ABDULRASAKH versus K. P. MOHAMMED & ORS. on 8 March 2018

1. The democratic process of holding State elections was carriedout for the 14[th] Kerala Legislative Assembly on 16.5.2016 in which theappellant contested from the Koduvally Assembly Constituency as anCindependent candidate. The results were declared on 19.5.2016 and theappellant, having obtained the highest number of votes was declared aselected.

2. Respondent Nos.1 & 2 who were stated to be the voters fromthe same constituency filed election petitions on grounds ofDcorrupt practices. The challenge to the election of the appellant waslaid under Section 123(4) of the Representation of People Act, 1951(hereinafter referred to as the ‘said Act’) alleging that the appellantmade false allegations against respondent No.3, a candidate, knowingthe same to be false. Section 123(4) of the said Act reads as under:

“123. Corrupt practices. – The following shall be deemed to beEcorrupt practices for the purposes of this Act: - xxxx xxxx xxxxxxxx xxxx

(4) The publication by a candidate or his agent or by any otherperson [with the consent of a candidate or his election agent], ofFany statement of fact which is false, and which he either believesto be false or does not believe to be true, in relation to the personalcharacter or conduct of any candidate or in relation to thecandidature, or withdrawal, of any candidate, being a statementreasonably calculated to prejudice the prospects of that candidate’selection.”

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3. The election petition is stated to have been filed on 1.7.2016 inwhich certain defects are stated to have been pointed out. It is the caseof the appellant that the petition was returned from the Registry andwas re-presented only on 11.7.2016 by which time the prescribed periodof limitation of 45 days to file such an election petition had expired onH

3.7.2016 and, thus, the election petition was time barred. It is also thesay of the appellant that the Registry had no power to return the electionpetition or permitting curing of any defects. Even on re-presentation,the petition is stated to have been defective and was placed before thelearned single Judge of the Kerala High Court, who by the order dated18.7.2017 granted one week’s time to respondent Nos.1 & 2 to cure thedefects. It is thereafter that notice was issued to all the respondents inthe election petition including the appellant herein.

4. On account of the aforesaid two grounds and more the appel-lant moved an application for summary dismissal of the election petitionunder Section 86 of the said Act read with Section 151 and Order VIRule 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 shalldismiss an election petition which does not comply with theprovisions of section 81 or section 82 or section 117.”

5. The objections filed by the appellant were, however, dismissedvide impugned judgment dated 16.6.2017, by the learned single Judge ofthe Kerala High Court against which the present Special Leave Petitionhas been filed.

Appellant’s contentions:

6. Mr. Rajeev Dhawan, learned Senior Advocate appearing forthe appellant referred to the office notice sheets of the High Court tocanvas his case of the petition being beyond time. He referred to thefact that while the election petition was stated to have been presentedon 1.7.2016, it was also mentioned therein “E.P. filed: 11.07.16”. Thedate of issue of summons is 9.8.2016. He also referred to the notingwhere eight defects were enumerated and below that, there was anendorsement of the counsel appearing for the original petitioner to theeffect that “defect cured” without any date and an endorsement of theDeputy Registrar dated 7.7.2016. The conclusion, he sought to derivefrom these endorsements was the presentation and re-presentation ofthe petition before the Registry, without it being placed before the Court.

7. Learned Senior Advocate referred to the provisions relating topresentation of an election petition to a High Court contained in Chapter A

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AII of the said Act and the mandate for an election petition to meet withthe same in the context of the objections filed by the appellant. Therelevant provisions read as under:

“81. Presentation of petitions.—(1) An election petition callingin question any election may be presented on one or more of thegrounds specified in[sub-section (1)] of section 100 and section101 to the [High Court] by any candidate at such election or anyelector [within forty-five days from, but not earlier than the dateof election of the returned candidate, or if there are more thanone returned candidate at the election and the dates of their electionare different, the later of those two dates].”

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“[(3) Every election petition shall be accompanied by as manycopies thereof as there are respondents mentioned in the petition,and every such copy shall be attested by the petitioner under hisDown 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 ElectionPetition.

ii. Pages 28 and 29 are not properly tagged in 1[st] set.

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iii. Mobile phones produced as Annexure B, C, G and L andCompact Disks produced as Annexure H, M and O are in sealedcovers, cannot be scrutinized.

iv. Mobile phones and CD’s which are material objects are markedas Annexures.

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v. Annexure B, C, G and L (Mobile Phones), stated as “cannot beproduced” in the verification made in copies.

vi. Page 57 which is English translation of Annexure K, producedas Annexure K-1 is stated as English translation of Annexure H.

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vii. No English translation of last four lines appearing at P 35(Annexure E/5) is seen reproduced at P.39, the English translationof Annexure E.

viii. In one of the additional copies of Election Petition AnnexureQ is produced twice.”

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9. Learned counsel took us through the written objections filedby the appellant to which no reply is stated to have been filed byrespondent Nos.1 & 2. In substance what was sought to be canvassedbefore us by reference to the objections is as under:

i. The election petition is barred by time as it had to be presentedfree from all defects before 3.7.2016. The defects were cured and thepetition was re-presented on 11.7.2016.

ii. That the process of returning and re-presentation of the electionpetition in the Registry is alien to the process of an election court.

iii. Production of documents in the sealed cover is impermissiblein law and is not acceptable. The failure to hand over the entire contentsof the items produced in sealed cover is violative of Section 81(3) of thesaid Act and is violative of the principles of natural justice. The appellantwas entitled to the chip of the mobile phone apart from the CD of therelevant portion, the latter having been handed over. Such deprival wouldcause prejudice to the appellant as is deprived of the opportunity to knowthe entire contents.

iv. The defects have been cured by substituting the original page57 filed with the election petition and it is ante dated as the papers havebeen signed subsequent to 1.7.2016.

v. Annexure E-1 was incomplete and not the true Englishtranslation of Annexure E.

10. To buttress the submissions made, learned counsel referred tothe judicial pronouncements dealing with the aspects he was seeking tocanvas. The same are dealt with as under:

i. Satya Narain v. Dhuja Ram &Ors.[1] – it was observed that inthe absence of any provisions under the said Act and the Rulesmade thereunder, the High Court Rules cannot confer upon theRegistrar or the Deputy Registrar any power to permit correctionor removal of defects in an election petition presented in the HighCourt beyond the period of limitation provided under the said Act.

ii. Sahodrabai Rai v. Ram Singh Aharwar[2] - In the given factsof the case the learned Judge trying the case ordered theattendance of the Reader of the Deputy Registrar of the High 1(1974) 4 SCC 237 (para 14)

2(1968) 3 SCR 13

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Court, who had dealt with the election petition and he was examinedas a court witness. A similar course, the counsel contended, wasliable to be followed in the present case when there were doubtsand allegations about the presentation and re-presentation as wasapparent from the office notes.

iii. M. Karunanidhi v. Dr. H.V. Hande & Ors.[3] (para 29) – Theparticular controversy related to the costing of the banners and itwas stated that the same was mentioned wrongly as there weretwo election banners – one of them was a huge fancy banner orhoarding on the left side of the road and the other on the right wasa smaller election banner. The appellant was present in thedepiction of the two groups in both the banners. A photograph ofthe fancy banner was filed but the copy of the same was notsupplied. This was held to be fatal to the petition.

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To appreciate the contention of respondent Nos.1 & 2 herein, itwas stated that they were required to supply to the appellant theDproper photograph while only a black and white photocopy hadbeen supplied.

iv. U.S. Sasidharan v. K. Karunakaran & Anr.[4] (paras 14 &32) – The controversy relating to non-supply of the video cassettewith the election petition was examined and the video cassetteEbeing an integral part of election petition, non-furnishing of thecopy was held to be fatal.

v. Mithilesh Kumar Pandey v. Baidyanath Yadav & Ors.[5](paras 11 & 15) – The Bench of three Judges of this Courtexamined the controversy emanating from the allegation that thecopy supplied to the returned candidate was not really a true copy.FIn the said context the principles were laid down in para 15 asunder:

“15. On a careful consideration and scrutiny of the law on thesubject, the following principles are well established:

(1) that where the copy of the election petition served on thereturned candidate contains only clerical or typographical mistakeswhich are of no consequence, the petition cannot be dismissedstraightway under Section 86 of the Act, G

3(1983) 2 SCC 4734(1989) 4 SCC 482H5(1984) 2 SCC 1

(2) A true copy means a copy which is wholly and substantiallythe same as the original and where there are insignificant or minimalmistakes, the court may not take notice thereof,

(3) where the copy contains important omissions or discrepanciesof a vital nature, which are likely to cause prejudice to the defenceof the returned candidate, it cannot be said that there has been asubstantial compliance of the provisions of Section 81(3) of theAct,

(4) Prima facie, the statute uses the words “true copy” and theconcept of substantial compliance cannot be extended too far toinclude serious or vital mistakes which shed the character of atrue copy so that the copy furnished to the returned candidatecannot be said to be a true copy within the meaning of Section81(3) of the Act, and

(5) As Section 81(3) is meant to protect and safeguard thesacrosanct electoral process so as to not disturb the verdict of thevoters, there is no room forgiving a liberal or broad interpretationto the provisions of the said section.”

In the aforesaid context, it was stated that the translations suppliedby respondent Nos.1 & 2 did not make sense and the access tothe original chip is necessary as the allegation against the appellantis of connivance in making of false allegations against one of thecandidates.

Respondent Nos.1 & 2’s contentions:

11. On the other hand, Mr. Kapil Sibal, learned Senior Advocateappearing for the first two respondents (Original petitioners in the HighCourt) at the threshold itself stated that he has no quibble with all thelegal propositions advanced by the learned senior counsel for theappellant or with the judicial pronouncements referred to aforesaid,however, what was sought to be canvassed was an incorrectrepresentation of what has actually transpired. In this behalf learnedsenior counsel, once again, drew our attention to the notings to contendthat the mention of “E.P. filed: 11.07.16” is obviously a mistake asundisputedly the election petition was presented on 1.7.2016. Theendorsement of the Deputy Registrar shows that the scrutiny took placeon 5.7.2016. The eight defects noticed aforesaid were mentioned on A

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A7.7.2016 whereupon the petition was placed before the learned Judgeon 18.7.2016 as an unnumbered election petition. The learned Judgeopined that the defects noted by the office are not material defects forrejecting the petition in limine under the said Act (the parameters havebeen set out in Mithilesh Kumar Pandey[6]). It is also noted that thequestion whether CD have to be marked as material objects or exhibitsBcould be considered at the time of trial and since the mobile phone cannotbe produced along with each copy, copies of contents in the phone whichthe petitioner wants to rely upon have been produced along with thecopy of the election petition. Sufficiency of this could be consideredlater after appearance of the parties. One week’s time was granted toCcure the minor defects as prayed. Thereafter the defects were curedwithin the time specified and the endorsement made by the counsel forrespondent Nos.1 & 2.

12. We have also examined the impugned judgment passed on16.6.2017, which is a detailed one with supporting case law. SixteenDissues were framed out of which the appellant claimed preliminary hearingin respect of issue Nos.1 to 7. The preliminary issues are reproduced asunder:

“1. Whether the election petition is barred by limitation?

2. Can the defects in the election petition be permitted to be curedEafter the period of limitation prescribed under Section 81 of theRepresentation of People Act?

3. Can the election petition be returned to the petitioner for curingdefects after the period of limitation prescribed under Section 81of the Representation of People Act?F4. Is there power in this Court to permit representation delay tobe condoned when the original delay in presenting election petitionitself is not permissible to be condoned and when there is noprovision for any delay condonation?

5. Whether the defects cured and corrections made in theGelection petition after the period of limitation will relate back tothe date of its presentation?

6. Whether defects cured and corrections made in the electionpetition after presentation are permissible and in compliance with H6supra the mandatory requirements as provided in Sections 81 & 83 ofthe Representation of People Act and Rules framed thereunder?

7. Whether the election petition is maintainable fornon-compliance of mandatory requirements as provided in Sections81, 82, 83 & 117 of the Representation of People Act and Rulesframed thereunder and other requirements of law?”

13. The learned single Judge then on examination of the recordopined that the Registry, after presentation of the petition on 1.7.2016had not returned the petition to the first two respondents but was postedbefore the Bench as per the correct practice, which passed the orderdealing with the objections. On curing of the minor defects, notice wasissued to the appellant.

14. The Kerala High Court Rules (Rule 210) itself provided forscrutiny by the Judge assigned to the case and not by the Registry.There was no violation of this Rule. The defects were also cured onlyafter 18.7.2016. The contents of the conversation recorded in themobile phone have been produced as annexures and CDs and themobile phones were themselves produced. The question of admissibilityof evidence would, thus, have to be examined at the stage of trial.Similarly the photocopy of a photograph could only be a copy taken frommobile phone and at this stage it could not be said that it did not trulyrepresent the contents of what was recorded in the mobile phone, whichwas again a matter of evidence.

Conclusion:

Conclusion:

15. We have examined the submissions of the learned counsel forthe parties and do not find any merit in the appeal. The minorcorrections permitted to be made vide order dated 18.7.2016 are by theCourt. A mountain out of a molehill has been made without appreciatingthe office notings in the true perspective. The Registry was fullyconscious that the eight defects pointed out by it could not be permittedto be cured by the Registry itself and that is why the matter wasdirected to be placed before the concerned Judge as an unnumberedelection petition. On 18.7.2016, the learned Judge did not find merit insome of the objections pointed by the Registry and to the extent someminor corrections were required, which were not material, one week’stime was granted to respondent Nos.1 & 2 to carry out the corrections.The needful was done within the stipulated time and it is thereafter thatnotices were issued to the appellant.

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A16. The whole premise of the plea of the appellant is based on theRegistry permitting corrections to be made is, thus, fallacious and, thus,the presentation of the petition cannot be said to be beyond time stipulatedin Section 81(1) of the said Act. There was, in fact, really no occasionin these facts for the Court to examine the Registry officer as was donein the case of Sahodrabai Rai[7].B

17. The issue of supply of copies has also been appropriatelydealt with as copies of a transcript and the CD were supplied as also thetranslation thereof. This is not the stage to verify as to whether thetranslation correctly reflects what was said. In any case it would be adoubtful proposition whether it was mandated that a translation shouldCalso be filed that being possibly a part of the requirement of the HighCourt Rules since the record had to be in English. It has rightly beenobserved that the phone has been filed and keeping the phone in a sealedcover or the allegation of non-supply of the chip alleged to be violative ofSection 81(3) of the said Act is not a plea which can be accepted. AtDbest these are all matters for trial.

18. We are conscious of the fact that the law relating to electionis a technical one as it amounts to a challenge laid to the democraticprocess determining the will of the people. An eligible person whether acandidate or a voter coming to Court, seeking to set aside any electionEhas to, thus, meet with the technical natures of the election petition andthe provisions prescribed under the said Act as otherwise it would befatal to the election petition at the threshold itself. It is in thesecircumstances that the principles have been succinctly set out in MithileshKumar Pandey[8]. The observations in that case provide for clerical andtypographical errors to be corrected. Thus, issues like mentioning of theFcorrect number of annexures or tagging with the file, etc. would all fallwithin the said Section.

19. Similarly copies of the documents have been supplied to theappellant and multiple copies of the phone or the chip (which is kept in asealed cover) are not mandated to be supplied when the material reliedGupon in the phone has been reproduced in CD and a transcription alsoprovided. The defence of the appellant cannot be said to be impaired inany manner.

7 supra

8 supra

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ABDULRASAKH v. K.P. MOHAMMED & ORS.[SANJAY KISHAN KAUL, J.]

20. We are, thus, of the unequivocal view that the pleas advancedon behalf of the appellant are meritless and deserve to be rejected.

21. The appeal is accordingly dismissed leaving the parties to beartheir own costs.

Divya Pandey

Appeal dismissed.

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