PARSHOTTAMDAS TALSHIBHAI Vs. LILUBHAI KISHOREBHAI PATEL

JUDGEMENT

(1.) AFTER stating the facts and discussing the evidence His Lordship proceeded ). Mr. Chari contended that, in any event, there has been a procedural irregularity in the trial before the Election Tribunal and that, on that account, the order passed by the Tribunal is liable to be set aside. Our attention was invited to Ss. 98, 99 and 100 of the Representation of the People Act. Section 98 of the Representation of the People Act provides "at the conclusion of the trial of an election petition the Tribunal shall make an order (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void, or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected". Section 99 provides :

(2.) IN this case, the Tribunal held that the appellant was guilty of corrupt practices and under S. 98 (b) of the Act the election of the appellant has been declared to be void'. By S. 99, the Tribunal was required, a charge of corrupt practices having, been made, to record a finding whether any corrupt practice has or has not been proved to have been committed by, or with the consent of, the appellant. That finding has been recorded. But the Tribunal has not chosen to name persons other than the appellant who were found at the trial guilty of corrupt practice and the nature of that practice. The Tribunal, in paragraph 46 of its judgment, observed : "the evidence shows that Thakorlal Chhotalal, Kantilal Chimanlal and Jasbhai Dahyabhai have committed the corrupt practice of bribery because of the entertainment with tea. However, (before), they can be named in the order on this petition, they must be served with notices and given the opportunities mentioned in provisions (a) and (b) of S. 99 (1 ). However, these persons are co-accused with the successful candidate in the pending criminal case before the Magistrate of Umreth. If they are found guilty in that case, it will have the same effect as being named as: guilty of the corrupt practice before us. If they are acquitted in that case, they cannot be apparently rightly guilty of the corrupt practice before us. In view of the pending criminal case, it would be unnecessarily embarrassing them by serving them with; notices and giving them a chance in the present trial to be heard for seeing whether they should be named as guilty of the corrupt practice.

(3.) MR. Chari urged that the Tribunal had no discretion, having regard to the language used in S. 99 of the Representation of the People Act, to name or not to name any person as guilty of a corrupt practice. Counsel urged that, when a decision of the Tribunal is given, the requirement of Ss. 98 and 99, in so far as they are applicable, must be strictly complied with and the Legislature having used the expression "shall" in S. 99 (1), it was obligatory upon the Tribunal first to record, when a charge was made in the petition of the commission 'of corrupt practice,. a finding whether the corrupt practice is or is not proved to have been committed by, or with the consent of, the candidate, and also to name all the persons who have been proved to have been guilty. That interpretation of S. 99 is not acceptable to us. Undoubtedly the Tribunal, if it is satisfied that certain persons have been proved at the trial to be guilty of corrupt practices may name them. However before the Tribunal names them, the Tribunal must follow the procedure presented by the proviso to S. 99. In our judgment, having regard to the scheme of S. 99, no obligation is cast upon the Tribunal to name any person, if, in the light of the circumstances, the Tribunal thinks that the course is advisable. If the confention advanced by Mr, Chari that in every case where a corrupt practice is alleged and the Tribunal is of the view that persons other than those who are really parties to the election petition have been guilty of corrupt practice, they shall be named in the order, is to be accepted, numerous difficulties may arise in the trial of election cases. For instance, a person who, in the view of the Tribunal, on an inquiry about a returned candidate, has been proved to be guilty of a corrupt practice may have disappeared or died. If literal meaning be ascribed to the phraseology used in S. 99, the Tribunal must issue notice even to a person who has disappeared and serve him and then give him a hearing, and before a decision is recorded as to his guilt no final order can be passed under S. 98. We do not think that the Legislature intended that the finality of the order to be passed under S 98 must depend upon the conclusion of the inquiry which is contemplated by the proviso to S. 99. Again, by S. 99 (1) (b) it is provided that the Tribunal shall fix the total amount of costs payable and specify the persons by and to whom costs shall be paid. But, if in case the Tribunal holds that no costs need be paid, there will be no reason why the total amount of costs should be fixed and specified in the order. In our judgment, notwithstanding the use of the word "shall" in S. 99 (1 ). the Legislature intended that if the Tribunal is of the view that any persons, who are proved to be guilty of corrupt practices, should be named, it must hold an inquiry for the purposes of naming the persons, but if having regard to the circumstances of the case the Tribunal thinks it unnecessary to name such persons in the final order, the holding of an enquiry prescribed by the proviso is not obligatory.