# Maneka Sanjay Gandhi v. Rambhual Nishad & Ors

- **Citation:** (2024) 8 ILRA 1166
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-14
- **Case number:** Election Petition No. 3 of 2024
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maneka-sanjay-gandhi-v-rambhual-nishad-ors-52416
- **Pages:** 8

## Headnote

Civil Law- The Representation of People
Act, 1951 - Sections 81 & 86 -Code of Civil
Procedure,1908 - Order VII Rule 11 (d) -
Election petition-petitioner challenged the
election
of
the
returned
candidateSultanpur Lok Sabha Constituency- of -
election petition filed beyond the 45-day
limit prescribed by Section 81 of the
Representation
of
People
Act,
1951-
Section 86 mandates dismissal of petitions
not
complying
with
Section
81-
no
provision allows for condonation of delaypetition
found
to
be
time-barreddismissed. (Paras 4, 5, 6, 8, 9, 10 and 16)

HELD:
Hon'ble the Supreme Court opined in the said
case that the applicability of the provisions of
the Limitation Act by virtue of Section 29 (2)
thereof is to be judged not from the terms of
the limitation Act but by the provisions of the
Act relating to filing of election petition and their
trial to ascertain as to wherein it is complete
code in itself which does not admit application
of any provisions of the Limitation Act
mentioned in Section 29 (2) of that Act. (para 9)

Referring to various earlier decisions of Hon'ble
Supreme Court of India including those wherein
it has been held that the Act 1951 was a
complete
Code
and
also
taking
into
consideration various amendments made by the
Legislature in the said Act, especially Section 81
thereof, and the earlier existing Section 85
which empowered the Election Commission in
its
discretion
to
condone
the
delay
in
8 All. Maneka Sanjay Gandhi Vs. Rambhual Nishad & Ors.
1167
presentation of the election petition and also
taking into consideration the decision of Hon'ble
the Supreme Court in the case of Charan Lal
Sahu Vs Nand Kishor Bhatt; 1973 (2) SCC 530
wherein it had been held that there is no
question of any common law right to
challenge an election as such any discretion
to condone the delay in presentation of the
petition or to absolve the petitioner from
payment of security for costs can only be
provided
under
the
statute
governing
election disputes and if no such discretion
was conferred in respect of any of these
matters none can be exercised under any
general law or any principles of equity and if
for non-compliance of the provisions of
Section 82 and 117 which is mandatory, the
election petition has to be dismissed under
Section 86 (1) of the Act 1951, presentation
of
election
petition
within
the
period
prescribed in Section 81 of the Act 1951
would be equally mandatory, non-compliance
of which visits the penalty of the petition
being dismissed, it was held, for all the
reasons mentioned, therein that provisions
of Section 5 of the Limitation Act do not
govern the filing of election petitions or their
trial. (Para 10)

From the aforesaid discussion it is apparent that
the Limitation Act, 1963, especially Section 5
thereof, is not applicable to election petitions. In
fact, the applicability appears to be specifically
excluded in view of the provision of Section 86
(1) of the Act 1951 which makes it mandatory
for the High Court/ Election Judge to dismiss the
election petition if it is not in conformity with the
provision of Section 81 of the Act 1951. (Para
16)

Petition dismissed. (E-14)

List of Cases cited:

## Text

1166 INDIAN LAW REPORTS ALLAHABAD SERIES
21. In aforesaid circumstances, this
Court is of the considered opinion that
complainant has failed to make out a case
even prima facie that applicant has
dishonestly induced complainant and his
brothers to execute GPA or even thereafter.
Even otherwise, at the stage of revocation
of GPA, at the behest of applicant, there
was
no
reference
of
any
dishonest
intention. The only grievance left with
complainant is that proceeds of sale deeds
were not shared. However, for that an
interpretation of clauses of GPA would be
required, which cannot be done in criminal
proceedings and for that civil remedy
appears to be the best remedy.

22. In view of above, impugned
order dated 16.01.2024 passed under
Section 204 Cr.P.C. also does not take note
of clauses of GPA and in a very cursory
manner only on ground that proceeds of
sale deeds were not shared to applicant,
applicant was summoned under Section
420 IPC also. Therefore, as discussed
above, ingredients of Section 420 IPC were
not made out as well as ingredients of
Section 323, 506 IPC are also not made
out.

23. In the result, application is
allowed. Impugned summoning order dated
16.01.2024 passed by Additional Chief
Judicial Magistrate, Room No. 7, Prayagraj
in Complaint Case No. 628 of 2023 (Pankaj
Malviya vs. Smt. Vandana Malviya), under
Sections 420, 323, 506 IPC, Police Station
George Town, District Allahabad as well as
further proceedings thereof are also hereby
quashed.
----------
(2024) 8 ILRA 1166
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.08.2024

BEFORE

THE HON'BLE RAJAN ROY, J.

Election Petition No. 3 of 2024

Maneka Sanjay Gandhi ...Petitioner
Versus
Rambhual Nishad & Ors. ...Respondents

Counsel for the Petitioner:
Prashant Singh Atal, Amit Jaiswal Ojus Law, Dr.
Pooja Singh, Vijay Vikram Singh

Counsel for the Respondents:

Civil Law- The Representation of People
Act, 1951 - Sections 81 & 86 -Code of Civil
Procedure,1908 - Order VII Rule 11 (d) -
Election petition-petitioner challenged the
election
of
the
returned
candidateSultanpur Lok Sabha Constituency- of -
election petition filed beyond the 45-day
limit prescribed by Section 81 of the
Representation
of
People
Act,
1951-
Section 86 mandates dismissal of petitions
not
complying
with
Section
81-
no
provision allows for condonation of delaypetition
found
to
be
time-barreddismissed. (Paras 4, 5, 6, 8, 9, 10 and 16)

HELD:
Hon'ble the Supreme Court opined in the said
case that the applicability of the provisions of
the Limitation Act by virtue of Section 29 (2)
thereof is to be judged not from the terms of
the limitation Act but by the provisions of the
Act relating to filing of election petition and their
trial to ascertain as to wherein it is complete
code in itself which does not admit application
of any provisions of the Limitation Act
mentioned in Section 29 (2) of that Act. (para 9)

Referring to various earlier decisions of Hon'ble
Supreme Court of India including those wherein
it has been held that the Act 1951 was a
complete
Code
and
also
taking
into
consideration various amendments made by the
Legislature in the said Act, especially Section 81
thereof, and the earlier existing Section 85
which empowered the Election Commission in
its
discretion
to
condone
the
delay
in
8 All. Maneka Sanjay Gandhi Vs. Rambhual Nishad & Ors.
1167
presentation of the election petition and also
taking into consideration the decision of Hon'ble
the Supreme Court in the case of Charan Lal
Sahu Vs Nand Kishor Bhatt; 1973 (2) SCC 530
wherein it had been held that there is no
question of any common law right to
challenge an election as such any discretion
to condone the delay in presentation of the
petition or to absolve the petitioner from
payment of security for costs can only be
provided
under
the
statute
governing
election disputes and if no such discretion
was conferred in respect of any of these
matters none can be exercised under any
general law or any principles of equity and if
for non-compliance of the provisions of
Section 82 and 117 which is mandatory, the
election petition has to be dismissed under
Section 86 (1) of the Act 1951, presentation
of
election
petition
within
the
period
prescribed in Section 81 of the Act 1951
would be equally mandatory, non-compliance
of which visits the penalty of the petition
being dismissed, it was held, for all the
reasons mentioned, therein that provisions
of Section 5 of the Limitation Act do not
govern the filing of election petitions or their
trial. (Para 10)

From the aforesaid discussion it is apparent that
the Limitation Act, 1963, especially Section 5
thereof, is not applicable to election petitions. In
fact, the applicability appears to be specifically
excluded in view of the provision of Section 86
(1) of the Act 1951 which makes it mandatory
for the High Court/ Election Judge to dismiss the
election petition if it is not in conformity with the
provision of Section 81 of the Act 1951. (Para
16)

Petition dismissed. (E-14)

List of Cases cited:

1. Vidyacharan Shukla Vs Khubchand Baghel &
ors.; (1964) 6 SCR 129

2. Hukumdev Narain Yadav Vs Lalit Narain
Mishra; (1974) 2 SCC 133

3. Hari Shanker Tripathi Vs Shiv Harsh & ors.;
(1976) 1 SCC 897

4. Mangu Ram Vs Municipal Corporation of
Delhi; (1976) 1 SCC 392

5. Bengal Chemists & Druggists Assn. Vs Kalyan
Chowdhury; (2018) 3 SCC 41

6. Krishnamoorthy Vs Sivakumar & ors.; (2015)
3 SCC 467

7. U.O.I.Vs Assn. for Democratic Reforms & anr.;
(2002) 5 SCC 294

8. People's Union for Civil Liberties (PUCL) & anr.
Vs U.O.I.& anr.; (2003) 4 SCC 399

9. Lily Thomas Vs U.O.I. & ors.; (2013) 7 SCC 653

10. Resurgence India Vs Election Commission of
India & anr.; (2014) 14 SCC 189

11. Public Interest Foundation & ors. Vs U.O.I.&
anr.; (2019) 3 SCC 224

12. N. Balakrishnan Vs M. Krishnamurthy;
(1998) 7 SCC 123

13. Gopal Sardar Vs Karuna Sardar; (2004) 4
SCC 252

14. Charan Lal Sahu Vs Nand Kishor Bhatt; 1973
(2) SCC 530

15. K. Venkateswara Rao & anr.v. Bekkam
Narasimha Reddi & ors.; AIR 1969 SC 872

16. Harishankar Tripathi Vs Shiv Harsh & ors.,
1976 (1) SCC 897

17. Suman Devi Vs Manisha Devi & ors., 2018
(9) SCC 808

18. Lachhman Das Arora Vs Ganeshi Lal & ors.;
1999 (8) SCC 532

19. Thampanoor Ravi Vs Charupara Ravi & ors.;
(1999) 8 SCC 74

20. Election Petition No. 7 of 2022 (Sheshmani
Nath Tripathi (S.N. Tripathi In Short) Vs Shri
Dinesh Rawat, The Returned Candidate

(Delivered by Hon'ble Rajan Roy, J.)
1168 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Mr. Siddharth Luthra, learned
Senior Advocate assisted by Mr. Prashant Singh
Atal, Mr. Amit Jaiswal, Dr. Pooja Singh and Mr.
Vijay Vikram Singh for the election-petitioner.

2. This Election Petition has been
filed by the petitioner-Maneka Sanjay
Gandhi challenging election of the returned
candidate-Rambhual Nishad as Member of
Parliament from Sultanpur 38-Lok Sabha
constituency and that the same be declared
as null and void and be set aside.

3. It is admitted case of the
petitioner herein that the returned candidate
was elected on 04.06.2024 and the result of
was declared on 06.06.2024. This election
petition has been filed on 27.07.2024.

4. As per Section 81 of the
Representation
of
People
Act,
1951
(hereinafter referred as 'Act 1951') such an
election petition can be filed within 45 days
from, but not earlier than the date of
election of the returned candidate or if there
are more than one returned candidate at the
election and dates of their election are
different, the later of those two dates.

5. The election petition has
apparently been filed beyond the period of
45 days prescribed in Section 81 of the Act
1951. Section 86 of the Act 1951 provides
that the High Court shall dismiss an
election petition which does not comply
with the provision of Section 81 or Section
82 or Section 117 of the Act 1951.

6. Apparently, Section 86 (1) of the
Act
1951
referred
hereinabove
is
mandatory and in the event an election
petition is filed beyond the period of 45
days prescribed in Section 81 of the Act
1951 the High Court does not have any
option but to dismiss the election petition in
view of provision contained in Section 86
(1) of the Act 1951. There is no provision
under
the Act
1951 which
permits
condonation of such delay and extension of
the limitation proscribed in Section 81 of
the Act 1951 on any ground.

7. On being confronted, Mr. Luthra
who joined the proceedings through Video
Conferencing and argued the election
petition submitted that the law has evolved
and now Section 33-A has been added in
the Act 1951 which requires a disclosure by
the candidate about the criminal cases
against him. The said provision gives a
corresponding right to the elector etc. to
information with regard to the person
whom he is required to vote for. This right,
according to him, is in fact part of the
constitutional right as held in various
decisions and in this context he relied upon
decisions of Hon'ble Supreme Court of
India
in
Vidyacharan
Shukla
vs.
Khubchand Baghel and others; (1964) 6
SCR 129, Hukumdev Narain Yadav vs.
Lalit narain Mishra; (1974) 2 SCC 133,
Hari Shanker Tripathi vs. Shiv Harsh and
Others; (1976) 1 SCC 897, Mangu Ram
vs. Municipal Corporation of Delhi;
(1976) 1 SCC 392, Bengal Chemists &
Druggists Assn. vs. Kalyan Chowdhury;
(2018) 3 SCC 41, Krishnamoorthy vs.
Sivakumar and others; (2015) 3 SCC 467,
Union of India vs. Assn. for Democratic
Reforms and another; (2002) 5 SCC 294,
People's Union for Civil Liberties (PUCL)
and another vs. Union of India and
another; (2003) 4 SCC 399, Lily Thomas
vs. Union of India and others; (2013) 7
SCC 653, Resurgence India vs. Election
Commission of India and another; (2014)
14 SCC 189, Public Interest Foundation
and others vs. Union of India and
another;
(2019)
3
SCC
224,
N.
Balakrishnan vs. M. Krishnamurthy;
8 All. Maneka Sanjay Gandhi Vs. Rambhual Nishad & Ors.
1169
(1998) 7 SCC 123 and Gopal Sardar vs.
Karuna Sardar; (2004) 4 SCC 252.
Relying upon the same, he also contended
that much water has flown down the river
and the law has evolved immensely since
the decision in the case of Hukumdev
Narain Yadav (supra) and the said decision
as also the later decisions following it had
not taken into consideration the insertion of
Section 33-A in the Act 1951 and its
impact. His submission was that the
returned candidate had not disclosed four
criminal cases pending against him and had
submitted a false affidavit. It was also his
submission that limitation should not
legalize such illegal non-disclosures, as,
ultimately
the
election
was
to
the
Parliament of India and considering the
consequences on the functioning of the
polity this by itself should be a ground for
entertaining the election petition and for
this Court to decide the same on merits.

8. The issue which has arisen in
this election petition is no longer res
integra. A three Judge Bench of Hon'ble
Supreme Court of India in the case of
Hukumdev Narain Yadav (supra) had the
occasion to consider the same. Question of
applicability of Section 5 of the Limitation
Act to an election petition was specifically
an issue before the Supreme Court in the
said case, apart from other issues involved.
It is, therefore, fruitful to refer to relevant
extracts of the said judgment, especially as
the Supreme Court also considered the
provision of Section 86 (2) of the Act 1951
and its impact on the election petition in the
said context. It held as under:

"16. In K. Venkateswara
Rao and Anr. v. Bekkam Narasimha
Reddi & Ors.; AIR 1969 SC 872 to
which we shall refer more fully
later, Vidyacharan Shukla's case
(supra)
was
attempted
to
be
pressed into service, but this Court
repelled it and observed at pp. 688689:
"In our view, the situation
now obtaining in an appeal to this
Court from an order of the High
Court is entirely different. There is
no section in the Act as it now
stands which equates an order
made by the High Court under
Section 98 or Section 99 to a
decree passed by a Civil court
subordinate to the High Court. An
appeal being a creature of a
statute, the rights conferred on the
appellant must be found within the
four corners of the Act. Sub-Section
(2) of the present Section 116-A
expressly gives this Court the
discretion
and
authority
to
entertain an appeal after the expiry
of the period of thirty days. No
right is however given to the High
Court to entertain an election
petition which does not comply
with the provisions of Section 81,
Section 82 or Section 117."
17. Though Section 29(2)
of the Limitation Act has been
made applicable to appeals both
under the Act as well as under the
Code of Criminal Procedure, no
case has been brought to our notice
where Section 29(2) has been made
applicable to an election petition
filed under Section 81 of the Act by
virtue of which either Sections 4, 5
or 12 of the Limitation Act has
been attracted. Even assuming that
where a period of limitation has not
been fixed for election petitions in
the Schedule to the Limitation Act
which is different from that fixed
under Section 81 of the Act, Section
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
29 (2) would be attracted, and what
we have to determine is whether the
provisions of this section are
expressly excluded in the case of an
election petition. It is contended
before us that the words "expressly
excluded" would mean that there
must be an express reference made
in the special or local law to the
specific provisions of the Limitation
Act of which the operation is to be
excluded. As usual the meaning
given in the Dictionary has been
relied upon, but what we have to
see is whether the scheme of the
special law, that is in this case the
Act, and the nature of the remedy
provided therein are such that the
Legislature intended it to be a
complete code by itself which alone
should govern the several matters
provided by it. If on an examination
of the relevant provisions it is clear
that the provisions of the Limitation
Act are necessarily excluded, then
the
benefits
conferred
therein
cannot
be
called
in
aid
to
supplement the provisions of the
Act. In our view, even in a case
where the special law does not
exclude the provisions of Sections 4
to 24 of the Limitation Act by an
express
reference,
it
would
nonetheless be open to the Court to
examine whether and to what
extent
the
nature
of
those
provisions or the nature of the
subject-matter and scheme of the
special law exclude their operation.
The provisions of Section 3 of the
Limitation Act that a suit instituted,
appeal preferred and application
made after the prescribed period
shall be dismissed are provided for
in Section 86 of the Act which gives
a peremptory command that the
High
Court
shall
dismiss
an
election petition which does not
comply with the provisions of
Sections 81, 82 or 117. It will be
seen that Section 81 is not the only
section mentioned in Section 86,
and if the Limitation Act were to
apply to an election petition under
Section 81 it should equally apply
to Sections 82 and 117 because
under Section 86 the High Court
cannot say that by an application of
Section 5 of the Limitation Act,
Section 81 is complied with while
no such benefit is available in
dismissing an application for noncompliance with the provisions of
Sections 82 and 117 of the Act, or
alternatively if the provisions of the
Limitation Act do not apply to
Section 82 and Section 117 of the
Act, it cannot be said that they
apply to s. 81. Again, s. 6 of the
Limitation Act which provides for
the extension of the period of
limitation till after the disability in
the case of a person who is either a
minor or insane or an idiot is
inapplicable
to,
an
election
petition. Similarly, Sections. 7 to 24
are in terms inapplicable to the
proceedings
under
the
Act,
particularly in respect of the filing
of election petitions and their
trial."

9. Hon'ble the Supreme Court
opined in the said case that the applicability
of the provisions of the Limitation Act by
virtue of Section 29 (2) thereof is to be
judged not from the terms of the limitation
Act but by the provisions of the Act
relating to filing of election petition and
their trial to ascertain as to wherein it is
8 All. Maneka Sanjay Gandhi Vs. Rambhual Nishad & Ors.
1171
complete code in itself which does not
admit application of any provisions of the
Limitation Act mentioned in Section 29 (2)
of that Act.

10. Referring to various earlier
decisions of Hon'ble Supreme Court of
India including those wherein it has been
held that the Act 1951 was a complete
Code and also taking into consideration
various
amendments
made
by
the
Legislature in the said Act, especially
Section 81 thereof, and the earlier existing
Section 85 which empowered the Election
Commission in its discretion to condone
the delay in presentation of the election
petition and also taking into consideration
the decision of Hon'ble the Supreme Court
in the case of Charan Lal Sahu vs. Nand
Kishor Bhatt; 1973 (2) SCC 530 wherein it
had been held that there is no question of
any common law right to challenge an
election as such any discretion to condone
the delay in presentation of the petition or
to absolve the petitioner from payment of
security for costs can only be provided
under
the
statute
governing
election
disputes and if no such discretion was
conferred in respect of any of these matters
none can be exercised under any general
law or any principles of equity and if for
non compliance of the provisions of
Section 82 and 117 which is mandatory, the
election petition has to be dismissed under
Section 86 (1) of the Act 1951, presentation
of election petition within the period
prescribed in Section 81 of the Act 1951
would
be
equally
mandatory,
noncompliance of which visits the penalty of
the petition being dismissed, it was held,
for all the reasons mentioned, therein that
provisions of Section 5 of the Limitation
Act do not govern the filing of election
petitions or their trial.

11. It also considered the plea that
if the petitions were to be dismissed
allegation of serious corrupt practices
cannot be inquired into and purity of the
elections cannot be maintained and found
the answer to this plea in the judgment of
Justice G.K. Mitter in K. Venkateswara
Rao and Anr. v. Bekkam Narasimha Reddi
& Ors.; AIR 1969 SC 872 wherein his
Lordship opined that this is however a
matter which can be set right only by the
Legislature. It is worthy of note that
although the Act has been amended on
several occasions, a provision like Section
86(1) as it now stands has always been on
the statute book but whereas in the Act of
1951 the discretion was given to the
Election
Commission,
to
entertain
a
petition beyond the period fixed if it was
satisfied as to the cause for delay no such
saving clause is to be found now. The
legislature in its wisdom has made the
observance of certain formalities and
provisions obligatory and failure in that
respect can only be visited with a dismissal
of the petition.

12. Their Lordships also took into
consideration that since the decision in K.
Venkateswara Rao (supra) decided in
August, 1968, though the Parliament has
made certain amendments in the Act 1969,
it has not considered it necessary to amend
the Act to confer, on persons challenging
the election, benefits similar to those
available to them under the proviso to the
repealed Section 85 of the Act 1951, for, as
it did not want delays to occur in the
disposal of election petitions as in the past.
Under the repealed Section 85 there was a
provision for condonation of delay in filing
election petition but there is no such
provision in the Act 1951 existing as of
now.
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
13. It is not out of place to mention
that in Hukumdev Narain Yadav (supra),
Hon'ble the Supreme Court also considered
the constitution bench judgment in the case
of Vidyacharan Shukla (supra).

14. Hukumdev Narain Yadav
(supra) has been followed in various later
decisions such as 1976 (1) SCC 897
(Harishankar Tripathi vs. Shiv Harsh and
others); 2018 (9) SCC 808 (Suman Devi
vs. Manisha Devi and others).

15. Another three Judge Bench of
Hon'ble the Supreme Court in Lachhman
Das Arora vs. Ganeshi Lal and others;
1999 (8) SCC 532 construed the provisions
of Section 81 (1) of the Act 1951 and has
held as under:

"7. On its plain reading,
Section 81(1) lays down that an
election petition calling in question
any election may be presented on
one or more of the grounds
specified in sub-section (1) of
Section 100 and Section 101 of the
Act to the High Court by any
candidate at such election or by an
elector within forty-five days from,
but not earlier than, the date of
election of the returned candidate,
or if there are more than one
returned candidate at the election
and the dates of their election are
different, the later of those two
dates. The Act is a special code
providing a period of limitation for
filing of an election petition. No
period for filing of an election
petition is prescribed under the
Indian Limitation Act. The Act
insofar as it relates to presentation
and trial of election disputes is a
complete code and a special law.
The scheme of the special law
shows
that
the
provisions
of
Sections 4 to 24 of the Indian
Limitation Act do not apply. If an
election petition is not filed within
the prescribed period of forty-five
days, Section 86(1) of the Act,
which provides that the High Court
shall dismiss an election petition
which does not comply with the
provisions of Section 81 or Section
82 or Section 117, is straightaway
attracted."

This decision has been followed in
the subsequent decision in Suman Devi
(supra).

16. From the aforesaid discussion
it is apparent that the Limitation Act, 1963,
especially Section 5 thereof, is not
applicable to election petitions. In fact, the
applicability appears to be specifically
excluded in view of the provision of
Section 86 (1) of the Act 1951 which
makes
it
mandatory
for
the
High
Court/Election
Judge
to
dismiss
the
election petition if it is not in conformity
with the provision of Section 81 of the Act
1951.

17. It is not out of place to mention
that the High Court while hearing an
election petition operates as an Authority
under Article 329 (b) of the Constitution of
India whose jurisdiction is circumscribed
by the statutory provisions contained in the
Act 1951. The legal position in this regard
has been settled by a three Judge Bench in
the
case
of
Thampanoor
Ravi
vs.
Charupara Ravi and Others; (1999) 8
SCC 74. The said judgment has been
followed by a Division Bench of this Court
on a reference made by a learned Single
Judge in the context of an election petition
8 All. State Vs. Shivakant Bajpai
1173
bearing Election Petition No. 7 of 2022
(Sheshmani Nath Tripathi (S.N. Tripathi
In Short) vs. Shri Dinesh Rawat, The
Returned Candidate. The High Court while
hearing an election petition does not
function as a Constitutional Court per se
nor
does
it
have
extraordinary
constitutional or inherent powers as has
been held in Thampanoor Ravi (supra)
and the Division Bench of this Court in
Sheshmani
Nath
Tripathi
(supra),
therefore, the contention of Mr. Luthra that
the violation of constitutional right to right
to information should be considered is not
acceptable. Unless and until the election
petition is maintainable and is not barred by
limitation, the merits of the matter cannot
be considered. In fact such a plea has
already been considered in Hukumdev
Narain Yadav (supra) with reference to
opinion
of
Justice
Mitter
in
K.
Venkateswara Rao's case as already
referred earlier.

18. For all these reasons, this
election petition being barred by Section 81
read with Section 86 of the Act 1951 and
Order VII Rule 11(d) of the Code of Civil
Procedure is liable to be dismissed. It is
accordingly dismissed.
----------
(2024) 8 ILRA 1173
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2024

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Government Appeal No. 387 of 2024

State ...Appellant
Versus
Shivakant Bajpai ...Respondent

Counsel for the Appellant:
Alok Ranjan Mishra

Counsel for the Respondent:
Manjul Mishra

Criminal Law - Criminal Procedure Code,
1973 - Section 378(3) - The Railways Act,
1989 - Sections 154 & 174 - Appeal
against acquittal- allegedly damaging a
railway boom lock post with a truck- lack
of corroborative evidence for the alleged
extra-judicial
confession-
Section
25
Indian Evidence Act-Section 313 CrPCneed for independent corroboration of
such confessions- trial court's acquittal
was justified- States's prayer to leave for
appeal refused- Appeal dismissed. (Paras
7 to 12, 20, 24, 26, 29, 31 and 32)

HELD:
Considering the oral and documentary evidence
on record adduced by the prosecution, the trial
court opined that out of the four witnesses
examined by the prosecution, PW-1 is the only
witness who had seen the occurrence and rest
of
the
witnesses
are
formal
witnesses.
Discussing the averments made by PW-1 in his
evidence, the trial court has quoted the relevant
statements made by him wherein he states that
during investigation no identification parade of
the accused was conducted by the Investigating
Officer and the driver, who fled away after the
incident, is not identifiable by him even today.
(para 20)

The confession allegedly made by the accused
respondent falls within the category of 'extra
judicial confession' and the law on the subject
has been clarified by the Hon'ble Apex Court in
a catena of decisions and the principle that
emerges out as essence from the various
decisions is that the extra judicial confession can
be accepted and can be made the basis of
conviction if it passes the test of credibility and
such confession should inspire confidence and
the Court must find out whether there are other
cogent circumstances on record to corroborate
it. (Para 24)

This Court cannot lose sight of the fact that in
this case the alleged extra judicial confession
made by the accused respondent is surrounded
by suspicious circumstances because the owner