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Neha Goel, Advocate

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S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Representation of the People Act, 1951

Friday, September 07, 2012
Representation of the People Act, 1951

Representation of the People Act, 1951 — Section 123, Sub-Sections (1)(A) and (B), (2), (6) and (7) and Section 83 — Election petition — Corrupt practices — Material facts — 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.

 
Representation of the People Act, 1951

Representation of the People Act, 1951 — Section 100 — 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 because the corrupt practices falling under the later category are committed without the consent of the returned candidate or his election agent — Per Chelameswar, J.

 
Representation of the People Act, 1951

Representation of the People Act, 1951 — Section 100 r/w Section 40 — Expression “election agent” — Held, the expression “election agent” occurring under Section 100 must be understood to be only an election agent appointed by the candidate under Section 40 — Per Chelameswar, J.

 
Representation of the People Act, 1951

Representation of the People Act, 1951 — Section 100 r/w Section 83 — Election Petition — Allegation that somebody other than the candidate or his election agent committed a corrupt practice — Held, 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 — Per Chelameswar, J.

 
Friday, July 30, 2010
Representation of the People Act, 1951

Representation of People Act, 1951 — Section 123(5) — Held, Section 123(5) makes hiring and securing of vehicles whether on payment or otherwise for the free conveyance of any elector to and from any polling station with the consent of a candidate or his election agent, a corrupt practice. 

 
Representation of the People Act, 1951

Representation of People Act, 1951 — Section 123(4) — Corrupt practice — Held, Section 123(4) of the Act makes publication of any statement of fact which is false, and which relates to the personal character or conduct of any candidate a corrupt practice if any such statement is reasonably calculated to prejudice the prospects of that candidate’s election and if such publication has been made by a candidate or his election agent or by any other person with the consent of the candidate or his election agent.

 
Representation of the People Act, 1951

Representation of People Act, 1951 — Sections 83(1)(c) and 86(1) — Defective verification or affidavit is curable — What consequences, if any, may flow from an allegedly defective affidavit, is required to be judged at the trial of an election petition but such election petition cannot be dismissed under Section 86(1) of the Act for any such defect — F.A. Sapa v. Singora, (1991) 3 SCC 375 relied.   

 
Representation of the People Act, 1951

Representation of People Act, 1951 — Section 83 — While a petition that does not disclose material facts can be dismissed as one that does not disclose a cause of action, dismissal on the ground of deficiency or non-disclosure of particulars of corrupt practice may be justified only if the election petitioner does not despite an opportunity given by the Court provide the particulars and thereby cure the defect. 

 
Representation of the People Act, 1951

Representation of People Act, 1951 — Section 83 — While an election petition must necessarily contain a statement of material facts, deficiency if any, in providing the particulars of a corrupt practice could be made up by the petitioner at any later stage.

 
Representation of the People Act, 1951

Representation of People Act, 1951 — Section 86 — Dismissal of an election petition — Held, Section 86 of the Representation of People Act mandates that the High Court shall dismiss an election petition if the same does not comply with the provisions of Sections 81, 82 or 117 of the said Act — Sections 81, 82 and 117 of the Act deal with presentation of the petition, parties to the petition and security for costs — In the present case, election petition filed by the appellant did not suffer from any defect relatable to any one of the said three provisions — Dismissal of the election petition by the order impugned in this appeal is, not therefore, referable to Section 86 of the Act.

 
Representation of the People Act, 1951

Representation of People Act, 1951 — Section 83(1)(b) — Whether election petition could be dismissed on the ground that there is deficiency in the particulars required to be furnished in terms of Section 83(b) ? — Held, so long the material facts are stated, the absence of particulars, if any, could not justify dismissal of the petition by the High Court — If there is any deficiency in the particulars required to be furnished in terms of Section 83(b) of the Act the High Court should direct the petitioner to disclose and provide the same with a view to preventing any miscarriage of justice on account of non-disclosure of the same.

 
Sunday, July 18, 2010
Representation of the People Act, 1951

Representation of the People Act, 1951 — Section 123(3) — Corrupt practice — Standard of proof — Held, a charge of corrupt practice, envisaged by the Act, is equated with a criminal charge and therefore, standard of proof therefore would not be preponderance of probabilities as in a civil action but proof beyond reasonable doubt as in a criminal trial — If a stringent test of proof is not applied, a serious prejudice is likely to be caused to the successful candidate whose election would not only be set aside, he may also incur disqualification to contest an election for a certain period, adversely affecting his political career — Thus, a heavy onus lies on the election petitioner to prove the charge of corrupt practice in the same way as a criminal charge is proved.

 
Representation of the People Act, 1951

Representation of the People Act, 1951 — Section 116-A and Section 123(3) — Evidence Act, 1872, Section 74 — Appellant, in the present case, filed an election petition challenging the election petition of the respondent on the ground that he has indulged in corrupt practices by giving communal appeals during election campaign — In support of the allegation, a cassette, allegedly containing speeches made by him and his agents, along with its transcript was produced. According to the appellant, the cassette contained speeches, which were recorded at the instance of the Election Commission and that the cassette having been obtained from the Election Commission, it was a public document and therefore, the burden of proof which lay on him to prove the allegation stood discharged — Tribunal observed that though the appellant had placed on record the VHS Cassette but had failed to produce any evidence to show that the said cassette was a true reproduction of the original speeches — The Tribunal did not accept the plea of the appellant that since the cassette is a “public document”, as defined in Section 74 of the Indian Evidence Act, 1872, its mere production was sufficient and no further evidence was required to be adduced to prove as to how the said cassette was obtained by the appellant — It has been observed that even in the affidavit filed by the appellant, in lieu of examination-in-chief, there is no mention of the said cassette and that it had been obtained from the office of the Election Commission on payment of requisite charges for the same — The Tribunal has also found that the transcripts produced by the appellant have not been proved to be those of the original audio recordings — The Tribunal finally held that since the contents of the cassette and the transcripts had not been proved, the allegation of the appellant that the respondent had indulged in corrupt practices by appealing to the Maratha community to vote on the basis of community, could not be accepted — Held, Tribunal was right in holding that in the absence of any cogent evidence regarding the source and the manner of its acquisition, the authenticity of the cassette was not proved and it could not be read in evidence despite the fact that the cassette is a public document — Contention of the appellant that beside being a public document, the contents of VHS Cassette were not specifically denied by the respondent and, therefore, no further evidence was required to be produced to prove the authenticity of the cassette, cannot be accepted — Appellant has miserably failed to prove the authenticity of the cassette as well as the accuracy of the speeches purportedly made by the respondent — Appeal dismissed. 

 
Wednesday, October 14, 2009
Representation of the People Act, 1951

Representation of Peoples Act, 1951 — Sections 62, 94 — Conduct of Election Rules, 1961 — Rule 93 — Principle of “secrecy of ballot” — Election petition — Election of appellant was challenged mainly on the ground that the appellant was the beneficiary of a large number of void votes cast in her favour by impersonating elector — During the course of evidence an application filed on behalf of election petitioner for seeking direction of the court for opening of sealed marked electoral roll  in order to put same to a witness summoned by him — High Court allowed the same — Appeal against — Whether impugned direction of the High Court, for opening of sealed marked electoral roll  and inspection thereof would infringe the principle of  “secrecy of ballot”? — Held, no — The factum of casting of votes by a particular elector could be proved only on the basis of marked electoral rolls. More so, when the names of the voters who were alleged to have double voted or have died etc. were specifically mentioned in the election petition. From marked electoral rolls, it is only possible to  ascertain whether or not a vote had been cast in the name of a voter from a particular polling booth but it is never possible to decipher therefrom as to who is the beneficiary of the said vote as there is no indication on the electoral rolls showing for whom  voter had cast his vote — It is to be borne in mind that the marked electoral roll is maintained primarily for the purpose of  identifying the elector and as such we fail to see how its production would impair the “secrecy of ballot” principle — The stand of the appellant must also fail when tested on the touchstone of the “purity of election’ principle — Sub section (4) and (5) of Section 62 of the Act respectively bar double voting and voting by a person who is confined in a prison for any reason and a  vote cast by any such person shall be void — Extrication of void votes u/s  62(4)   of the Act would not in any manner impinge on the “secrecy of ballot”, especially when void votes are those which have to be treated as no votes at all — Appeal dismissed. S.Raghubir Singh Gill Vs S. Gurucharan Singh Tohra and Ors. 1980 Supp. SCC 53.  and A.Neelalohitadasan Nadar Vs George Mascrene and Ors. 1994 Supp (2) SCC 619 referred.

 
Representation of the People Act, 1951

Representation of Peoples Act, 1951 — Section 94 — Principle of “secrecy of ballot” — Underlying object, scope and ambit of the doctrine of “secrecy of ballot” as enshrined in Section 94 of the Act-Underlying object of the provision is to assure a voter that he would not be compelled, directly or indirectly, by any authority to disclose  as to for whom he has voted, so that he may vote without fear and favour and is free from any apprehension of its disclosure against his will from his own lips. The section confers a privilege on the voter to protect him both in the court when he is styled as a witness and out side the court when he may be questioned about how he voted. This precisely is the principle of “secrecy of ballot”. The “secrecy of ballot” has always been the hallmark of the concept of free and fair elections, so very essential in the democratic principles adopted by our polity. It undoubtedly is an indispensable adjunct of free and fair election. S.Raghubir Singh Gill Vs S. Gurucharan Singh Tohra and Ors. 1980 Supp. SCC 53. and A. Neelalohitadasan Nadar Vs George Mascrene and Ors. 1994 Supp (2) SCC 619 referred.

 
Representation of the People Act, 1951

Representation of Peoples Act, 1951, Section 94 — Principle of “secrecy of ballot” — Pre-supposes a validly cast vote, the sanctity and sacrosanct of which must in all events be preserved.

 

 
Representation of the People Act, 1951

Representation of Peoples Act, 1951 — Section 62 — Void vote — Sub section (4) and (5) of Section 62 of the Act respectively bar double voting and voting by a person who is confined in a prison for any reason and a vote cast by any such person shall be void — S.Raghubir Singh Gill Vs S. Gurucharan Singh Tohra and Ors. 1980 Supp. SCC 53.   

 
Representation of the People Act, 1951

Representation of Peoples Act, 1951 — Section 94 — Principle of “secrecy of ballot” and the principle of “purity of ballot/ election” — Out of the two competing principles, purity of election principle must have its way and that the rule of “secrecy” as contemplated in the section 94 of the Act, can not be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process — A. Neelalohitadasan Nadar Vs George Mascrene and Ors. 1994 Supp (2) SCC 619 relied. 

 
Representation of the People Act, 1951

Representation of Peoples Act, 1951 — Section 94 — Conduct of Election Rules, 1961, Rule 93 — Scope of — Inspection of documents and order of the competent court regarding same — Preconditions thereof — Rule 93 provides that the documents mentioned in the sub-rule (1) thereof shall not opened and their contents shall not be inspected by, or produced before any person or authority except under the order of the competent court — It is trite that inspection under the said rules can be allowed only when two condition are satisfied:- (i) the material facts on the basis of which inspection of documents sought, must be clearly and specifically pleaded, and (ii) the court must be satisfied on evidence, even if in the form of affidavit, that it is necessary to allow inspection in the interest of justice — Hari Ram Vs Hira Singh and Ors. (1984) 2 SCC 36 referred.

 
Representation of the People Act, 1951

Representation of Peoples Act, 1951 — Conduct of Election Rules, 1961 — Rule 93 (1) — Inspection of documents — Whether can be allowed as a matter of course? Held, no — It can only be allowed where precise allegation of material facts are available on record and the Court is satisfied that inspection of the documents is necessary to determine the issue arising for the decision in the case as also in interest of justice. 

 
Friday, August 15, 2008
Representation of the People Act, 1951

Representation of the People Act, 1951 — Section 83(1)(c) and Section 86 — Civil Procedure Code, 1908, Order 6 Rule 15, Form No.25 — Election petition — Verification — In the present case, appellant instead of  using the words, "that the averments in paragraphs 1,2 and 4 are within his personal knowledge and the averments in paragraphs 3 and 5 to 8 are within his knowledge, information and that the averments are true" he has stated, "no part thereof is false and nothing which is relevant has been concealed" — Held, both the phraseology convey the same meaning — Practically the same sense is conveyed and it is not such a defect which could entail dismissal of the election petition — What one is required to do is to make proper verification disclosing the contents of which paragraphs are within his personal knowledge, and the averments in which paragraphs are within his knowledge, information or the information derived from other source and he believes the same to be true.  

 
Representation of the People Act, 1951

Representation of the People Act, 1951 — Section 83, Proviso — Election petition dismissed on the ground that affidavit was defective — The defect as pointed out by the High Court was that the appellant had not signed and affirmed in the manner inasmuch as there is no certification of the Notary that it was solemnly affirmed by the appellant before him — This objection was based on the fact that after the signature of the deponent the only words occurring before the signature of the Notary are, "Before me" — The words, "Solemnly affirmed by Shri Umesh Challiyil at Ernakulam on this the 26th day of June, 2006." Occurred above the signature of the deponent — Therefore, it was contended that the affidavit does not bear the certification by the Notary as to the affirmation by the deponent since such certification ought to be by the Notary after the signature of the deponent — Held, this is a defect of very minor nature — It may be a bonafide mistake on the part of the deponent as well as the Notary but basically it conveys the sense that the affidavit has been solemnly affirmed by Umesh Challiyil at Ernakulam — This affirmation also does not in any way go to the root of the matter so as to render the entire election petition not properly constituted entailing the dismissal of the same.

 
Representation of the People Act, 1951

Representation of the People Act, 1951 — Section 83 — As per Section 83, a concise statement of material facts should be given in the petition and if the allegations are of corrupt practice then the a full statement, as far as possible, all names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice has to be disclosed and it shall be signed by the petitioner and verified in the manner laid down in the CPC for verification of the pleadings — It further provided that where the allegations are of corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof in Form No.25 — Civil Procedure Code, 1908, Order 6 Rule 15, Form No.25.

 
Representation of the People Act, 1951

Representation of the People Act, 1951 — Section 83 and Section 86 — Civil Procedure Code, 1908, Order 6 Rule 16 and Order 7 Rule 11 — Petitioner's failure to furnish any of the material facts and particulars in violation of Section 83 of the Act which are essential for disclosing the cause of action relating to conditions of corrupt practice, held, will not entail dismissal of election petition under Section 86 of the Act — Election petition could be dismissed under Order 6 Rule 16 and Order 7 Rule 11 of the C.P.C.

 
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