Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.10863 of 2017
ABDULRASAKH ….Appellant
versus
K.P. MOHAMMED & ORS. ..…Respondents
J U D G M E N T
SANJAY KISHAN KAUL, J.
The facts:
1. The democratic process of holding State elections was carried
out for the 14th Kerala Legislative Assembly on 16.5.2016 in which the
appellant contested from the Koduvally Assembly Constituency as an
independent candidate. The results were declared on 19.5.2016 and the
appellant, having obtained the highest number of votes was declared as
elected.
2. Respondent Nos.1 & 2 who were stated to be the voters from the
same constituency filed election petitions on grounds of corrupt
Civil Appeal No.10863/2017 Page 1 of 17
practices. The challenge to the election of the appellant was laid under
Section 123(4) of the Representation of People Act, 1950 (hereinafter
referred to as the ‘said Act’) alleging that the appellant made false
allegations against respondent No.3, a candidate, knowing the same to
be false. Section 123(4) of the said Act reads as under:
“123. Corrupt practices. – The following shall be deemed to be
corrupt practices for the purposes of this Act: -
xxxx xxxx xxxx xxxx xxxx
(4) The publication by a candidate or his agent or by any other
person [with the consent of a candidate or his election agent], of
any statement of fact which is false, and which he either believes
to be false or does not believe to be true, in relation to the
personal character or conduct of any candidate or in relation to
the candidature, or withdrawal, of any candidate, being a
statement reasonably calculated to prejudice the prospects of that
candidate's election.”
3. The election petition is stated to have been filed on 1.7.2016 in
which certain defects are stated to have been pointed out. It is the case
of the appellant that the petition was returned from the Registry and
was re-presented only on 11.7.2016 by which time the prescribed
period of limitation of 45 days to file such an election petition had
expired on 3.7.2016 and, thus, the election petition was time barred. It
is also the say of the appellant that the Registry had no power to return
Civil Appeal No.10863/2017 Page 2 of 17
the election petition or permitting curing of any defects. Even on representation,
the petition is stated to have been defective and was
placed before the learned single Judge of the Kerala High Court, who
by the order dated 18.7.2017 granted one week’s time to respondent
Nos.1 & 2 to cure the defects. It is thereafter that notice was issued to
all the respondents in the election petition including the appellant
herein.
4. On account of the aforesaid two grounds and more the appellant
moved an application for summary dismissal of the election petition
under Section 86 of the said Act read with Section 151 and Order VI
Rule 16, Order VII Rule 11 of the Code of Civil Procedure, 1908
(hereinafter referred to as the ‘said Code’). The relevant provision,
being Section 86 (1) of the said Act, reads as under:
“86. Trial of election petitions. – (1) The High Court shall
dismiss an election petition which does not comply with the
provisions of section 81 or section 82 or section 117.”
5. The objections filed by the appellant were, however, dismissed
vide impugned judgment dated 16.6.2017, by the learned single Judge
of the Kerala High Court against which the present Special Leave
Petition has been filed.
Civil Appeal No.10863/2017 Page 3 of 17
Appellant’s contentions:
6. Mr. Rajeev Dhawan, learned Senior Advocate appearing for the
appellant referred to the office notice sheets of the High Court to
canvas his case of the petition being beyond time. He referred to the
fact that while the election petition was stated to have been presented
on 1.7.2016, it was also mentioned therein “E.P. filed: 11.07.16”. The
date of issue of summons is 9.8.2016. He also referred to the noting
where eight defects were enumerated and below that, there was an
endorsement of the counsel appearing for the original petitioner to the
effect that “defect cured” without any date and an endorsement of the
Deputy Registrar dated 7.7.2016. The conclusion, he sought to derive
from these endorsements was the presentation and re-presentation of
the petition before the Registry, without it being placed before the
Court.
7. Learned Senior Advocate referred to the provisions relating to
presentation of an election petition to a High Court contained in
Chapter II of the said Act and the mandate for an election petition to
meet with the same in the context of the objections filed by the
appellant. The relevant provisions read as under:
Civil Appeal No.10863/2017 Page 4 of 17
“81. Presentation of petitions.—(1) An election petition
calling in question any election may be presented on one or
more of the grounds specified in[sub-section (1)] of section
100 and section 101 to the [High Court] by any candidate at
such election or any elector [within forty-five days from, but
not earlier than the date of election of the returned candidate,
or if there are more than one returned candidate at the election
and the dates of their election are different, the later of those
two dates].”
xxxx xxxx xxxx xxxx xxxx
“[(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.]”
8. The defects pointed out by the Registry are as under:
“i. Sec 80A of the R.P. Act is not provision shown in the Election
Petition.
ii. Pages 28 and 29 are not properly tagged in 1st set.
iii. Mobile phones produced as Annexure B, C, G and L and
Compact Disks produced as Annexure H, M and O are in sealed
covers, cannot be scrutinized.
iv. Mobile phones and CD’s which are material objects are
marked as Annexures.
v. Annexure B, C, G and L (Mobile Phones), stated as “cannot be
produced” in the verification made in copies.
Civil Appeal No.10863/2017 Page 5 of 17
vi. Page 57 which is English translation of Annexure K,
produced as Annexure K-1 is stated as English translation of
Annexure H.
vii. No English translation of last four lines appearing at P 35
(Annexure E/5) is seen reproduced at P.39, the English
translation of Annexure E.
viii. In one of the additional copies of Election Petition
Annexure Q is produced twice.”
9. Learned counsel took us through the written objections filed by
the appellant to which no reply is stated to have been filed by
respondent Nos.1 & 2. In substance what was sought to be canvassed
before us by reference to the objections is as under:
i. The election petition is barred by time as it had to be
presented free from all defects before 3.7.2016. The defects
were cured and the petition was re-presented on 11.7.2016.
ii. That the process of returning and re-presentation of the
election petition in the Registry is alien to the process of an
election court.
iii. Production of documents in the sealed cover is
impermissible in law and is not acceptable. The failure to hand
over the entire contents of the items produced in sealed cover
Civil Appeal No.10863/2017 Page 6 of 17
is violative of Section 81(3) of the said Act and is violative of
the principles of natural justice. The appellant was entitled to
the chip of the mobile phone apart from the CD of the relevant
portion, the latter having been handed over. Such deprival
would cause prejudice to the appellant as is deprived of the
opportunity to know the entire contents.
iv. The defects have been cured by substituting the original
page 57 filed with the election petition and it is ante dated as
the papers have been signed subsequent to 1.7.2016.
v. Annexure E-1 was incomplete and not the true English
translation of Annexure E.
10. To buttress the submissions made, learned counsel referred to
the judicial pronouncements dealing with the aspects he was seeking to
canvas. The same are dealt with as under:
i. Satya Narain v. Dhuja Ram &Ors.1
– it was observed that in
the absence of any provisions under the said Act and the Rules
made thereunder, the High Court Rules cannot confer upon the
1 (1974) 4 SCC 237 (para14)
Civil Appeal No.10863/2017 Page 7 of 17
Registrar or the Deputy Registrar any power to permit
correction or removal of defects in an election petition
presented in the High Court beyond the period of limitation
provided under the said Act.
ii. Sahodrabai Rai v. Ram Singh Aharwar2
- In the given facts
of the case the learned Judge trying the case ordered the
attendance of the Reader of the Deputy Registrar of the High
Court, who had dealt with the election petition and he was
examined as a court witness. A similar course, the counsel
contended, was liable to be followed in the present case when
there were doubts and allegations about the presentation and
re-presentation as was apparent from the office notes.
iii. M. Karunanidhi v. Dr. H.V. Hande & Ors.3
(para 29) – The
particular controversy related to the costing of the banners and
it was stated that the same was mentioned wrongly as there
were two election banners – one of them was a huge fancy
banner or hoarding on the left side of the road and the other on
2 (1968) 3 SCR 13
3 (1983) 2 SCC 473
Civil Appeal No.10863/2017 Page 8 of 17
the right was a smaller election banner. The appellant was
present in the depiction of the two groups in both the banners.
A photograph of the fancy banner was filed but the copy of the
same was not supplied. This was held to be fatal to the
petition.
To appreciate the contention of respondent Nos.1 & 2 herein, it
was stated that they were required to supply to the appellant
the proper photograph while only a black and white photocopy
had been supplied.
iv. U.S. Sasidharan v. K. Karunakaran & Anr.4
(paras 14 &
32) – The controversy relating to non-supply of the video
cassette with the election petition was examined and the video
cassette being an integral part of election petition, nonfurnishing
of the copy was held to be fatal.
v. Mithilesh Kumar Pandey v. Baidyanath Yadav & Ors.5
(paras 11 & 15) – The Bench of three Judges of this Court
examined the controversy emanating from the allegation that
4 (1989) 4 SCC 482
5 (1984) 2 SCC 1
Civil Appeal No.10863/2017 Page 9 of 17
the copy supplied to the returned candidate was not really a
true copy. In the said context the principles were laid down in
para 15 as under:
“15. On a careful consideration and scrutiny of the law on the
subject, the following principles are well established:
(1) that where the copy of the election petition served on the
returned candidate contains only clerical or typographical
mistakes which are of no consequence, the petition cannot be
dismissed straightway under Section 86 of the Act,
(2) A true copy means a copy which is wholly and substantially
the same as the original and where there are insignificant or
minimal mistakes, the court may not take notice thereof,
(3) where the copy contains important omissions or
discrepancies of a vital nature, which are likely to cause
prejudice to the defence of the returned candidate, it cannot be
said that there has been a substantial compliance of the
provisions of Section 81(3) of the Act,
(4) Prima facie, the statute uses the words "true copy" and the
concept of substantial compliance cannot be extended too far
to include serious or vital mistakes which shed the character of
a true copy so that the copy furnished to the returned candidate
cannot be said to be a true copy within the meaning of Section
81(3) of the Act, and
(5) As Section 81(3) is meant to protect and safeguard the
sacrosanct electoral process so as to not disturb the verdict of
the voters, there is no room forgiving a liberal or broad
interpretation to the provisions of the said section.”
In the aforesaid context, it was stated that the translations
Civil Appeal No.10863/2017 Page 10 of 17
supplied by respondent Nos.1 & 2 did not make sense and the
access to the original chip is necessary as the allegation against
the appellant is of connivance in making of false allegations
against one of the candidates.
Respondent Nos.1 & 2’s contentions:
11. On the other hand, Mr. Kapil Sibal, learned Senior Advocate
appearing for the first two respondents (Original petitioners in the High
Court) at the threshold itself stated that he has no quibble with all the
legal propositions advanced by the learned senior counsel for the
appellant or with the judicial pronouncements referred to aforesaid,
however, what was sought to be canvassed was an incorrect
representation of what has actually transpired. In this behalf learned
senior counsel, once again, drew our attention to the notings to contend
that the mention of “E.P. filed: 11.07.16” is obviously a mistake as
undisputedly the election petition was presented on 1.7.2016. The
endorsement of the Deputy Registrar shows that the scrutiny took place
on 5.7.2016. The eight defects noticed aforesaid were mentioned on
7.7.2016 whereupon the petition was placed before the learned Judge
on 18.7.2016 as an unnumbered election petition. The learned Judge
Civil Appeal No.10863/2017 Page 11 of 17
opined that the defects noted by the office are not material defects for
rejecting the petition in limine under the said Act (the parameters have
been set out in Mithilesh Kumar Pandey6
). It is also noted that the
question whether CD have to be marked as material objects or exhibits
could be considered at the time of trial and since the mobile phone
cannot be produced along with each copy, copies of contents in the
phone which the petitioner wants to rely upon have been produced
along with the copy of the election petition. Sufficiency of this could
be considered later after appearance of the parties. One week’s time
was granted to cure the minor defects as prayed. Thereafter the defects
were cured within the time specified and the endorsement made by the
counsel for respondent Nos.1 & 2.
12. We have also examined the impugned judgment passed on
16.6.2017, which is a detailed one with supporting case law. Sixteen
issues were framed out of which the appellant claimed preliminary
hearing in respect of issue Nos.1 to 7. The preliminary issues are
reproduced as under:
“1. Whether the election petition is barred by limitation?
6 supra
Civil Appeal No.10863/2017 Page 12 of 17
2. Can the defects in the election petition be permitted to be
cured after the period of limitation prescribed under Section 81
of the Representation of People Act?
3. Can the election petition be returned to the petitioner for
curing defects after the period of limitation prescribed under
Section 81 of the Representation of People Act?
4. Is there power in this Court to permit representation delay to
be condoned when the original delay in presenting election
petition itself is not permissible to be condoned and when there
is no provision for any delay condonation?
5. Whether the defects cured and corrections made in the
election petition after the period of limitation will relate back to
the date of its presentation?
6. Whether defects cured and corrections made in the election
petition after presentation are permissible and in compliance
with the mandatory requirements as provided in Sections 81 &
83 of the Representation of People Act and Rules framed
thereunder?
7. Whether the election petition is maintainable for noncompliance
of mandatory requirements as provided in Sections
81, 82, 83 & 117 of the Representation of People Act and Rules
framed thereunder and other requirements of law?”
13. The learned single Judge then on examination of the record
opined that the Registry, after presentation of the petition on 1.7.2016
had not returned the petition to the first two respondents but was
posted before the Bench as per the correct practice, which passed the
order dealing with the objections. On curing of the minor defects,
Civil Appeal No.10863/2017 Page 13 of 17
notice was issued to the appellant.
14. The Kerala High Court Rules (Rule 210) itself provided for
scrutiny by the Judge assigned to the case and not by the Registry.
There was no violation of this Rule. The defects were also cured only
after 18.7.2016. The contents of the conversation recorded in the
mobile phone have been produced as annexures and CDs and the
mobile phones were themselves produced. The question of
admissibility of evidence would, thus, have to be examined at the stage
of trial. Similarly the photocopy of a photograph could only be a copy
taken from mobile phone and at this stage it could not be said that it
did not truly represent the contents of what was recorded in the mobile
phone, which was again a matter of evidence.
Conclusion:
15. We have examined the submissions of the learned counsel for
the parties and do not find any merit in the appeal. The minor
corrections permitted to be made vide order dated 18.7.2016 are by the
Court. A mountain out of a molehill has been made without
appreciating the office notings in the true perspective. The Registry
was fully conscious that the eight defects pointed out by it could not be
Civil Appeal No.10863/2017 Page 14 of 17
permitted to be cured by the Registry itself and that is why the matter
was directed to be placed before the concerned Judge as an
unnumbered election petition. On 18.7.2016, the learned Judge did not
find merit in some of the objections pointed by the Registry and to the
extent some minor corrections were required, which were not material,
one week’s time was granted to respondent Nos.1 & 2 to carry out the
corrections. The needful was done within the stipulated time and it is
thereafter that notices were issued to the appellant.
16. The whole premise of the plea of the appellant is based on the
Registry permitting corrections to be made is, thus, fallacious and,
thus, the presentation of the petition cannot be said to be beyond time
stipulated in Section 81(1) of the said Act. There was, in fact, really no
occasion in these facts for the Court to examine the Registry officer as
was done in the case of Sahodrabai Rai7
.
17. The issue of supply of copies has also been appropriately dealt
with as copies of a transcript and the CD were supplied as also the
translation thereof. This is not the stage to verify as to whether the
translation correctly reflects what was said. In any case it would be a
7 supra
Civil Appeal No.10863/2017 Page 15 of 17
doubtful proposition whether it was mandated that a translation should
also be filed that being possibly a part of the requirement of the High
Court Rules since the record had to be in English. It has rightly been
observed that the phone has been filed and keeping the phone in a
sealed cover or the allegation of non-supply of the chip alleged to be
violative of Section 81(3) of the said Act is not a plea which can be
accepted. At best these are all matters for trial.
18. We are conscious of the fact that the law relating to election is a
technical one as it amounts to a challenge laid to the democratic
process determining the will of the people. An eligible person whether
a candidate or a voter coming to Court, seeking to set aside any
election has to, thus, meet with the technical natures of the election
petition and the provisions prescribed under the said Act as otherwise it
would be fatal to the election petition at the threshold itself. It is in
these circumstances that the principles have been succinctly set out in
Mithilesh Kumar Pandey8
. The observations in that case provide for
clerical and typographical errors to be corrected. Thus, issues like
mentioning of the correct number of annexures or tagging with the file,
8 supra
Civil Appeal No.10863/2017 Page 16 of 17
etc. would all fall within the said Section.
19. Similarly copies of the documents have been supplied to the
appellant and multiple copies of the phone or the chip (which is kept in
a sealed cover) are not mandated to be supplied when the material
relied upon in the phone has been reproduced in CD and a transcription
also provided. The defence of the appellant cannot be said to be
impaired in any manner.
20. We are, thus, of the unequivocal view that the pleas advanced on
behalf of the appellant are meritless and deserve to be rejected.
21. The appeal is accordingly dismissed leaving the parties to bear
their own costs.
..….….…………………….J.
(J. Chelameswar)
...……………………………J.
(Sanjay Kishan Kaul)
New Delhi.
March 08, 2018.
Civil Appeal No.10863/2017 Page 17 of 17
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.10863 of 2017
ABDULRASAKH ….Appellant
versus
K.P. MOHAMMED & ORS. ..…Respondents
J U D G M E N T
SANJAY KISHAN KAUL, J.
The facts:
1. The democratic process of holding State elections was carried
out for the 14th Kerala Legislative Assembly on 16.5.2016 in which the
appellant contested from the Koduvally Assembly Constituency as an
independent candidate. The results were declared on 19.5.2016 and the
appellant, having obtained the highest number of votes was declared as
elected.
2. Respondent Nos.1 & 2 who were stated to be the voters from the
same constituency filed election petitions on grounds of corrupt
Civil Appeal No.10863/2017 Page 1 of 17
practices. The challenge to the election of the appellant was laid under
Section 123(4) of the Representation of People Act, 1950 (hereinafter
referred to as the ‘said Act’) alleging that the appellant made false
allegations against respondent No.3, a candidate, knowing the same to
be false. Section 123(4) of the said Act reads as under:
“123. Corrupt practices. – The following shall be deemed to be
corrupt practices for the purposes of this Act: -
xxxx xxxx xxxx xxxx xxxx
(4) The publication by a candidate or his agent or by any other
person [with the consent of a candidate or his election agent], of
any statement of fact which is false, and which he either believes
to be false or does not believe to be true, in relation to the
personal character or conduct of any candidate or in relation to
the candidature, or withdrawal, of any candidate, being a
statement reasonably calculated to prejudice the prospects of that
candidate's election.”
3. The election petition is stated to have been filed on 1.7.2016 in
which certain defects are stated to have been pointed out. It is the case
of the appellant that the petition was returned from the Registry and
was re-presented only on 11.7.2016 by which time the prescribed
period of limitation of 45 days to file such an election petition had
expired on 3.7.2016 and, thus, the election petition was time barred. It
is also the say of the appellant that the Registry had no power to return
Civil Appeal No.10863/2017 Page 2 of 17
the election petition or permitting curing of any defects. Even on representation,
the petition is stated to have been defective and was
placed before the learned single Judge of the Kerala High Court, who
by the order dated 18.7.2017 granted one week’s time to respondent
Nos.1 & 2 to cure the defects. It is thereafter that notice was issued to
all the respondents in the election petition including the appellant
herein.
4. On account of the aforesaid two grounds and more the appellant
moved an application for summary dismissal of the election petition
under Section 86 of the said Act read with Section 151 and Order VI
Rule 16, Order VII Rule 11 of the Code of Civil Procedure, 1908
(hereinafter referred to as the ‘said Code’). The relevant provision,
being Section 86 (1) of the said Act, reads as under:
“86. Trial of election petitions. – (1) The High Court shall
dismiss an election petition which does not comply with the
provisions of section 81 or section 82 or section 117.”
5. The objections filed by the appellant were, however, dismissed
vide impugned judgment dated 16.6.2017, by the learned single Judge
of the Kerala High Court against which the present Special Leave
Petition has been filed.
Civil Appeal No.10863/2017 Page 3 of 17
Appellant’s contentions:
6. Mr. Rajeev Dhawan, learned Senior Advocate appearing for the
appellant referred to the office notice sheets of the High Court to
canvas his case of the petition being beyond time. He referred to the
fact that while the election petition was stated to have been presented
on 1.7.2016, it was also mentioned therein “E.P. filed: 11.07.16”. The
date of issue of summons is 9.8.2016. He also referred to the noting
where eight defects were enumerated and below that, there was an
endorsement of the counsel appearing for the original petitioner to the
effect that “defect cured” without any date and an endorsement of the
Deputy Registrar dated 7.7.2016. The conclusion, he sought to derive
from these endorsements was the presentation and re-presentation of
the petition before the Registry, without it being placed before the
Court.
7. Learned Senior Advocate referred to the provisions relating to
presentation of an election petition to a High Court contained in
Chapter II of the said Act and the mandate for an election petition to
meet with the same in the context of the objections filed by the
appellant. The relevant provisions read as under:
Civil Appeal No.10863/2017 Page 4 of 17
“81. Presentation of petitions.—(1) An election petition
calling in question any election may be presented on one or
more of the grounds specified in[sub-section (1)] of section
100 and section 101 to the [High Court] by any candidate at
such election or any elector [within forty-five days from, but
not earlier than the date of election of the returned candidate,
or if there are more than one returned candidate at the election
and the dates of their election are different, the later of those
two dates].”
xxxx xxxx xxxx xxxx xxxx
“[(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.]”
8. The defects pointed out by the Registry are as under:
“i. Sec 80A of the R.P. Act is not provision shown in the Election
Petition.
ii. Pages 28 and 29 are not properly tagged in 1st set.
iii. Mobile phones produced as Annexure B, C, G and L and
Compact Disks produced as Annexure H, M and O are in sealed
covers, cannot be scrutinized.
iv. Mobile phones and CD’s which are material objects are
marked as Annexures.
v. Annexure B, C, G and L (Mobile Phones), stated as “cannot be
produced” in the verification made in copies.
Civil Appeal No.10863/2017 Page 5 of 17
vi. Page 57 which is English translation of Annexure K,
produced as Annexure K-1 is stated as English translation of
Annexure H.
vii. No English translation of last four lines appearing at P 35
(Annexure E/5) is seen reproduced at P.39, the English
translation of Annexure E.
viii. In one of the additional copies of Election Petition
Annexure Q is produced twice.”
9. Learned counsel took us through the written objections filed by
the appellant to which no reply is stated to have been filed by
respondent Nos.1 & 2. In substance what was sought to be canvassed
before us by reference to the objections is as under:
i. The election petition is barred by time as it had to be
presented free from all defects before 3.7.2016. The defects
were cured and the petition was re-presented on 11.7.2016.
ii. That the process of returning and re-presentation of the
election petition in the Registry is alien to the process of an
election court.
iii. Production of documents in the sealed cover is
impermissible in law and is not acceptable. The failure to hand
over the entire contents of the items produced in sealed cover
Civil Appeal No.10863/2017 Page 6 of 17
is violative of Section 81(3) of the said Act and is violative of
the principles of natural justice. The appellant was entitled to
the chip of the mobile phone apart from the CD of the relevant
portion, the latter having been handed over. Such deprival
would cause prejudice to the appellant as is deprived of the
opportunity to know the entire contents.
iv. The defects have been cured by substituting the original
page 57 filed with the election petition and it is ante dated as
the papers have been signed subsequent to 1.7.2016.
v. Annexure E-1 was incomplete and not the true English
translation of Annexure E.
10. To buttress the submissions made, learned counsel referred to
the judicial pronouncements dealing with the aspects he was seeking to
canvas. The same are dealt with as under:
i. Satya Narain v. Dhuja Ram &Ors.1
– it was observed that in
the absence of any provisions under the said Act and the Rules
made thereunder, the High Court Rules cannot confer upon the
1 (1974) 4 SCC 237 (para14)
Civil Appeal No.10863/2017 Page 7 of 17
Registrar or the Deputy Registrar any power to permit
correction or removal of defects in an election petition
presented in the High Court beyond the period of limitation
provided under the said Act.
ii. Sahodrabai Rai v. Ram Singh Aharwar2
- In the given facts
of the case the learned Judge trying the case ordered the
attendance of the Reader of the Deputy Registrar of the High
Court, who had dealt with the election petition and he was
examined as a court witness. A similar course, the counsel
contended, was liable to be followed in the present case when
there were doubts and allegations about the presentation and
re-presentation as was apparent from the office notes.
iii. M. Karunanidhi v. Dr. H.V. Hande & Ors.3
(para 29) – The
particular controversy related to the costing of the banners and
it was stated that the same was mentioned wrongly as there
were two election banners – one of them was a huge fancy
banner or hoarding on the left side of the road and the other on
2 (1968) 3 SCR 13
3 (1983) 2 SCC 473
Civil Appeal No.10863/2017 Page 8 of 17
the right was a smaller election banner. The appellant was
present in the depiction of the two groups in both the banners.
A photograph of the fancy banner was filed but the copy of the
same was not supplied. This was held to be fatal to the
petition.
To appreciate the contention of respondent Nos.1 & 2 herein, it
was stated that they were required to supply to the appellant
the proper photograph while only a black and white photocopy
had been supplied.
iv. U.S. Sasidharan v. K. Karunakaran & Anr.4
(paras 14 &
32) – The controversy relating to non-supply of the video
cassette with the election petition was examined and the video
cassette being an integral part of election petition, nonfurnishing
of the copy was held to be fatal.
v. Mithilesh Kumar Pandey v. Baidyanath Yadav & Ors.5
(paras 11 & 15) – The Bench of three Judges of this Court
examined the controversy emanating from the allegation that
4 (1989) 4 SCC 482
5 (1984) 2 SCC 1
Civil Appeal No.10863/2017 Page 9 of 17
the copy supplied to the returned candidate was not really a
true copy. In the said context the principles were laid down in
para 15 as under:
“15. On a careful consideration and scrutiny of the law on the
subject, the following principles are well established:
(1) that where the copy of the election petition served on the
returned candidate contains only clerical or typographical
mistakes which are of no consequence, the petition cannot be
dismissed straightway under Section 86 of the Act,
(2) A true copy means a copy which is wholly and substantially
the same as the original and where there are insignificant or
minimal mistakes, the court may not take notice thereof,
(3) where the copy contains important omissions or
discrepancies of a vital nature, which are likely to cause
prejudice to the defence of the returned candidate, it cannot be
said that there has been a substantial compliance of the
provisions of Section 81(3) of the Act,
(4) Prima facie, the statute uses the words "true copy" and the
concept of substantial compliance cannot be extended too far
to include serious or vital mistakes which shed the character of
a true copy so that the copy furnished to the returned candidate
cannot be said to be a true copy within the meaning of Section
81(3) of the Act, and
(5) As Section 81(3) is meant to protect and safeguard the
sacrosanct electoral process so as to not disturb the verdict of
the voters, there is no room forgiving a liberal or broad
interpretation to the provisions of the said section.”
In the aforesaid context, it was stated that the translations
Civil Appeal No.10863/2017 Page 10 of 17
supplied by respondent Nos.1 & 2 did not make sense and the
access to the original chip is necessary as the allegation against
the appellant is of connivance in making of false allegations
against one of the candidates.
Respondent Nos.1 & 2’s contentions:
11. On the other hand, Mr. Kapil Sibal, learned Senior Advocate
appearing for the first two respondents (Original petitioners in the High
Court) at the threshold itself stated that he has no quibble with all the
legal propositions advanced by the learned senior counsel for the
appellant or with the judicial pronouncements referred to aforesaid,
however, what was sought to be canvassed was an incorrect
representation of what has actually transpired. In this behalf learned
senior counsel, once again, drew our attention to the notings to contend
that the mention of “E.P. filed: 11.07.16” is obviously a mistake as
undisputedly the election petition was presented on 1.7.2016. The
endorsement of the Deputy Registrar shows that the scrutiny took place
on 5.7.2016. The eight defects noticed aforesaid were mentioned on
7.7.2016 whereupon the petition was placed before the learned Judge
on 18.7.2016 as an unnumbered election petition. The learned Judge
Civil Appeal No.10863/2017 Page 11 of 17
opined that the defects noted by the office are not material defects for
rejecting the petition in limine under the said Act (the parameters have
been set out in Mithilesh Kumar Pandey6
). It is also noted that the
question whether CD have to be marked as material objects or exhibits
could be considered at the time of trial and since the mobile phone
cannot be produced along with each copy, copies of contents in the
phone which the petitioner wants to rely upon have been produced
along with the copy of the election petition. Sufficiency of this could
be considered later after appearance of the parties. One week’s time
was granted to cure the minor defects as prayed. Thereafter the defects
were cured within the time specified and the endorsement made by the
counsel for respondent Nos.1 & 2.
12. We have also examined the impugned judgment passed on
16.6.2017, which is a detailed one with supporting case law. Sixteen
issues were framed out of which the appellant claimed preliminary
hearing in respect of issue Nos.1 to 7. The preliminary issues are
reproduced as under:
“1. Whether the election petition is barred by limitation?
6 supra
Civil Appeal No.10863/2017 Page 12 of 17
2. Can the defects in the election petition be permitted to be
cured after the period of limitation prescribed under Section 81
of the Representation of People Act?
3. Can the election petition be returned to the petitioner for
curing defects after the period of limitation prescribed under
Section 81 of the Representation of People Act?
4. Is there power in this Court to permit representation delay to
be condoned when the original delay in presenting election
petition itself is not permissible to be condoned and when there
is no provision for any delay condonation?
5. Whether the defects cured and corrections made in the
election petition after the period of limitation will relate back to
the date of its presentation?
6. Whether defects cured and corrections made in the election
petition after presentation are permissible and in compliance
with the mandatory requirements as provided in Sections 81 &
83 of the Representation of People Act and Rules framed
thereunder?
7. Whether the election petition is maintainable for noncompliance
of mandatory requirements as provided in Sections
81, 82, 83 & 117 of the Representation of People Act and Rules
framed thereunder and other requirements of law?”
13. The learned single Judge then on examination of the record
opined that the Registry, after presentation of the petition on 1.7.2016
had not returned the petition to the first two respondents but was
posted before the Bench as per the correct practice, which passed the
order dealing with the objections. On curing of the minor defects,
Civil Appeal No.10863/2017 Page 13 of 17
notice was issued to the appellant.
14. The Kerala High Court Rules (Rule 210) itself provided for
scrutiny by the Judge assigned to the case and not by the Registry.
There was no violation of this Rule. The defects were also cured only
after 18.7.2016. The contents of the conversation recorded in the
mobile phone have been produced as annexures and CDs and the
mobile phones were themselves produced. The question of
admissibility of evidence would, thus, have to be examined at the stage
of trial. Similarly the photocopy of a photograph could only be a copy
taken from mobile phone and at this stage it could not be said that it
did not truly represent the contents of what was recorded in the mobile
phone, which was again a matter of evidence.
Conclusion:
15. We have examined the submissions of the learned counsel for
the parties and do not find any merit in the appeal. The minor
corrections permitted to be made vide order dated 18.7.2016 are by the
Court. A mountain out of a molehill has been made without
appreciating the office notings in the true perspective. The Registry
was fully conscious that the eight defects pointed out by it could not be
Civil Appeal No.10863/2017 Page 14 of 17
permitted to be cured by the Registry itself and that is why the matter
was directed to be placed before the concerned Judge as an
unnumbered election petition. On 18.7.2016, the learned Judge did not
find merit in some of the objections pointed by the Registry and to the
extent some minor corrections were required, which were not material,
one week’s time was granted to respondent Nos.1 & 2 to carry out the
corrections. The needful was done within the stipulated time and it is
thereafter that notices were issued to the appellant.
16. The whole premise of the plea of the appellant is based on the
Registry permitting corrections to be made is, thus, fallacious and,
thus, the presentation of the petition cannot be said to be beyond time
stipulated in Section 81(1) of the said Act. There was, in fact, really no
occasion in these facts for the Court to examine the Registry officer as
was done in the case of Sahodrabai Rai7
.
17. The issue of supply of copies has also been appropriately dealt
with as copies of a transcript and the CD were supplied as also the
translation thereof. This is not the stage to verify as to whether the
translation correctly reflects what was said. In any case it would be a
7 supra
Civil Appeal No.10863/2017 Page 15 of 17
doubtful proposition whether it was mandated that a translation should
also be filed that being possibly a part of the requirement of the High
Court Rules since the record had to be in English. It has rightly been
observed that the phone has been filed and keeping the phone in a
sealed cover or the allegation of non-supply of the chip alleged to be
violative of Section 81(3) of the said Act is not a plea which can be
accepted. At best these are all matters for trial.
18. We are conscious of the fact that the law relating to election is a
technical one as it amounts to a challenge laid to the democratic
process determining the will of the people. An eligible person whether
a candidate or a voter coming to Court, seeking to set aside any
election has to, thus, meet with the technical natures of the election
petition and the provisions prescribed under the said Act as otherwise it
would be fatal to the election petition at the threshold itself. It is in
these circumstances that the principles have been succinctly set out in
Mithilesh Kumar Pandey8
. The observations in that case provide for
clerical and typographical errors to be corrected. Thus, issues like
mentioning of the correct number of annexures or tagging with the file,
8 supra
Civil Appeal No.10863/2017 Page 16 of 17
etc. would all fall within the said Section.
19. Similarly copies of the documents have been supplied to the
appellant and multiple copies of the phone or the chip (which is kept in
a sealed cover) are not mandated to be supplied when the material
relied upon in the phone has been reproduced in CD and a transcription
also provided. The defence of the appellant cannot be said to be
impaired in any manner.
20. We are, thus, of the unequivocal view that the pleas advanced on
behalf of the appellant are meritless and deserve to be rejected.
21. The appeal is accordingly dismissed leaving the parties to bear
their own costs.
..….….…………………….J.
(J. Chelameswar)
...……………………………J.
(Sanjay Kishan Kaul)
New Delhi.
March 08, 2018.
Civil Appeal No.10863/2017 Page 17 of 17
