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Sultan Salahuddin Owasi v. Mohd. Osman Shaheed And Others
Factual and Procedural Background
The elected candidate from Charminar Assembly Constituency No. 218, State of Andhra Pradesh, faced two election petitions (EP No. 18 of 1978 by Mohd. Osman Shaheed and EP No. 20 of 1978 by Ahmad Hosain) seeking to set aside his election on allegations of corrupt practices. After the petitioners closed their evidence, the appellant filed two applications in each petition: (i) to summon Witnesses 6, 8, 15, 16 and 17 and (ii) to amend his counter (written statement) to include an alibi that he was in Adoni—about 160 miles away—on the dates of the alleged speeches. The High Court refused both requests, stating that no foundation for an alibi had been pleaded. The appellant obtained special-leave and filed the present appeals challenging those refusals.
Legal Issues Presented
- Whether the High Court erred in refusing to summon Witnesses 6, 8, 15, 16 and 17 on the ground that the appellant’s counter contained no express plea of alibi.
- Whether the High Court erred in rejecting the appellant’s application to amend his counter to incorporate the alibi defence.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| D. Venkata Reddy v. R. Sultan (1976) 2 SCC 455; (1976) 3 SCR 445 | An election petitioner must plead all material particulars and prove allegations of corrupt practice “beyond any shadow of doubt,” the standard being akin to a criminal charge. | Used to emphasise that the burden of proving corrupt practices lay on the election petitioners—not on the elected candidate—and that the candidate need only rebut the allegations. |
Court's Reasoning and Analysis
The Court observed that under the Representation of the People Act the entire onus to prove corrupt practices rests on the election petitioner; accordingly, the petitioner, not the respondent, must supply full particulars. The appellant had already denied making the impugned speeches and alleged that the tape recordings were fabricated. Demonstrating his physical absence from the locations on the relevant dates was therefore a legitimate way to rebut the allegations.
Referring to Order VIII Rule 2 of the Code of Civil Procedure, the Court noted that a defendant must raise grounds of defence likely to take the opposite party by surprise. Because the appellant had expressly denied making any speeches, permitting evidence showing he was elsewhere could not surprise the petitioners.
The proviso to Section 87 of the Act allows a High Court to refuse to examine a witness only if the evidence is immaterial or the request is frivolous or dilatory. The High Court had not invoked any of those statutory reasons. Consequently, its refusal to summon the witnesses and to allow the amendment constituted an improper exercise of discretion.
Holding and Implications
Appeals Allowed; High Court orders set aside. The appellant is permitted to examine Witnesses 6, 8, 15, 16 and 17, and the requested amendment to the counter is allowed. The High Court is directed to dispose of the election petitions expeditiously. Costs will follow the final outcome of the election petitions.
Implications: The decision reinforces that (i) the burden of proving corrupt practices rests squarely on the election petitioner, and (ii) a respondent may introduce rebuttal evidence, including an alibi, when such evidence flows naturally from a prior general denial. The ruling clarifies the limits on a High Court’s discretion to refuse witness examination under Section 87 of the Representation of the People Act; however, it sets no new substantive precedent beyond applying settled principles.
S. Murtaza Fazal Ali, J.— These appeals by special leave have been filed by the appellant who was Respondent I (before the High Court), the elected candidate from the Charminar Assembly Constituency No. 218 in the State of Andhra Pradesh. The election petitioner Mohd. Osman Shaheed filed election petition for setting aside the election of the appellant having EP No. 18 of 1978 in the High Court, Ahmad Hosain, a candidate who was defeated also filed another Election Petition No. 20 of 1978 on the same grounds assailing the election of the appellant. In the aforesaid election petitions before the High Court two applications were filed in each of the petitions by the appellant, one for summoning Witnesses 6, 8, 15 and 16 and the other for amendment of the counter. These applications were filed after the petitioner closed the evidence and the High Court directed the appellant to file the list of witnesses. The High Court, however, refused to summon these witnesses on the ground that no foundation for the facts on the basis of which these witnesses were sought to be cited or for the points on which they were to be examined was laid in the counter. Similarly the High Court rejected the application for amendment of the counter on the same grounds. The High Court was of the view that in the absence of any specific plea of alibi having been taken in the counter, the appellant could not be allowed to examine the witnesses or amend the counter. Appeals Nos. 2036-37 of 1979 are directed against the order striking out the witnesses 6, 8, 15, 16 and 17 and Appeals Nos. 2038-39 of 1979 are directed against the order rejecting the application for amendment of the counter.
2. We have heard counsel for the parties and have gone through the judgment of the High Court. We have also perused the application for amending the written statement. It appears that one of the main allegations made against the appellant was that he had delivered speeches at Khilawat, Chowk and Baragalli on February 17, 1978 and February 21, 1978 respectively in which he indulged in promoting hatred rousing religious sentiments. It was further alleged in Election Petition 20 of 1978 that be made another speech at Baragalli where also he indulged in preaching religious hatred against the election petitioner. In his counter the appellant stoutly denied the allegation that he ever made any speech at these places at all. The appellant denied having made speech at all at Khilawat or Chowk or Baragalli. By virtue of the amendment, the appellant sought to insert a plea that he could not have made the speeches as alleged by the election petitioner because he was at that time out of station and was present in Adoni — 160 miles from the places where he is said to have delivered the speeches. In fact, witnesses 6, 8, 15, 16 and 17 were summoned to prove the fact that this appellant was in Adoni.
3. With due respect, we may observe that in refusing the amendment of the counter or summoning the witnesses, the High Court seems to have over-looked the fact that under the provisions of the Representation of the People Act, the onus lies entirely on the petitioner to prove the corrupt practices alleged against the elected candidate. The necessary facts and particulars and the statements of facts etc. are to be pleaded by the election petitioner with exactitude and precision. It is now well settled by a large catena of the authorities of this Court that a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation is the same as a charge of fraud in a criminal case. In the case of D. Venkata Reddy v. R. Sultan (1976) 2 SCC 455, (1976) 3 SCR 445 this Court observed as follows:
“Another principle that is equally well settled is that the election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence. The allegations of corrupt practices being in the nature of a quasi-criminal charge the same must be proved beyond any shadow of doubt.”
So far as the elected candidate is concerned, he is merely to rebut the allegations made by the petitioner in accordance with the provisions of the Civil Procedure Code, as far as practicable. In the instant case the appellant had taken an express plea in his counter that he did not make any speech at the places alleged by the election petitioner. He also stated that tape records or the cassettes alleged to contain his speech were fabricated. One of the ways of proving this plea could be by showing that the appellant was not physically present at the places where the speeches are alleged to have been made as he was present at that time, at some other place. This is what the appellant sought to do through the proposed amendment and by summoning the witnesses. Thus it was clearly open to the appellant to have proved these facts in order to rebut the allegations made by the petitioner that he was present at the places where he is said to have made speeches. Under Section 116 [sic Section 87(1)] of the Representation of the People Act an election petition has to be tried as nearly as possible according to the procedure applicable under the Civil Procedure Code to the trial of suits. Under Order VIII Rule 2 the defendant must raise by his pleading all matters which show that the suit is not maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint. Having expressly denied the allegation of having made the speech, the appellant was fully justified in raising this defence.
4. Thus in the instant case it cannot be said that the witnesses sought to be examined by the appellant or the plea which he claimed in his counter by virtue of the amendment would spring surprise on the election petitioner because the appellant had already denied in clear terms that he never made any speeches at the places mentioned in the election petition. There was no corresponding duty on the appellant to give full particulars or detailed statement of fact which the petitioner had to do in order to set at naught the electoral process which resulted in the election of the appellant. In fact proviso to Section 87 of the Representation of the People Act which may be extracted thus provides:
“Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.”
5. So far as the discretion on the High Court to refuse to summon any witness lies only when it is of the opinion that the evidence of the witness is not material or that the party tendering such witness is doing so on frivolous ground or with a view to delay the proceedings. None of these conditions appear to be present in the instant case nor did the High Court dismiss the application for amendment of the counter or refuse to examine the witnesses on the grounds mentioned above. It is, therefore, manifest that in order to repel the plea of the election petitioner the appellant was entitled to lead evidence to show that he did not make any speech as he was physically incapable of doing so at the time and place as alleged by the election petitioner. For these reasons, therefore, we are clearly of the opinion that the High Court was wrong in disallowing the prayer made by the appellant for examining the witnesses and for allowing amendment of the counter. The appeals are accordingly allowed, the judgment of the High Court is set aside and the High Court is directed to allow the appellant to examine Witnesses 6, 8, 15, 16 and 17 and the amendment prayed for by the appellant is also hereby allowed. The High Court will dispose of the election petition now as expeditiously as possible. The costs of these appeals will abide the result of the election petition.
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