Civil Appeal No 2849 of 1987
In Special Leave Petition Civil No 12198 of 1987
From the Judgment and order dated 2691987 of the Bombay High Court in WP No 1459 of 1987
882 G Ramaswamy Additional Solicitor General and Ms A Subhashini for the Petitioner
Dr YS Chitale AM Khanwilkar AS Bhasme and Mrs Jayshree Wad for the Respondents
Dr NM Ghatate and SV Deshpande for the Intervenor
The Judgment of the Court was delivered by VENKATARAMIAH J
We are very much disturbed by the manner in which the High Court of Bombay Aurangabad Bench has interfered not once but twice with the process of election which was being held under the provisions of the Representation of the People Act 1951 hereinafter referred to be the Act  to the Legislative Council of the State of Maharashtra from the Osmanabad cum Latur cum Beed Local Authorities Constituency
The Governor of Maharashtra by a notification dated 18th September 1987 issued under section 16 of the Act called upon six local authorities constituencies in the State of Maharashtra to elect one member from each of the said constituencies in order to fill the vacancies in the Maharashtra Legislative Council which had been caused by the retirement of the members representing the said constituencies on the expiration of their terms of office
On the same day the Election Commission of India the appellant herein issued a notification under section 30 of the Act fixing the calendar of events for the purpose of holding the elections accordingly
Osmanabad cum Latur cum Beed Local Authorities constituency was one of the six constituencies referred to above
According to the notification issued by the Election Commission the last date for making nominations was 25th September 1987
p The date for the scrutiny of nominations was 26th September 1987
The last date for the withdrawal of candidatures was 28th September 1987 and the date on which the Poll if necessary was to be taken was 18th October 1987
The entire election process had to be completed within 21st October 1987
Respondents 1 to 5 Shivaji son of Vishwanath Gangane Prof KS Shinde Prabhakar son of Bapurao Pudale Shankarrao Madhavrao Mane and Ashok son of Rangnath Magar filed a writ petition under Article 226 of the Constitution in Writ Petition No 1459 of 1987 on September 26 1987 before the High Court of Bombay Aurangabad Bench challenging the validity of the notification issued by the Election Commission on 18th September 1987 on the ground that the notification was invalid because the Zilla Parishad of Osmanabad and the Zilla Parishad of Latur district which 883 were within the constituency had not been constituted and the Administrators were appointed to run the said Zilla Parishads and therefore the members of the said Zilla Parishads who were entitled to take part in the said elections had been deprived of their right to participate in the said election
Along with the writ petition an application was made for an interim order and the counsel who moved the said application just prayed for the postponement of the last date for withdrawal of candidatures from 28th September 1987 to Ist October 1987
It is not clear why such a prayer was made
The learned Single Judge before whom the writ petition came up for consideration however passed an order on September 26 1987 issuing notice on the writ petition and passing an interim order ex parte directing the postponement of the last date of withdrawal of candidatures from 28th September 1987 to October 1 1987
A Division Bench of the High Court which was presided over by the learned Single Judge who had issued the interim order earlier heard the writ petition on October 1 1987 and dismissed it by the order passed on the same day
In the course of its order the Division Bench relied on the decision in Inderjit Barua  Ors vs Election Commission of India  Ors 1985 Supp
3 SCR 225AIR 1984 SC 1911 which had laid down that the validity of an election process under the Act could be challenged only in an election petition filed under the Act as provided by Article 329b of the Constitution
While dismissing the writ petition the High Court did not make any observation as to the effect of the interin order passed by it earlier on the election programme
18 candidates withdrew their candidatures by Ist of October 1987 which was the last date for withdrawal of candidatures as per the interim order passed by the High Court
In the circumstances the Election Commission considered it fair to postpone the date of poll from 18th October 1987 as originally notified to some later date in order to secure compliance with the spirit underlying section 30d of the Act which contemplated an interval of 20 days between the last date for withdrawal of candidatures and the date of poll
Ordinarily a week s postponement would have been in the opinion of the Election Commission adequate in the present case but as the postponement of one week would have led to the date of poll falling during the festival season the Election Commission revised the date of poll as Ist November 1987 and notified the change of the date of poll in the official Gazette on 15th October 1987
The Election Commission also notified under the same notification the date before which the election had to be completed as 4th November 1987 instead of 2 1st October 1987 which was the date fixed for that purpose originally
But on 16
l01987 respondent 1 to 5 filed a Review Petition in Civil Application for Review No 2035 of 1987 before the High 884 Court seeking a direction to the effect that the election programme A might be renotified on the ground that clear 20 day s interval was not there between the last date of withdrawal of candidatures and the date of poll which had been originally fixed as 18th October 1987
The said Review Petition came up for consideration on the 16th October 1987 before the very same Bench which had dismissed the Writ Petition earlier on Ist October 1987
On that occasion it is alleged that it was brought to the notice of the High Court by the learned counsel appearing for the State of Maharashtra Collector Osmanabad and the Returning officer for the osmanabad Latur Beed Local Authority Constituency and the District Returning officer for Maharashtra Legislative Council Constituency No 26 osmanabad Latur Beed Local Authority Constituency osmanabad that the Election Commission had on 15
l01987 already postponed the date of poll from 18th October 1987 to the Ist November 1987
Despite the above submission made by the said counsel the High Court was pleased to make the following order on 16th October 1987
Notice before admission
In this matter the election fixed for the 18th October 1987 will have to be stayed till we pass further order on 26th October 1987 looking to the mandatory provision of section 30 of the Representation of the People Act SO till 26 10 1987
 The case was adjourned to October 26 1987 for hearing
Aggrieved by the interim order passed in the writ petition postponing the last date of withdrawal of the candidatures from 28th September 1987 to October 1 1987 and by the interim order passed on October 16 1987 in the Review Petition the Election Commission has filed this appeal by special leave
The Special Leave Petition filed in the above case came up for hearing on October 27 1987
On that date this Court directed issue of notice on the Special Leave Petition and also ordered stay of the operation of the stay order which had been passed by the High Court
The Election Commission was permitted to proceed with the election process
The contesting respondents took notice of the petition in the Court through their counsel
The case was adjourned to 30th October 1987 for final hearing
On 30th October 1987 the case was heard and the Court passed the following order Special leave granted
The appeal is heard
We allow the appeal set aside the order dated 16
l01987 pas 885 sed by the High Court of Bombay at Aurangabad and dismiss the Review Petition No 2035 of 1987 in writ petition No 1459 of 1987
The Election Commission shall proceed with the election in accordance with law
Respondent Nos 1 to 5 shall pay Rs5000 by way of costs to the appellant
Reasons will follow
 The appeal was accordingly allowed with costs
The following are the reasons for allowing the appeal
Part XV of the Constitution contains the provisions relating to the elections
Article 3241 of the Constitution vests the superintendence direction and control of the preparation of the electoral rolls for and the conduct of all elections to Parliament and to the Legislature of every State and of elections to the offices of the President and the Vice President held under the Constitution in the Election Commission
Article 327 of the Constitution provides that subject to the provisions of the Constitution Parliament may from time to time by law make provision with respect to all matters relating to or in connection with elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls the delimitation of constituencies and all other matters necessary for securing the due constitution of each House or Houses
In exercise of the power granted under Article 327 of the Constitution Parliament has enacted the Act to provide for the conduct of elections to the either House of Parliament to the House or either House of the Legislature of each State qualifications and disqualifications for membership of those Houses corrupt practices and other offences in connection with such elections and the decision of doubts and disputes arising out of or in connection with the such elections
Article 329b of the Constitution provides that notwithstanding anything contained in the Constitution no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature
The disputes regarding the elections have to be settled in accordance with the provisions contained in Part VI of the Act
Section 80 of the Act states that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act
The expression election  is defined by section 2d of the Act as an election to fill a seat or seats in either House of Parlia 886 ment or in the House or either House of the Legislature of a State A other than the State of Jammu and Kashmir
Thus a dispute regarding election to the Legislative Council of a State can be raised only under the provisions contained in Part VI of the Act
Section 80A of the Act provides that the Court having jurisdiction to try an election petition shall be the High Court
An election petition has to be presented in accordance with section 81 of the Act
In view of the non obstante clause contained in Article 329 of the Constitution the power of the High Court to entertain a petition questioning an election on whatever grounds under Article 226 of the Constitution is taken away
The word election  has by long usage in connection with the process of selection of proper representatives in democratic institutions acquired both a wide and a narrow meaning
In the narrow sense it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll
In the wide sense the word is used to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Part XV of the Constitution in which Article 329b occurs
In NP Ponnuswami vs Returning officer Namakkal Constituency and Ors  this Court held that the scheme of Part XV of the Constitution and the Act seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special Tribunal and should not be brought up at an intermediate stage before any court
Any other meaning ascribed to the words used in the article would lead to anomalies which the Constitution could not have contemplated one of them being any dispute relating to the pre polling stage
In the above decision this Court ruled that having regard to the important functions which the legislatures have to perform in democratic countries it had always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections were over so that the election proceedings might not be unduly retarded or protracted
Hence even if there was any ground relating to the noncompliance with the provisions of the Act and the Constitution on which the validity of any election process could be questioned the person interested in questioning the elections has to wait till the election is over and institute a petition in accordance with section 81 of the Act calling in question the election of the successful candidate within fortyfive days from the date of election of the returned candidate but not earlier than the date of election
This view has been reaffirmed by 887 this Court in Lakshmi Charan Sen  Ors
vs AKM Hassan Uzzaman  Ors
etc 1985 Supp 1 SCR 493 and in Inderjit Barua  Ors etc
vs Election Commission of India  Ors
supra
Realising the effect of Article 329 b of the Constitution the High Court even though it had by oversight issued an interim order in writ Petition No 1459 of 1987 on 2691987 postponing the last date for withdrawal of candidatures to Ist October 1987 dismissed the petition by its judgment dated 1101987
The relevant part of its judgment reads as follows The challenge must fail mainly on two grounds
First on the ground that the stage has reached of withdrawals of nominations for the said election which was infact fixed on 30th but has been postponed because of our orders as on today
Article 329b bars every challenge to any election including all the election process which commences from the date of notification in the official Gazette except by way of election petition under the Representation of People Act
Mr Chapalgaonkar appearing for the respondent has relied upon a decision reported in AIR 1984 Supreme Court page 1911 to support this plea that all election including every election process must be challenged only by way of election petition under the Representation of the People Act
 Having thus dismissed the petition on 1 l01987 the Court committed a serious error in entertaining a Review Petition in the very same writ petition on 1611987 and passing an order staying election which had been earlier fixed for 18
l01987 till further orders looking to the mandatory provisions of section 30 of the Representation of the People Act
The High Court tailed to recall to its mind that it was not its concern under Article 26 of the Constitution to rectify any error even if there was an error committed in the process of election at any stage prior to the declaration of the result of the election notwithstanding the fact that the error in question related to a mandatory provision of the statute relating to the conduct of the election If there was any such error committed in the course of the election process the Election Commission had the authority to set it right by virtue of power vested in it under Article 324 of the Constitution as decided in Mohinder Singh Gill  Anr
vs The Chief Election Commissioner New Delhi  Ors
and to see that the election process was completed in a fair manner
888 It is true that the Zilla Parishads of Osmanabad and the Latur districts had not been constituted and administrators were functioning in their place
The total voters in the local authorities constituency in question were 577 out
Of which 533 were members of Municipal Councils and 44 were members of the Zilla Parishads
Even if the Zilla Parishads of osmanabad and Latur districts had been in existence the total number of their members would not have exceeded above 110
As such more than 34th of the voters entitled to vote in the constituency in question were in existence
The Election Commission had a guideline that if at least 75 of the local authorities in a local authority constituency were functioning and again at least 75 of the voters in the total electorate were available then the electorate should be asked to elect their representative to the Legislative Council
In the instant case 75 of the total electorate including the number of members of the Zilla Parishads of Osmanabad and Latur districts who would have been voters had the said Zilla Parishad been constituted were entitled to participate
Since the existing position in the constituency satisfied the guideline prescribed by the Election Commission the election from the said constituency had been ordered
It was only on account of the interim order passed by the High Court on 2691987 postponing last date for withdrawal of candidatures from 2891987 to 1101987 and not on account of any mistake committed by the Election Commission the interval between the last date of withdrawal and the date of poll which had been originally fixed as 18101987 fell short of the period of twenty days prescribed by clause d of section 30 of the Act
After the judgment of the High Court was pronounced dismissing the writ petition on 1
101987 in order to ensure that there was an interval of 20 days between the last date for the withdrawal of candidatures and the date of poll the Election Commission had on its own postponed the date of poll to 1111987 and had published a notification in the official Gazette of the State Government even before the Court passed another interim order on 16101987 in the Review Petition
All these changes in the calendar of events of the election in question came about because of the earlier interim order of the High Court
It has to be stated here that it is not the law that every non compliance with the provisions of the Act or of the Constitution will vitiate an election
It is only when it is shown that the result of the election was materially affected by such non compliance the High Court would have jurisdiction to set aside an election in accordance with section 1001div of the Act
The High Court was in error in thinking that it alone had the exclusive power to protect the democracy
The success of democracy is dependent upon the cooperation of the Legislature the Executive the Judiciary the Election Commission the press the 889 political parties and above all the citizenry and each of them discharging the duties assigned to it
Every member of the body politic should play his legitimate role for the success of the democracy
Some times the success of democracy also depends upon the observance of restraint on the part of the constitutional functionaries
We are constrained to observe that the High Court grievously erred in entertaining the review petition and in passing an interim order on 16
101987
We are of the view that both the interim orders the one passed on 2691987 postponing the last date of withdrawal of candidatures from 2891987 to 1101987 and the other passed on 16101987 were without jurisdiction
There was hardly any justification for entertaining the review petition in the circumstances of this case and for issuing notice thereon particularly after the High Court
itself had rejected the writ petition on the ground that it had no jurisdiction to interfere with the process of election at that stage in view of the provisions of Article 329b of the Constitution
The review petition filed before the High Court was liable to be dismissed
We directed respondents 1 to 5 to pay Rs5000 to the appellant by way of costs since the entire proceedings in the High Court amounted to a clear abuse of the process of law
These are the reasons for our order passed on 30
101987 allowing the appeal
SL Appeal allowed


Summary:
 The respondent Pollonji Darabshaw Daruwalla was an appraiser in the Customs Department
The police searched his residential premises on a suspicion of his complicity in certain offences concerning the export of the Stainless Steel Ware in the course of the investigation of that case
Though nothing incriminatory for the purpose of that investigation was discovered the search revealed that the respondent was in possession of property and pecuniary resources disproportionate to his known sources of income between 141958 and 31121968 for which he could not satisfactorily account for
This led to the suspicion of the commission by the respondent of an offence under the Prevention of Corruption Act 1947 and the respondent was charge sheeted for an offence under section 51e read with section S2 of the Act
In support of the charge a number of documents pertaining to the respondent s investments in the banks in the company deposits and on shares both in his own name and jointly with his wife as also the documents pertaining to the salary and emoluments of the respondent between 141958 and 31121968 were brought on record in evidence
The defence was that the respondent was in possession of substantial assets even anterior to 141958
The Special Judge held the respondent guilty and sentenced him to rigorous imprisonment and fine
The respondent filed an appeal before the High Court against the Judgment and order of the Special Judge
The High Court allowed the appeal and acquitted the respondent
The State appealed to this Court by special leave against the decision of the High Court
Dismissing the appeal the Court  HELD In order to establish that a public servant is in possession of pecuniary resources and property disproportionate to his known 907 sources of income it is not imperative that the period of reckoning be spread out for the entire stretch of anterior service of the public servant
There can be no general rule or criterion valid for all cases in regard to the choice of the period for which accounts are taken to establish criminal misconduct under section S1e of the Act
The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests
However the period must be such as to enable a true and comprehensive picture of the known sources of the income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf which are alleged to be so disproportionate
A ten year period cannot be said to be incapable of yielding such a true and comprehensive picture
The assets spilling over from the anterior period if their existence is probablised would of course have to be given credit to on the income side and would go to reduce the extent and quantum of the disproportion
It is for the prosecution to choose what is the period having regard to the acquisitive activities of the public servant and characterise and isolate that period for special scrutiny
In this case the selection of a ten year period between 141958 and 31121968 cannot by reason alone of the choice of the period be said to detract from the maintainability of the prosecution and the view of the High Court on these points is erroneous
913C F 914E 915C D Once the prosecution establishes the essential ingredients of the offence of criminal misconduct by proving that the public servant is or was at any time during the period of his offence in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution the prosecution has discharged its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence
It then becomes necessary for the public servant to satisfactorily account for the possession of such properties and pecuniary resources
It is erroneous to predicate that the prosecution should also disprove the existence of the possible source of the public servant
914G H 915A B Equally erroneous and unsustainable is the view of the High Court on the proposition that the respondent was not the beneficial owner in the joint bank investments where the respondent s name was not the first name but his wife s name occurred first
The assumption that in all the joint deposits the depositor first named alone is the beneficial owner and the depositor named second has no such beneficial interest is erroneous
The matter is principally guided by the terms of the agreement inter se between the joint depositors
If however the 908 terms of the acceptance of the deposit by the depositee stipulate that the name of the beneficial owner shall alone be entered first then the presumptive beneficial interest in favour of the first depositor might be assumed
There was no such material before the Court in the case
The respondent virtually acknowledged his beneficial interest in the deposits in the course of his examination under section 342 Cr
PC 915D G However though there are errors of approach and of assumption and inference in the judgment under appeal they did not by themselves detract from the conclusion reached by the High Court that in the ultimate analysis the prosecution had not established the case against the respondent beyond reasonable doubt
The conclusion reached by the High Court tends to show that the disproportion of the assets in relation to the known sources of income was such as to entitle the respondent to be given the benefit of doubt though however on a consideration of the matter it could not be said that there was no disproportion or even a sizeable disproportion for instance the acceptance by the High Court of the case of receipt by the respondent of the alleged gift from his mother was wholly unsupported by the evidence
There were also other possible errors in the calculations in regard to the carried forward assets etc
The finding became inescapable that the assets were in excess of the known sources of income
But on the question whether the extent of the disproportion was such as to justify a conviction for criminal misconduct under section 5le read with section 52 the Court thought it should not in the circumstances of the case interfere with the verdict of the High Court as in the Court s view the difference would be considerably reduced in the light of the factors pointed out by the High Court
A somewhat liberal view was required to be taken of what proportion of assets in excess of the known sources of income constitutes disproportion for the purposes of section 51e of the Act
915G H 916A D The respondent should have the benefit of doubt
State of Maharashtra vs Wasudeo Ramachandra AIR 1989 SC 1189 referred to
916E