# Rakesh Agarwal v. Dr. Arun Kumar & Anr

- **Citation:** (2019) 2 ILRA 1276
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-26
- **Case number:** Election Petition No. 14 of 2017
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-agarwal-v-dr-arun-kumar-anr-44583
- **Pages:** 12

## Headnote

A. Representation of People Act, 1951-
Section 81(3), 81(1) and 86(1) - Copy of
election
petition
served
upon
the
Respondent No.1 not attested by the
petitioner to be the true copy of the original
petition - Provisions of Section 86 of the Act
are mandatory and must be complied with
in letter and spirit. (Para 47,49 52,54, 58 & 59)

Representation of People Act, 1951-Section
81(3) , 81(1) and 86 - Analysis of Sub Section
(3) of Section 81 would reveal that every
election petition should be accompanied by as
many copies as there are respondents and
that every copy should be attested by the
petitioner to be a true copy of the petition
under his own signature. If these requirements
are not followed strictly and literally, it would
result in dismissal of the election petition
without any trial as provided by Section 86 of
the Act.

 A perusal of the certified copy of the election
petition as served upon the respondent No.1
reveals that it has not been attested by the
petitioner to be a true copy of the original
petition.

Since the provisions of Section 86 of the Act
are mandatory and must be complied with in
letter and spirit, the election petition is liable
to be dismissed for non-compliance of Section
81(3) of the Act with cost of Rs.25,000/- to be
deposited with the registry of the Court

Election Petition dismissed with cost (E-3)

Case law relied upon/discussed: -

## Text

1276 INDIAN LAW REPORTS ALLAHABAD SERIES
Investigating Agency has submitted a
police report/charge sheet under Section
173(2) Cr.P.C. and the court has taken
cognizance of the offence, the State
Government is competent enough to pass
an order directing for further investigation
by another Investigating Officer without
taking leave from the court concerned, but
it is the duty of the Investigating officer to
inform the Court before going ahead in
pursuance of the order of the State
Government for further investigation. In
the present case, the court was duly
informed by the respondent no. 5, Nihal
Prasad-Investigating
Officer,
before
starting further investigation. Thus, the
decisions relied by learned counsel for the
petitioners on this point are not applicable
in the present case and there is no
illegality in the order passed by the State
Government or in conducting the further
investigation by respondent no. 5 in
pursuance of the impugned Government
Order dated 24.12.2003. Second argument
also does not have any force and is hereby
rejected.

45. In relation to the third question
that whether a police officer belonging to
any Investigating Agency can lodge any
other F.I.R. on the basis of the conclusion of
the investigation of a crime, it has been
brought into the notice of the Court by the
learned A.G.A., Shri Sachindra Pratap
Singh that the Director General of Police,
U.P. issued a Circular being D.G. 21/16
dated 26.04.2016 that in relation to one
incident,
multiple
F.I.R.s
cannot
be
registered, but, in case, any cross version is
found, then fresh F.I.R. has to be lodged and
there is no illegality in the same.

46. In the present case, in pursuance
of
the
Government
Order
dated
24.12.2003,
further
investigation
was
conducted by respondent no. 5, Investigating
Officer, C.B.C.I.D. in Case Crime no. 202 of
2003 (supra), who found that, as a matter of
fact, Sarfaraz and Sarita went away against
the wishes of her father, Chote Lal Madesia,
as a result, on the interference of official of
one Minster of the State Government,
Sarfaraz and Sarita were recovered and
Sarita was handed over to her father and
Sarfaraz was illegally challaned by planting
'Charas' in the aforesaid case and police
report was submitted in the court below. In
these circumstances, a request was made by
respondent no. 5 for lodging F.I.R. against
the petitioners, as a result of which, the F.I.R.
as Case Crime No. 67 of 2005, P.S.
Nawabganj, District Bahraich under Sections
342, 379, 427, 467, 468, 471, 120-B IPC and
U/S 8/20/29 NDPS Act, Police Station
Nawabganj, District Bahraich was lodged
and there is no illegality in lodging the F.I.R.
as Case Crime No. 67 of 2005 (supra)
against the petitioners.

47. For the facts and discussions
made above, writ petition has no merit
and
is
accordingly,
dismissed.
Consequences to follow.
----------

(2019)10ILR A 1276

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2019

BEFORE

THE HON'BLE ASHOK KUMAR, J.

Election Petition No. 14 of 2017

Rakesh Agarwal ...Petitioner
Versus
Dr. Arun Kumar & Anr. ...Respondents

Counsel
for
the
Petitioner:
2 All. Rakesh Agarwal Vs Dr. Arun Kumar & Anr.
1277
In person, Sri Rakesh Agarwal, Sri Mayank
Agarwal, Sri Mayank Kumar Agrawal

Counsel for the Respondents:
Sri Ankit Saran, Sri K.R. Singh, Sri
Siddharth Singhal

A. Representation of People Act, 1951-
Section 81(3), 81(1) and 86(1) - Copy of
election
petition
served
upon
the
Respondent No.1 not attested by the
petitioner to be the true copy of the original
petition - Provisions of Section 86 of the Act
are mandatory and must be complied with
in letter and spirit. (Para 47,49 52,54, 58 & 59)

Representation of People Act, 1951-Section
81(3) , 81(1) and 86 - Analysis of Sub Section
(3) of Section 81 would reveal that every
election petition should be accompanied by as
many copies as there are respondents and
that every copy should be attested by the
petitioner to be a true copy of the petition
under his own signature. If these requirements
are not followed strictly and literally, it would
result in dismissal of the election petition
without any trial as provided by Section 86 of
the Act.

 A perusal of the certified copy of the election
petition as served upon the respondent No.1
reveals that it has not been attested by the
petitioner to be a true copy of the original
petition.

Since the provisions of Section 86 of the Act
are mandatory and must be complied with in
letter and spirit, the election petition is liable
to be dismissed for non-compliance of Section
81(3) of the Act with cost of Rs.25,000/- to be
deposited with the registry of the Court

Election Petition dismissed with cost (E-3)

Case law relied upon/discussed: -

1. Sharif-Ud-Din Vs Abdul Gani Lone AIR 1980 SC 303

2. Rajendra Singh Vs Usha Rani AIR 1984 SC 956

3. Shitla Prasad Sonkar Vs Arun Kumar Nehru
& ors. AIR 1987 Alld. 51
(Delivered by Hon'ble Ashok Kumar, J.)

1. This election petition has been
filed by the petitioner arising out of
election to 124 Bareilly City Assembly
Constituency held in March, 2017 and the
result of which was declared in which the
respondent no. 1 was declared elected.

2. Brief facts of the case are that the
petitioner has filed the nomination paper to
contest the election to 124 Bareilly City
Assembly Constituency. The petitioner
claims that he has deposited security amount
and has also submitted his detailed affidavit,
additional affidavit and the revised affidavit.

3. The petitioner claims that he
opened a fresh bank account and had
complied all other conditions as instructed
by the returning officer.

4. It is submitted by the petitioner
that on 30.01.2017 the Returning Officer
has rejected his nomination on the ground
that in the revised affidavit in part 'Kha',
in Column '8 Kha (iii)' Columns 5,6,7 and
8 are left blank by the petitioner. The
petitioner claims that there was no
concealment as alleged.

5. The petitioner therefore claims
that the omission in part A, as pointed out
by the Returning Officer, may be fatal but
not in part B, which is exclusively
founded on part A.

6. He therefore claims that in view
of the aforesaid, the affidavit filed by the
petitioner can not be treated either
incomplete or defective therefore the
rejection of nomination paper by the
Returning Officer was uncalled for and
arbitrary as such dictatorial exercise of
power.
1278 INDIAN LAW REPORTS ALLAHABAD SERIES

7. The nomination paper of the
petitioner
was
scrutinized
by
the
Returning Officer and the Returning
Officer has found that the same was
inadequate and incomplete, hence the
same was rejected.

8. The objection filed by the
petitioner dated 30.01.2017 against the
rejection of his nomination was dealt with
by
the
Returning
Officer
and
the
Returning Officer has reiterated his
decision rejecting the nomination paper
filed by the petitioner holding that the
petitioner is disqualified to be chosen to
fill the Assembly seat in question.

9. The respondent no. 1 was
declared elected.

10. Against the order declaring the
respondent no. 1 as elected Member of
Legislative Assembly the present election
petition has been filed by the petitioner
with the allegation that the respondent no.
1 committed corrupt practice of undue
influence upon the Returning Officer as a
result of which the petitioner's nomination
paper was rejected.

11. This election petition was
nominated to this Court by Hon'ble the
Chief Justice and thereafter the same was
listed with the consent of the respective
parties on 22nd September, 2017. After
22.09.2017 the petition was not listed on
the date fixed as such was listed only on
02.02.2018 with the office report.

12. On the request of the petitioner,
who appeared personally, the notice was
issued to the respondent no. 1 under Rule
5 of Chapter XV-A of the Rules of the
Court. Office was directed to send the
notice through R.P.A.D. and the matter
was directed to be listed on 23.03.2018.
The office has submitted its report dated
23.03.2018. The office report indicates
that neither the acknowledgement nor
undelivered notices has been returned
back.

13. The petition thereafter has been
taken
up
on
06.04.2018
when
an
amendment application has been filed on
behalf of the petitioner by one Sri Arvind
Singh, who claims that he is the clerk of
the counsel who has filed the vakalatnama
on behalf of the petitioner.

14. In the said affidavit, it has been
mentioned that the respondent no. 1 has
shifted his clinic to other place and
therefore it was prayed (in the said
amendment application/affidavit) that the
details of the respondent no. 1 requires the
amendment in the original election
petition as also the new addresses.

15. The petitioner was present when
the aforesaid proceedings were taken up.

16. During the aforesaid proceedings
the counsel has filed the vakalatnama on
behalf of the respondent no. 1 and since the
averments of the amendment application /
affidavit were doubtful, it was directed by
the Court to the counsel who had filed the
amendment application to file a proper
amendment
application
disclosing
the
source of the contents / change of addresses
of the respondent no. 1 and since the
petitioner himself was present he was
directed to file the proper affidavit.

17. The proceedings on 06.04.2018
were held even after advocates' strike as
the petitioner himself appeared and with
the consent of the parties the matter was
listed for 27.04.2018.
2 All. Rakesh Agarwal Vs Dr. Arun Kumar & Anr.
1279

18.

The
office
report
dated
27.04.2018 indicates that the registered
post AD was neither received back nor
undelivered notice has been returned
back. However, the Court has proceeded
as the counsel for respondent no. 1
appeared and accordingly the amendment
application was allowed and the petitioner
was allowed to carry out the necessary
amendments.

19. Thereafter, as jointly agreed, the
case was directed to be listed in the third
week of May, 2018. On 25.05.2018 the
petition was listed and an application
without
an
affidavit
was
filed
on
25.05.2018 by the petitioner.

20. The Court has directed the
petitioner to file an affidavit in support of
his application. The petitioner however
has insisted for acceptance of the said
application without an affidavit.

21. The following detailed order has
been passed on 25.05.2018:-

"An application dated 25th
May, 2018 is filed by the petitioner Sri
Rakesh Agarwal which is not supported
by an affidavit.

Sri Rakesh Agarwal, petitioner
is directed to file this application
supported by an affidavit but he has
stated that this application may be taken
on record even without supported by an
affidavit. The court has noticed that
several original documents are annexed
along with this application. According to
the Court legible photostate copies should
by filed supported by an affidavit.

This application be taken on
record and whenever a fresh application
along with photostat copy of all the
documents supported by an affidavit, is
filed the same be taken on record and if
the petitioner desires the original copies
enclosed with this application be returned
to the petitioner.

In paragraph nos.5, 6, 8, 9, 12,
13, 14, 15, 17, 18, 19 and 20, in the
instant election petition, the petitioner has
made several allegations against Sri
Manoj who was the Returning Officer.

The petitioner has informed the
Court that Sri Manoj, the Returning
Officer, who has conducted the election
which was held in March, 2017, is now
posted as Chief Revenue Officer at
Deoria.

Let notice be issued to Sri
Manoj, now posted as Chief Revenue
Officer, Deoria.

Petitioner shall take steps for
service of notice through speed post
within three days.

Office is directed to send the
notice to Sri Manoj, Chief Revenue
Officer Deoria, who was Returning
Officer of the U.P. Legislative Assembly
election held in the month of March, 2017
of District Bareilly (City). Sri Manoj may
file counter affidavit within six weeks.

List this petition on 10th August,
2018.

Sri
Ankit
Saran,
Advocate
representing the respondent no.1 is directed
to file counter affidavit within six weeks. A
copy of the counter affidavit be served upon
the petitioner through registered post at his
address given in the election petition.
Respondent no.2 has not filed any reply so
far. As a last opportunity six weeks time is
allowed to him to file the reply."

22.

The
office
report
dated
10.08.2018 indicates that the Chief
Standing Counsel, Sri K.R. Singh has
filed an affidavit on behalf of Returning
Officer.
1280 INDIAN LAW REPORTS ALLAHABAD SERIES

23. No counter affidavit was filed by
the respondents and the counsel for the
respondent no. 2 was not present therefore
with the consent of the petitioner the date
has been fixed as 22.10.2018.

24. On 22.10.2018 the Court has
passed the following order:-

"This Court vide order dated
25.5.2018 had granted six weeks' time to
the learned counsel for respondent No.1
to file the written statement/counter
affidavit. It was also directed to the
learned counsel for respondent No.1 to
serve
a
copy
of
the
written
statement/counter
affidavit
upon
the
petitioner at his registered postal address.

Sri Ankit Saran, learned counsel
for respondent No.1 was not present on
the last date which was fixed by this
Court, vide order dated 25.5.2018, being
10.8.2018.

Today when the case is taken
up, Sri K.R. Singh, learned Additional
Chief Standing Counsel has informed the
Court that an application along with an
affidavit has been filed by Sri Manoj, who
was the Returning Officer. The said
affidavit of Sri Manoj is available on
record. Since the copy of the said affidavit
filed by Sri Manoj is not served on the
petitioner, it is hereby directed that the
same be served upon the petitioner, who
is personally present, during the course of
the day.

Sri Ankit Saran, learned counsel
representing respondent No.1 has prayed
for further time to file the reply/written
statement on behalf of the respondent
No.1. Three weeks and no more time is
allowed to respondent No.1 to file the
counter affidavit/written statement.

The
petitioner,
Sri
Rakesh
Aggarwal,
has
placed
reliance
on
provisions of Civil Procedure Code, 1908
particularly Order 8 Rule 1, Rule 5, Rule
10 and has submitted that the Court while
allowing further time to the respondent
No.1 may impose the cost.

Having
heard
the
learned
counsel for the parties and the petitioner,
this Court proposes to fix this petition on
20.11.2018 with a specific direction that
on the next date fixed, the counsel for the
respondent No.1 must file the written
statement/counter affidavit, a copy of
which must be supplied to the petitioner
before 17.11.2018.

Let the petition be listed at the
top of the list on 20.11.2018."

25. The case was heard on
20.11.2018 and the following order has
been passed in presence of the petitioner
and the counsel for the respondent:-

"On the last date, on the request
of Sri Ankit Saran, who appeared on
behalf of respondent no.1, three weeks'
time was granted to him to file the
reply/written statement on behalf of
respondent no.1. It was clearly indicated
that no further time will be allowed to the
respondent no.1 to file the written
statement/counter affidavit.

In the order dated 22.10.2108 while
fixing the petition for 20.11.2018 this Court has
directed the counsel for the respondent no.1 to
file written statement/counter affidavit on the
next date fixed which is 20.11.2018 and a copy
of the said written statement/counter affidavit
must be supplied to the petitioner before
17.11.2018.

Today Sri K.R. Singh and Sri
Siddharth Singhal filed their Vakalatnama
on behalf of respondent no.1 and an
endorsement is made by Sri Ankit Saran,
Advocate that he has no objection. The
said Vakalatnama be taken on record.
2 All. Rakesh Agarwal Vs Dr. Arun Kumar & Anr.
1281

The election petitioner, Sri
Rakesh Agarwal has pointed out that the
copy of the written statement filed on
behalf respondent no.1 is served upon him
today at 3.15 P.M. and apart from the
written statement, three applications are
also served upon him, being application
under Order 7 Rule 11 of C.P.C., under
Order 6 Rule 11 of C.P.C. read with
Section 86(1) of the Representation of
People Act, 1951 and application under
Section 86(1) of the Representation of the
People Act, 1951.

The
election
petitioner
has
pointed out that the respondent no.1, in
fact, has disobeyed the order of this Court
dated
22.10.2018
and
has
not
served/supplied the copy of the written
statement on or before 17.11.2018, hence
cost be imposed upon the respondent
no.1.

As requested by the petitioner, a
week's time is allowed to file the
replication to the written statement and
the
reply
to
the
aforesaid
three
applications.

As
jointly
prayed
by
the
petitioner and learned counsels for the
respondent no.1, list this petition on
30.11.2018."

26.

The
office
report
dated
30.11.2018 / 06.12.2018 indicates that the
petitioner has not filed the reply to the
written statement or the reply to the
applications filed by the respondent no. 1.
On the next date fixed when the case was
listed, after hearing the parties following
order was passed:-

"Sri K.R. Singh, learned counsel
representing the respondent no. 1 has
filed an application supported by an
affidavit, a copy of which is served upon
the petitioner, Sri Rakesh Agarwal today.
Sri Rakesh Agarwal may file reply, if he
so desire within ten days.

Sri
Rakesh
Agarwal,
the
petitioner has filed replication, the reply
to the application supported by the
affidavit as well as three counter
affidavits, which are the reply to the
affidavits/application
filed
by
the
respondent no. 1. All the aforesaid
affidavits/applications/replication
be
taken on record.

The
petitioner,
Sri
Rakesh
Agarwal has also filed an affidavit/ reply
to the counter affidavit filed by Sri Manoj,
who was the then returning officer, a copy
of which is served upon the learned
Additional Chief Standing Counsel, Sri
K.R. Singh.

As prayed by Sri K.R. Singh,
learned counsel for the respondent no. 1, two
weeks' time is allowed to file the replies to the
above counter affidavits/replication filed by
the petitioner, Sri Rakesh Agarwal.

As agreed by the parties, list
this petition on 11th January, 2019."

27. On the next date fixed i.e. on
11.01.2019, three rejoinder affidavits
were filed by the respondent no. 1 and
another rejoinder affidavit was filed by
the Returning Officer, respondent no. 2.

28. A counter affidavit to the delay
condonation application has been filed by
the petitioner and the petitioner has
contested
the
delay
condonation
application therefore the counsel for the
respondent no. 1 has prayed for short time
to file the reply to the counter affidavit.
The case was adjourned for 23.01.2019.

29. On 23.01.2019 the case was
taken up and was heard and following
order has been passed fixing 24.01.2019
for further hearing:-
1282 INDIAN LAW REPORTS ALLAHABAD SERIES

"In pursuance of the order
dated 22.10.2018 the respondent no. 1
has filed the written statement on the date
fixed, being 20.11.2018 granting the time
to the respondent no. 1 to file the written
statement.

Though this Court has observed
that copy of the written statement be
served/supplied to the petitioner on or
before 17.11.2018.

The written statement filed be
taken on record. The reply has been filed
by the petitioner to the affidavit filed by
the then Returning Officer- Sri Manoj,
which is also available on record.

The
petitioner-
Sri
Rakesh
Agarwal has filed a counter affidavit to
the affidavit filed in support of the written
statement stating therein that the written
statement is not acceptable for the reason
that the respondent no. 1 failed to comply
the order dated 22.10.2018 and failed to
supply the copy of the written statement to
the petitioner on or before 17.11.2018
and the copy of the written submission
was supplied to the petitioner only on
20.11.2018 which was the date fixed.

The petitioner therefore has
prayed that the written statement filed by
the respondent no. 1 is not acceptable as
the same is filed in contravention of the
directions of this Court.

Sri K.R. Singh, learned counsel
representing the respondent no. 1 has
filed the affidavit to the objection filed by
the petitioner saying therein that there
was no deliberate delay on the part of the
respondent no. 1 and in fact the written
statement was prepared at Allahabad and
an affidavit was sworn at Allahabad on
18.11.2018
and
since
the
written
statement was prepared at Allahabad on
17.11.2018 and swearing was done on
18.11.2018, the same practically could
not be supplied to the petitioner as the
petitioner resides at District Bareilly and
as soon as the petitioner reached at
Allahabad
on
the
date
fixed
i.e.
20.11.2018, a copy of the written
statement was supplied to the petitioner
on 20.11.2018.

I have perused the objections of
the petitioner and also the reasons given
by the respondent no. 1 and in my opinion
neither there was any deliberate default
on the part of the respondent no. 1 nor
there was any ill intention, hence the
objection of the petitioner can not sustain.

In view of the aforesaid, this
Court
proposes
to
proceed
the
proceedings on merit.

Put up tomorrow i.e. 24.01.2019
at 12.00 p.m. for further hearing."

30. On 24.01.2019 the matter was
heard and following order has been
passed:-

"Learned
counsel
for
the
respondent no. 1, Sri K.R. Singh has
placed reliance of the provisions of
Section 87 of Representation of People
Act, 1951 as well as the procedure
prescribed therein. He has further placed
reliance of provision of Order 6 Rule 14A
and Order 7 Rule 19-25 of Amended
Allahabad Rules.

Learned counsel for the respondent
no. 1 has therefore submitted that instant
election petition is not maintainable as the
copy which has been provided/supplied to the
respondent no. 1 by the petitioner is an
incomplete document. He has pointed out that
in the index of the election petition there are
only 26 pages referred and the copy supplied
to the respondent no. 1 indicates total number
of pages of the election petition as 26.

During
the
course
of
proceedings when the counsel for the
respondent no. 1 has pointed out about
2 All. Rakesh Agarwal Vs Dr. Arun Kumar & Anr.
1283
irregularity on the part of the petitioner, the
Court has seen the documents and it is noticed
that the affidavit filed in support of the
election petition starts from page 20, which
runs in three pages and the verification of the
affidavit is on page 22. Page 23 refers the list
of the address of the petitioner which is signed
by the petitioner on 25.04.2017. Page A-3/24
is a document of the photostat copy of the
Registration of the petitioner as an Advocate
which is issued by the Bar Council of U.P.
Allahabad. Next to the above document is the
list of all document on which the petitioner
relies as evidence in support of his claims
which starts from page A-3/25 to A-3/ 28
which is also signed by the petitioner and the
date is mentioned being 25.04.2017. The last
paper is the document in which the number is
mentioned as A-3/29 which is the receipt
issued by the registry/ tender notice
acknowledging the deposit of Rs. 2000/- made
by the petitioner on 25.04.2017.

The contention of the counsel
for the respondent no. 1 is that the
petitioner
has
not
proceeded
in
accordance with law as he failed to
provide the address of service.

In the aforesaid background the
petitioner- Sri Rakesh Agarwal has
prayed as also the counsel for the
respondent no. 1, Sri K.R. Singh that both
of them may be permitted to go through
peruse the original complete record of the
election petition.

In view of the aforesaid, the
respondent no. 1 and the petitioner are
allowed to proceed in the matter and
adopt
the
appropriate
steps
for
permission by the appropriate authority /
registry authority to permit them for
inspection of all the original records.

As agreed and prayed by Sri
Rakesh Agarwal and learned counsel for
the respondent no. 1, Sri K.R. Singh, list
this case again on 27th February, 2019.

In the meantime the petitioner
and the respondent no. 1 will inspect the
original record."

31. On the next date fixed i.e. on
27.02.2019 an application supported by
an affidavit was filed under Section 86(1)
of the Representation of People Act, 1951
(herein after referred as 'The Act') by the
respondent no. 1.

32. Along with the application /
affidavit two documents are enclosed,
which are, the complete copy of the
election petition filed by the petitioner
which was served upon the respondent no.
1 in original being annexure 1 to the
affidavit and the certified copy of the
election petition, which is obtained by the
respondent no. 1 from the office of the
registry of this Court.

33. The petitioner prayed and was
allowed ten days time to file the reply to
the said application / affidavit filed by the
respondent no. 1 and with the consent of
the parties the case was fixed on
15.03.2019.

34. On 15.03.2019, On the request
of the petitioner, the case was adjourned
and following order has been passed:-

"Sri
Saroj
Giri,
Advocate
associated with the chamber of Mr. Mayank
Agarwal,
Advocate,
who
previously
represents
the
petitioner-
Sri
Rakesh
Agarwal has informed the Court that the
petitioner- Sri Rakesh Agarwal, who was
appearing in person before this Court in the
instant election petition, is not feeling well,
therefore he has requested him to request the
Court to pass over the case today.

This case is specially fixed by
this Bench on the request of Sri Rakesh
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
Agarwal for today vide order dated
27.02.2019.

Since the petitioner, who himself
is arguing his case is not well, the case is
passed over for the day.

List this petition after four
weeks."

35. When the case was listed on
29.05.2019 it was again adjourned on the
request of the petitioner as he was not
feeling well and therefore on his request
the case was fixed for 31.05.2019.

36. On 31.05.2019, a counter
affidavit has been filed by the petitioner
to the application / affidavit filed by the
respondent no. 1 under Section 86(1) of
'The Act'.

37. On the request of the counsel for
the respondent no. 1 three weeks time was
allowed to file the rejoinder affidavit to
the counter affidavit and as jointly agreed
the date was fixed for 12.07.2019.

38. On 12.07.2019, two weeks and
no more time was allowed to respondent
no. 1 to file the rejoinder affidavit and as
jointly agreed the date was fixed for
02.08.2019. The rejoinder affidavit is
filed on 02.08.2019.

39. The case is heard at length on
02.08.2019.

40. Learned counsel for the
respondent no. 1 has submitted that the
copy of the election petition served upon
the respondent no. 1 is not the true copy
of the election petition, which has been
filed by the petitioner before this Court.

41. According to the counsel for the
respondent no. 1, the original copy of
election petition contains two extra pages,
which are not part of the copy of the
election petition served / supplied by the
petitioner to the respondent no. 1. It is
contended by
the
counsel
for
the
respondent no. 1 that the copy of the
election petition was made available /
filed by the petitioner himself in the
registry of this Court. He has submitted
that the petitioner has not made any
endorsement on the copy of the election
petition served upon the respondent no. 1
that it is the true copy of the original
election petition.

42. Learned counsel for the
respondent no. 1, has submitted that the
petitioner therefore has not complied with
the mandatory provisions of Section 81(3)
of Representation of People Act, 1951. He
has referred the provision of Section 81(1)
of the Representation of People Act,
1951, which reads as follows:-

"Section 81. Presentation of
petitions.- (1) 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 to the [High Court] by any
candidate at such election or any 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 retured candidate at the election
and dates of their election are different,
the later of those two dates].

Explanation.- In this sub-section,
"elector" means a person who was entitled to
vote at the election to which the election
petition relates, whether he has voted at such
election or not."

43. Learned counsel for the
respondent no. 1 has placed reliance of
2 All. Rakesh Agarwal Vs Dr. Arun Kumar & Anr.
1285
the provision of Sub Section (3) of
Section 81, which reads as follows:-

"Section 81(3). Every election
petition shal be accomplanied by as many
copies thereof as there are respondents
mentioned in the petition and every such
copy shall be attested by the petitioner
under his own signature to be a true copy
of the petition."

44. Learned counsel for the
respondent no. 1 has also placed reliance
of the provision of Section 86 of 'The
Act'.

45. Section 86 of the Act of 1951
provides the trial of election petitions.
Sub Section (1) of Section 86 reads as
follows:-

"Section 86. Trial of election
petitions. (1) The High Court shall dismiss an
election petition which does not comply with
the provisions of Section 81 or Section 82 or
Section 117.

Explanation.- An order of the High
Court dismissing an election petition under
this sub-section shall be deemed to be an
order made under clause (a) of Section 98."

46. Learned counsel for the
respondent no. 1 therefore submits that
while deciding the election petition the
Court possess no common law power. He
has further submitted that the statutory
requirements of the election law must be
strictly observed and complied with.

47. Learned counsel for the
respondent no. 1 therefore submits that in
view of the provision of Section 81 and
Section 86 of the Act the present election
petition is not maintainable as such is
liable to be dismissed.

48. The Court thereafter has asked
the petitioner to submit his reply to the
objection about the maintainability of the
present election petition. The petitioner
who appeared in person instead of
replying the arguments and the objections
of the counsel for the respondent no. 1 has
stated that he do not want to give any
reply to the objection / submission of the
counsel for the respondent no. 1 and has
submitted that this Court should not
proceed further in the matter and to
release the case. The Court thereafter has
asked the petitioner that why such
irrelevant submission is made by the
petitioner, the petitioner has repeated
again and again for release of the case.

49. Analysis of Sub Section (3) of
Section 81 would reveal that every
election petition should be accompanied
by
as
many
copies
as
there
are
respondents and that every copy should be
attested by the petitioner to be a true copy
of the petition under his own signature. If
these requirements are not followed
strictly and literally, it would result in
dismissal of the election petition without
any trial as provided by Section 86 of the
Act.

50. In the instant case the main point
raised by the respondent no. 1 was that
the sets of copies, which were filed by the
election petitioner before this Court are
different then those copies, which are
made served by the petitioner upon the
respondent no. 1.

51. The admitted fact is that the
petitioner has filed two sets of copy of the
election petition in the High Court
Registry. The first / original copy of the
election petition contains first 17 pages,
which are numbered by hand by sketch
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
pen thereafter page 18 and 19 is the
affidavit
filed
and
signed
by
the
petitioner. Page 20 is another affidavit
filed by the petitioner in support of
allegations of corrupt practice and page
20 and 21 are also marked by sketch pen,
whereas the next page, which provides the
verification part is not marked by sketch
pen. The signature of the petitioner are on
two places on unnumbered page and the
date has been mentioned as 25th Day of
April, 2017 and the time is mentioned by
hand in blue ink as " at April 1.40 p.m."

52. After the unnumbered page,
another page is tagged, which provides
the list of address of the petitioner in
which the details are mentioned and the
petitioner has signed at the middle and the
date
is
mentioned
as
25.04.2017,
thereafter page 22 is tagged, which is
numbered by sketch pen which provides
the identification ID of the petitioner
issued by the Bar Council of U.P.,
Allahabad. Thereafter pages 24 to 26 are
again numbered by sketch pen and are
tagged providing the list of all documents
on which the petitioner relies as evidence
in support of his claim. Page 26 is signed,
which provides the date and time as 25th
April, 2017 about 1.40 p.m. by the oath
commissioner.

53. Learned counsel for the
respondents has filed an affidavit dated
17.02.2019 and had enclosed with it the
certified copy of the election petition
which was served upon him as annexure1. The aforesaid certified copy of the
election petition has been filed so as to
enable the court to compare it with the
original.

54. A perusal of the certified copy of
the election petition as served upon the
respondent No.1 reveals that it has not
been attested by the petitioner to be a true
copy of the original petition. It does not
contain any endorsement that it is a true
copy of the original election petition.

55. A comparison of the aforesaid
copy of the election petition served upon
the respondent No.1 with the original
reveals that there are two additional pages
tagged with the election petition which
provide the list of address of the petitioner
and identification proof of the petitioner
which are missing in the copy of the
election petition served/supplied by the
petitioner to the respondent No.1.

56. In view of the aforesaid facts
and circumstances, the copy of the
election
petition
supplied
to
the
respondent No.1 is not in conformity with
Section 81(3) of the Act.

57. In Sharif-Ud-Din Vs. Abdul
Gani Lone, AIR 1980 SC 303 observed
as under:-

"The object of requiring the
copy of an election petition to be attested
by the petitioner under his own signature
to be a true copy of the petition appears
to be that the petitioner should take full
responsibility for its contents and that the
respondent or respondents should have in
their possession a copy of the petition
duly attested under the signature of the
petitioner to be the true copy of the
petition
at
the
earliest
possible
opportunity to prevent any unauthorised
alteration or tampering of the contents of
the original petition after it is filed into
Court."

58. A three Judges Bench of the
Supreme Court in Rajendra Singh Vs.
2 All. State of U.P. Vs Jitendra Kumar Yadav
1287
Usha Rani AIR 1984 SC 956 while
considering the provisions of Section
81(3) and 86 of the Act opined that filing
of the incorrect copies of the election
petition and providing an incorrect copy
upon the respondents amounts to noncompliance of Section 81(3) which entails
dismissal of the election petition.

59. A learned Single Judge of the
Allahabad High Court in Shitla Prasad
Sonkar Vs. Arun Kumar Nehru and
others AIR 1987 Alld. 51 following the
above decision of the Supreme Court held
ommision of certain paragraphs in the copy
of the election petition supplied to the
respondents is fatal and the election petition
is liable to be dismissed in view of Section
83(3) and 86(1) of the Act as such a defect
cannot be permitted to be rectified.

60. In view of the aforesaid facts and
circumstances as well as legal position
narrated, since the provisions of Section 86 of
the Act are mandatory and must be complied
with in letter and spirit, the election petition is
liable to be dismissed for non-compliance of
Section 81(3) of the Act.

61. Accordingly, election petition is
dismissed under Section 86 of the Act
with cost of Rs.25,000/- to be deposited
with the registry of the Court.
----------

(2019)10ILR A 1287

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.10.2019

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.
Criminal Appeal (u/s 378(4) of Cr.P.C.) No.
168 of 2019

State of U.P. ...Applicant
Versus
Jitendra Kumar Yadav ...Opposite Party

Counsel for the Applicant:
Government Advocate

Counsel for the Opposite Party:
------

A. Indian Penal Code, 1860 - Sections
363,366,376 & Code of Criminal Procedure
- Section 378(3) -Application to grant
leave to appeal - rejection - even if another
view is possible, in absence of any
compelling and substantial reason, the
appellate court dealing with appeal against
acquittal would not interfere with the
acquittal unless the approach of the court
below is found to be manifestly vitiated
while it makes consideration of evidence.
 (Para 10,11,12,16,17,23,34 & 36)

Criminal Appeal dismissed (E-6)

Precedent followed: -

1. St. of Raj. Vs Shera Ram alias Vishnu Dutta
(2012) 1 SCC 602

2. Shyam Babu Vs St. of U.P. (2012) 8 SCC 651

3. Ram Lakhan Sheo Charan & ors. Vs St. of
U.P. 1991 Cri.L.J. 2790

4. Phool Chand and etc. Vs St. of U.P. 2004
Cri.L.J. 1904

5. Ram Kishan Singh Vs Harmit Kaur & ors.
(1972) 3 SCC 280

6. Utpal Das & anr. Vs St. of W.B. (2010) 6 SCC 493

7. Rajendra Singh & ors. Vs St. of Bihar (2000) 4 SCC 298

8. Vishnu @ Undrya Vs St. of Mah. (2006) 1 SCC 283