EPF Act -We have no doubt in our mind that the appellant is engaged in the specialised and expert services of providing trained and efficient security guards to its clients on payment basis. The contention that the appellant merely facilitated in providing 7 Chowkidars cannot be countenanced. The provisions of the Act of 2005 make it manifest that the appellant is the employer of such security guards and who are its employees and are paid wages by the appellant. Merely because the client pays money under a contract to the appellant and in turn the appellant pays the wages of such security guards from such contractual amount received by it, it does not make the client the employer of the security guard nor do the security guards constitute employees of the client. The appellant therefore is squarely covered by the Notification dated 17.05.1971.

 EPF Act -We have no doubt in our mind that the appellant is engaged in the specialised and expert services of providing trained and efficient security guards to its clients on payment basis. The contention   that   the   appellant   merely   facilitated   in   providing 7 Chowkidars cannot be countenanced.  The provisions of the Act of 2005 make it manifest that the appellant is the employer of such security guards and who are its employees and are paid wages by the appellant.  Merely because the client pays money under a contract to the appellant and in turn the appellant pays the wages of such security guards from such contractual amount received by it, it does not make the client the employer of the security guard nor do the security guards constitute employees of the client.     The appellant therefore is squarely covered by the Notification dated 17.05.1971.

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.4434­4435 OF 2010

M/S. PANTHER SECURITY SERVICE 

PRIVATE LIMITED ...APPELLANT(S)

VERSUS

THE EMPLOYEES’ PROVIDENT FUND 

ORGANISATION AND ANOTHER       ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The   appellant   is   engaged   in   the   business   of   providing

private   security   guards   to   its   clients   on   payment   basis.   The

appellant   is   registered   under   the   Private   Security   Agencies

(Regulation)   Act,   2005   (hereinafter   referred   to   as   “the   Act   of

2005”).   The appellant is aggrieved by the order of the High

Court,   affirming   the   order   dated   28.07.2008   of   the   Assistant

Provident Fund Commissioner, Kanpur under Section 7A of the

Employees’ Provident Funds and Miscellaneous Provisions Act,

1952   (hereinafter   referred   to   as   “the   EPF   Act”)   holding   the

appellant liable for compliance with the provisions of the EPF Act

1

and to deposit statutory dues within 15 days.  The dues of the

appellant   as   quantified   by   order   dated   15.04.2009   are

Rs.42,01,941/­,   and   statutory   interest   under   Section   7Q   at

Rs.30,44,224/­.

2. Shri S. Sunil, learned counsel for the appellant submitted

that   the   appellant   was   not   covered   by   G.S.R.   No.805   dated

17.05.1971 issued under Section 1(3)(B) of the EPF Act, since it

was   not   engaged   in   rendering   any   expert   services.   It   merely

facilitated in providing Chowkidars to its clients at the request of

the   latter.   The   appellant   only   levelled   a   service   charge   for

facilitation.  The salary was paid to the Chowkidars by the client

who engaged their services.  The appellant had only 5 persons on

its rolls.  The EPF Act was therefore not applicable to it.  Placing

reliance on Section 2(e) (ii) and (f) of the EPF Act it was submitted

that since the salary was paid by the client and who had the

ultimate control over the security guards deployed with them, the

appellant was not the employer of these security guards and

neither   were   they   employees   of   the   appellant.     Reliance   was

placed   on  Krantikari   Suraksha   Rakshak   Sanghatana   vs.

Bharat  Sanchar  Nigam  Limited  and  others,  (2008) 10 SCC

2

166 and Saraswath Films vs. Regional Director, Employees’

State Insurance Corporation, Trichur, (2010) 11 SCC 553.  

3. Ms.   Divya   Roy,   learned   counsel   for   the   respondents

submitted that the appellant renders expert services by way of

providing trained personnel as security guards. It is fully covered

by the Notification dated 17.05.1971.   Despite repeated notices

the appellant never furnished its wage and salary registers.  The

balance sheets seized for the financial years 2003­04, 2004­05,

2005­06 and 2006­07, during raid, reveals a very large amount

paid towards salaries and wages running into several lacs which

cannot   be   the   wage   bill   of   five   employees.     The   letter   dated

03.04.2001 written by the appellant to the New India Assurance

Company   Limited   seeking   Group   Janta   Personnel   Accident

Insurance Policy of one lac each was in respect of 79 security

personnel.   It was lastly submitted that the appellant did not

approach the Tribunal under Section 7I of the EPF Act against

the order passed under Section 7A, where all disputed facts could

have been examined and instead filed a writ petition directly.

3

4.   The   writ   petition   and   review   application   filed   by   the

appellant were both dismissed.  

5. We have considered the submissions on behalf of the parties

and are of the opinion that the appeal lacks merit, for reasons to

be enumerated hereinafter.    

6. By G.S.R. No. 805 dated 17.05.1971 issued under Section

1(3)(b)   of   the   EPF   Act   and   published   in   the   Gazette   on

25.09.1971 the provisions of the EPF Act were made applicable to

specified establishment and which reads as follows :

“G.S.R. No. 805 : In exercise of the powers conferred by

clause   (b)   of   sub­section   (3)   of   Section   1   of   the

Employees’ Provident Funds and Family Pension Fund

Act, 1952 (19 of 1952), the Central Government hereby

specifies that with effect from the  31st May, 1971, the

said Act shall apply to every establishment rendering

expert services such as supplying of personnel, advice

on domestic or departmental enquiries, special services

in rectifying pilferage, thefts and payroll, irregularities to

factories   and   establishments   on   certain   terms   and

conditions   as   may   be   agreed   upon   between   the

establishment and the establishment rendering expert

services and employing twenty or more persons.” 

7. The appellant was engaged in providing security services to

its clients since the year 2001.   A squad under the EPF Act

4

visited the appellant’s establishment on 29.12.2005 and seized

certain records opining that the provisions of the EPF Act applied

to the appellant.  The Assistant Provident Fund Commissioner on

07.03.2006 on basis of the seized documents opined that the

appellant had 79 employees as on 03.04.2001 allotting Code No.

UP/39076,   requiring   the   appellant   to   deposit   the   necessary

contributions.     The   appellant   having   objected   to   the   same,

proceedings were initiated under Section 7A of the EPF Act with

due opportunity of defence to the appellant.  The appellant failed

to   submit   the   attendance   register,   wage   register   etc.     The

Assistant   Provident   Fund   Commissioner   on   basis   of   balance

sheets seized during raid opined that the appellant had more

than twenty employees on its rolls and stood covered by the term

“expert   services”   such   as   providing   of   personnel   under   the

Notification dated 17.05.1971.   It also noticed that wages were

not paid directly by the clients to the security guards deployed by

the appellant but that the payments were made by the clients to

the   appellant,   who   in   turn   disbursed   wages   to   the   security

guards.   The remedy of an appeal before the Tribunal under

Section 7­I was bypassed by the appellant instituting the writ

petition directly.  The High Court declined interference with the

5

conclusion of expert services being rendered by the appellant.   A

review   petition   contending   that   the   appellant   stood   duly

registered under the Act of 2005 was also rejected.

8. The Act of 2005 defines a private security agency under

Section   2(g)   as   an   organization   engaged   in   the   business   of

providing security services including training to private security

guards and providing such guards to any industrial or business

undertakings or a company or any other person or property.  A

licence is mandatory under Section 4 and those security agencies

existing   since   earlier   were   mandated   to   obtain   such   licence

within one year of coming into force of the Act.   A complete

procedure is provided with regard to making of an application for

grant of a licence under Section 7, renewal under Section 8 of the

Act.  The eligibility for appointment as a security guard with such

security agency is provided under Section 10 of the Act.  Section

11 provides for the condition of the licence and the licence can be

cancelled   under   Section   13.   A   private   security   agency   under

Section 15 is required to maintain a register inter alia with the

names,   addresses,   photographs   and   salaries   of   the   private

security guards and supervisors under its control.   The Private

6

Security Agencies Central Model Rules, 2006, framed under the

Act of 2005, requires verification by the security agency before

employing any person as a security guard or supervisor in the

manner   prescribed.     Proper   security   training   of   the   person

employed is the responsibility of the security agency under Rule

5, and Rule 6 prescribes the standard of physical fitness for

security guards.  Under Rule 14 the security agency is required

to maintain a Register in Form VIII, Part­I of which contains

details of the management, Part­II contains the name of guard,

his parentage, address, photograph, badge no. and the salary

with the date of commencement.  Part III contains the name of

the customer, address, the number of guards deployed, date of

commencement   of   duty   and   date   of   discontinuance.   Part   IV

contains the name of the security guard/supervisor, address of

the place of duty, if accompanied by arms, date and time of

commencement of duty and date and time of end of duty. 

9. We have no doubt in our mind that the appellant is engaged

in the specialised and expert services of providing trained and

efficient security guards to its clients on payment basis. The

contention   that   the   appellant   merely   facilitated   in   providing

7

Chowkidars cannot be countenanced.  The provisions of the Act

of 2005 make it manifest that the appellant is the employer of

such security guards and who are its employees and are paid

wages by the appellant.  Merely because the client pays money

under a contract to the appellant and in turn the appellant pays

the wages of such security guards from such contractual amount

received by it, it does not make the client the employer of the

security guard nor do the security guards constitute employees of

the client.     The appellant therefore is squarely covered by the

Notification dated 17.05.1971.

10. The appellant never made available the statutory registers

under the Act of 2005 to the authorities under the EPF Act.  In

fact, we have no hesitation in holding that it actually withheld

relevant papers.  This coupled with the letter dated 03.04.2001

written by the appellant, the appellant’s balance sheet seized for

the   financial   years   2003­04,   2004­05,   2005­06   and   2006­07

showing payment of wages running into lacs, necessarily and

only leads to the irresistible conclusion that the appellant has

more than 20 employees on its roles.  The provisions of the Act

therefore necessarily apply to it.

8

11. Krantikari Suraksha Rakshak Sanghatana  (supra) has

no relevance to the present controversy as it concerned to the

provision of the Maharashtra Private Security Guards (Regulation

of Employment and Welfare) Act, 1981.  The applicability of the

EPF Act did not fall for consideration there.   Saraswath Films

(supra) was in the context of the Employees’ State Insurance Act,

1948 interpreting the term “immediate employer”, which again

has no relevance to the present controversy.

12. That   the   provisions   of   the   EPF   Act   are   applicable   to   a

private security agency engaged in the expert service of providing

personnel to its client, if it meets the requirement of the EPF Act.

The question is no more res integra evident from the discussions

contained in Group 4 Securitas Guarding Ltd. vs.  Employees

Provident  Fund  Appellate  Tribunal  &  Ors., 184 (2011) DLT

591, G4S Secure Solutions India Pvt. Ltd. vs. The Regional

Provident Fund Commissioner­I and Ors., ILR 2018 Karnataka

2527,  Orissa   State   Beverages   Corporation   Limited   vs.

Regional   Provident   Fund   Commissioner   &   Ors.,  2016  LLR

413,  Roma   Henney   Security   Services   Private   Limited   vs.

9

Central   Board   of   Trustees,   EPF   Organisation,   2012   SCC

OnLine Del 3597, Sarvesh Security Services Private Limited

vs. University of Delhi, 2017 SCC OnLine Del 12209.

13. The appeals are therefore dismissed and the interim order

dated 12.05.2009 restraining coercive steps for enforcement of

the demand notice dated 15.04.2009 is vacated.    

…………...................J.

[NAVIN SINHA]

…………...................J.

[SURYA KANT]

NEW DELHI

DECEMBER 02, 2020.

10

Simply becuase police report was not given by good samritan - his evidence can not be brushed aside when his evidence goes unchallenged.

 Simply becuase police report was not given by good samritan - his evidence can not be brushed aside when his evidence goes unchallenged.

It is commonplace for most people to be hesitant about being involved in legal proceedings and they therefore do not volunteer to become witnesses. Hence, it is highly likely that the name of Ritesh Pandey or other persons who accompanied the injured to the hospital did not find mention in the medical record. There is nothing on record to suggest that the police reached the site of the accident or carried the injured to the hospital. The statement of AW­3, therefore, acquires significance as, according to him, he brought the injured in his car to Page | 8 the hospital.  Ritesh Pandey (AW­3) acted as a good samaritan and a responsible citizen, and the High Court ought not to have disbelieved his testimony based merely on a conjecture. It is necessary to reiterate the independence and benevolence of AW­3. Without any personal interest or motive, he assisted both the deceased by taking him to the hospital and later his family by expending time and effort to depose before the Tribunal.

The High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to Police. Further, as the police   had   themselves   reached   the   hospital   upon   having   received information about the accident, there was perhaps no occasion for AW­3 to lodge a report once again to the police at a later stage either.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4010­4011 of 2020 

[Arising out of Special Leave Petition (C) Nos. 32011­32012 of

2018]

Anita Sharma & Ors. ..... Appellant(s)

                                       VERSUS

The New India Assurance Co. Ltd. & Anr. ..... Respondent(s)

JUDGMENT

Surya Kant, J:

Leave Granted. 

2. These   two   appeals,   which   have   been   heard   through   video

conferencing,   are   directed   against   the   judgment   dated   23.07.2018

passed   by   the   High   Court   of   Judicature   for   Rajasthan,   Bench   at

Jaipur whereby the first appeal preferred by the New India Assurance

Co.   Ltd.   (Respondent   No.   1)   against   the   Motor   Accident   Claims

Tribunal’s   (hereinafter,   “Tribunal”)   award   dated   01.09.2012   was

allowed and the Claim Petition was rejected, whereas the appeal filed

by   the   appellant­claimants   for   enhancement   of   compensation   was

consequently dismissed.

Page | 1

FACTS:

3. Sandeep Sharma (deceased), was a resident of District Sikar in

Rajasthan. He was travelling in a car bearing registration no. UP 65

AA 7100 from Ghazipur to Varanasi (Uttar Pradesh) on the night of

25.03.2009 along with his friend Sanjeev Kapoor (Respondent No. 2)

and two other occupants. Sanjeev Kapoor, who was also its owner,

was driving the car when at about 10:20PM near village Atroli, a truck

coming from the opposite side struck the car as a result of which all

the occupants suffered injuries. Sandeep along with the other injuredoccupants was rushed to the District Hospital in Ghazipur at around

11:55PM, but was subsequently referred to the Institute of Medical

Sciences and S.S. Hospital, BHU, Varanasi on 26.03.2009 considering

the   severity   and   multiplicity   of   his   injuries.   Although   he   was

discharged on 16.04.2009 and brought back to Rajasthan, it appears

that   Sandeep   kept   experiencing   one   after   another   medical

complications,   and   remained   hospitalized   at   the   Jain   Hospital   in

Jaipur   and   later   the   Joshi   Nursing   Home   at   Sikar.   His   injuries

eventually got the better of him and Sandeep Sharma passed away on

10.12.2009.

4. At the time of death, the deceased was aged 34 years and was an

income   tax   assessee   with   an   Employees   Provident   Fund   (EPF)

account. He was employed in Mumbai at Kelvin Ess Vee Textiles as a

Page | 2

Sales Officer on regular basis. He left behind a widow, two minor

children and a mother; all of whom were dependent on him. 

5. Sandeep’s dependents filed a claim petition for Rs 60,94,000

(Rupees sixty lakhs and ninety­four thousand) on 26.08.2010 alleging,

inter alia, that he died as a result of the injuries suffered in the abovementioned accident of 25.03.2009, which occurred due to the rash

and negligent driving of Sanjeev Kapoor who was the owner­cumdriver of the car in which Sandeep was travelling. Sanjeev Kapoor

(hereinafter, “owner­cum­driver”) and the insurer of the car ­ New

India   Assurance   Co.   Ltd.   (hereinafter,   “insurance   company”)   were

impleaded as party respondents. 

6. The owner­cum­driver in his written statement admitted that the

deceased had suffered multiple injuries in the accident while travelling

in the car with him but he disowned responsibility for the accident by

asserting that it was the truck which was coming from the opposite

side at a very fast speed, and was being driven in a rash and negligent

manner. Since all the four occupants of the car had been injured, they

were unable to note the registration details of the truck which made a

hasty get­away towards Ghazipur.  

7. The insurance company in its separate written statement took

the preliminary objection that as per the police investigation and first

Page | 3

information report, the accident was caused by an unknown truck

which hit the car No. UP­65­AA­7100 and, therefore, the claim petition

filed against the owner of the car or its insurer was contrary to law.

The factual averments made in the Claim Petition were denied for

want of knowledge.

8. In reaching its verdict, the Tribunal relied upon the statement of

the eye­witness Ritesh Pandey (AW­3), according to whom Sanjeev

Kapoor was driving the car at a very fast speed when it overtook a

vehicle   and   collided   head­on   against   the   oncoming   truck.   The

Tribunal,   thus,   assigned   liability   for   the   accident   upon   the

respondents   and   partly   allowed   the   Claim   Petition   with   a

compensation   of   Rs.   16,08,000   (Rupees   sixteen   lakhs   and   eight

thousand). 

9. Both the insurance company and the appellant­claimants filed

their respective appeals before the High Court. Through judgment

dated 23.07.2018, the High Court set aside the Tribunal’s award and

dismissed the claim petition for the reasons that first, Ritesh Pandey

(AW­3) had failed to report the accident to the jurisdictional police. He

was   apparently   introduced   by   the   claimants   only   to   seek

compensation.  Second,  the FIR had been lodged by the owner­cumdriver, Sanjeev Kapoor, who would not have done so had he been at

fault or driving rashly.  Third,  the assertion of Ritesh Pandey (AW­3)

Page | 4

that he took the injured to hospital was not proved from the record of

the   Government   Hospital,   Ghazipur   which   revealed   that   Sandeep

Sharma   was   brought   to   the   hospital   by   Sub­Inspector   Sah

Mohammed.

CONTENTIONS:

10. We have heard learned counsel for parties and have perused the

Original Record of the Tribunal and the High Court. The two questions

which fall for determination are whether the accident was caused due

to rash and negligent driving of the car driver—Sanjeev Kapoor and

whether Ritesh Pandey (AW­3) is a reliable witness or not?

ANALYSIS:

11. At the outset, it may be mentioned that some material facts

which have a direct bearing on the fate of this case, have escaped

notice   of   the   High   Court.   The   FIR   was   not   registered   by   Sanjeev

Kapoor (owner­cum­driver of the car) as assumed by the High Court.

Instead, as a matter of fact, the FIR No. 120/09 (Exh 1) was registered

on   the   basis   of   information   furnished   by   one,   Pradeep   Kumar

Aggarwal, son of Bal Krishan Das Aggarwal – a resident of District

Varanasi. The contents of this report reveal that Sanjeev Kapoor was

travelling in the Wagon R Car No. UP­65­AA­7100 along with three

other occupants. While returning from Ghazipur to Varanasi, a truck

Page | 5

which was being driven rashly and at a fast speed, struck against the

car and then sped away towards Ghazipur. The number of the truck

could not be noticed as it was dark. The car was badly damaged.

Various people gathered at the spot who took out the injured from the

car. It is specifically mentioned that all the injured were taken to the

hospital for treatment where Rahul Singh @ Chotu Singh passed­away

whereas Sandeep Sharma was referred to BHU Varanasi for treatment.

The FIR was lodged on 27.03.2009 and a slightly illegible part thereof

indicates that Sanjeev Kapoor and the informant were known to each

other.   The   informant  himself   had   not  witnessed   the   accident   and

apparently lodged the FIR based on hearsay information.

12. Importantly, the owner­cum­driver though denied responsibility

of the accident through his written statement but chose not to enter

the witness box in his defence. The insurance company, on the other

hand,   relied   upon   the   contents   of   the   FIR   and   the   ‘Investigation

Report’ to aver that the accident took place due to rash and negligent

driving of the truck driver alone. But we find that the ‘investigation

report’ (Exh. 2) dated 05.05.2009 merely recites that the registration

number of the offending truck could not be ascertained despite best

efforts.

13. At this juncture, we may refer to the statement of Ritesh Pandey

(AW­3). This witness is a resident of Ghazipur in Uttar Pradesh. He is

Page | 6

neither related to the deceased nor was he remotely connected to the

family of the deceased. He hailed from a different State and lived in a

faraway place. There is nothing to suggest that the witness had any

business dealings with the deceased or his family. He has deposed

that he was travelling in his own car on the date of the incident on the

same route when the owner­cum­driver of the Wagon R car carelessly

overtook him at a very high speed. He has further deposed that a

truck coming from the opposite side collided with the car. Various

persons gathered at the place of accident and four persons trapped

inside the car were taken out, three of whom were unconscious and

the fourth was its driver ­ Sanjeev Kapoor. The witness has further

deposed   that   he   took   all   the   four   injured   persons   to   the   District

Hospital, Ghazipur where some of them were referred to Institute of

Medical Sciences and S.S. Hospital, BHU, Varanasi. 

14. Most importantly, the only question asked to this witness in

cross­examination is whether the truck could be spotted and whether

he was able to note the registration number of the truck. The witness

has candidly admitted that he could not see the registration number of

the truck. No other question was asked to this witness in the crossexamination. While the Tribunal believed Ritesh Pandey (AW­3) and

accepted the claim petition in part, the High Court, for the reasons

which are already briefly noticed, has disbelieved him on the premise

Page | 7

that the deceased was brought to the hospital by SI Sah Mohammed

and not by Ritesh Pandey (AW­3). The entire case, thus, effectively

hinges upon the trustworthiness of the statement of this witness.

FINDINGS:

15. It is not in dispute that the accident took place near Ghazipur

and that numerous people had assembled at the spot. Some bystander

would obviously have informed the police also. While the contents of

the FIR as well as the statement of Ritesh Pandey (AW­3) leave no

room to doubt that the injured were taken to the Hospital by private

persons (and not by the police), it is quite natural that the police

would also have reached the Government hospital at Ghazipur and,

therefore, it was mentioned that Sandeep Sharma was brought­in by

SI Sah Mohammed. 

16. It is commonplace for most people to be hesitant about being

involved in legal proceedings and they therefore do not volunteer to

become witnesses. Hence, it is highly likely that the name of Ritesh

Pandey or other persons who accompanied the injured to the hospital

did not find mention in the medical record. There is nothing on record

to suggest that the police reached the site of the accident or carried

the injured to the hospital. The statement of AW­3, therefore, acquires

significance as, according to him, he brought the injured in his car to

Page | 8

the hospital.  Ritesh Pandey (AW­3) acted as a good samaritan and a

responsible citizen, and the High Court ought not to have disbelieved

his testimony based merely on a conjecture. It is necessary to reiterate

the independence and benevolence of AW­3. Without any personal

interest or motive, he assisted both the deceased by taking him to the

hospital and later his family by expending time and effort to depose

before the Tribunal.

17. It is quite natural that such a person who had accompanied the

injured to the hospital for immediate medical aid, could not have

simultaneously gone to the police station to lodge the FIR. The High

Court ought not to have drawn any adverse inference against the

witness for his failure to report the matter to Police. Further, as the

police   had   themselves   reached   the   hospital   upon   having   received

information about the accident, there was perhaps no occasion for

AW­3 to lodge a report once again to the police at a later stage either.

18. Unfortunately, the approach of the High Court was not sensitive

enough to appreciate the turn of events at the spot, or the appellantclaimants’ hardship in tracing witnesses and collecting information for

an accident which took place many hundreds of kilometers away in an

altogether different State. Close to the facts of the case in hand, this

Court in Parmeshwari v. Amir Chand1

, viewed that: 

1

 (2011) 11 SCC 635

Page | 9

“12. The other ground on which the High Court dismissed the case

was by way of disbelieving the testimony of Umed Singh, PW 1.

Such disbelief of the High Court is totally conjectural. Umed

Singh is not related  to the appellant but as a good citizen,

Umed Singh extended his help to the appellant by helping her

to   reach   the   doctor's   chamber   in   order   to   ensure   that   an

injured woman gets medical treatment. The evidence of Umed

Singh   cannot   be  disbelieved   just   because   he  did  not   file  a

complaint   himself.   We   are   constrained   to   repeat   our

observation   that   the   total   approach   of   the   High   Court,

unfortunately,  was  not   sensitised   enough   to  appreciate   the

plight of the victim.

 xxx

15. In a situation of this nature, the Tribunal has rightly taken a

holistic view of the matter. It was necessary to be borne in mind

that strict proof of an accident caused by a particular bus in

a  particular  manner  may  not  be  possible  to  be  done  by  the

claimants. The claimants were merely to establish their case on the

touchstone of preponderance of probability. The standard of proof

beyond reasonable doubt could not have been applied.”

(emphasis supplied)

19. The failure of the respondents to cross examine the solitary eyewitness   or   confront   him   with   their   version,   despite   adequate

opportunity, must lead to an inference of tacit admission on their part.

They did not even suggest the witness that he was siding with the

claimants. The High Court has failed to appreciate the legal effect of

this absence of cross­examination of a crucial witness.  

Page | 10

20. The importance of cross­examination has been elucidated on

several occasions by this Court, including by a Constitution Bench in

Kartar Singh v. State of Punjab2

, which laid down as follows:

“278.     Section   137   of   the   Evidence   Act   defines   what   crossexamination means and Sections 139 and 145 speak of the mode of

cross­examination with reference to the documents as well as oral

evidence. It is the jurisprudence of law that cross­examination

is an acid­test of the truthfulness of the statement made by a

witness  on  oath   in   examination­in­chief, the objects of which

are:

(1) to destroy or weaken the evidentiary value of the witness of his

adversary;

(2) to elicit facts in favour of the cross­examining lawyer's client from

the mouth of the witness of the adversary party;

(3) to show that the witness is unworthy of belief by impeaching the

credit of the said witness;

and   the   questions   to   be   addressed   in   the   course   of   crossexamination  are  to  test  his   veracity;  to  discover  who  he   is

and  what is his position  in  life; and  to shake his credit by

injuring his character.

279. The identity of the witness is necessary in the normal trial of

cases to achieve the above objects and the right of confrontation is

one of the fundamental guarantees so that he could guard himself

from being victimised by any false and invented evidence that may

be tendered by the adversary party.”

(emphasis supplied)

21. Relying upon Kartar Singh (supra), in a MACT case this Court

2

 (1994) 3 SCC 569

Page | 11

in  Sunita   v.   Rajasthan   State   Road   Transport   Corporation3

considered   the   effect   of   non­examination   of   the   pillion   rider   as   a

witness in a claim petition filed by the deceased of the motorcyclist

and held as follows:  

“30. Clearly,   the   evidence   given   by   Bhagchand   withstood   the

respondents' scrutiny and the respondents were unable to shake his

evidence. In turn, the High Court  has failed to take note of the

absence of cross examination of this witness by the respondents,

leave   alone   the   Tribunal's   finding   on   the   same,   and   instead,

deliberated on the reliability of Bhagchand's (A.D.2) evidence from

the viewpoint of him not being named in the list of eye witnesses in

the criminal proceedings, without even mentioning as to why such

absence from the list is fatal to the case of the appellants. This

approach of the High Court is mystifying, especially in light of this

Court's   observation   [as   set   out   in Parmeshwari (supra)   and

reiterated in Mangla Ram (supra)] that the strict principles of proof in

a criminal case will not be applicable in a claim for compensation

under the Act and further, that the standard to be followed in such

claims is one of preponderance of probability rather than one of

proof   beyond   reasonable   doubt.   There   is   nothing   in   the   Act   to

preclude citing of a witness in motor accident claim who has not

been named in the list of witnesses in the criminal case. What is

essential   is   that   the   opposite   party   should   get   a   fair

opportunity   to   cross   examine   the   concerned   witness.   Once

that is done, it will  not be  open  to them to complain  about

any prejudice caused  to them. If there was any doubt to be

cast   on   the   veracity   of   the  witness,   the   same   should   have

come   out   in   cross   examination,   for  which   opportunity  was

3

 (2019) SCC Online SC 195.

Page | 12

granted to the respondents by the Tribunal.

xxx 

32. The   High   Court   has   not   held   that   the   respondents   were

successful in challenging the witnesses' version of events, despite

being given the opportunity to do so. The High Court accepts that the

said witness (A.D.2) was cross examined by the respondents but

nevertheless reaches a conclusion different from that of the Tribunal,

by selectively overlooking the deficiencies in the respondent's case,

without any proper reasoning.”

(emphasis supplied)

22. Equally, we are concerned over the failure of the High Court to

be   cognizant   of   the   fact   that   strict   principles   of   evidence   and

standards of proof like in a criminal trial are inapplicable in MACT

claim cases. The standard of proof in such like matters is one of

preponderance of probabilities, rather than beyond reasonable doubt.

One needs to be mindful that the approach and role of Courts while

examining evidence in accident claim cases ought not to be to find

fault   with   non­examination   of   some   best   eye­witnesses,   as   may

happen in a criminal trial; but, instead should be only to analyze the

material placed on record by the parties to ascertain whether the

claimant’s version is more likely than not true. A somewhat similar

situation   arose   in  Dulcina   Fernandes   v.   Joaquim   Xavier   Cruz4

wherein this Court reiterated that:

“7. It would hardly need a mention that the plea of negligence on the

part of the first respondent who was driving the pick­up van as set

4

 (2013) 10 SCC 646.

Page | 13

up by the claimants was required to be decided by the learned

Tribunal on the touchstone of preponderance of probabilities

and   certainly  not   on   the   basis   of  proof   beyond   reasonable

doubt. (Bimla Devi v. Himachal RTC [(2009) 13 SCC 530 : (2009) 5

SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] )”

(emphasis supplied)

23.   The observation of the High Court that the author of the FIR (as

per its judgment, the owner­cum­driver) had not been examined as a

witness, and hence adverse inference ought to be drawn against the

appellant­claimants, is wholly misconceived and misdirected. Not only

is the owner­cum­driver not the author of the FIR, but instead he is

one of the contesting respondents in the Claim Petition who, along

with insurance company, is an interested party with a pecuniary stake

in the result of the case. If the owner­cum­driver of the car were

setting up a defence plea that the accident was a result of not his but

the truck driver’s carelessness or rashness, then the onus was on him

to step into the witness box and explain as to how the accident had

taken place. The fact that Sanjeev Kapoor chose not to depose in

support of what he has  pleaded in  his  written statement,  further

suggests that he was himself at fault. The High Court, therefore, ought

not to have shifted the burden of proof.

24. Further, little reliance can be placed on the contents of the FIR

(Exh.­1) , and it is liable to be discarded for more than one reasons.

Page | 14

First, the author of the FIR, that is, Praveen Kumar Aggarwal does not

claim to have witnessed the accident himself. His version is hearsay

and cannot be relied upon. Second, it appears from the illegible part of

the FIR that the informant had some closeness with the owner­cumdriver of the car and there is thus a strong possibility that his version

was influenced or at the behest of Sanjeev Kapoor. Third, the FIR was

lodged two days after the accident, on 27.03.2009. The FIR recites

that some of the injured including Sandeep Sharma were referred to

BHU, Varanasi for treatment, even though as per the medical report

this   took   place   only   on   26.03.2009,   the   day   after   the   accident.

Therefore the belated FIR appears to be an afterthought attempt to

absolve Sanjeev Kapoor from his criminal or civil liabilities. Contrarily,

the statement of AW­3 does not suffer from any evil of suspicion and is

worthy of reliance. The Tribunal rightly relied upon his statement and

decided issue No. 1 in favour of the claimants. The reasoning given by

the High Court to disbelieve Ritesh Pandey AW­3, on the other hand,

cannot sustain and is liable to be overturned. We hold accordingly.

25. Adverting   to   the   claimants’   appeal   for   enhancement   of

compensation, we are of the view that no effective argument could be

raised on their behalf as to how the compensation assessed by the

Tribunal   was   inadequate,   except   that   in   view   of   the   authoritative

pronouncement   of   this   Court   in  National   Insurance   Co   Ltd   v.

Page | 15

Pranay   Sethi5

,  the   claimants   are   entitled   to   an   increase   of   40%

towards annual dependency on account of ‘future prospects’ given the

undisputed age of the deceased. Their appeal to that extent deserves

to be allowed. 

CONCLUSION:

26. In light of the above discussion, the judgment under appeal of

the High Court is set aside and the appellants are held entitled to

compensation as awarded by the Tribunal, besides 40% addition in

the annual income of the deceased towards ‘future prospects’.   The

Motor Accident Claims Tribunal, Sikar (Rajasthan) is directed to recalculate the compensation amount accordingly.  The appellants are

held entitled to interest @ 8.5%, as per the Tribunal’s award, on the

entire amount of compensation. The Tribunal shall re­calculate the

compensation within one month and the insurance company shall

deposit the same within one month thereafter. No order as to costs. 

…………………………… J.

(SURYA KANT)

…………………………...J.

(ANIRUDDHA BOSE)

NEW DELHI

DATED : 08.12.2020

5

 (2017) 16 SCC 680.

Page | 16

incurable defects = the disqualification under Section 8(3) will continue so long as there is no stay of conviction. In the case on hand, the petitioner could not obtain a stay of conviction but obtained only a stay of execution of the sentence. Hence her nominations were validly rejected by the Returning Officer. Merely because the Returning Officer in Amethi Constituency committed an error in overlooking this fact, the petitioner cannot plead estoppel against statutory prescription

 incurable defects =  the disqualification under Section 8(3) will continue so long as there is no stay of conviction. In the case on hand,   the   petitioner   could   not   obtain   a   stay   of   conviction   but obtained   only   a   stay   of   execution   of   the   sentence.   Hence   her nominations were validly rejected by the Returning Officer. Merely because the Returning Officer in Amethi Constituency committed an   error   in   overlooking   this   fact,   the   petitioner   cannot   plead estoppel against statutory prescription.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.10678 OF 2020

SARITHA S. NAIR                                                 … PETITIONER(S)

VERSUS

HIBI EDEN                                                         …RESPONDENT(S)

J U D G M E N T

V. Ramasubramanian, J.

1. As against a common order passed by the High Court of Kerala

throwing out 2 election petitions filed by the petitioner herein, on

the ground of incurable defects, the election petitioner has come up

with   the   above   Special   Leave   Petition.   This   SLP   arises   out   of

Election Petition No.4 of 2019. Another Election Petition filed by the

very same petitioner against  the very same common  order, but

arising out of Election Petition No.3 of 2019 was dismissed by this

2

Court   on   02.11.2020   for   non­prosecution.   Therefore,   this   order

covers Election Petition No.4 of 2019.

2. Heard Ms. D. Geetha, learned counsel for the petitioner.

3. In the elections held to the Lok Sabha in April­May, 2019, the

petitioner filed her nomination on 04.04.2019 in the Ernakulam

Constituency.   The   petitioner   was   to   contest   as   an   independent

candidate.

4. On 06.04.2019 the nomination of the petitioner was rejected

on the ground that she was convicted in 2 criminal cases, one in CC

No.1300 of 2013 on the file of the JFMC­I, Pathanamthitta and

another   in   CC   No.102   of   2014   on   the   file   of   the   JFMC­I,

Perumbavoor. In the first case the petitioner was imposed with a

punishment of imprisonment for 3 years, with a fine of Rs.45 lakhs,

by   a   judgment   dated   08.06.2015.   In   the   second   case   she   was

imposed with a punishment of imprisonment for 3 years, with a fine

of Rs.10 lakhs, by a judgment dated 16.02.2016.

5. The petitioner filed Criminal Appeal No.87 of 2015 before the

Sessions   Court,   Pathanamthitta,   against   her   conviction   in   CC

No.1300 of 2013. But the appeal was dismissed and the petitioner

3

filed a revision before the High Court in Criminal R.P.No.9 of 2018.

On 04.01.2018, the High Court merely suspended the execution of

the sentence and enlarged the petitioner on bail, subject to her

executing a bond for Rs.5 lakhs with 2 solvent sureties and also

upon her depositing Rs.10 lakhs towards the fine amount.

6. Similarly, the petitioner filed Criminal Appeal No.25 of 2017

before the Sessions Court, Ernakulam against her conviction in CC

No.102 of 2014. The Appellate Court stayed the execution of the

sentence on condition of the appellant executing a bond for Rs.1

lakh with 2 sureties.

7. The Returning Officer, noted in his order dated 06.04.2019

that the petitioner stood disqualified in terms of Section 8(3) of the

Representation   of   the   People   Act,   1951,   as   the   period   of

disqualification had not lapsed.

8. Aggrieved   by   the   order   of   rejection   of   the   nomination,   the

petitioner filed an appeal to the Chief Electoral Officer. Thereafter,

the petitioner moved a writ petition in W.P.(C)No.11282 of 2019.

But the Writ Petition was dismissed on 09.04.2019. The petitioner

filed a writ appeal but the same was also dismissed on 12.04.2019.

4

9. Therefore, after the elections were over, the petitioner filed an

election   petition   in   Election   Petition   No.4   of   2019,   primarily

contending that the rejection of her nomination was illegal and

unjustified and that such rejection materially altered the outcome

of the election in which the Respondent herein was declared elected.

The main contention of the petitioner in her election petition was

that   she   had   simultaneously   filed   a   nomination   in   the   Amethi

Constituency of Uttar Pradesh and that despite disclosure of the

very   same   information   about   her   conviction   and   pendency   of

appeals,   her   nomination   was   accepted   there.   Therefore,   she

contended that 2 different yardsticks cannot be applied and that in

any   case,   so   long   as   the   sentence   of   imprisonment   remained

suspended,   the   disqualification   under   Section   8(3)   of   the

Representation of the People Act, 1951, may not be attracted.

10. It is to be noted at this stage that the petitioner filed her

nomination   from   one   more   constituency,   namely   Wayanad

Constituency and her nomination was rejected even in the said

Constituency,   for   the   very   same   reasons.   Therefore,   she   filed

5

another   election   petition   in   Election   Petition   No.3   of   2019   as

regards the election from the Wayanad Constituency.

11. It appears that lot of defects were noticed by the Registry of

the High Court in both the election petitions. The defects noticed in

both the election petitions were more or less the same. But in so far

as Election Petition No.4 of 2019 is concerned, out of which the

present SLP arises, the Registry noted one additional defect namely

that the prayer of the petitioner was incomplete.

12. Therefore, both the election petitions were posted before the

Court without being numbered. However, the Court, by order dated

29.07.2019 directed the election petitions to be numbered subject

to the condition that the petitioner should address arguments on

the question of curability of the defects. Thereafter, notices were

issued   to   the   Election   Commission,   the   respective   Returning

Officers and the respective returned candidates.

13. It may be relevant to note at this stage that the fact that the

petitioner   was   convicted   in   2   independent   criminal   cases   and

sentenced to imprisonment for 3 years in each of those cases and

the fact that though the execution of the sentence was suspended

6

in   both   the   cases,   the   conviction   was   not   suspended,   were   all

admitted by the petitioner herself. The case of the petitioner was

that it is enough if an appellate/revisional court had suspended the

sentence and not the conviction.

14. In view of the aforesaid stand of the petitioner, the High Court

framed   a   preliminary   issue   on   01.10.2019   as   to   whether   the

election petitions were maintainable, when the conviction was not

suspended in appeal or revision. The High Court decided to take up

this preliminary issue also for consideration along with the question

relating to curability of defects noticed in the election petitions.

15. Thereafter, the High Court heard the learned counsel for the

petitioner  and   learned   counsel  for   the  returned   candidates   and

passed   an   order   dated   31.10.2019   rejecting   both   the   election

petitions on 2 grounds namely:­

(i) that   there   were   incurable   defects   in   the   election

petitions in terms of Section 86(1) of the Representation

of the People Act, 1951; and

(ii) that the petitioner was disqualified in view of the

inhibitions contained in Section 8(3) of the Act read with

Article 102(1)(e) of the Constitution.

7

16. Aggrieved   by   the   common   order   passed   on   31.10.2019   in

Election Petition Nos. 3 and 4 of 2019, the petitioner filed SLP(C)

Diary No.4200 of 2020 and SLP(C) No.10678 of 2020. The SLP in

SLP(C) Diary No.4200 of 2020, arising out of the order in Election

Petition   No.3   of   2019,   was   dismissed   for   non­prosecution   on

02.11.2020. The present SLP arising out of Election Petition No. 4 of

2019 came up thereafter for hearing.

17. As pointed out above, the election petition of the petitioner was

dismissed   on   2   grounds   namely   (i)   that   it   contained   incurable

defects; and (ii) that in any case, the petitioner admittedly suffered

from a disqualification. Let us now examine the correctness of the

findings of the High court in regard to these 2 issues.

Issue­1 (Incurability of defects)

18. On the first issue, the High court noted that some of the

defects in the election petition are covered by Sections 81 and 82

and that there was no semblance of any verification in terms of

section 83 (1) (c) read with Order VI, Rule 15 of the CPC. The High

court held that there were 3 defects which were incurable. They

were:

8

(i)   Petitioner has not signed in the declaration portion of

verification of the election petition;

(ii)   In   verification   portion,   in   respect   of   Annexures,

affidavits and petitions, it is stated that the index has

been   verified   instead   of   Annexures,   affidavits   and

petitions;

(iii)   Annexures   are   not   verified   by   the   petitioner   as

mandated and instead of verification, annexures are seen

certified as true copies by the petitioner and the counsel.

19. In   addition   to   the   above   3   defects,   which   the   High   Court

considered as incurable in both the election petitions, the High

Court noted that in Election Petition No. 4 of 2019, even the relief

sought was incomplete and meaningless. Prayer (a) made in the

election petition was “To   declare   that   the   election   of   the   5th

respondent   from   Ernakulam   Lok   Sabha   Constituency”.   It

actually meant nothing, unless the word “void” had been added

thereto. Since the word “void” was not there in prayer (a), the High

Court thought that the election petition had been prepared and filed

in   a   casual   manner.   Coupled   with   this,   was   the   fact   that   the

election petition also contained some allegations of serious nature

against the former Chief Minister of Kerala. Therefore, the High

9

Court thought that the petitioner had malafide intentions to malign

the reputation of third parties, through the election petition without

proper verification and prayer and that this is nothing but a ruse

for the petitioner to escape at a later stage from owning up the

pleadings.

20. In other words, what weighed with the High Court were:­

(i) Lack of proper verification;

(ii) An incomplete prayer; and

(iii) Allegations   of   serious   nature   made   against   the

former Chief Minister with a possible leverage not to own

up the pleadings.  

To hold that the defects stated above are incurable, the High Court

relied upon Sections 81, 82 and 83 read with Section 86 of the

Representation   of   the   People   Act,   1951.   Let   us   now   test   the

correctness of the approach of the High Court, with regard to the

statutory provisions.

21. Chapter­II, Part­VI of the Representation of the People Act,

1951, contains provisions for “Presentation of election petitions to

High Court” and Chapter III contains provisions for “Trial of election

petitions”. Section 86(1), with which Chapter­III begins, obliges the

10

High Court to dismiss an election petition which does not comply

with the provisions of Section 81 or Section 82 or Section 117. The

dismissal of an election petition under Section 86(1) is deemed by

the Explanation under Section 86(1) to be a decision under Section

98(a). Section 98 speaks about 3 types of orders that could be

passed at the conclusion of the trial of an election petition.  They

are:­

(i) The dismissal of the election petition; or

(ii) A   declaration   that   the   election   of   the   returned

candidate is void; or

(iii) A   declaration   not   only   that   the   election   of   the

returned candidate is void, but also that the petitioner or

any other candidate was duly elected.

22. It is important to note that the above 3 different types of

decisions under Section 98, can be rendered by the High Court only

at the conclusion of the trial. But the dismissal under Section 86(1)

is an exception. The reference in the Explanation under Section

86(1)  to  Section  98(a),  makes   it  clear  that  the  power  of  the

High   Court   to   dismiss   an   election   petition   which   does   not

11

comply  with   the   provisions   of   Section   81   or   Section   82   or

Section 117, is available at the pre­trial stage.

23. As stated earlier, the procedure for presentation of election

petitions to the High Court are dealt with in Sections 80 to 84

falling in Chapter­II of Part­VI. For our present purpose, Sections

81(3), 83(1), 83(2) and 84 are relevant.

24. Section 81(3) makes it mandatory for every election petition to

be accompanied by as many copies as there are respondents. Every

such copy is required to be attested by the petitioner under his own

signature to be a true copy of the petition. Section 81(3) reads as

follows:­

“81. Presentation of petitions.­ (1)….

(2) Omitted

(3) Every election petition shall be accompanied by as

many   copies   thereof   as   there   are   respondents

mentioned in the petition, and every such copy shall

be attested by the petitioner under his own signature

to be a true copy of the petition.”

25. Section 83 speaks about:­

(i) The contents of the election petition;

(ii) The   signature   and   verification   of   the   election

petition; and

12

(iii) The signature and verification of any schedule or

annexure to the election petition.

Section 83 reads as follows :­

“83. Contents of petition.—    (1) An election petition—

(a) shall contain a concise statement of the material

facts on which the petitioner relies;

(b) shall   set   forth   full   particulars   of   any   corrupt

practice that the petitioner alleges including as full a

statement   as   possible   of   the   names   of   the   parties

alleged to have committed such corrupt practice and

the date and place of the commission of each such

practice; and

(c) shall be signed by the petitioner and verified in the

manner laid down in the Code of Civil Procedure, 1908

(5 of 1908) for the verification of pleadings: 

[Provided that where the petitioner alleges any 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.]

(2) Any schedule or annexure to the petition shall also

be signed by the petitioner and verified in the same

manner as the petition.”

26. Section 84 indicates the relief/reliefs that could be claimed in

an election petition. It reads as follows:­

“84. Relief that may be claimed by the petitioner.—

A petitioner may, in addition to claiming a declaration

that   the   election   of   all   or   any   of   the   returned

candidates is void, claim a further declaration that he

himself or any other candidate has been duly elected.”

27. In the trial of an election petition, the High Court is bound to

follow the procedure as applicable to the trial of suits under the

Code of Civil Procedure, 1908, as nearly as may be. This is by virtue

13

of Section 87(1). The provisions of Indian Evidence Act, 1872 are

made applicable in all respects to the trial of all elections petitions,

under Section 87(2).  Section 87 reads as follows:­

“87.  Procedure  before  the  High  Court.—(1) Subject

to the provisions of this Act and of any rules made

thereunder, every election petition shall be tried by the

High Court, as nearly as may be, in accordance with

the   procedure   applicable   under   the   Code   of   Civil

Procedure,   1908   (5   of   1908)   to   the   trial   of   suits:

Provided that the High Court shall have the discretion

to refuse, for reasons to be recorded in writing, to

examine any witness or witnesses if it is of the opinion

that the evidence of such witness or witnesses is not

material for the decision of the petition or that the

party tendering such witness or witnesses is doing so

on   frivolous   grounds   or   with   a   view   to   delay   the

proceedings.

(2) The provisions of the Indian Evidence Act, 1872 (1

of 1872), shall subject to the provisions of this Act, be

deemed   to   apply   in   all   respects   to   the   trial   of   an

election petition.”

28. It   is   relevant   to   note   that   the   Act   keeps   in   two   separate

compartments­

(i) the presentation of election petitions; and

(ii) the trial of election petitions.

The presentation of election petitions is covered by Sections 80 to

84 falling in Chapter­II. The trial of election petitions is covered by

Sections 86 to 107 and they are contained in Chapter­III.

29. This compartmentalization, may be of significance, as seen

from 2 facts namely:­

14

(i) That under Section 80 no election shall be called in

question except by  an   election  petition  presented  in

accordance with the provisions of “this part”; and

(ii) That a limited reference is made to the provisions of

the Code of Civil Procedure, 1908 in Chapter­II, only in

places where signature and verification are referred to.

30. In so far as presentation of election petitions is concerned,

Chapter­II   is   a   complete   code.   This   is   because,   the   various

provisions of Chapter­II cover all aspects of the presentation of an

election petition, such as:­

(i) The person(s) who is/are entitled to file;

(ii) Person(s) who could be joined as respondents;

(iii) The types of different reliefs that can be sought;

(iv) The grounds on which such reliefs could be sought;

(v) Period of limitation for filing an election petition;

(vi) The court where the petition could be filed;

(vii) Contents of such petition; and

(viii) Format of the election petition and the manner in

which it is to be signed and verified.

31. Some of the rules contained in Chapter II are inflexible and

inviolable. But some may not be. Whether the manner of signing

15

and verifying an election petition is an inflexible rule, is what is to

be seen here.    

32. Section 83 (1) (c) mandates that an election petition shall be

signed by the petitioner and verified in the manner laid down in the

Code   of   Civil   Procedure   for   verification   of   pleadings.   Signing   a

petition and verifying the petition are 2 different aspects. While

Order VI, Rule 14 deals with the signing of the petition, Order VI,

Rule 15 deals with the verification of pleading. Rule 14 mandates

that every pleading shall be signed by the party as well as the

pleader,   if   any.   But  the   proviso   carves   out   an   exception   by

stating that where a party is unable to sign the pleading, by

reason of absence or for other good cause, it may be signed by

any person duly authorized by him to sign the same or to sue

or defend on his behalf. Order VI, R.14 reads as follows:­

“14.  Pleading  to  be  signed.­Every pleading shall be

signed by the party and his pleader(if any):

Provided that where a party pleading is, by reason of

absence or for other good cause; unable to sign the

pleading,   it   may   be   signed   by   any   person   duly

authorized by him to sign the same or to sue or defend

on his behalf.”

16

33. Order VI, R.15 which speaks about verification of pleadings

reads as follows:­

“15. Verification of pleadings.­ (1) Save as otherwise

provided by any law for the time being in force, every

pleading shall be verified at the foot by the party or by

one of the parties pleading or by some other person

proved to the satisfaction of the court to be acquainted

with the facts of the case.

(2) The person verifying shall specify, by reference to

the numbered paragraphs of the pleading, what he

verifies   of   his   own   knowledge   and   what   he   verifies

upon information received and believed to be true.

(3)   The   verification   shall   be   signed   by   the   person

making it and shall state the date on which and the

place at which it was signed.

(4) The person verifying the pleading shall also furnish

an affidavit in support of his pleadings.”

34. It is to be noted that Sub­rule (1) of Rule 15 of Order VI also

permits   the   verification  of  pleading  to  be  done  by  a  person

other   than   the   party   pleading,   provided   it   is   proved   to   the

satisfaction of the Court that such other person was acquainted

with the facts of the case. 

35. Section 86(1) empowers the High Court to dismiss an election

petition which does not comply with the provisions of Section 81,

Section 82 or Section 117 and it does not include Section 83 within

its   ambit.   Therefore,   the   question   whether   or   not   an   election

17

petition which does not satisfy the requirements of Section 83, can

be dismissed at the pre­trial stage under section 86(1), has come up

repeatedly for consideration before this Court. We are concerned in

this case particularly with the requirement of Clause (c) of Subsection (1) of Section 83 and the consequence of failure to comply

with the same.

36. In  Murarka  Radhey  Shyam  Ram  Kumar vs.  Roop  Singh

Rathore1

,   a   preliminary   objection   to   the   maintainability   of   the

election petition was raised on the ground that the verification was

defective. The verification stated that the averments made in some

paragraphs of the petition were true to the personal knowledge of

the petitioner and the averments in some other paragraphs were

verified to be true on advice and information received from legal and

other   sources.   There   was   no   statement   that   the   advice   and

information received by the election petitioner were believed by him

to be true. Since this case arose before the amendment of the Act

under Act 47 of 1966, the election petition was dealt with by the

Tribunal. The Tribunal held the defect in the verification to be a

curable defect. The view of the Tribunal was upheld by this Court in

1 AIR (1964) SC 1545

18

Murarka  Radhey  Shyam  Ram  Kumar (supra). This Court held

that “it is impossible to accept the contention that a defect in

verification which is to be made in the manner laid down in

the Code of Civil Procedure for the verification of pleadings as

required by Clause (c) of Sub­section (1) of Section 83 is fatal

to the maintainability of the petition”.

37. The ratio laid down in  Muraraka  was reiterated by  a three

member Bench of this Court in  F.A.  Sapa vs. Singora2

  holding

that “the mere defect in the verification of the election petition

is   not   fatal   to   the  maintainability   of   the   petition   and   the

petition  cannot  be  thrown  out  solely  on  that  ground”.  It was

also held in F.A. Sapa that “since Section 83 is not one of the

three   provisions   mentioned   in   Section   86(1),   ordinarily   it

cannot be construed as mandatory unless it is shown to be an

integral part of the petition under Section 81”.

38. In  F.A.   Sapa  (supra)   this   Court   framed   two   questions   in

paragraph 20 of the Report, as arising for consideration. The first

2  (1991) 3 SCC 375

19

question   was   as   to   what   is   the   consequence   of   a   defective   or

incomplete   verification.   While   answering   the   said   question,   this

Court formulated the following principles: –

(i) A defect in the verification, if any, can be cured 

(ii) It is not essential that the verification clause at the foot

of  the  petition  or  the  affidavit  accompanying  the  same

should disclose the grounds or sources of information in

regard to the averments or allegations which are based on

information believed to be true 

(iii) If the respondent desires better particulars in regard to

such averments or allegations, he may call for the same,

in which case the petitioner may be required to supply the

same and

(iv) The defect in the affidavit in the prescribed Form 25

can be cured unless the affidavit forms an integral part of

the petition, in which case the defect concerning material

facts   will   have   to   be   dealt   with,   subject   to   limitation,

under section 81(3) as indicated earlier.”

39. It was also held in F.A. Sapa (supra) that though an allegation

involving corrupt practice must be viewed very seriously and the

High Court should ensure compliance with the requirements of

Section 83 before the parties go to trial, the defective verification

20

of a defective affidavit may not be fatal. This Court held that

the High Court should ensure its compliance before the parties go

to trial. This decision was followed by another three­member Bench

in R.P. Moidutty vs. P.T. Kunju Mohammad3

.

40. In  Sardar   Harcharan   Singh   Brar vs. Sukh   Darshan

Singh4

, this Court held that though the proviso to Section 83(1)

is couched in a mandatory form, requiring a petition alleging

corrupt   practice   to   be   accompanied   by   an   affidavit,   the

failure to comply with the requirement cannot be a ground for

dismissal of an election petition in limine under Section 86(1).

The Court reiterated that non­compliance with the provisions of

Section 83 does not attract the consequences envisaged by Section

86(1) and that the defect in the verification and the affidavit is

a   curable   defect.   The   following   portion   of   the   decision   is   of

significance:

“14.  xxxx

Therefore,   an   election   petition   is   not   liable   to   be

dismissed  in limine  under Section 86 of the Act, for

alleged   non­compliance   with   provisions   of Section

3 (2000) 1 SCC 481

4 (2004) 11 SCC 196

21

83(1) or (2) of the Act or of its proviso. The defect in

the   verification   and   the   affidavit   is   a   curable

defect.  What other consequences, if any, may follow

from an allegedly "defective" affidavit, is required to be

judged at the trial of an election petition but Section

86(1) of the Act in terms cannot be attracted to such a

case.”

41. In  K.K.  Ramachandran  Master vs. M.V.  Sreyamakumar5

,

this Court followed  F.A.   Sapa  (supra) and  Sardar   Harcharan

Singh Brar (supra) to hold that defective verification is curable.

The Court again reiterated that the consequences that may flow

from a defective affidavit is required to be judged at the trial of an

election   petition   and   that   such   election   petition   cannot   be

dismissed under Section 86(1).

42. Though all the aforesaid decisions were taken note by a twomember Bench in P.A. Mohammed Riyas vs. M.K. Raghavan6

, the

Court held in that case that the absence of proper verification may

lead to the conclusion that the provisions of Section 81 had not

been fulfilled and that the cause of action for the election petition

would remain incomplete. Such a view does not appear to be in

conformity with the series of decisions referred to in the previous

5 (2010) 7 SCC 428

6 (2012) 5 SCC 511

22

paragraphs and hence P.A. Mohammed Riyas cannot be taken to

lay   down   the   law   correctly.   It   appears   from   the   penultimate

paragraph of the decision in  P.A.  Mohammed  Riyas (supra) that

the Court was pushed to take such an extreme view in that case on

account of the fact that the petitioner therein had an opportunity to

cure the defect, but he failed to do so. Therefore, P.A. Mohammed

Riyas (supra) appears to have turned on its peculiar facts. In any

case P.A. Mohammed Riyas was overruled in G.M.Siddeshwar vs.

Prasanna Kumar7

on the question whether it is imperative for an

election petitioner to file an affidavit in terms of Order VI Rule 15(4)

of the Code of Civil Procedure, 1908 in support of the averments

made in the election petition in addition to an affidavit (in a case

where resort to corrupt practices have been alleged against the

returned candidate) as required by the proviso to Section 83(1). As a

matter of fact, even the filing of a defective affidavit, which is not in

Form 25 as prescribed by the Rules, was held in G.M. Siddeshwar

to be a curable defect and the petitioner was held entitled to an

opportunity to cure the defect.

7 (2013) 4 SCC 776

23

43. The   upshot   of   the   above   discussion   is   that   a   defective

verification   is   a   curable   defect.   An   election   petition   cannot   be

thrown out in limine, on the ground that the verification is defective.

44. Therefore, the High Court committed a grave error in holding

the 3 defects mentioned in paragraph 18 hereinabove as incurable.

The defects are curable and as rightly contended by the learned

counsel for the petitioner, an opportunity to cure the defects ought

to have been given. Instead, the election petition was posted before

Court without numbering, in view of the defects noticed. The Court

directed the petition to be numbered subject to arguments on the

curability   of   defects.   Thereafter   notices   were   issued   to   the

respondents in the election petition and finally the order impugned

herein was passed after hearing both sides. The High Court did not

even rely upon any rule framed by the High court to follow the said

procedure. 

45. The Rules of the High Court of Kerala, 1971 contains a set of

Rules from Rule Nos.207 to 219 in Chapter XVI. These Rules govern

the procedure for institution and trial of election petitions. Rule 210

of these rules reads as follows:­

24

“210.Summons.­Immediately   after   registering,   the

petition   shall   be   placed   before   the   Judge   for   such

orders as may be required to be passed under Section

86 of the Act.  If the petition is not dismissed under

Section 86(1) of the Act, a summons, on the direction

of the Judge shall be issued to the respondents to

appear   before   the   High   Court   on   a   fixed   date   and

answer the claim or claims made in the petition.  Such

date shall not be earlier than three weeks from the

date of the issue of the summons.  The summons shall

be for written statement and settlement of issues and

shall be served on the respondents by the process staff

of the High Court or the District Courts, all steps being

taken to effect service with the utmost expedition.”

46. The manner in which Rule 210 has been worded gives an

impression as though an election petition should be placed before

the Judge, immediately after it is registered, for passing Orders

under Section 86(1). If the petition is not dismissed under Section

86(1),   summons   should   be   issued   to   the   respondents   on   the

direction of the Judge. In the case on hand the learned designated

Judge before whom the election petition was listed as defective,

chose to issue summons to the respondents, calling upon them to

argue on the curability of defects as well as the maintainability of

the petition. There is nothing to indicate in the Rules that the

learned designated Judge was powerless to return the petition to

the petitioner for curing the defects.

25

 47. The procedure adopted by the High Court of Kerala cannot be

approved. The High Court was wrong in thinking that the defective

verification of the election petition was a pointer to the game plan of

the election petitioner to disown the pleadings at a later stage,

especially after making serious allegations against the former Chief

Minister. If only the High Court had given an opportunity to the

petitioner to cure the defects in the verification and if, despite such

an opportunity, the petitioner had failed to come up with a proper

verification, the High Court could have then held the petitioner

guilty of playing hide and seek. The failure of the High Court to give

an opportunity to cure the defects is improper.

48. The defect in the prayer made by the petitioner was also a

curable defect, as the words “as void” were omitted to be included,

making the prayer as it existed, meaningless. It is true that the

election petitioner should have been more careful and diligent in

incorporating an appropriate relief and making a proper verification.

But no motives could have been attributed to the petitioner, only

because she made serious allegations against someone. Hence we

hold on the first issue that the defects in the verification and prayer

26

made by the petitioner were curable and an opportunity ought to

have been given to the petitioner to cure the defects.

Issue­2 (effect of punishment by criminal court)

49. That takes us to the next issue regarding the punishments

imposed   upon   the   petitioner   in   two   criminal   cases   and   the

suspension   of   execution   of   sentence   alone   granted   by   the

appellate/revisional Courts.

50. Admittedly the petitioner was imposed with a punishment of

imprisonment   for   a   period   not   less   than   two   years   in   two

independent   criminal   cases.   Therefore,   her   case   is   covered   by

Section 8(3) of the Act.

51. What was suspended by the appellate Court in one case and

the revisional Court in another case was only the execution of the

sentence of imprisonment and not the conviction. The contention of

the petitioner is that the suspension of the sentence was sufficient

to save her from the applicability of Section 8(3).

52. But we do not think so.  Section 8(3) reads as follows:

“Disqualification on conviction for certain offences.­

(1)  …

(2)  …

27

(3) A person convicted of any offence and sentenced to

imprisonment for not less than two years [other than

any   offence   referred   to   in   sub­section   (1)   or   subsection (2)] shall be disqualified from the date of such

conviction and shall continue to be disqualified for a

further period of six years since his release.” 

53. It is seen from a reading of Section 8(3) that it deals with two

aspects  namely  (i)  the conditions for disqualification; and  (ii)  the

period of disqualification. The conditions for disqualification are (i)

conviction for any offence other than an offence referred to in Subsections (1) and (2); and (ii) sentence of imprisonment for not less

than two years.

54. In so far as the period of disqualification is concerned, Section

8(3) says that the disqualification will commence from the date of

conviction. This is made clear by the usage of the words “shall be

disqualified from the date of such conviction”. It is needless to state

that the words “the date” appearing in Section 8(3) refers to the

event of conviction and it is post facto. The disqualification which

commences from the date of conviction, continues till the expiry of a

period of six years from the date of his release.

28

55. In other words, the date of conviction is what determines

the  date  of  commencement  of  the  period  of  disqualification.

However,  it   is  date  of  release  which  determines  the  date  on

which the disqualification will cease to have effect.

56. When viewed in that context, it will be clear that the mere

suspension of the execution of the sentence is not sufficient to take

the rigour out of Section 8(3).

57. In fact, a Constitution Bench of this Court held in B.R. Kapur

vs. State of Tamil Nadu8

 that an order of the appellate/revisional

Court suspending the sentence of imprisonment has to be read in

the context of Section 389 of the Code of Criminal Procedure and

that   under   the   said   provision,   what   is   suspended   is   only   the

execution   of   the   sentence   and   not   the   sentence   itself.   The

Constitution   Bench   made   it   clear   that   the   suspension   of   the

execution of the sentence would not alter or affect the conviction

and that therefore such a person would remain disqualified under

Section   8(3).   In   fact,   in  B.R.   Kapur (supra)   a   person   whose

nomination   was   rejected   on   the   ground   of   disqualification,   got

8 (2001) 7 SCC 231

29

elected as the leader of the party which secured majority in the

elections and became the Chief Minister and hence Article 164 was

pressed into service. But even the same was rejected on the ground

that a person who was disqualified from contesting the elections,

cannot take the route of Article 164.  

58. A contention was raised in B.R. Kapur (supra) that the sitting

members of Parliament or Legislatures are granted by Section 8(4)

of the Act, with a protection against removal from office, during the

pendency of their appeal or revision against conviction and that it is

violative of the guarantee of equality under the Constitution, if the

class of persons getting convicted before elections are placed at a

disadvantageous   position   than   the   class   of   persons   who   are

convicted   after   getting   elected   to   the   Parliament   or   the   State

Legislatures. But the Constitution Bench rejected this contention in

B.R. Kapur (supra) on the ground that the constitutional validity of

Sub­section (4) of Section 8 was not in question. 

59. Possibly taking cue from what was observed in B.R. Kapur (in

Para 38 and 39 of the Report), a challenge was made to Section 8(4)

30

in Lily Thomas vs. Union of India9

, on the ground that it is ultra

vires  the Constitution. While declaring the  said  provision to be

unconstitutional, this Court held in  Lily  Thomas (supra) that a

Member   of   Parliament   or   the   State   Legislature   who   suffers   a

frivolous   conviction,   will   not   be   remediless.   Taking   note   of   the

decisions in  Rama Narang vs.  Ramesh Narang10  and  Ravikant

S.  Patil vs. Sarvabhouma   S.  Bagali11, this Court held in  Lily

Thomas (supra) that the appellate Court has ample powers under

Section 389(1) of the Code, to stay the conviction as well as the

sentence and that wherever a stay of conviction itself has been

granted, the disqualification will not operate.

60. Just as the observations made in B.R. Kapur (supra) led to a

challenge to Section 8(4) of the Act in  Lily  Thomas (supra), the

discussion in Lily Thomas (supra) about the power of the appellate

Court to stay the conviction as well as the execution of sentence,

led   to   another   bout   of   litigation.   In  Lok   Parhari vs. Election

Commissioner of India12

, the petitioner sought a declaration that

9  (2013) 7 SCC 653

10 (1995) 2 SCC 513

11 (2007) 1 SCC 673

12 (2018) AIR 4675

31

even a stay of conviction by the appellate Court will not have the

effect   of   wiping   out   the   disqualification.   The   contention   of   the

petitioner was that the law does not provide for stay of conviction.

But   this   Court   rejected   the   challenge   on   the   ground   that   the

decisions   in  Rama   Narang (supra)   and  Lily   Thomas (supra)

clinched the issue in this regard.

61. Therefore, in effect, the disqualification under Section 8(3) will

continue so long as there is no stay of conviction. In the case on

hand,   the   petitioner   could   not   obtain   a   stay   of   conviction   but

obtained   only   a   stay   of   execution   of   the   sentence.   Hence   her

nominations were validly rejected by the Returning Officer. Merely

because the Returning Officer in Amethi Constituency committed

an   error   in   overlooking   this   fact,   the   petitioner   cannot   plead

estoppel against statutory prescription.

CONCLUSION

62. Therefore, in fine, we hold that the petitioner was disqualified

from contesting the elections in terms of Section 8(3) of the Act. In

such circumstances, she could not have maintained an election

petition as  “a   candidate  at   such  election”  in terms of Section

32

81(1). Therefore, the High Court was right in not venturing into an

exercise   in   futility,   by   taking   up   the   election   petition   for   trial,

though the High Court was wrong in rejecting the election petition

on the ground of existence of incurable of defects.

63. In view of the above, the Special Leave Petition is dismissed.

There will be no order as to costs.

…………………………..CJI

(S.A. Bobde)

…………………………….J.

(A.S. Bopanna)

……………………………..J.

(V. Ramasubramanian)

New Delhi

December 9, 2020