Case: Charan Lal Sahu Vs. Nandkishore Bhatt &amp; Ors

1. This appeal is against an order of the High Court of Madhya Pradesh by which the election petition filed by the appellant was dismissed for failure to deposit the security as required under Section 117 of the Representation of the People Act, l951 ~ hereinafter called the Act. The facts in brief are, that for the elections held in 1972 respondents l to 5 were elected as members of the Legislative Council of Madhya Pradesh. The appellant presented an election petition on June 26, 1972, but did not deposit Rs. 2000/- security as required under Section 117 of the Act, which inter alla provides asSecurity for costs.-(1) At the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the rules of the High Court a sum of two thousand rupees as security for the costs of the petition.(2) During the course of the trial of an election petition, the High Court may, at any time, call upon the petitioner to give such further security for costs as it maywas contended before the High Court by the petitioner/appellant that the trial had not started, that S. 117 of the Act is only directory and not mandatory and that the deposit of Rs. 2000/- is only to secure the costs in the course of the trial of the election petition as such dismissal of the petition for non-compliance with it is a penalty -which is not one of the penalties prescribed under Section 118 of the Act. The High Court rejected all these contentions holding that it was mandatory for the petitioner when filing an election petition to deposit the amount of Rs. 2000/under Section 117 of the Act and there is no provision under which a discretion was conferred on the High Court to reduce the amount of security deposit as prayed for by him. The High Court referred to sub-section (2) of Section 117 under which the High Court has been empowered to call upon the petitioner to give such further security for costs as it may direct, which clearly indicates that while there is a provision empowering the High Court to call upon the petitioner to give such further security for costs, there is no provision similarly empowering it to absolve the petitioner from making any security deposit or to reduce the amount required to be deposited under the Act.

Reasoning:
Presentation of the petition under the repealed S. 81, beyond the period prescribed for its presentation could be condoned by the Election Commission in its discretion under the proviso to the repealed S. 85 of the Act, but there is nothing in Section 85 which permits the Election Commission to condone the non-compliance with the provisions of Section 117. Before the amendment of the Act in 1966, once the Election Commission finds the election petition to be in order and does not dismiss it under S. 85 for non-compliance with the requirements of Ss. 81, 83 and 117, it has to appoint an Election Tribunal for the trial of the petition. The trial by the Tribunal therefore is only after compliance with the mandatory provisions prescribed in Sections 81, 83 and 117 so that the trial is unrelated to the non-compliance by the petitioner with the requirements of Section 117. After the amendment, the jurisdiction of both the Election Commission and the Tribunal in respect of election disputes has been abolished and the High Courts of respective States have been vested with the jurisdiction in this regard. But the conferment of jurisdiction to entertain try and determine an election petition has not in any was materially affected the position stated by us, as will be presentlyare unable to appreciate how the repealed Section 85 of the Act furthers the submission of the petitioner or has any relevance. It is apparent that prior to repeal by Act 47 of 1966, Section 81 provided for the presentation of the election petition by any candidate aggrieved by the result of the election to the Election Commission; Section 83 prescribed what the contents of the petition shouldexamination of this decision does not support this contention of the appellant. That was a case under the unamended S. 117 of the Act under which the petitioner was required to enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees had been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of thedecision, therefore, cannot come to the rescue of a petitioner who has failed to deposit the security as required under Section 117 of the Act or has paid less than the amount specified therein. The decision in Lalaram v.The Supreme Court of India AIR 1967 SC 847   has no relevance to the matter in issue because as pointed out by the High Court that case relates to security being furnished for filing a review petition under the Supreme Court Rules, which, stands on a different footing.5. The argument of the appellants advocate that in view of the marginal note to Section 86 election petition can only be dismissed after the trial has commenced by the issue of a notice to the respondent is equally without substance. Amended S. 86 apart from(1) provides for several matters in(2) to (7) such as for reference of the election petition or election petitions, where there is more than one in respect of the same election, to a Judge, the ordering of security for costs in case of the application by a candidate who is not already a respondent being made a respondent, the permission to amend or amplify particulars of an corrupt practice alleged in the petition, the continuance of the trial of the election petition from day to day and its expeditious trial to be concluded as far as possible within six months from the presentation of the petition to the High Court. The reference to Trial is in a larger sense and deals with the steps in a trial rather than in a narrower sense of a trial commencing after the notice of the petition is directed to be served on the respondent. The marginal note of Section 36, namely, "Trial of election petitions can not indicate that under(l) of Section 86 an election petition cannot be dismissed forwith the provisions set out therein, unless notice is issued to the respondent. Where the language is clear and can admit of no other meaning such as is evident from(1) of Section 86, the marginal note cannot be read to control that power.