MANUBHAI NANDLAL AMERSEY versus POPATLAL MANILAL JOSHI & ORS.

Citation: [1969] 3 S.C.R. 217 · Decided: 07-01-1969 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed

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Judgment (excerpt)

A 
MANUBllAI NANDLAL AMERSEY 
v. 
POPATLAL MANILAL JOSW & ORS. 
January 7, 1969 
B 
[S. M. Soou, R. s. BACHAWAT AND K. s. HEGDE, JJ.] 
c 
D 
E 
F 
G 
H 
Representation of the People Act (43 of 1951), ss. 
86(5) 
116A. 
123(2), proviso (a)(ii)-Amendment of election petition-When should 
be al/owed-Jurisdiction of Supreme Court under s. 116A-Interference 
irith discretion of High Court-Undue influence-Threat of divine 'dis-
pleasure. 
The appellant, the Swatantra party candidate, was declared elected 
to the Lok Sabha as against the Congress party candidate. On April 10, 
1967, the first respondent, an elector ,in the constituency filed an election 
petition. 
In the petition be charged fhe appellant with corrupt practice 
under s. 123(2) proviso (a) (ii) of the Representation of the People 
Act, 1951. The allegation was that one S.M., with the consent of the 
appellant or his election agents, told the electors in speeches that if they 
voted for the Congress candidate they would commit the sin of cow 
slaughter and would become objects of divine displeasure. 
On Septem-
ber 25, 1967 the first respondent obtained an 01der giving him leave 
to amend the petition by adding a charge with regard to the sin 
of 
Brahma hatya and Sadhu hatya. 
On February 
29, 
1968 
the 
trial 
commenced and one of the witnesses said that he heard S.~1. giving a 
'peech on February 8, 1967, where S.M. told 
the 
electors 
that Sri 
Shankaracharya had commanded them not to vote for the Congress 
and 
that a contraventio.n of the mandate 
":ould be visited with 
spiritual 
censure. 
On an objection being raised by the appellant's counsel, 
the 
first respondent agreed that the statement of the witness should not be 
treated as part of the evidence. 
The trial proceeded, 11 witnesses were 
examined and the appellant agreed to the marking of the full reports of 
the speeches of S.M. as exhibits and adopted a definite line 
of cross-
examination on the footing that the first respondent would not rely on the 
charge with regard to the command of Sri Shankaracharya. 
However 
on March 5, 1968, the first respondent applied for an amendment of 
his petition to include a charge of corrupt practice ·based on the command 
of Sri Shankaracharya and the High Coun allowed the amendment. 
The 
High Court set aside the ·appellant's election on its finding that the cor-
rupt practice in 'relation to the command of Sri Shankaracharya was 
proved. 
In appeal to this Court on the questions · (I) Whether the High Court 
should have allowed the amendment; ·and (2) Whether the appellant was 
guilty of any corrupt practice, 
HELD : The appellant's election was rightly set aside. 
(Per Bachawat, J.) : (I) The High Court erred in allowing 
the 
amendment. 
When a corrupt practice is charged against the returned candidate the 
election petition must setforth 
full particulars of the corrupt practice so 
as to give the charge a definite character and to enable the Court to under-
stand what the charge is. 
It must be substantially proved as laid and 
evidence cannot be allowed to be given in respect of a charge not dis-
7Sup CJ/69-15 
218 
SUPREME COURT REPORTS 
[1969] 3 S.C.R 
closed in . the particulars. Section 86(5) of the Act, however, allom 
amendment of particulars, but the Court shall not allow any amendment 
of the petition which will have the effect of introducing particulars of 
a corrupt practice not previously alleged in the petition, and normally, an 
application for amendment should be made within a reasonable time. 
Though the Court has power to allow an amendment even after commence-
ment of the trial, leave. to amend would not be granted if the petitioner 
was not acting in good faith or had kept back facts 
known to him. 
1221 B--0, G-H; 222 A-BJ 
In the present case, the. first respondent knew of both items of cor-
rupt practice from his witnesses who were present at the speeches made 
by S.M. lf S.M. had told the electors 
about 
the 
mandate 
of 
Sri 
Shankaracharya, the witnesses must have given information to the 
first 
respondent, and no explanation was given by the first respondent as to 
why he withheld the information at the time of filing the petition or \\·hen 
he first amended his petition. He was aware of the difference between 
the two ch<ir!,ies of telling the electors about the sin of gohctya and thal 
of telling the electors about the sin of disobeying the command of their 
religious leader. But the first respondent deliberately ref

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