ORDER
Shantanu Kemkar, J.
1. Through this Election Petition filed under Section 80A read with Section 81 of The Representation of People Act, 1951 (for short `the Act') the petitioner a defeated candidate has challenged the election of the returned candidate (first respondent). In the petition corrupt practices under Section 123(1) of the Act are alleged.
2. Briefly stated, the petitioner and the first respondent contested the election for Lok Sabha Constituency No. 12, Balaghat held on 5.5.2004. The counting of the votes was held on 13.5.2004. The first respondent was declared elected by the Returning Officer of Balaghat Parliamentary Constituency. Feeling aggrieved, the petitioner has filed this Election Petition. In the petition the petitioner has alleged corrupt practices mainly basing upon the news published in the News Paper `C- Times' and 'Jabalpur Express'. The allegations about distribution of liquor and money is based upon the information received from the residents of the villages which he stated be examined by the Court. Many other allegations are levelled which are against the Returning Officer and the Police Officials. An allegation of bogus voting is also levelled.
3. On being noticed the first respondent filed an application I.A. No. III (4/2005) under Section 86 of the Act read with Order 7 Rule 11 of the Code of Civil Procedure (for short CPC) praying for dismissal of the petition on the grounds that the petition is lacking material particulars, it does not disclose any cause of action and is not supported by an affidavit in Form 25 prescribed under Conduct of Election Rules, 1961 (for short Rules). It is also stated by the first respondent in the application that the alleged corrupt practice has not been stated as required under Section 83(1)(b) of the Act. According to the first respondent in the absence of disclosure of full particulars of the corrupt practice and cause of action no triable issue exists in the petition, therefore, the petition is liable to be dismissed at the threshold.
4. The petitioner filed reply to the aforesaid application seeking dismissal of the petition and stated that the petition contains the necessary details as required in a petition alleging corrupt practice. He further stated that from the averments made in the petition the cause of action is also clearly spelled out and as such he prayed for dismissal of the application filed by the first respondents.
5. Heard learned Counsel for the parties on the aforesaid application I.A. III (4/2005) seeking dismissal of the petition.
6. In order to decide the preliminary objection raised by the first respondent by way of the aforesaid application it would be appropriate to consider the relevant provisions of the Act on which strong reliance has been placed by the learned Counsel for the first respondent. The relevant provisions are extracted below.
Section 83 of the Act reads thus:
83. Contents of petition - (1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1905) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
Section 100 which deals with grounds for declaring election to be void reads thus:
100. Grounds for declaring election to be void - (1) Subject to the provisions of Sub-section (2) if the High Court is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, or any corrupt practice but the High Court is satisfied-
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practice at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents then the High Court may decide that the election of the returned candidate is not void.
Chapter I of Part VII deals with Corrupt Practice. Section 123(1) reads thus:
123. Corrupt Practices The following shall be deemed to be corrupt practices for the purposes of this Act:
(1) 'Bribery', that is to say-
(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing-
(a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or
(b) an elector to vote or refrain from voting at an election, or as a reward to-
(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward-
(a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or
(b) by any person whosoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature.
Explanation - For the purposes of this clause the term 'gratification' is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in Section 78. Rule 94 A of the Rules reads thus94A. Form of affidavit to be filed with election petition The affidavit referred to in the provisio to Sub-section (1) of Section 83 shall be sworn before a magistrate of the first class or a notary or a commissioner of oaths and shall be in form 25.
7. On a close scrutiny of the aforesaid provisions of the Act and the Rules it is very clear that in case of an election petition alleging corrupt practices the election petition should contain full particulars of any corrupt practice which the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice and it should be signed by the petitioner and verified in the manner laid down in the CPC for the verification of pleadings. The provision of Section 83(1) which is relevant for the present petition which is based on allegation of corrupt practice it requires that the petition shall be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
8. On going through the Section 83(1)(b) of the Act it is apparent that in an election petition alleging corrupt practice the legislature has taken extra care to make special provisions for pleadings. Ordinarily it would suffice if the election petition contains a concise statement of the material facts on which the petitioner relies. However, in the case of petitioner alleging corrupt practice the election petition must set forth full particulars of any corrupt practice including as full statement as possible, of the names of the parties alleged to have committed such corrupt practice, the date and place of the commission of each such practice. Provision of Section 83(1) requires that in the petition alleging any corrupt practice the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. Thus, an election petition alleging commission of corrupt practice has to satisfy additional requirements which are mandatory in nature. See R.P. Moidutty v. P.T. Kunju Mohammad and Anr. : AIR2000SC388 .
9. In the case of Ravinder Singh v. Janmeja Singh and Ors. : AIR2000SC3026 the Supreme Court on considering the provision to Section 83(1) of the Act has held that Section 83 of the Act is mandatory in character and requires not only a concise statement of material facts and full particulars of the alleged corrupt practice, so as to present a full and complete picture of the action to be detailed in the election petition but under the provision to Section 83(1) of the Act, the election petition leveling a charge of corrupt practice is required, by law, to be supported by an affidavit in which the election petitioner is obliged to disclose his source of information in respect of the commission of that corrupt practice. It is necessary for an election petitioner to make such a charge with full responsibility and to prevent any fishing and roving inquiry and save the returned candidate from being taken by surprise. It has been further observed by the Supreme Court that in the absence of proper affidavit, in the prescribed form, filed in support of the corrupt practice of bribery, the election pertaining thereto, could not be put to trial. The defect is fatal in nature.
10. In the case of V. Narayanswamy v. C.P. Thirunavukkarasu : [2000]1SCR292 the Supreme Court has said that for the purpose of considering a preliminary objection as to the maintainability of the election petition, the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable issue as such. It has been held that Sections 81, 83(1)(c) and 86 read with Rule 94-A of the rules and Form 25 are to be read conjointly as an integral scheme. When so read if the court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. Under Clause (b) of sub 9E.P. No. 16/2004 Section (1) of Section 83, the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition leveling charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the court to draw inference by adopting an involved process of reasoning. Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation could have no legal existence and the court could not take cognizance thereof. Charge of Corrupt practice being quasi- criminal in nature the court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. The violation of the provisions of Section 81 can attract the application of doctrine of substantial compliance. The defects of the type provided in Section 83 of the Act can be dealt with under the doctrine of curability. Non compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and order 7 Rule 11 of the CPC. The Supreme Court further observed that where neither the verification in the petition nor the affidavit gives any indication of the source of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and the affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired into and tried at all. In such a case the petition has to be rejected at the threshold for non compliance with the mandatory provisions of law as to pleadings. It is no part of the duty of the Court suo motu even to direct furnishing of better particulars when objection is raised by the other side.
11. In the case of Azhar Hussain v. Rajiv Gandhi 1986 (Supp) SCC 315 the Supreme Court has held that an election petition can be dismissed summarily if it does not furnish cause of action in exercise of the powers conferred under Order 7 Rule 11 of the CPC. It has been further observed by the Supreme Court that the purpose of conferment of such power is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties.
12. On going through the allegations of the corrupt practice made by the petitioner in this election petition, I am of the view that the allegations are lacking full particulars of any corrupt practice and the date and the place of the commission of such practice. The aforesaid averments made in the petition in regard to the corrupt practice are extremely vague and cannot be said to be fulfilling the requirement of Section 83(1)(b) of the Act. On the basis of such vague and bald allegations without full particulars, the petition cannot be allowed to proceed further as it lacks mandatory compliance of the pleadings required for a petition alleging corrupt practice. Not only the petition lacks the details as required under Section 83(1)(b) of the Act but the affidavit filed along with the petition is not in consonance with the provision of Section 83(1)(b). On going through the affidavits, I find that the petitioner has failed to state as to which corrupt practice alleged by him is true to his personal knowledge and which is true to his information. In the affidavit reference has been made by the petitioner in regard to the statements made in paras 1 to 9 of the petition though the said paragraphs are not any way related to allegation about corrupt practice. The statements about the paragraphs 10 to 18 are also lacking requirement of the affidavit which should be filed along with the petition alleging corrupt practice. Thus, in the absence of full particulars about the corrupt practice as required under Section 83(1)(b) of the Act and in the absence of requisite affidavit filed in support of the allegation of corrupt practice under Section 123(1) of the Act, no issue could be raised for trial.
13. One of the allegation which has been levelled in the election petition is that the first respondent managed withdrawal of certain criminal cases pending against him in order to contest the election. However, from the petitioner's own showing the withdrawal of cases was much prior to first respondent's nomination as candidate for the said election. In this view of the matter, this ground of the petitioner on the face of it is liable to be rejected.
14. Having regard to the aforesaid, in my considered view the election petition being lacking the full particulars of the corrupt practice as required to be set forth under Section 83(1)(b) of the Act and the affidavit accompanied with it being not in conformity with the prescribed Form No. 25 under the Rules, the preliminary objection raised through the application filed by the first respondent deserves to be and is hereby allowed. Consequently, the petition is dismissed.