Case: Tirath Singh Vs. Bachittar Singh And Others

1. The appellant was a candidate for election to the Legislative Assembly of the State of PEPSU from the Dhuri Constituency and having secured the largest number of votes was declared duly elected. The first respondent who is one of the electors in the Constituency filed the petition out of which the present appeal arises, for setting aside the election on the grounds, inter alia, (1) that the nomination of one Mali Singh had been wrongly rejected by the returning officer, and (2) that the appellant was guilty of the corrupt practice ofTribunal held that both these grounds were made out, and accordingly set aside the election. It further recorded a finding in terms of S. 99(1)(a), Representation of the People Act 43 of 1951 that the appellant was proved to have committed the corrupt practice of bribery as mentioned in S. 123(1) of the Act. The Appellant thereupon filed in the High Court of Patiala and East Punjab States Union an application under Art. 227 attacking the finding of the Tribunal that he was guilty oforder of the Tribunal in so far as it set aside his election was not challenged. By order dated 12-1-1954 the High Court upheld the findings of the Tribunal, and dismissed the application, and by order dated 7-6-1954 granted a certificate for appeal to this Court under Art, 133(1)(c). That is how the appeal comes before us.

Reasoning: 3. (1) On the first question, the complaint of the appellant is that in the election petition the allegations relating to bribery were vague and wanting in particulars and that the petition should accordingly have been dismissed under Ss. 83 and 85 of the Act; that the charge that was sought to be proved it the hearing was at variance with the charge as alleged in the petition, and that the Tribunal had erred in giving a finding of bribery on the basis not of the allegations in the petition but of the evidence adduced at the trial.It is contended for the appellant that in the petition there was no mention of the bargain on which the finding of bribery by the Tribunal was based, that the charge in the petition related only to the order dated 7-12-1951, and that accordingly it was not open to the petitioner to travel beyond the petition and adduce evidence in proof of a bargain which had not been pleaded. This is to put too technical and narrow a construction on the averments. The charge in the petition was not merely that the appellant had passed the order dated 7-12-1951 but that he had passed it with a view to induce the sweepers to vote for him.That clearly raised the question as to the circumstances under which the order came to be passed, whether it was in the course of official routine as the appellant pleaded, or under circumstances which were calculated to influence thethe circumstances, the complaint that the evidence and the finding as to the bargain went beyond the pleadings and should be ignored appears to be without any substance. It may be that the allegations in the petition are not as full as they might have been; but if the "appellant was really embarrassed by the vagueness of the charge it was open to him to have called for particulars; but he did not do so. At the trial, the petitioner first adduced evidence, and his witnesses spoke to the bargain in November, 1951.It is stated on behalf of the appellant that he objected to the reception of the evidence on the question of bargain, as it was not pleaded. But this is denied by the petitioner in his affidavit filed in the High Court dated 3-12-1953. Even apart from this, the witnesses on behalf of the petitioner gave evidence on his point on the 8th and l1th November, 15th and 16th December, 1952 and on the 2nd February, 1953. Then the appellant entered on his defence. On 26-2-1951 he examined R.W. 4, a member of the small Town Committee, to rebut the evidence on the side of the petitioner, and himself went into the box and deposed to the circumstances under which the order came to be passed.Having regard to the above facts, there is and can be no complaint that the appellant was misled, or was prejudiced by the alleged defect in the pleadings. The contention that is urged for him is that the petition should have been dismissed under section 83 for want of particulars. This was rightly rejected by the High Court as without force, and we are in agreement with it.6. It is next contended that there is no evidence or finding that the sweepers were entitled to vote in the Constituency, or that the appellant was a candidate as defined in S. 79 (2) at the time when the bargain was made. But the allegation in the petition is clear that the order dated 7-12-1951 was made with a view "to induce the sweepers to vote for the appellant". The reply of the appellant to this was that the order was made in the course of official routine and "not to induce the sweepers to vote" for him. Far from there being any specific denial that the sweepers were electors, the reply of the appellant proceeds on the basis that they were entitled towas argued by the learned Attorney General that the giving to a party to a proceeding a second opportunity to be heard was not unknown to law, and he cited the instance of an accused in a warrant case being given a further opportunity to recall and cross-examine prosecution witnesses after charge is framed, and of a civil servant being given an opportunity under Art. 311 to show cause against the action proposed to be taken against him. In a warrant case, the accused is not bound to cross-examine the prosecution witnesses before charge is framed, and in the case of civil servants, the decision that they are entitled, to a second opportunity was based on the peculiar language of Ss. 240 (2), (3) Government of India Act, 1935, and Art. 311 of the Constitution.The appellant also sought support for his contention that notice should be given under the proviso even to persons who are parties to the election petition, in the provision in S. 99 (l)(a)(ii) that the Tribunal might make such recommendations as it thinks proper for exemption of any persons from any dis-qualifications which may have been incurred under Ss. 141 to 143. The argument is that the dis-qualifications mentioned in S. 143 could only be with reference to candidates, as they relate to default in filing return of election expenses or in filing false returns, that before the Tribunal could take action under this provision it would have to give notice to the persons affected thereby who must necessarily be parties to the petition, and that if the proviso applies when action is to be taken. under S. 143, there is no reason why it should not apply when action is to be taken under the other sections of the Act as well.In the present case, the appellant was a party to the petition, and it was his election that was being questioned therein. He had ample opportunity of being heard, and was, in fact, heard, and therefore there was no need to issue a notice to him under the proviso to Section 99 before recording a finding under Section 99 (1) (a) (1). Further, even if we agree with the contention of the appellant that notice under the proviso should be given to a party to the petition, seeing thatthe reliefs which could be claimed in the election petition under S. 84 are those mentioned in S. 96, and that action under S. 9(1)(a) h to be taken at the time when the order under S.98 a pronounced, there is no insuperable difficulty in treating the notice to the party in the election petition as notice for purposes of the proviso to S. 99(1)(a) as well.This reasoning will not apply to persons who are not parties to the petition, and a notice to them will be necessary under the proviso, before they are named.