AMAR PRASAD SATPATHY Vs. SITAKANTA MOHAPATRA

JUDGEMENT

(1.) This application at the instance of the returned candidate arises out of election petition No. 6 of 1996 which is pending disposal. Prayer made in the application is for a direction to strike off the allegations of corrupt practices pleaded in the election petition. The sum and substance of the ground on which such prayer has now been made is that the copy of the election petition supplied to him does not contain the oath/affirmation made by the petitioner before the prescribed authority which is mandatorily required under law and the affidavit being set in conformity with Form 25 and nor in compliance with Rule 94-A of the Conduct of Election Rules, 1961, the allegations of corrupt practices are liable to be struck off.In paragraph 6 of the application, it has been stated as follows :"

(2.) The election petitioner has filed his objection to this application on 19-3-1997. Although the prayer for striking off the allegations of corrupt practices has been resisted on different grounds, which will be dealt with at appropriate stage, there is no denial of the assertion that the copy of the election petition supplied to respondent No. 1, the returned candidate, does not contain any affirmation done by the petitioner before the prescribed authority in terms of Form 25. It had been stated in the objection by the election petitioner that the returned candidate had filed Misc. Case No. 108 of 1995 praying to try issue Nos. 1, 2 and 3 as preliminary issues and to dismiss the election petition (Issue No. 2 is that whether the election petition is liable to be dismissed under S. 26(1) for non-compliance of the provisions contained in Ss. 81, 83 and 117 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act). After hearing the parties, the said misc. case was dismissed on 1-7-1996. The present prayer for deletion of the allegations of corrupt practices on the grounds stated was available to be taken and urged in that case and the same not having been done, the prayer now made is barred by the principle of res judicata. The other ground of objection is that the present application in substance is an application to review the order dated 1-7-1996 and since no valid ground for review has been made out, the application should be rejected. The Court also cannot exercise its inherent power to recall its previous order dated 1-7-1996 which was passed after hearing the counsel for parties. Above all, trial of the election petition is in progress and meanwhile number of witnesses have been examined on behalf of the election petitioner and at this belated stage the present application should not be entertained.

(3.) May it be stated that the Supreme Court in Shipra v. Shanti Lal Kholwal, AIR 1996 SC 1691 : (1996 AIR SCW 1772) has held that the allegations of corrupt practices are serious imputations which, if proved, would entail civil consequences of declaring that the returned candidate became disqualified for election to a maximum period of six years under S. 8-A, apart from being convicted under S. 126(2) of the Act. Verification by the prescribed authority is a vital act which assures that the election petitioner had affirmed before it that the statement containing the allegations of corrupt practices was duly and solemnly verified to be correct statements. For that reason Form 36 mandates verification before the prescribed authority. Compliance of this statutory requirement is an integral part of the election petition and the true copy supplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy of the election petition in his/her own signature. Thus, if the Court finds on an objection being raised by the returned candidate as to the maintainability of the election petition, the Court is required to go into the question and decide the preliminary objection. In case the Court does not uphold the same, the need to conduct trial would arise. If the Court upholds the preliminary objection, the election petition would result in dismissal at the threshold as the Court has left with no option except to dismiss the same. Of-course, if there are other independent issues which are required to be tried and decided on merits, the allegations of corrupt practices alone are required to be struck off.