SUBHASH DESAI versus SHARAD J. RAO AND ORS.

Citation: [1994] 3 S.C.R. 271 · Decided: 31-03-1994 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Dismissed

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Judgment (excerpt)

SUBHASH DESAI 
A 
v. 
SHARAD J. RAO AND ORS. 
MARCH 31, 1994 
[A.M. AHMADI, M.M. PUNCHHI AND N.P. SINGH, JJ.] 
,B 
Representation of the People Act, 1951-Sec. 83( !)-Scope, ambit and 
limits-Whether non-compliance of the provision entails dismissal of election 
petition under the R.P. Act or C.P.C. 
Sec. 123(3) & (3A)-Whether in conflict with Art. 25 of the Constitution 
of India-A person acquires legal status as a candidate after filing the 
nomination-A/legation of corrupt practice before the filing of nomina-
tion-Whether could be considered in an election petition. 
c 
Sec. 123(4), objects-Explained-Allegation of corrupt practices-Onus D 
of proof on the person alleging such corrupt practices. 
Secs. 62(1), 23(3) & 19(J)(d}-lnc/usion of names after the last day 
for making nominations-Validity of 
The appellant successfully contested from the Goregaon assembly 
constituency as a candidate of Shiv Sena. The respondent who contested . 
the election as a candidate of Janata Dal tiled an election petition against 
the appellant complaining corrupt practices; that between 18.12.1989 and 
2.1.1990 about 12,000 applications for inclusion of names in the electoral 
E 
roll were received and ultimately on 15.1.1990 the final electoral roll was F 
published with several thousand bogus voters; that the appellant appealed 
to the voters to vote in his favour since be was a Hindu; that in 'Samana" 
a daily Marathi Newspaper which was printed and published by the 
appellant, a false story against the respondent was published on 15.2.1990 
with a beading - "Riotous behaviour of Janata Dal green goondas during G 
Sri .Ganesh Mahaprasad function at Goregaon.' 
The election petiton further alleged that the appellant made at-
tempts to create communal division between the Hindus and Muslims and 
to promote the feeling of enemity or hatred between different classes of 
citizens of India on the grounds of religion for furthering bis prospects in H 
271 
272 
SUPREME COURT REPORTS 
[1994] 3 S.C.R. 
A 
the election and for prejudicially affecting the prospects of the respondent 
in the election. In his written statement the appellant denied all the 
allegations made against him. The High Court held that the appellant was 
guilty of corrupt practices under Sec. 123(3), 123(3A) and 123(4) of the 
Representation of the People Act and set aside the election of the appellant. 
B With regard to the grievance that bogus voters were included without 
following the procedure, the High Court appointed a Commissioner to 
recount all the votes after eliminating the votes of such voters and to 
ascertain which candidate secured the highest number of votes in the said 
election. 
C 
On appeal to this Court it was contended that the election petition 
was liable to be dismissed since it did not contain concise statement of 
material facts nor full particulars of corrupt practices as required by Sec. 
83(1) of the Representation of the People Act. The statement had not been 
verified as per the Civil Procedure Code and the proviso to sub-section 
D (l)(c) of Section 83 of the Act; that if a call given to the voters to vote for 
a candidate serving the interests of Hindus is a corrupt practice within the 
meaning of sub-section (3) or (3A) of Sec. 123 of the Act, then those 
sub-sections have to be declared ultra vires Art. 25 of the Constitution since 
Art. 25 is a fundamental right which guarantees all persons right to freely 
profess, practice and propagate religion; that publications and speeches 
E 
alleged to have been made prior to 31.1.90 have to be ignored because the 
Act required to judge a person only after be becomes a candidate i.e. only 
after filing of nomination; that merely because the appellant was publisher 
of "Samana" he shall not be deemed to have published the news item, since 
it only raises presumption but contrary can be proved in the facts and 
F 
G 
circumstances of a case. 
Dismissing the appeal against the order of the High Court declaring 
the election of the appellant as void, and allowing the appeal against the 
order to scrutinise the valid votes for purpose of recount and to declare 
the result afresh, the Court 
HELD : 1.1. It cannot he said that the election petition of the 
respondent does not disclose any mateirial facts or give the material 
particulars ofany of the corrupt practices. It cannot also bes.aid that there 
was no affidavit supporting the allegations of corrupt practices as required 
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" 
H by provis

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