M R GOPALAKRISHNAN Vs. TACHADY PRABHAKARAN

JUDGEMENT

(1.) Petitioner in the election petition has challenged the right of the first respondent to lead evidence in support of the recrimination filed by the first respondent under S.97 of the Representation of the People Act, 1951, hereinafter referred to as the "Act". Petitioner's counsel prayed that this question may be considered as a preliminary issue before the first respondent is being allowed to lead evidence. Hence I heard both sides on this preliminary question.

(2.) Petitioner has challenged the election of the first respondent from the Kayamkulam Constituency ,in the general election held on 12-6-1991. In the election petition petitioner has prayed for a declaration that the election of the candidate is void and he has sought for a further declaration that he shall be the duly elected candidate. Within 14 days of the date fixed for the appearance of the first respondent, he filed a recrimination under S.97 of the Act. In the recrimination he has given a statement and particulars required under S.83 of the Act. In the recrimination the first respondent alleged that the petitioner had committed corrupt practices in the election and that if he had been the candidate, his election would have been void. In Para.5 of the recrimination petition he specifically stated that this respondent hereby gives notice of his intention to give evidence to prove that the election of the petitioner would have been void if he had been the returned candidate.

(3.) Learned counsel for the petitioner contended that the recrimination filed by the first respondent is not accompanied by a notice as contemplated under the proviso to S.97 of the Act. He has contended that the proviso to S.97 specifically says that the recriminator shall give notice to the High Court of his intention to give evidence and the absence of such a separate notice would disentitle the first respondent from giving evidence in support of his allegations in the recrimination. Learned counsel further proceeds that the proviso to S.97 is mandatory and it requires strict compliance.