached the stage in the trial when it was
p rima f acie of the opinion that the charges alleged in the petition, of
corrupt practices falling under sections 123(3) and 123(3A) had been
proved to have been committed, it proceeded under section 99 to name E
l
~ - the collaborators in such corrupt practices. The High Court accord-
ingly directed issuance of notices to three persons. Aggrieved by this
order, two of the person named therein approached this Court by way
-- of two separate appeals.
Before this Court, it was contended on behalf of the appellants
that (i) the consequences of namiilg a person on his being found guilty
F
pursuant to such notices were grave; (ii) the proviso to sub-section (1-) of
~ · section 99 of the Act enjoined upon the Court to state precisely the
· charges and the evidence which the person summoned was called upon
to meet; and (iii) the notices to the appellants to answer allegations of
corrupt practices allegedly committed by them were vague. G
Allowing the appe~ls and directing the High Court to issue proper
~~\..- notices to the appellants in the light of the law, this Court,
- • I
I
HELD: (1) It is clear from the provisions of sub-clauses (i) and (ii)
of clause (a) of sub-section (1) of section 99, that at the time of deciding H.
759
760 SUPREME COURT REPORTS {1991] 1 S.C.R.
A the election petition the Court has to record a finding that a corrupt ·y-
practice is proved to have been committed and that it has been commit-
ted by a particular person. The Court has not only to name the person
but also the nature of the corrupt practice committed by him. {766F-G]
(2) If the person is a party to the petition, it is not necessary to
B hear him separately before recording such fmding. However, when he
is not a party to the petition, before such serious fmding is recorded
against him, he· must have the same opportunity as the ·party to the· ~
petition, to meet the allegations against him. In that respect, he
stands on the same footing as the party to the petition against whom
such a fmding is to be recorded. He cannot be discriminated against ·,.---1
and made to stiifer any disadvantage because he is not a party to the
c petitfon. [766H-767A]
(3) Where a corrupt practice is alleged, the trial of an election
petition on such charges is of a quasi-criminal nature, and a heavy
burden rests on the person alleging the corrupt practice to prove strictly
D all the ingredients of the charge. This is as it should be since the naming
of a person as having committed a corrupt practice has a serious conse-
quence of disqualifying him from being chosen as or from being
member of any House ()f Parliament or of the Legislative Assembly or
Council ofa State for a period upto 6 years. [7698-C]
E D.P. Mishra v. Kamal Narain Sharma & Ors., f1971] 3 S.C.R.
257 and Rashim Khan v. Khurshid Ahmed & Ors., [1975] l S.C.R. 643,
ref.erred to. ·
( 4) When the· legislature requires that the election petition shall
contain full particulars of each and every alleged corrupt practice
F including as fuller a statement as possible of the names of the parties
and !he date and place of the commission of such practice, it would be ~
contrary to the object of the said provisions to hold that when a notice is
issued under Section 99 against a person who is not a party to the
election petition for holding him guilty of any corrupt practice, the
notice should not apprise him of the precise charge against him and give
G him the full particulars thereof: [769D-E] _/ .
(5) The impu~ed order directing the issuance of notice is · _)_ .l.. :
extremely vague and defective· to the point of being contrary to the '
provisions of law. The notice is of an omnibus character. Section 123(3)
does not refer to one corrupt. practice but a variety of them. Yet the
H notice does not specify which particular corrupt practice is sought to be
MANOHAR JOHSI v. DAMODAR TATYABA [SAWANT, J.] 761
, ~-brought home to each of the appellants, and does not state which of the
A
portions of the petition, etc. is being relied upon to sustain which of the
charges and against which of the appellants. l 769F-G, 770B]
[Order dated December 1, 1988 in Special Leave petition
No. 13163of1988 and the later non-speaking order of January 23, 1989
in the matter overruled.] [771D] B
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
(NCE) 1044 & 1045 of 1991.
.._. From the Judgment and Order dated 29.10.1990 of the Bombay
• High Court in Election Petition No. 5 of 1990.
c
K.K. Venugopal, Harish Salve, P.H. Parekh, Sunil Dogra, V.D.
--./·Joshi and A.M. Khanwilkar for the Appellants.
A.S. Bobde, V.A. Bobde, S.D. Mudliar, C.K. Ratnaparkhi,
B.P. Pandye, and Mrs. Nirmal Chhagan for the Respondent. D
The Judgment of the Court was delivered by
~ SAWANT, J. These two petitions arise out of a common order
dated 29th October, 1990 passed by the Bombay High Court in Elec-
tion Petition No. 5 of 1990 and raise a common question of law. Hence E
they are disposed of by this judgment.
2. Leave is granted in both the petitions.
The election petition in which the impugned order is passed was
filed by a defeated candidate (Respondenf No. 1) against the elected p
·r--candidate (Respondent No. 2) and other contesting candidates chal-
lenging the validity of the election of respondent No. 2 to the Lok
Sabha from the Bombay South Central Constituency in the election
held on November 24, 1989. The election of respondent No. 2 is chal-
lenged in the petition, among other things, on the ground of corrupt
practices under sub-sections (2), (3) and (3A) of Section 123 of the G
').. Representation of the People Act, 1951 (hereinafter referred to as the
· -"Act"). It appears from the impugned order that the High Court has
reached a stage in the trial of the election petition where examination-
in-chief and cross-examination of about 14 witnesses has been comp-
leted and various documents have been brought on record. It is at this
stage that the impugned order has been made, the operative part. of H
which reads as follows:
,..
762 SUPREME COURT REPORTS [1991] 1 S.C.R.
"In this Election Petition, the Petitioner' seeks to set -y·
A
aside the election of Respondent No. 1 on the ground of
corrupt practice under Sections 123(3) and 123(3A) of the
said Act. The Petitioner has led documentary and oral evi-
dence. Respondent No. 1 has tendered documents but has
led no oral evidence. The other Respondents have
B remained absent even though served. Petitioner and
Respondent No. 1 have argued their respective cases. The
learned Advocate General has also drawn my attention t~
Section 99 of the said Act which requires this Court, whilst
giving a finding that corrupt practice has been proved, to
name all persons who have been proved at the trial to have , _ •
c been guilty of any corrupt practice and the nature of that J
practice. This however must be after having given to such ,
persons notice to appear and show cause why he/they j
should not be so named. ~- 1
At this stage, I am of the prima facie opinion that the
D charges alleged in the Petition of corrupt practices under
Sections 123(3) and 123(3A) of the said Act have been
proved to have been committed and that Mr. Bal Thac-
kerary, Mr. Chhagan Bhujbal and Mr. Manohar Joshi Are
(to use the w?rds of Supreme Court) collaborators in such )
corrupt practice. --"\
E
Accordingly, I direct that notices under Section 99 of
the Representation of the People Act, 1951, shall be given
to Mr. Bal Thackeray, Mr. Chhagan Bhujbal and Mr.
Manohar Joshi to appear before me on 3rd December,
'
1990, t<? show cause why they should not be so named in the
F order oh the Election Petition.
Each notice shall state that the person named in the
notice shall have an opportunity of cross-examining all
~-
'
i
witnesses who have given evidence· against him and that he
shall have a right of calling evidence and of being heard.
G
I direct that to all the notices shall be annexed photo l
copies of: ~
(a) the Petition, the written statement of Respondent No.
1, and the Issues.
l-1 1,
MANOHAR JOHSI v. DAMODAR TATYABA [SAWANT, J.] 763
·-...; (b) the oral depositions of the petitioners witnesses.
A
(c) all exhibits, except Exhibits RR, SS to YY, AAA.
AAA 1, AAAA, BBBB, BBBB 1 and Exhibits 1 to 8.
(d) this order.·
B
I also direct that along with all the notices shall be
__..___ sent audio cassettes containing copies of Exhibits SS to
e YY."
... ·---
Aggrieved by this order, two of the persons named therein, viz.,
Manohar Joshi and Chhagan Bhujbal have approached this Court by
way of these two separate appeals by special leave. c
,
3. The order is assailed on the ground that although it directs the
~
issuance of notice to the appellants to answer allegations of corrupt
practices allegedly committed by them, it is vague and does not indi-
cate which of the corrupt practices they are alleged to have commited D
and which evidence on record supports them. In the absence of the
specific charge/s and the evidence in support of it/them indicated in the
order and the notices issued pursuant to it, the appellants are at a loss
to comprehend the case that they are called upon to meet. They are
~ thus put to a disadvantage and are gravely prejudiced. It is pointed out
that the consequences of naming a person on his being found guilty E
pursuant to such notice are grave inasmuch as, among other things, he
- incurres a disqualification for contesting election under Article 103 of
the Constitution read with Section SA of the Act. It is also urged that
even otherwise the notice to appear and the opportunity to show cause
contemplated under the proviso to sub-section ( 1) of Section 99 of the
Act enjoins upon the Court to state precisely the charge and the evi- F
dence which the person summoned is called upon to meet. It does not
~
contemplate a vague notice such as the one which is issued and is
directed to be issued by the impugned order.
4. For reasons more than one, we find great force in these sub-
missions . Shri Bobde, the learned Advocate General of Maharashtra
who appeared for respondent No. 1 could not seriously dispute these
G ...
~- contentions. However, he pointed out to us an earlier order dated
December l, 1988 of this Court passed in Special Leave Petition
No. 13163 of 1988 which was filed against a similar order passed by the
• Bombay High Court in Election Petition No. 1 of 1988. This Court by
its said order had held as follows: H
764 SUPREME COURT REPORTS [1991] 1 S.C.R.
"We do not think that in a notice under Section 99 of
A
the Representation of the People Act, 19_5 l the portions of r
the speeches of the petitioner are required to be specific for
the purpose of sub-sections (3) and (3A) of Section 123 of
the said act. The petitioner, however, will be at liberty to
make an application before the court for specifying those
B portions which, prima facie, according to the court, come •·
within the purview of sub-sections (3) or (3A) of Section
123 of the said Act. If any such application is made, the ~
court will dispose of it in accordance with law. 0
c
The special leave petition is disposed of accordingly."
The provisions of the Act which have a cumulative bearing on
the present question are contained in sections 82, 83, 97, 98, 99, 107,
____,.r
...
123(3) and 123 (3A) of the Act. '
~
6. Section 82 enjoins upon the election petitioner to join as
D respondent to the petition, in addition to other necessary parties, any,_
candidate against whom allegations of any corrupt practice are made
in the petition.
Section 83 which deals with the contents of the election petition
E
states, among other things, as follows:
~
"83. Contents of petition.-(1) An election petition-
(a) ................................................
(b) shall set forth full particulars of any corrupt practice
that the petitioner alleges, including as full a statement as
-
F possible of the names of the parties alleged to have com-
mitted such corrupt practice and the date and place of the
~
commission of each such practice; and
(c) .................................................
Provided that where the petitioner alleges any cor-
d rupt practice, the petition shall also be accompanied by an
I affidavit in the prescribed form in support of the allegation
of such corrupt practice and the particulars thereof. · -~
(2) Any schedule or annexure to the petition shall also be
)
signed by the petitioner and verified in the same manner as
H the petition."
\
MANOHAR JOHSI v. DAMODAR TATYABA [SAWANT, J.] 765
~ It is clear from the reading of these two sections that even in the
election petition where allegations of corrupt practices are made, full A
particulars of the alleged corrupt practice including as fuller a state-
ment as possible and the names of the parties who are alleged to have
committed such practice and the date and place of the commission of
each such practice have to be furnished. What is further, the allega-
tions of the corrupt practice have to be accompanied by an affidavit in B
A_ support both of the allegations as well as the particulars thereof, and if
there are any schedules or annexures to the petition in support of the
corrupt practice, they have also to be signed by the petitioner and
verified by him in the same manner as the petition. This is a mandatory
_._ requirement. The object of the said provisions is obvious. The party
and it includes not only the returned candidate but all other candidates
against whom the corrupt practice is alleged, must have an adequate c
notice of the precise allegations made against him so that he has a
---{, proper opportunity to meet them.
7. Section 97 states that when in an election petition a declara-
tion that any candidate other than the returned candidate has been D
duly elected is claimed, the returned candidate or any other party may
give evidence to prove that the election of such candidate would have
been void if he had been the returned candidate and the petition had
'.>-- been presented calling in question his election. The section requires
· that before the returned candidate or such other party, as aforesaid,
gives such evidence, he should have, within 14 days from the date of E
the commencement of the trial, given notice to the High Court of his
intention to do so and that notice has to,be accompanied by the state-
ment and particulars required by Section 83 in the case of an election
petition and has to be signed and verified in the like manner. We have
already referred to the relevant requirements of Section 83 with regard
to the furnishing of the particulars of the corrupt practice. F
-~-
8. Section 98 states that on the conclusion of the trial of an
election petition, the High Court shall make an order (a) dismissing
the election petition; or (b) declaring the election of all or any of the
returned candidates to be void; or (c) declaring the election of all or
any of the returned candidates to be void and the petitioner or any G
)..-. other candidate to have been duly elected.
Then follows Section 99 of which what is relevant for our
purpose is sub-section (1) which reads as follows:
"99. Other orders to be made by the High Court.-(1) At H
766 SUPREME COURT REPORTS (1991] 1 S.C.R.
the time of making an order under section 98 the High Y
A Court shall also make an order-
(a) where any charge is made in the petition of any corrupt
practice having been committed at the election, recording-
B (i) ·a finding whether any corrupt practice has or has
not been proved· to have been committed at the election' ~
and the nature of that corrupt practice; and
c
(ii) the names of all persons, if an·y, ·who have been
proved at the trial to have been guilty of any corrupt
practice and.the nature of that practice; and
(b) fixing the total amount of costs payable and specifying
-~
,-
..
the persons by and to whom costs shall be paid. r--
Provided that a person who is not a party to the peti-
D tion shall not be named in the order under sub-clause (ii) of
clause (a) unless-
(a) he has been given notice to appear before the High
Court and to show cause why he should not be so named;
and
-{
E
(b) if he appears in pursuance of the notice, he has been
given an apportunity of cross-examining any witness who
has already been examined by the High Court and has
......
I
given evidence against him, of calling evidence in his
defence and of being heard."
F
-~
It is clear from the provisions of sub-clauses (i) and (ii) of clause
·(a) of sub-section (1), that at the time of deciding the petition, the
Court has to record a findin·g that a corrupt practice is proved to have
been committed and that it is committed by a particular person. The
Court has not only to name the person but also the nature of the
G corrupt practice committed by him. If the person is ·a party to the
petition, it is not necessary to hear him separately before recording
. such finding. However, when he is not a party to the petition, before
._./,
such serious finding is recorded against him, he must have the same
opportunity as the party to the petition, to meet the allegations against
him. In that respect, he stands on the same footing as the party to the
H petition against whom such a finding is to be recorded. He cannot be
MANOHAR JOHSI v. DAMODAR TATYABA [SAWANT, J.l 767
discriminated against and made to suffer any disadvantage because he
is not a party to the petition. This is the precise object which is sought A
to be secured by the proviso to the Section.
9. Section 107 of the Act states that the order of the High Court
under Section 98 or Section 99 shall take effect as soon as it is pro-
nounced by the High Court subject, of course, to the stay, if any, B
-1; k granted by the High Court itself or in appeal by the Supreme Court.
10. Section 123 enumerates and defines the corrupt practices for
the purposes of the Act. We are concerned in the present case with the
-· corrupt practices mentioned in sub-sections (3) and (3A) of the said
section. Those sub-sections read as follows:
"(3) The appeal by a candidate or his agent or by any other
person with the consent ·of a candidate or his election agent
c
to vote or refrain from voting for any person on the ground
of his religion, race, caste, community or language or the
use of, or appeal to religious symbols or the use of, or D
appeal to, national symbols, such as the national flag or
the national emblem, for the furtherance of the prospects
of the election of that candidate or for prejudicially affect-
ing the election of any candidate:
Provided that no symbol allotted under this Act to a E
candidate shall be deemed to be a religious symbol or a
-· national symbol for the purposes of this clause.
(3A) The promotion of, or attempt to promote, feelings of .
enmity or hatred between different classes of the citizens of
India on grounds of religion, race, caste, community, or F
language, by a candidate or his agent or any other person
with the consent of a candidate or his election agent for the
furtherance of ~he prospects of the election of that candi-
. date or for prejudicially affecting the election of any
candidate."
G
It is clear from the aforesaid sub-sections that each of them
enumerates not a single corrupt practice but various distinct corrupt
practices. They are as follows. Sub-section (3) speaks of the corrupt
practices of-
(A) the appeal (i) to vote, or (ii) to refrain from voting for any H
768 SUPREME COURT REPORTS [1991) 1 S.C.R.
person on the ground of-
A
(.a) his religion, (b) his race, (c) his caste, (d) his community, or
( e) his language;
(B) (i) of the use of, or (ii) of appeal to (a) religfous symbols, (b)
national symbols such as the national flag or (bb) the national
B emblem either for the furtherance of the prospec•:s of the elec-
tion of that candidate, or for prejudicially affecting the election of ~
any candidate.
c
Likewise Sub-section (3A) consists of different corrupt practices
as follows:
---r
..
(i) the promotion of, or
(ii) attempt to promote feeling of enmity or hatred between ·r--
different classes of the citizens of India on grounds of-
D (a)religion, (b) race, (c) caste, (d) community, or (e) language c'
~
either for the furtherance of the prospects of the election of that
candidate or for prejudicially affecting the ele.::tion of any
candidate.
~
Hence merely by enumerating in the notice the numbers of
E sections, viz., 123(3) and 123(3A) as is directed to be done by the
impugned order, the person summoned does. not undersland which of
the various corrupt practic~s mentioned in the sectio'ns is alleged
.....-
against him and what precise charge he has to meet.
11. Section BA of the Act states that the case of every person
F who is found guilty of a corrupt practice by an order under section 99 ·~-
shall be submitted, as soon as may be, after such order takes effect, by
such authority as the Central Government may specify ii1 this behalf,
to the President for determination of the question as to i.vhether such
person shall be disqualified and if so, for what period. The period of
disqualification is not to exceed 6 years from the date on which the
G order made in relation to him under Section 99 takes effect. Sub-
section (3) thereof requires the President to obtain the O'pinion of the ~
Election Commission on such question and to act according to such
opinion. The President exercises this power under Article 103 of the
Constitution and the powers of Election Commission when such a
reference is made by the President are governed by Section 146 of the
H Act.
MANOHAR JOHSI v. DAMODAR TATYABA [SAWANT, J.] 769
12. A reading of all the aforesaid privisions together would show A
that the proceedings pursuant to the notice issued by the High Court
under Section 99 of the Act are of a quasi-criminal nature. It has also
been held so by this Court in so many words, in some of the decisions:
See D.P. Mishra v. Kamal Narain Sharma & Ors., (1971] 3 SCR 2571
and Rashim Khan v. Khurshid Ahmed & Ors., (1975] 1 SCR 643.
B
Where, therefore, a corrupt practice is alleged, the trail of an election
petition on such charge is of a quasi-criminal nature, and a heavy
burden rests on the person alleging the corrupt practice to prove
strictly all the ingredients of the charge. This is as it should be since the
naming of a person as having committed a corrupt practice has a seri-
ous consequence of disqualifying him from being chosen as or from
being member of any House of the Parliament or of the Legislative c
Assembly or Council of a State for a period upto 6 years.
13. What is further, as pointed out above, when the legislature
requires that the election petition shall contain full particulars of each
and every alleged corrupt practice including as fuller a statement as
D
possible of the names of the parties and the date and place of the
commission of such practice, it would be contrary to the object of the
said provisions to hold that when a notice is issued under Section 99
against a person who is not a party to the election petition for holding
him guilty of any corrupt practice, the notice should not apprise him of
the precise charge against him and give him the full particulars thereof.
E
14. Judged in the light of these requirements of law there is no
doubt that the impugned order directing the issuance of notice as
stated therein, is extremely vague and defective to the point of being
contrary to the provisions of law. We have reproduced above the
relevant portion of the order. The order (i) directs issuance of an
F
omnibus notice against the appellants and one other person; (ii) states
!
again in an omnibus manner that the Court is satisfied that the charges
alleged in the petition of corrupt practices under Section 123(3) and
123(3A) of the Act have been proved to have been committed by all of
them; (iii) further directs tJ:iat each notice shall state that the person
named in the notice shall have an opportunity of cross-examining all G
witnesses who have given evidence against him and that he shall have a
right of calling evidence and of being heard. It then directs that to all
the notices to be issued, copies of (a) the petition and the written
statement, (b) oral deposition, (c) all exhibits (d) the impugned order
itself and (e) audio cassettes containing copies of Exhibits SS to YY
should be annexed.
H
no· SUPREME COURT REPORTS [ 1991] 1 S.C.R.
A
15. The notices directed to be issued and which have accordingly
been issued are defective in many respects. In the first instance, they
r >
do not spell out the precise corrupt practice which each of the appel-
lants is called upon to meet. As has been pointed out above, Section
123(3) does not refer to one corrupt practice but a variety of them. Yet
the notice does not specify which particulars corrupt practice is sought
B to be brought home to each of the appellants.
Secondly, although the copies of the petition, written statement
etc. are directed to be sent along with the notices, the order does not
direct the notices tp state and, therefore, they do not state which of the
portions of the petition, written statement, oral evidence, documen-
tary evidence and audio cassettes is being relied upon to sustain which
c of the charges and against .which of the appellants. As pointed out
earlier, it is a pre-condition for the trial of the charges of the corrupt
practices that the person called upon. to face the charge should be
apprised, in advance, of the precise charge or charges against him and
also 'the precise evidence-oral or documentary, which is sought to be
D relied upon in support of the said charge or each of the said charges. It
is obvious thatthe kind of notice which is directed to be issued by the
impugned order is defective in all these respects and conveys nothing
to the appellants. The impugned order and the notices issued pursuant
to it falling short of the requirement.of law are, therefore, li~ble. to be
struck down:
E
16. It is true that this Court in its order dated December 1, 1988
had refused to interfere with a similar order and had held that such a
notice is not against the provisions of the law. It has, however, to be
remembered in this connection that even while doing so., the Court had
given an opportunity to the petitioner therein to make an application
F bedre the High Court for specifying those portions of the speeches of
the petitioner which prima facie according to the High Court came ~
within the purview of sub-sections (3) or (3A) of Section 123. The
Court had further directed that if any such application is made; the
High Court should dispose it of in accordance with law. It appears that
consequent upon the direction, an application was made by the
G petitioner for specifying the portions of the speeches which were
sought to be relied upon to sustain the charges under sub-sections (3) ~
and (3A). The High Court held that the provisions of Section 99 did 4111111\
not require it to analyse the evidence and specify either in the notice
under the said section or at any time prior to hearing the person to
whom it is issued, what portion or portions thereof seemed in its view
H prima facie to make out the case which he was called upon to answer.
.... MANOHAR JOHSI v. DAMODAR TATYABA [SAWANT, J.] 771
i ~· This the High Court did in spite of the fact that it recorded correctly, A
that the person to whom a notice under Section 99 is issued is entitled
to be put in the same position as the elected candidate and that his
position can be no better. We have pointed out earlier that in fact the·
vague notice which is directed to be issued by the impugned order does ·
in fact place the person against whom the notice is issued in a worse .
position than not only the elected candidate but other persons who are , B
~- parties to the election petition. It is with a view to see that he is not
placed in a disadvantaged position as against the parties to the petition
that it is necessary to apprise him also of the details of the specific
charges against him in advance. We have also pointed out that the trial
-· ~ being of a quasi-criminal nature and the consequence of the named
--- person being serious, he is entitled to this minimum safeguard. The
view taken by the High Court was, therefore, obviously wrong. ,
Unfortunately, the special leave petition filed even against that order
c
~ of the High Court came to be dismissed in limine and without a speak-
ing order. We are of the view that for the reasons which we have stated
above, neither the order of December 1, 1988 nor the later non-
speaking order of January 23, 1989 lays down the correct position of D
law and should be deemed to have been overruled by this decision.
However, we make it clear that these observations will not in any way
affect the validity of the decision rendered by the High Court in that
fl election petition being Election Petition No. 1 of 1988. We further
make it clear that the law laid down here will operate only prospec-
tively, i.e., to final orders of indictment passed under Section 99 of the E
- Act, hereafter.
17. In the view we have taken above, we should set aside the
impugned order and the notices issued in each case in pursuance of the
said order. However, we are of the view that it is not necessary to do
so. Instead, we direct that the appellants will appear before the High F
Court on 25th March, 1991 and the High Court will on that day or on
such other day as it may deem convenient, issue proper notices to the
appellants in the light of the law laid down and then proceed to hear
and dispose of the notices in accordance with law.
-
The appeals are allowed accordingly. In the circumstances of the
case, there will be no order as to costs.
R.S.S. Appeals allowed-.
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