Election Petition – non supply of Chip is not violative of sec.81[3] = whether it was mandated that a translation should also be filed that being possibly a part of the requirement of the High Court Rules since the record had to be in English. It has rightly been observed that the phone has been filed and keeping the phone in a sealed cover or the allegation of non-supply of the chip alleged to be violative of Section 81(3) of the said Act is not a plea which can be accepted. At best these are all matters for trial. = Similarly copies of the documents have been supplied to the appellant and multiple copies of the phone or the chip (which is kept in a sealed cover) are not mandated to be supplied when the material relied upon in the phone has been reproduced in CD and a transcription also provided. The defence of the appellant cannot be said to be impaired in any manner. We are, thus, of the unequivocal view that the pleas advanced on behalf of the appellant are meritless and deserve to be rejected.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.10863 of 2017

ABDULRASAKH ….Appellant

versus

K.P. MOHAMMED & ORS. ..…Respondents

J U D G M E N T

SANJAY KISHAN KAUL, J.

The facts:

1. The democratic process of holding State elections was carried

out for the 14th Kerala Legislative Assembly on 16.5.2016 in which the

appellant contested from the Koduvally Assembly Constituency as an

independent candidate. The results were declared on 19.5.2016 and the

appellant, having obtained the highest number of votes was declared as

elected.

2. Respondent Nos.1 & 2 who were stated to be the voters from the

same constituency filed election petitions on grounds of corrupt

Civil Appeal No.10863/2017 Page 1 of 17

practices. The challenge to the election of the appellant was laid under

Section 123(4) of the Representation of People Act, 1950 (hereinafter

referred to as the ‘said Act’) alleging that the appellant made false

allegations against respondent No.3, a candidate, knowing the same to

be false. Section 123(4) of the said Act reads as under:

“123. Corrupt practices. – The following shall be deemed to be

corrupt practices for the purposes of this Act: –

xxxx xxxx xxxx xxxx xxxx

(4) The publication by a candidate or his agent or by any other

person [with the consent of a candidate or his election agent], of

any statement of fact which is false, and which he either believes

to be false or does not believe to be true, in relation to the

personal character or conduct of any candidate or in relation to

the candidature, or withdrawal, of any candidate, being a

statement reasonably calculated to prejudice the prospects of that

candidate’s election.”

3. The election petition is stated to have been filed on 1.7.2016 in

which certain defects are stated to have been pointed out. It is the case

of the appellant that the petition was returned from the Registry and

was re-presented only on 11.7.2016 by which time the prescribed

period of limitation of 45 days to file such an election petition had

expired on 3.7.2016 and, thus, the election petition was time barred. It

is also the say of the appellant that the Registry had no power to return

Civil Appeal No.10863/2017 Page 2 of 17

the election petition or permitting curing of any defects. Even on representation,

the petition is stated to have been defective and was

placed before the learned single Judge of the Kerala High Court, who

by the order dated 18.7.2017 granted one week’s time to respondent

Nos.1 & 2 to cure the defects. It is thereafter that notice was issued to

all the respondents in the election petition including the appellant

herein.

4. On account of the aforesaid two grounds and more the appellant

moved an application for summary dismissal of the election petition

under Section 86 of the said Act read with Section 151 and Order VI

Rule 16, Order VII Rule 11 of the Code of Civil Procedure, 1908

(hereinafter referred to as the ‘said Code’). The relevant provision,

being Section 86 (1) of the said Act, reads as under:

“86. Trial of election petitions. – (1) The High Court shall

dismiss an election petition which does not comply with the

provisions of section 81 or section 82 or section 117.”

5. The objections filed by the appellant were, however, dismissed

vide impugned judgment dated 16.6.2017, by the learned single Judge

of the Kerala High Court against which the present Special Leave

Petition has been filed.

Civil Appeal No.10863/2017 Page 3 of 17

Appellant’s contentions:

6. Mr. Rajeev Dhawan, learned Senior Advocate appearing for the

appellant referred to the office notice sheets of the High Court to

canvas his case of the petition being beyond time. He referred to the

fact that while the election petition was stated to have been presented

on 1.7.2016, it was also mentioned therein “E.P. filed: 11.07.16”. The

date of issue of summons is 9.8.2016. He also referred to the noting

where eight defects were enumerated and below that, there was an

endorsement of the counsel appearing for the original petitioner to the

effect that “defect cured” without any date and an endorsement of the

Deputy Registrar dated 7.7.2016. The conclusion, he sought to derive

from these endorsements was the presentation and re-presentation of

the petition before the Registry, without it being placed before the

Court.

7. Learned Senior Advocate referred to the provisions relating to

presentation of an election petition to a High Court contained in

Chapter II of the said Act and the mandate for an election petition to

meet with the same in the context of the objections filed by the

appellant. The relevant provisions read as under:

Civil Appeal No.10863/2017 Page 4 of 17

“81. Presentation of petitions.—(1) An election petition

calling in question any election may be presented on one or

more of the grounds specified in[sub-section (1)] of section

100 and section 101 to the [High Court] by any candidate at

such election or any elector [within forty-five days from, but

not earlier than the date of election of the returned candidate,

or if there are more than one returned candidate at the election

and the dates of their election are different, the later of those

two dates].”

xxxx xxxx xxxx xxxx xxxx

“[(3) Every election petition shall be accompanied by as many

copies thereof as there are respondents mentioned in the

petition, and every such copy shall be attested by the petitioner

under his own signature to be a true copy of the petition.]”

8. The defects pointed out by the Registry are as under:

“i. Sec 80A of the R.P. Act is not provision shown in the Election

Petition.

ii. Pages 28 and 29 are not properly tagged in 1st set.

iii. Mobile phones produced as Annexure B, C, G and L and

Compact Disks produced as Annexure H, M and O are in sealed

covers, cannot be scrutinized.

iv. Mobile phones and CD’s which are material objects are

marked as Annexures.

v. Annexure B, C, G and L (Mobile Phones), stated as “cannot be

produced” in the verification made in copies.

Civil Appeal No.10863/2017 Page 5 of 17

vi. Page 57 which is English translation of Annexure K,

produced as Annexure K-1 is stated as English translation of

Annexure H.

vii. No English translation of last four lines appearing at P 35

(Annexure E/5) is seen reproduced at P.39, the English

translation of Annexure E.

viii. In one of the additional copies of Election Petition

Annexure Q is produced twice.”

9. Learned counsel took us through the written objections filed by

the appellant to which no reply is stated to have been filed by

respondent Nos.1 & 2. In substance what was sought to be canvassed

before us by reference to the objections is as under:

i. The election petition is barred by time as it had to be

presented free from all defects before 3.7.2016. The defects

were cured and the petition was re-presented on 11.7.2016.

ii. That the process of returning and re-presentation of the

election petition in the Registry is alien to the process of an

election court.

iii. Production of documents in the sealed cover is

impermissible in law and is not acceptable. The failure to hand

over the entire contents of the items produced in sealed cover

Civil Appeal No.10863/2017 Page 6 of 17

is violative of Section 81(3) of the said Act and is violative of

the principles of natural justice. The appellant was entitled to

the chip of the mobile phone apart from the CD of the relevant

portion, the latter having been handed over. Such deprival

would cause prejudice to the appellant as is deprived of the

opportunity to know the entire contents.

iv. The defects have been cured by substituting the original

page 57 filed with the election petition and it is ante dated as

the papers have been signed subsequent to 1.7.2016.

v. Annexure E-1 was incomplete and not the true English

translation of Annexure E.

10. To buttress the submissions made, learned counsel referred to

the judicial pronouncements dealing with the aspects he was seeking to

canvas. The same are dealt with as under:

i. Satya Narain v. Dhuja Ram &Ors.1

– it was observed that in

the absence of any provisions under the said Act and the Rules

made thereunder, the High Court Rules cannot confer upon the

1 (1974) 4 SCC 237 (para14)

Civil Appeal No.10863/2017 Page 7 of 17

Registrar or the Deputy Registrar any power to permit

correction or removal of defects in an election petition

presented in the High Court beyond the period of limitation

provided under the said Act.

ii. Sahodrabai Rai v. Ram Singh Aharwar2

– In the given facts

of the case the learned Judge trying the case ordered the

attendance of the Reader of the Deputy Registrar of the High

Court, who had dealt with the election petition and he was

examined as a court witness. A similar course, the counsel

contended, was liable to be followed in the present case when

there were doubts and allegations about the presentation and

re-presentation as was apparent from the office notes.

iii. M. Karunanidhi v. Dr. H.V. Hande & Ors.3

(para 29) – The

particular controversy related to the costing of the banners and

it was stated that the same was mentioned wrongly as there

were two election banners – one of them was a huge fancy

banner or hoarding on the left side of the road and the other on

2 (1968) 3 SCR 13

3 (1983) 2 SCC 473

Civil Appeal No.10863/2017 Page 8 of 17

the right was a smaller election banner. The appellant was

present in the depiction of the two groups in both the banners.

A photograph of the fancy banner was filed but the copy of the

same was not supplied. This was held to be fatal to the

petition.

To appreciate the contention of respondent Nos.1 & 2 herein, it

was stated that they were required to supply to the appellant

the proper photograph while only a black and white photocopy

had been supplied.

iv. U.S. Sasidharan v. K. Karunakaran & Anr.4

(paras 14 &

32) – The controversy relating to non-supply of the video

cassette with the election petition was examined and the video

cassette being an integral part of election petition, nonfurnishing

of the copy was held to be fatal.

v. Mithilesh Kumar Pandey v. Baidyanath Yadav & Ors.5

(paras 11 & 15) – The Bench of three Judges of this Court

examined the controversy emanating from the allegation that

4 (1989) 4 SCC 482

5 (1984) 2 SCC 1

Civil Appeal No.10863/2017 Page 9 of 17

the copy supplied to the returned candidate was not really a

true copy. In the said context the principles were laid down in

para 15 as under:

“15. On a careful consideration and scrutiny of the law on the

subject, the following principles are well established:

(1) that where the copy of the election petition served on the

returned candidate contains only clerical or typographical

mistakes which are of no consequence, the petition cannot be

dismissed straightway under Section 86 of the Act,

(2) A true copy means a copy which is wholly and substantially

the same as the original and where there are insignificant or

minimal mistakes, the court may not take notice thereof,

(3) where the copy contains important omissions or

discrepancies of a vital nature, which are likely to cause

prejudice to the defence of the returned candidate, it cannot be

said that there has been a substantial compliance of the

provisions of Section 81(3) of the Act,

(4) Prima facie, the statute uses the words “true copy” and the

concept of substantial compliance cannot be extended too far

to include serious or vital mistakes which shed the character of

a true copy so that the copy furnished to the returned candidate

cannot be said to be a true copy within the meaning of Section

81(3) of the Act, and

(5) As Section 81(3) is meant to protect and safeguard the

sacrosanct electoral process so as to not disturb the verdict of

the voters, there is no room forgiving a liberal or broad

interpretation to the provisions of the said section.”

In the aforesaid context, it was stated that the translations

Civil Appeal No.10863/2017 Page 10 of 17

supplied by respondent Nos.1 & 2 did not make sense and the

access to the original chip is necessary as the allegation against

the appellant is of connivance in making of false allegations

against one of the candidates.

Respondent Nos.1 & 2’s contentions:

11. On the other hand, Mr. Kapil Sibal, learned Senior Advocate

appearing for the first two respondents (Original petitioners in the High

Court) at the threshold itself stated that he has no quibble with all the

legal propositions advanced by the learned senior counsel for the

appellant or with the judicial pronouncements referred to aforesaid,

however, what was sought to be canvassed was an incorrect

representation of what has actually transpired. In this behalf learned

senior counsel, once again, drew our attention to the notings to contend

that the mention of “E.P. filed: 11.07.16” is obviously a mistake as

undisputedly the election petition was presented on 1.7.2016. The

endorsement of the Deputy Registrar shows that the scrutiny took place

on 5.7.2016. The eight defects noticed aforesaid were mentioned on

7.7.2016 whereupon the petition was placed before the learned Judge

on 18.7.2016 as an unnumbered election petition. The learned Judge

Civil Appeal No.10863/2017 Page 11 of 17

opined that the defects noted by the office are not material defects for

rejecting the petition in limine under the said Act (the parameters have

been set out in Mithilesh Kumar Pandey6

). It is also noted that the

question whether CD have to be marked as material objects or exhibits

could be considered at the time of trial and since the mobile phone

cannot be produced along with each copy, copies of contents in the

phone which the petitioner wants to rely upon have been produced

along with the copy of the election petition. Sufficiency of this could

be considered later after appearance of the parties. One week’s time

was granted to cure the minor defects as prayed. Thereafter the defects

were cured within the time specified and the endorsement made by the

counsel for respondent Nos.1 & 2.

12. We have also examined the impugned judgment passed on

16.6.2017, which is a detailed one with supporting case law. Sixteen

issues were framed out of which the appellant claimed preliminary

hearing in respect of issue Nos.1 to 7. The preliminary issues are

reproduced as under:

“1. Whether the election petition is barred by limitation?

6 supra

Civil Appeal No.10863/2017 Page 12 of 17

2. Can the defects in the election petition be permitted to be

cured after the period of limitation prescribed under Section 81

of the Representation of People Act?

3. Can the election petition be returned to the petitioner for

curing defects after the period of limitation prescribed under

Section 81 of the Representation of People Act?

4. Is there power in this Court to permit representation delay to

be condoned when the original delay in presenting election

petition itself is not permissible to be condoned and when there

is no provision for any delay condonation?

5. Whether the defects cured and corrections made in the

election petition after the period of limitation will relate back to

the date of its presentation?

6. Whether defects cured and corrections made in the election

petition after presentation are permissible and in compliance

with the mandatory requirements as provided in Sections 81 &

83 of the Representation of People Act and Rules framed

thereunder?

7. Whether the election petition is maintainable for noncompliance

of mandatory requirements as provided in Sections

81, 82, 83 & 117 of the Representation of People Act and Rules

framed thereunder and other requirements of law?”

13. The learned single Judge then on examination of the record

opined that the Registry, after presentation of the petition on 1.7.2016

had not returned the petition to the first two respondents but was

posted before the Bench as per the correct practice, which passed the

order dealing with the objections. On curing of the minor defects,

Civil Appeal No.10863/2017 Page 13 of 17

notice was issued to the appellant.

14. The Kerala High Court Rules (Rule 210) itself provided for

scrutiny by the Judge assigned to the case and not by the Registry.

There was no violation of this Rule. The defects were also cured only

after 18.7.2016. The contents of the conversation recorded in the

mobile phone have been produced as annexures and CDs and the

mobile phones were themselves produced. The question of

admissibility of evidence would, thus, have to be examined at the stage

of trial. Similarly the photocopy of a photograph could only be a copy

taken from mobile phone and at this stage it could not be said that it

did not truly represent the contents of what was recorded in the mobile

phone, which was again a matter of evidence.

Conclusion:

15. We have examined the submissions of the learned counsel for

the parties and do not find any merit in the appeal. The minor

corrections permitted to be made vide order dated 18.7.2016 are by the

Court. A mountain out of a molehill has been made without

appreciating the office notings in the true perspective. The Registry

was fully conscious that the eight defects pointed out by it could not be

Civil Appeal No.10863/2017 Page 14 of 17

permitted to be cured by the Registry itself and that is why the matter

was directed to be placed before the concerned Judge as an

unnumbered election petition. On 18.7.2016, the learned Judge did not

find merit in some of the objections pointed by the Registry and to the

extent some minor corrections were required, which were not material,

one week’s time was granted to respondent Nos.1 & 2 to carry out the

corrections. The needful was done within the stipulated time and it is

thereafter that notices were issued to the appellant.

16. The whole premise of the plea of the appellant is based on the

Registry permitting corrections to be made is, thus, fallacious and,

thus, the presentation of the petition cannot be said to be beyond time

stipulated in Section 81(1) of the said Act. There was, in fact, really no

occasion in these facts for the Court to examine the Registry officer as

was done in the case of Sahodrabai Rai7

.

17. The issue of supply of copies has also been appropriately dealt

with as copies of a transcript and the CD were supplied as also the

translation thereof. This is not the stage to verify as to whether the

translation correctly reflects what was said. In any case it would be a

7 supra

Civil Appeal No.10863/2017 Page 15 of 17

doubtful proposition whether it was mandated that a translation should

also be filed that being possibly a part of the requirement of the High

Court Rules since the record had to be in English. It has rightly been

observed that the phone has been filed and keeping the phone in a

sealed cover or the allegation of non-supply of the chip alleged to be

violative of Section 81(3) of the said Act is not a plea which can be

accepted. At best these are all matters for trial.

18. We are conscious of the fact that the law relating to election is a

technical one as it amounts to a challenge laid to the democratic

process determining the will of the people. An eligible person whether

a candidate or a voter coming to Court, seeking to set aside any

election has to, thus, meet with the technical natures of the election

petition and the provisions prescribed under the said Act as otherwise it

would be fatal to the election petition at the threshold itself. It is in

these circumstances that the principles have been succinctly set out in

Mithilesh Kumar Pandey8

. The observations in that case provide for

clerical and typographical errors to be corrected. Thus, issues like

mentioning of the correct number of annexures or tagging with the file,

8 supra

Civil Appeal No.10863/2017 Page 16 of 17

etc. would all fall within the said Section.

19. Similarly copies of the documents have been supplied to the

appellant and multiple copies of the phone or the chip (which is kept in

a sealed cover) are not mandated to be supplied when the material

relied upon in the phone has been reproduced in CD and a transcription

also provided. The defence of the appellant cannot be said to be

impaired in any manner.

20. We are, thus, of the unequivocal view that the pleas advanced on

behalf of the appellant are meritless and deserve to be rejected.

21. The appeal is accordingly dismissed leaving the parties to bear

their own costs.

..….….…………………….J.

(J. Chelameswar)

………………………………J.

(Sanjay Kishan Kaul)

New Delhi.

March 08, 2018.

Civil Appeal No.10863/2017 Page 17 of 17