PARSHOTTAMDAS TALSIBHAI PATEL Vs. LILUBHAI KISHOREBHAI PATEL

JUDGEMENT

(1.) [His Lordship, after stating tie facts and dealing with the evidence relating to corrupt practices alleged to have been committed by the appellant, proceeded.] Mr. Chari contended that, in any event, there has been a procedural irregularity in the trial before the Election Tribunal and that, on that account, the order passed by the Tribunal is liable to be set aside. Our attention was invited to Sections 98, 99 and 100 of the Kepresentation of the People Act. Section 98 of the Representation of the People Act provides that at the conclusion of the trial of an election petition the Tribunal 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 other candidate to have been duly elected. Section 99(1) provides: At the time of making an order under Section 98 the Tribunal 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 - (i) a finding whether any corrupt practice has or has not been proved to have been committed by, or with the consent of, any candidate or his agent at the election, and the nature of that corrupt practice; and (ii) the names of all persons, if any 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. That is followed by a proviso which states that a person who is not a party to the petition 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 Tribunal and to show cause why he should not be so named; and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross -examining any witness, who has already been examined by the Tribunal and has given evidence algainst him, of calling evidence in his defence and of being heard. Section 100, in so far as it is material, provides by Sub -section (1) : Subject to the provisions of Sub -section (2), if the Tribunal is of 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;...the Tribunal shall declare the election of the returned candidate to be void.

(2.) IN this case, the Tribunal came to the conclusion that the appellant was guilty of corrupt practices and under Section 98(b) of the Act the election of the appellant has been declared 'to be void.' Under Section 99, the Tribunal was required, a charge of corrupt practices having made, to record a finding whether any corrupt practice has or has not been proved to have been committed by, or with the consent of, the appellant. That finding has been recorded. But the Tribunal has not chosen to name persons other than the appellant who were found at the trial guilty of corrupt practice and the nature of that practice. The Tribunal, in para. 46 of its judgment, observed. The evidence shows that Thakorlal Chhotalal, Kantilal Chimanlal and Jashbhai Dahyabhai have committed the corrupt practice of bribery because of the entertainment with tea. However, (before) they can be named in the order on this petition, they must be served with notice and given the opportunities mentioned in provisions (a) and (b) of Section 99(1). However, these persons are co -accused with the successful candidate in the pending criminal case before the Magistrate of Umreth. If they are found guilty in that case, it will have the same effect as being named as guilty of the corrupt practice before us. If they are acquitted in that case, they cannot be apparently rightly guilty of the corrupt practice before us. In view of the pending criminal case, it would be unnecessarily embarassing them by serving them with notices and giving them a chance in the present trial to be heard for seeing whether they should be named as guilty of the corrupt practice.

(3.) OUR attention was invited to a judgment of the Supreme Court, Raj Krushna Bose v. Binod Kanungo [1954] S.C.J. 286, in which the Supreme Court criticized an Election Tribunal which merely declared an election void without recording a finding whether the candidate was proved to be guilty of corrupt practices. In this ease, it cannot be said that the Tribunal has shirked its work or has tried to take a short -cut. The Tribunal has dealt with the case against the appellant in detail and has come to the conclusion that the appellant is guilty of corrupt practices. A finding has been recorded to that effect as required by Section 99(1)(a)(i) of the Eepresentation of the People Act;. But the Tribunal has declined for certain reasons set out by it to name persons other than the appellant who, in the opinion of the Tribunal, were guilty of corrupt practices. There is nothing in the judgment of Raj Krushna Bose v. Binod Kanungo, on which reliance has been placed, which supports the contention that where the Tribunal for certain reasons does not think it necessary to name persons who in its view are guilty of corrupt practices, the order passed against the returned candidate, whose election has been declared void on the ground of corrupt practice, is liable to be set aside on the score of procedural irregularity.