Sawant, J. - (1.) These two petitions arise out of a common order dated 29th October, 1990 passed by the Bombay High Court in Election Petition No. 5 of 1990 and raise a common question of law. Hence 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 (Respondent No. 1) against the elected candidate (Respondent No. 2) and other contesting candidates challenging 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 challenged in the petition, among other things, on the ground of corrupt practices under sub-sees. (2, (3) and (3A) of S. 123 of the 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 completed and various documents have been brought on record. It is at this stage that the impugned order has been made, the operative part of which reads as follows : "In this election petition, the petitioner seeks to set aside the election of respondent No. 1 on the ground of corrupt practice under Ss. 123(3) and 123(3A) of the said Act. The petitioner has led documentary and oral evidence. Respondent No. 1 has tendered documents but has led to oral evidence. The other respondents have remained absent even though served. Petitioner and respondent No. 1 have argued their respective cases. The learned Advocate-General has also drawn my attention to S. 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 been guilty of any corrupt practice and the nature of that practice. This however must be after having given to such person/s notice to appear and show cause why he/they should not be so named. At this stage, I am of the prima facie opinion that the charges alleged in the petition of corrupt practices under Ss. 123(3) and 123(3A) of the said Act have been proved to have been committed and that Mr. Bal Thackeray, Mr. Chhagan Bhujbal and Mr. Manohar Joshi are (to use the words of Supreme Court) collaborators in such corrupt -practice. Accordingly, I direct that notices under S. 99 of the Representation of the People Act, 195l, shall be given to Mr. Bal Thackeray, Mr. Chhagan Bhujbal and Mr. Manohar Joshi to appear before me on 3rd December, 1990, to show cause why they should not be so named in the order on the Election Petition. Each notice shall state that the person named in the notice shall have an opporunity of cross-examining all witnesses who have given evidence against him and that he shall have a right of calling evidence and of being heard. I direct that to all the notices shall be annexed photo copies of :- (a) the petition, the written statement of respondent No. 1, and the Issues. (b) the oral depositions of the petitioners, witnesses. (c) all exhibits, except Exhibits RR, SS to YY, AAA, AAA1, AAAA, BBBB, BBBB1 and Exhibits 1 to 8. (d) this order. I also direct that along with all the notices shall be sent audio cassettes containing copies of Exhibits SS to 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.
(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 indicate which of the corrupt practices they are alleged to have committed 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 pursuant to such notice are grave inasmuch as, among other things, he incurs a disqualification for contesting election under Art. 103 of the Constitution read with S. 8A 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-sec. (1) of S. 99 of the Act enjoins upon the Court to state precisely the charge and the evidence 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.;