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CIVIL APPEAL NO.7951 OF 2022
(Arising out of SLP(C) NO.3267 OF 2020)
YENDAPALLI SRINIVASULU REDDY APPELLANT
JUDGMENT
Leave granted.
2. We have heard Mr. P. Vishwanath Setty, learned senior counsel for the appellant and Mr. Byrapaneni Suyodhan, learned counsel for the respondents finally at this stage itself.
3. By way of this appeal, the appellant- returned candidate, whose election has been called into question by the respondent No. 1 by way of Election Petition No. 1 of 2017 before the High Court of Andhra Pradesh, seeks to question the order dated 06.12.2019 whereby, an application for amendment of the petition has been granted.
4. Shorn of unnecessary details, the relevant aspects 2022 INSC 1120 to be noticed for the purpose of this appeal are that in the election petition filed by the respondent No.1 herein, essentially two broad grounds have been urged. One being of improper acceptance of the nomination of the returned candidate, i.e., the appellant herein, and the second being of improper receipt of invalid votes and improper rejection of valid votes.
5. The second ground as referred hereinabove is not of relevance for the purpose of the present appeal. The relevant part of the matter herein is that in the petition as filed, the appellant has, inter alia, prayed for the following relief:
6. In relation to the aforementioned relief, the election petitioner (respondent No.1) has stated that the nomination paper of the appellant ought to have been rejected for being not accompanied by a proper affidavit, particularly when the verification part was not carrying the signature of the appellant. The other submissions are that the affidavit was drawn up on certain stamp papers but, one of them was not purchased in the name of the appellant and was purchased by some other person and then, the name of the appellant was inserted by erasing the name of the original purchaser. It had also been submitted that there had been certain blank spaces for which, the affidavit was rendered nugatory and these being the defects of substantial nature, the nomination was required to be rejected.
7. It would be apposite to notice that the result of the election in question was declared on 21.03.2017 and the election petition under consideration was filed on 27.04.2017. Leaving aside other proceedings, the relevant aspect for the present appeal is that on 27.03.2018, the election petitioner (respondent No.1) moved an application, being Interlocutory Application No.2 of 2018, seeking permission to amend the election petition, so as to incorporate the averments in the following terms: “8a. It is submitted that as per section 33(A)(i) of the Representation of the People Act, 1951, a candidate shall furnish the information as to whether he is accused of any offence punishable with imprisonment for two years or more in a pending case in which charge has been framed by the court of competent Jurisdiction. It is further submitted that the returned candidate/1st respondent herein filed a false in Form-26 by not disclosing the criminal case pending against him in which he is accused of an offence punishable with imprisonment for two years or more and a charge has already been framed by the court of competent Jurisdiction as on the date filing his nomination. I respectfully submit that the petitioner has deliberately filed as a false affidavit in Form-26 by not disclosing the criminal case pending against him as the FIR in the said criminal case was filed on 3.10.2011 and the same has been registered as Crime NO. 188/2011 on the file of the Gudur Rural Police Station, Nellore District. The petitioner has been arrayed as A[3]. The Court has taken cognizance of the same as C.C. NO. 370/2012 and the charges were also framed as on the day of filing nomination. Later the returned candidate/1st respondent herein has been convicted for the offences under Section 143, 147, 148, 447, 290 and 332 r/w. 149 IPC and the details of the sentence and fine imposed on the returned candidate/the 1st respondent herein on 12.01.2018 by the Hon'ble Additional Judicial Magistrate of First Class, Gudur, Nellore District are as follows:
┌─────────────────────────────────────────────────────────┐ │ Sl. No. Provision of Law Sentence Fine (Rs) │ ├─────────────────────────────────────────────────────────┤ │ 1 Sec. 143 IPC 6 Months 1000/- │ │ 2 Sec. 147 IPC One Year 1000/- │ │ 3 Sec. 148 IPC Two Years 1000/- │ │ 4 Sec. 447 IPC 3 Months 500/- │ │ 5 Sec. 332 IPC Two Years 1000/- │ │ 6 Sec. 290 IPC ------- 200/- │ └─────────────────────────────────────────────────────────┘
94.1. Disclosure of criminal antecedents of a candidate, especially, pertaining to heinous or serious offence or offences relating to corruption or moral turpitude at the time of filing of nomination paper as mandated by law is a categorical imperative.
94.2. When there is non-disclosure of the offences pertaining to the areas mentioned in the preceding clause, it creates an impediment in the free exercise of electoral right.
94.3. Concealment or suppression of this nature deprives the voters to make an informed and advised choice as a consequence of which it would come within the compartment of direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate.
94.4. As the candidate has the special knowledge of the pending cases where cognizance has been taken or charges have been framed and there is a non-disclosure on his part, it would amount to undue influence and, therefore, the election is to be declared null and void by the Election Tribunal under Section 100(1)(b) of the 1951 Act.
94.5. The question whether it materially affects the election or not will not arise in a case of this nature.”
17. However, in the case of Sethi Roop Lal (supra), this Court has, while distinguishing the case of introduction of material fact from that of material particulars, and the operation of the principles of Order VI Rule 17 of the Code of Civil Procedure, 1908 in the trial of the election petitions subject to the provisions of Act 1951 has, inter alia, observed and held as under: “9. Coming now to the other impugned order, we find that the learned Judge has rejected the prayer for amendment of the petition principally on the ground that by the proposed amendment the appellant was seeking to introduce ‘material fact’ as distinguished from ‘material particulars’ of a corrupt practice which was impermissible. In so doing the learned Judge drew sustenance from the following observations made by this Court in the case of F.A. Sapa v. Singora:(1991) 3 SCC 375: “(i) Our election law is statutory in character as distinguished from common law and it must be strictly complied with.
(ii) There is a clear and vital distinction between ‘material facts’ referred to in Section 83(1)(a) and ‘particulars’ in relation to corrupt practice referred to in Section 83(1)(b) of the Act.
(iii) Section 86(5) of the Act empowers the
High Court to allow particulars of any corrupt practice which has already been alleged in the petitions to be amended or amplified provided the amendment does not seek to introduce a corrupt practice which is not previously pleaded.
(iv) By implication amendment cannot be permitted so as to introduce ‘material facts’.”
10. The fasciculus of sections appearing in Chapter III of Part VI of the Act lays down the procedure for trial of election petitions. Sub-section (1) of Section 87 thereof provides that subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure (‘Code’ for short). That necessarily means that Order VI Rule 17 of the Code which relates to amendment of pleadings will afortiori apply to election petitions subject, however, to the provisions of the Act and of any rules made thereunder. Under Order VI Rule 17 of the Code the Court has the power to allow parties to the proceedings to alter or amend their pleadings in such manner and on such terms as may be just and it provides that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. But exercise of such general powers stands curtailed by Section 86(5) of the Act, when amendment is sought for in respect of any election petition based on corrupt practice. Since Section 87 of the Act — and, for that matter, Order VI Rule 17 of the Code — is subject to the provisions of the Act, which necessarily includes Section 86(5), the general power of amendment under the former must yield to the restrictions imposed by the latter.
11. Indubitably, therefore, if the amendment sought for in the instant case related to corrupt practice we might have to consider the same in conformity with Section 86(5) of the Act as interpreted by this Court in the case of F.A. Sapa and accept the findings of the learned Judge as recorded in the impugned order; but then, the learned Judge failed to notice that the amendments, the appellant intends to bring in his election petition, do not relate to any corrupt practice and, therefore, it has to be considered in the light of Section 87, and de hors Section 86(5) of the Act. For the foregoing reasons the impugned order dated May 28, 1993 cannot also be sustained.”
18. Applying the principles aforesaid to the facts of the present case with reference to the pleadings already taken in this matter, we are unable to find any fault in the approach of the High Court in allowing the amendment as prayed for. This is for the simple reason that the election petitioner (respondent No.1) had never taken “corrupt practice” as a ground to challenge the election of the appellant. The grounds, as noticed above, have precisely been of improper acceptance of the nomination form of the returned candidate and improper acceptance of invalid votes as also improper rejection of valid votes. That being the position, the pleadings sought to be taken by way of amendment so as to indicate that the nomination form was not to be accepted for yet another reason, that is, for non-compliance of the statutory requirements, cannot be said to be of introduction of any new cause of action or new ground of challenge. It cannot be said that the ground as sought to be pleaded does not have any foundation whatsoever in the petition as filed; or that pleading of such particulars would change the character of the election petition. That being the position, we are at one with the High Court that the amendment as prayed for was required to be allowed.
19. For what we have discussed as above, this appeal fails and is, therefore, dismissed.
20. It goes without saying that we have not made any comment on the merits of the case as sought to be pleaded by way of amendment or any other aspect relating to the merits of the issues involved in election petition .................... J. (DINESH MAHESHWARI) ................... J. (J.K. MAHESHWARI) New Delhi; October 19, 2022. ITEM NO.44 COURT NO.7 SECTION XII-A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s).3267/2020 (Arising out of impugned final judgment and order dated 06-12-2019 in IA No.2/2018 passed by the High Court Of Andhra Pradesh At Amravati)
VERSUS
VEMIREDDY PATTABHIRAMI REDDY & ORS. Respondent(s) (IA No.52856/2022 - APPROPRIATE ORDERS/DIRECTIONS, IA No.52855/2022 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES, IA No.20433/2020 - PERMISSION TO FILE LENGTHY LIST OF DATES) Date: 19-10-2022 This matter was called on for hearing today. CORAM: HON'BLE MR.
JUSTICE DINESH MAHESHWARI HON'BLE MR.
JUSTICE J.K. MAHESHWARI For Petitioner(s) Mr. P. Vishwanath Setty, Sr. Adv. Mr. G.N. Reddy, Adv. Mr. Hemal Kiritkumar Sheth, AOR For Respondent(s) Mr. Byrapaneni Suyodhan, Adv. Mr. Abhijit Basu, Adv. Ms. Tatini Basu, AOR UPON hearing the counsel the Court made the following O R D E R Leave granted. The appeal is dismissed in terms of the signed reportable judgment. Pending application(s), if any, stands disposed of. (ARJUN BISHT) (RANJANA SHAILEY)
COURT MASTER (SH)