Khan Mohammed Arif Lallan v. Dilip Bhausaheb Lande

(iii) absolutely, there are not averments-pleadings, showing and/or suggesting nexus between Mr. Budol (from whose face-book account Fake Video was downloaded) and the returned candidate to infer that Mr. Budol provided Fake Video to returned candidate or to his agent. (iv) “Source of Fake-Video” at the hands of returned candidate has not been pleaded at all.

(v) absence of pleadings, as to link between Mr.

Budol and returned candidate and in absence of pleadings as to source of Fake Video in the hands of returned candidate, amounts to omission of ‘Material Facts’, on which reliance is sought to be placed.

(vi) So far as, the offences in relation to breach of

Model Code of Conduct are concerned, according to Mr. Singh, the petitioner has not pleaded at all, that, result of election so far as it concerns returned candidate had been materially affected by alleged non-compliance of the ‘Orders’ made under the Act.

(vii) That the pleadings in the Election Petition do not disclose and/or even suggest as to how the alleged breach of Model Code of Conduct has materially affected result of the returned candidate.

(viii) That omission of single ‘material fact’ would lead to, incomplete cause of action and that Election petition without the ‘material facts’ relating to corrupt practice is not a Election Petition. In support of the submissions, Mr. Singh has relied on the following judgments: (1) Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar

(2) C.P.John v. Babu M. Palissery and Others; (2014) 10 SCC 547; (3) V. Narayanaswamy v. C.P. Thirunavukkarasu; (2000) 2 SCC 294; (4) Samant N. Balkrishna and Anr. v. George Fernandez and Others 1969(3)SCC 238; (5) Dr. Rameshkumar Bapuraoji Gajbe v. Election Commission of India, New Delhi and Others [2020(5)Mh.L.J.328]; (6) L.R.Shivaramagowda and Others v. T.M.Chandrashekar (Dead) by LRS and Others; (1999) 1 SCC 666 (7) Mangani Lal Mandal v. Bishnu Deo Bhandari; (2012) 3 SCC 314; (8) Ram Sukh v. Dinesh Aggarwal (2009) 10 SCC 541; (9) Ashok s/o Mahdeorao Mankar v. Rajendra Bhausaheb Mulak 2010(7) Mh.L.J.503.

13 Per contra, Mr. Godbole, the learned Senior Counsel for the Election Petitioner would argue that averments in the petition, contained, not only ‘material facts’ but also ‘material particulars’. Mr. Godbole by relying on the judgment of the Apex Court in the Sardar Harcharansingh Brar v. Sukhdarshan Singh 2004(11) SCC 196 would contend, that it is not requirement of law to plead evidence or minute details of the corrupt practice. Mr. Godbole vehemently submitted, if pleadings on reasonable construction would sustain the action, the Court should accept that construction. Further, Mr. Godbole relied on the judgment of the Supreme Court in the case of Raj Narayan v. Indira Nehru Gandhi 1972 (3) SCC 850 to submit, that pleadings averred in paragraphs 7 to 12 of the petition, if taken and read conjointly, would disclose all basic and fundamental facts, as to constitute corrupt practices, which returned candidate indulged into by circulating fake video on the social media. Mr. Godbole, submitted, details of the link between Mr. Bodul (from whose face-book account, fake video was downloaded) and the returned candidate or his agent were not required to be particularised, as the link could be established, by leading evidence in the trial and, therefore, such evidentiary facts or details or its’ particulars were not required to be pleaded. In the alternative, Mr. Godbole submitted, if the allegations regarding the corrupt practice did not disclose essential part, of corrupt practice, the Court may allow particulars of any corrupt practice alleged in to be amended or amplified. Mr. Godbole, the learned Senior Counsel would, therefore, rely on the provisions of Section 86(5) of the Act to contend that if this Court is of the opinion that full, “particulars”, of the corrupt practice have not been set out, petitioner be given an opportunity to amend or amplify the particulars. Mr. Godbole, would, therefore, urge that application moved by the returned candidate under Order 7 Rule 11 of the CPC be rejected.

15 The word ‘Material facts’, in the context of the charge of corrupt practice would, mean basic facts constituting ingredients of particular corrupt practice. Settled law is that, all the material facts must be pleaded by the party in support of the case. The object, is to enable the opposite party to know the case he has to meet with. That omission to plead single ‘material fact’ leads to incomplete cause of action and statement of claim becomes bad as held by the Hon’ble Supreme Court in the case of Samant N. Balkrishna (Supra). To, ascertain, whether petitioner has omitted to plead material facts, I have gone through the pleadings in the Petition.

16 Petitioner, pleads in paragraph 7, that he came across video clip on the What’s app on or about 8th October, 2019, i.e., twelve days before polling day. He had noticed that, his speech was deliberately and maliciously edited to portray him as ‘anti-national person, shouting ”Pakistan Zindabad”. According to the petitioner, speech delivered by him in May, 2016 was deliberately distorted by maliciously editing the same into the fake video. That video was downloaded by Shri Vinod Purshottam Chhatpal and copied in CD from face-book account of Mr. Budol. In paragraph 8, petitioner pleaded, the fake video was circulated on social media from 14th October, 2019 till 21st October, 2019 showing petitioner uttering “Pakistan Zindabad”. The said video went viral. As a result, the petitioner was bombarded with questions relating to fake speech, from press and voters from the constituency. In paragraph 9, petitioner pleaded, that his Chief Election Agent lodged the complaint dated 8th October, 2019 to the local police station; after which First Information Report was registered on 14th October, 2019 against Mr. Bodul. In paragraph 10, petitioner pleaded, as to how fake video has influenced voters in constituency. In paragraph 11, the petitioner pleaded that various newspapers and electronic media, after ascertaining the correct facts, published news relating to said fake video.

17 It, therefore, follows that in paragraphs 7 to 11, the petitioner has neither pleaded, that his speech was deliberately edited by returned candidate or his agent nor pleaded that fake video was circulated on social media by the returned candidate or his agent nor he pleaded the nexus between Mr. Bodul and the returned candidate or link between Mr. Bodul and agent of the returned candidate. For all that, in paragraph 12, petitioner pleaded, that by letter dated 8th October, 2019, he made complaint to Returning Officer, against Mr. Bodul for taking appropriate action including registering cyber crime against him. Be it noted, even the complaint, does not imply or suggest or show the connection between Mr. Bodul and returned candidate. Having said that in the same paragraph (Paragraph No.12), petitioner averred; that “in the circumstances mentioned hereinafter, it is revealed that said fake video was published by the returned candidate (emphasis supplied) as he was the only beneficiary of the outcome of the circulation of such false and malicious news, which did not only tarnish the image of the petitioner in the eyes of the public but prejudiced the minds of the voters and the sole purpose of circulating the fake and false news was to defame the petitioner and to paint him as an ‘anti-social’ or ‘anti-national’ person to deter the voters from voting in favour of the petitioner.” Be it noted that neither in paragraph 12 nor in the subsequent paragraphs, petitioner averred or pleaded the ‘circumstances’, (emphasis supplied) wherefrom he gathered and/or inferred that the returned candidate circulated the Fake Video. Therefore, allegations that returned candidate circulated the fake video, to malign petitioner’s reputation, were vague and indefinite for want of related facts. As a matter of fact, petitioner has not pleaded foundational facts, like source, wherefrom the Fake Video was procured by the returned candidate. For that reason, in absence of pleadings as to source of video at the hands of the returned candidate and in absence of pleadings as to reveal link between Mr. Bodul and returned candidate, it cannot be said that petition was containing concise statement of “material facts”. On the contrary, pleadings in paragraph 12, that the petitioner circulated the Fake Video, are vague, uncertain and made in casual manner.

18 Section 83 of the act, speaks of contents of the petition. Clause (a) of Sub-section (1) of Section 83 states, that an Election Petition shall contain a concise statement of material facts on which the petitioner relies upon; Whereas, Section 100 of the act spells out, grounds for declaring the election to be void. Clause (b) of Sub-section (1) of Section 100 states, “if the Court is of the opinion, that any corrupt practice has been committed by returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent, the Court shall declare the election of the returned candidate to be void.” The expression “Opinion” means, view point, belief or point of view or impression. That being the case, to form an opinion that corrupt practice has been committed by the returned candidate, petition must contain concise statement relating to corrupt practice. Indisputably, petition neither reveals as to how and from whom, the returned candidate procured the Fake Video nor the pleadings reveal, connection or link between Mr. Budol and the returned candidate. Therefore, in absence of these fundamental Pleadings, Court is unable to form ‘opinion’ as to complicity of the returned candidate in committing the corrupt practices, envisaged under Section 83(1)(a) of the Act.

19 Mr. Godbole, the learned Senior Counsel rightly argued, that, whether a particular fact is ‘material’ or not and as such, required to be pleaded, is dependent on the nature of charge levelled and the circumstances of the case. Still, in the case in hand, absence of pleadings as to, link between Mr. Bodul and the returned candidate and as to source of Fake Video at the hands of the returned candidate, leads me to hold, that Petition does not disclose ‘complete cause of action’. Now, let me refer to few rulings, on the subject i.e. which facts are material and what constitutes ‘material facts’; necessity to plead and effect of non-pleadings. In the case of Anil V. Salgaonkar (Supra), the Hon’ble Apex Court has held in paragraphs 57, 58 and 60 as under:

60. According to the appellant, in the election petition, there was no averment whether the bore wells were dug with the consent and/or active knowledge of the appellant. This averment was absolutely imperative and the failure to mention such an important averment in the petition is fatal for the election petitioner (the respondent herein) and the election petition is liable to be summarily dismissed on that ground. “. In the case of C.P.John (Supra), the Hon’ble Supreme Court has analysed Section 83 of the Act and held in paragraph 18;

20 In the case of V. Narayanswamy (Supra),, the Hon’ble Apex Court has ruled on “Source of information in respect of commission of Corrupt Practices; “23……...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. 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 noncompliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between “material facts” and “material particulars”. While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. “Material facts” mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e., clause (a) of subsection (1) of Section 83. Then under clause (b) of subsection (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 levelling a 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 the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail.”

21 Thus, law enunciated by the Hon’ble Apex Court in the aforesaid authorities is, that facts, which are essential to disclose a complete cause of action, are ‘material facts’ and are essentially required to be pleaded. Likewise, ruled that Petition levelling charge of Corrupt Practice, is required by law, to disclose his source of information in respect of commission of Corrupt Practice. The Three Judge Bench in Mahendra Pal 2001 SCC 261 has ruled that;

(i) function of ‘particulars’, is to present full picture of cause of action to make the opposite party to understand the case that has been set up against him and which is required to meet;

(ii) distinction between the ‘material facts’ and ‘material particulars’ is indeed important because different consequences follow from deficiency of such facts or particulars in the pleadings;

(iii) failure to plead even single ‘material fact’ leads to incomplete cause of allegations of such charge and it is liable to be struck off under Order 6 Rule 16 of the CPC; WHEREAS;

(iv) if petition, suffers from deficiency of material particulars, the Court has discretion to allow the petitioner to supply required particulars, even after expiry of limitation period;

(v) Although it may be permissible for party to furnish particulars even after period of limitation for filing election petition has expired with the permission of the Court;

(vi) however, no material fact unless pleaded, can be permitted to be introduced after expiry of period of limitation.

22 Given the above conspectus of case-laws, as to the pleadings on the “material facts” and omissions to plead “material facts” and consequences thereof, in my view, pleadings relating to corrupt practice of circulating the Fake Video were incomplete in-as-much as petitioner has neither pleaded nor shown nor disclosed, source of Fake Video in the hands of the returned candidate nor pleaded nexus between Mr. Budol and the returned candidate. These were not just omissions but were thoroughly deficient of material facts as, to form opinion that Fake Video was circulated by the returned candidate on social media to tarnish the image of the petitioner. Therefore, as Petition omits to plead “material facts”, and not ‘particulars’ recourse to Section 86(5) of the act cannot be taken as suggested by Mr. Godbole, the learned Senior Counsel appearing for the petitioner.

23 Petitioner’s case is not only confined to nondisclosure of ‘material facts’, in terms of Section 83(1)(d) but also to violation of Section 100(1)(d)(iv) of the said Act. The said Section is extracted as below;

(iv) requires pleadings as to how alleged illegal campaign caused voters to vote in favour of the returned candidate. Thus, pleading of this material fact of link between illegal election campaigning and victory of returned candidate by margin of 409 votes was essential ‘fact’. Thus, to say that unless such link is pleaded, it was not possible to frame the triable issue. Factually speaking, averment in paragraphs 28,29,30 and 31 of the Petition, are simply expressing “possible view of the petitioner; without pleading link. Therefore, in absence of link between alleged violation of model code of conduct and victory of returned candidate, how the petitioner, could assert that, because of alleged violation of ‘Model Code of Conduct, four hundred and nine voters, caste their votes to returned candidate. In fact, petitioner has simply reproduced, text of Section 1000(1)(d)(iv) of the Act and nothing more. Averments in paragraph no.28 and onwards, simply suggest that the petitioner just undertook and launched roving and fishing enquiry without concrete material with them. Additionally mere ‘chance’ or ‘likelihood’ of voters being influenced by illegal campaigning would not constitute essential fact, to contend that illegal campaigning materially affected the election result of the returned candidate. In the context of the facts of the case, ruling in the case of Ram Sukh v. Dinesh Aggarwal (2009) 10 SCC 541 has been rightly relied upon by Mr. Singh wherein the the Apex Court observed thus,

24 For the foregoing reasons, I hold that petitioner has failed to, plead material facts, resulting into ‘incomplete cause of action’; amounting disobedience of mandate of Section 83(1)(a) and 100(1)(d)(iv) of the Act.

26 Since the Election Petition itself is disposed of, nothing survives in the Application (L) No.17416 of 2021 and same is also disposed of. (SANDEEP K. SHINDE,J.)