Full Judgment Text
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PETITIONER:
MANOHAR JOSHI ETC.
Vs.
RESPONDENT:
DAMODAR TATYABA @DADASAHEB RUPWATE AND ORS.
DATE OF JUDGMENT11/03/1991
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
SINGH, K.N. (J)
KULDIP SINGH (J)
CITATION:
1991 SCR (1) 759 1991 SCC (2) 342
JT 1991 (1) 588 1991 SCALE (1)410
ACT:
Representation of the People Act, 1951: Sections 99,
123(2), (3) and 3(A)--Corrupt practice--Allegations of--
Person summoned should know precise charge to be met--Notice
to such person to spell out precise corrupt practice and
portions of documentary evidence relied upon to sustain
such.
HEADNOTE:
In the 1989 elections to the Lok Sabha, respondent No.
2 was declared elected from the Bombay South Central
Constituency. One of the defeated candidates (respondent no.
1) filed an election petition challenging the validity of
the election of respondent no. 2 inter alia on the ground of
corrupt practices under sub-section (2),(3) and (3A) of
section 123 of the Representation of the People Act, 1951.
The High Court having reached the stage in the trial
when it was prima facie of the opinion that the charges
alleged in the petition, of corrupt practices falling under
sections 123(3) and 123(A) had been proved to have been
committed, it proceeded under section 99 to name the
collaborators in such corrupt practices. The High Court
accordingly directed issuance of notices to three persons.
Aggrieved by this order, two of the person named therein
approached his Court by way of two separate appeals.
Before this Court, it was contended on behalf of the
appellants that (i) the consequences of naming a person on
his being found guilty pursuant to such notices were grave;
(ii) the proviso to sub-section(1) of section 99 of the Act
enjoined upon the Court to state precisely the charges and
the evidence which the person summoned was called upon to
meet; and (iii) the notices to the appellants to answer
allegations of corrupt practices allegedly committed by them
were vague.
Allowing the appeals and directing the High Court to
issue proper notices to the appellants in the light of law,
this Court,
HELD: (1) It is clear from the provisions of sub-
clauses (i) and (ii) of clause (a) of sub-section (1)
of section 99, that at the time of deciding
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the election petition the Court has to record a finding that
a corrup practices is proved to have been committed and that
it has been committed by a particular person. The Court has
not only to name the person but also the nature of the
corrupt practice committed by him.[766F-G)]
(2) If the person is a party to the petition, it is not
necessary to hear him separately before recording such
finding. However, when he is not a party to the petition,
before such serious finding is recorded against him, he must
have the same opportunity as the party to the petition, to
meet the allegations against him. In that respect, he stands
on the same footing as the party to the petition against
whom such a finding is to be recorded. He cannot be
discriminated against and made to suffer any disadvantage
because he is not a party to the petition. [766H-767]
(3) Where a corrupt practice is alleged, the trial of
an election petition on such charges is of a quasi-criminal
nature, and a heavy burden rests on the person alleging the
corrupt practice to prove strictly all the ingredients of
the charge. This is as it should be since the naming of a
person as having committed a corrupt practice has a serious
consequence of disqualifying him from being chosen as or
from being member of any House of Parliament or of the
Legislative Assembly or Council of a State for a period upto
6 years. [769B-C)
D.P. Mishra v. Kamal Narain Sharma & Ors., [1971] 3
S.C.R. 257 and Rashim Khan v. Khurshid Ahmed & Ors., [1975]
I.S.C.R. 643, referred to.
(4) When the legislature requires that the election
petition shall contain full particulars of each and every
alleged corrupt practice including as fuller a statement as
possible of the names of the parties and the date and place
of commission of such practice, it would be contrary to the
object of the said provisions to hold that when a notice is
issued under Section 99 against a person who is not a party
to the election petition for holding him guilty of any
corrupt practice, the notice should not appraise him of the
precise charge against him and give him the full particulars
thereof.[769D-E]
(5) The impugned order directing the issuance of notice
is extremely vague and defective to the point of being
contrary to the provisions of law. The notice is of an
omnibus character. Section 123(3) does not refer to one
corrupt practice but a variety of them. Yet the notice does
not specify which particular corrupt practice is sought to
be
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brought home to each of the appellants, and does not state
which of the portions of the petition, etc. is being
relied upon to sustain which of the charges and against
which of the appellants. [769F-G, 770B]
[Order dated December 1, 1988 in Special Leave petition
No. 13163 of 1988 and the later non-speaking order of
January 23, 1989 in the matter overruled.] [771D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. (NCE)
1044 & 1045 of 1991.
From the Judgement and Order dated 29.10.1990 of the
Bombay High Court in Election Petition No.5 of 1990.
K.K. Venugopal, Harish Salve, P.H. Parekh, Sunil Dogra,
V.D. Joshi and A.M. Khanwilkar for the Appellants.
A.S. Bobde, V.A. Bobde, S.D. Mudliar, C.K. Ratnaparkhi,
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B.P. Pandye, and Mrs. Nirmal Chhagan for the Respondent.
The Judgement of the Court was delivered by
SAWANT, J. These two petitions arise out of a common
order dated 29th October, 1990 passed by the Bombay High
Court in Election Petition No. 5 of 1990 and raise a common
question of law. Hence they are disposed of by this
judgement.
2. Leave is granted in both the petitions.
The election petition in which the impugned order is
passed was filed by a defeated candidate (Respondent No.1)
against the elected candidate (Respondent No.2) and other
contesting candidates challenging the validity of the
election of respondent No.2 to the Lok Sabha from the Bombay
South Central Constituency in the election held on November
24, 1989. The election of respondent No.2 is challenged in
the petition, among other things, on the ground of corrupt
practices under sub-sections (2), (3) and (3A) of Section
123 of the Representation of the People Act, 1951
(hereinafter referred to as the "Act"). It appears from the
impugned order that the High Court has reached a stage in
the trial of the election petition where examination-in-
chief and cross-examination of about 14 witnesses has been
completed and various documents have been brought on record.
It is at this stage that the impugned order has been made,
the operative part of which reads as follows:
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"In this Election Petition, the Petitioner
seeks to set aside the election of Respondent No.1
on the ground of corrupt practice under Sections
123(3) and 123(3A) of the said Act. The Petitioner
has led documentary and oral evidence. Respondent
No.1 has tendered documents but has led no oral
evidence. The other Respondents have remained
absent even though served. Petitioner and
Respondent No.1 have argued their respective cases.
The learned Advocate General has also drawn my
attention to Section 99 of the said Act which
requires this Court, whilst giving a finding that
corrupt practice has been proved, to name all
persons who have been proved at the trial to have
been guilty of any corrupt practice and the nature
of that practice. This however must be after having
given to such persons notice to appear and show
cause why he/they should not be so named.
At this stage, I am of the prima facie
opinion that the charges alleged in the Petition
of corrupt practice under Section 123(3) and
123(3A) of the said Act have been proved to have
been committed and that Mr. Bal Thackeray, Mr.
Chhagan Bhujbal and Mr. Manohar Joshi Are (to use
the words of Supreme Court) collaborators in such
corrupt practice.
Accordingly, I direct that notices under
Section 99 of the Representation of the People Act,
1951, shall be given to Mr. Bal Thackeray, Mr.
Chhagan Bhujbal and Mr. Manohar Joshi to appear
before me on 3rd December, 1990, to show cause why
they should be not be so named in the order on the
Election Petition.
Each notice shall state that the person named
in the notice shall have an opportunity of cross-
examining all witnesses who have given evidence
against him and that he shall have a right of
calling evidence and of being heard.
I direct that to all the notices shall be
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annexed photo copies of:
(a) the Petition, the written statement of
Respondent No.1 and the Issues.
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(b) the oral depositions of the petitioners
witnesses.
(c) all exhibits, except Exhibits RR, SS to YY,
AAA, AAA1, AAAA, BBBB, BBBB1 and Exhibits 1 to 8.
(d) this order.
I also direct that along with all the notices
shall be sent audio cassettes containing copies of
Exhibits SS to YY."
Aggrieved by this order, two of the persons named therein,
viz., Manohar Joshi and Chhagan Bhujbal have approached his
Court by way of these two separate appeals by special leave.
3. The order is assailed on the ground that although it
directs the issuance of notice to the appellants to answer
allegations of corrupt practices allegedly committed by
them, it is vague and does not indicate which of the corrupt
practices they are alleged to have committed and which
evidence on record supports them. In the absence of the
specific charge/s and the evidence in support of it/them
indicated in the order and the notices issued pursuant to
it, the appellants are at a loss to comprehend the case that
they are called upon to meet. They are thus put to a
disadvantage and are gravely prejudiced. It is pointed out
that the consequences of naming a person on his being found
guilty pursuant to such notice are grave inasmuch as, among
other things, he incurs a disqualification for contesting
election under Article 103 of the Constitution read with
Section 8A of the Act. It is also urged that even otherwise
the notice to appear and the opportunity to show cause
contemplated under the proviso to sub-section (1) of Section
99 of the Act enjoins upon the Court to state precisely the
charge and the evidence which the person summoned is called
upon to meet. It does not contemplate a vague notice such as
the one which is issued and is directed to be issued by the
impugned order.
4. For reasons more than one, we find great force in
these submissions. Shri Bobde, the learned Advocate General
of Maharashtra who appeared for respondent No.1 could not
seriously dispute these contentions. However, he pointed out
to us an earlier order dated December 1, 1988 of this Court
passed in Special Leave Petition No. 13163 of 1988 which was
filed against a similar order passed by the Bombay High
Court in Election Petition No.1 of 1988. This Court by its
said order had held as follows:
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"We do not think that in a notice under
Section 99 of the Representation of the People
Act, 1951 the portions of the speeches of the
petitioner are required to be specific for the
purpose of sub-sections (3) and (3A) of Section
123 of the said act. The petitioner, however, will
be at liberty to make an application before the
Court for specifying those portions which, Prima
facie, according to the Court, come within the
purview of sub-sections (3) or (3A) of Section 123
of the said Act. If any such application is made,
the Court will dispose of it in accordance with
law.
The special leave petition is disposed of
accordingly."
The provisions of the Act which have a cumulative
bearing on the present question are contained in sections
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82, 83, 97, 98, 99, 107, 123(3) and 123(3A) of the Act.
6. Section 82 enjoins upon the election petitioner to
join as respondent to the petition, in addition to other
necessary parties, any candidate against whom allegations of
any corrupt practice are made in the petition.
Section 83 which deals with the contents of the
election petition states, among other things, as follows:
"83. Contents of petition.--(1) An election
petition--
(a) .........................................
(b) shall set forth full particulars of any
corrupt practice that the petitioner alleges,
including as full a statement as possible of the
names of the parties alleged to have committed
such corrupt practice and the date and place of
the commission of each such practice; and
(c)...........................................
Provided that where the petitioner alleges any
corrupt practice, the petition shall also be
accompanied by an affidavit in the prescribed form
in support of the allegation of such corrupt
practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall
also be signed by the petitioner and verified in
the same manner as the petition."
765
It is clear from the reading of these two sections that even
in the election petition where allegations of corrupt
practices are made, full particulars of the alleged corrupt
practice including as fuller a statement as possible and the
names of the parties who are alleged to have committed such
practice and the date and place of the commission of each
such practice have to be furnished. What is further, the
allegations of the corrupt practice have to be accompanied
by an affidavit in support both of the allegations as well
as the particulars thereof, and if there are any schedules
or annexure to the petition in support of the corrupt
practice, they have also to be signed by the petitioner and
verified by him in the same manner as the petition. This is
a mandatory requirement. The object of the said provisions
is obvious. The party and it includes not only the returned
candidate but all other candidates against whom the corrupt
practice is alleged, must have an adequate notice of the
precise allegations made against him so that he has a proper
opportunity to meet them.
7. Section 97 states that when in an election petition
a declaration that any candidate other than the returned
candidate has been duly elected is claimed, the returned
candidate or any other party may give evidence to prove that
the election of such candidate would have been void if he
had been the returned candidate and the petition had been
presented calling in question his election. The section
requires that before the returned candidate or such other
party, as aforesaid, gives such evidence, he should have,
within 14 days from the date of the commencement of the
trial, given notice to the High Court of his intention to do
so and that notice has to be accompanied by the statement
and particulars required by Section 83 in the case of an
election petition and has to be signed and verified in the
like manner. We have already referred to the relevant
requirements of Section 83 with regard to the furnishing of
the particulars of the corrupt practice.
8. Section 98 states that on the conclusion of the
trial of an election petition, the High Court shall make an
order (a) dismissing the election petition; or (b) declaring
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the election of all or any of the returned candidates to be
void; or (c) declaring the election of all or any of the
returned candidates to be void and the petitioner or any
other candidate to have been duly elected.
Then follows Section 99 of which what is relevant for
our purpose in sub-section (1) which reads as follows:
"99. Other orders to be made by the High Court.--
(1) At
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the time to making an order under section 98 the
High Court shall also make an order--
(a) where any charge is made in the petition of
any corrupt practice having been committed at the
election, recording--
(i) a finding whether any corrupt practice
has or has not been proved to have been committed
at the election, and the nature of that corrupt
practice; and
(ii) the names of the persons, if any, who
have been proved at the trial to have been guilty
of any corrupt practice and the nature of that
practice; and
(b) fixing the total amount of costs payable and
specifying the persons by and to whom costs shall
be paid.
Provided that a person who is not a party to
the petition shall not be named in the order under
sub-clause (ii) of clause (a) unless--
(a) he has been given notice to appear before the
high Court and to show cause why he should not be
so named; and
(b) if he appears in pursuance of the notice, he
has been given an opportunity of cross-examining
any witness who has already been examined by the
High Court and has given evidence against him, of
calling evidence in his defence and of being
heard."
It is clear from the provisions of sub-clause (i) and
(ii) of clause (a) of sub-section (1), that at the time of
deciding the petition, the Court has to record a finding
that a corrupt practice is proved to have been committed and
that it is committed by a particular person. The Court has
not only to name the person but also the nature of the
corrupt practice committed by him. If the person is a party
to the petition, it is not necessary to hear him separately
before recording such finding. However, when he is not a
party to the petition, before such serious finding is
recorded against him, he must have the same opportunity as
the party to the petition, to meet the allegations against
him. In that respect, he stands on the same footing as the
party to the petition against whom such a finding is to be
recorded. He cannot be
767
discriminated against and made to suffer any disadvantage
because he is not a party to the petition. This is the
precise object which is sought to be secured by the proviso
to the Section.
9. Section 107 of the Act states that the order of the
High Court under Section 98 or Section 99 shall take effect
as soon as it is pronounced by the High Court subject, of
course, to the stay, if any, granted by the High Court
itself or in appeal by the Supreme Court.
10. Section 123 enumerates and defines the corrupt
practices for the purposes of the Act. We are concerned in
the present case with the corrupt practices mentioned in
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sub-sections (3) and (3A) of the said section. Those sub-
sections read as follows:
"(3) The appeal by a candidate or his agent or by
any other person with the consent of a candidate
or his election agent to vote or refrain from
voting for any person on the ground of his
religion, race, caste, community or language or
the use of, or appeal to religious symbols or the
use of, or appeal to, national symbols, such as
the national flag or the national emblem, for the
furtherance of the prospects of the election of
that candidate or for prejudicially affecting the
election of any candidate:
Provided that no symbol allotted under this
Act to a candidate shall be deemed to be a
religious symbol or a national symbol for the
purposes of this clause.
(3A) The promotion of, or attempt to promote,
feelings of enmity or hatred between different
classes of the citizens of India on grounds of
religion, race, caste, community, or language, by
a candidate or his agent or any other person with
the consent of a candidate or his election agent
for the furtherance of the prospects of the
election of that candidate or for prejudicially
affecting the election of any candidate."
It is clear from the aforesaid sub-sections that each -
of them enumerates not a single corrupt practice but various
distinct corrupt practices. They are as follows. Sub-section
(3) speaks of the corrupt practices of--
(A) the appeal (i) to vote, or (ii) to refrain
from voting for any
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person on the ground of -
(a) his religion. (b) his race, (c) his caste, (d)
his community, or (e) his language;
(B)(i) of the use of, or (ii) of appeal to (a)
religious symbols (b) national symbols such as the
national flag or (bb) the national emblem either
for the furtherance of the prospects of the
election of that candidate, or for prejudicially
affecting the election of any candidate.
Likewise Sub-section(3A) consists of different corrupt
practices as follows:
(i) the promotion of, or
(ii) attempt to promote feeling of enmity or
hatred between different classes of the citizens
of India on ground of-
(a)religion, (b) race, (c) caste, (d) community,
or (e) language either for the furtherence of the
prospects of the election of that candidate or for
prejudically affecting the election of any
candidate.
Hence merely by enumerating in the notice the numbers
of sections, viz., 122(3) and 122(3A) as is directed to be
done by the impugned order, the person summoned does not
understand which of the various corrupt practices mentioned
in the sections is alleged against him and what precise
charge he has to meet.
11. Section 8A of the Act states that the case of every
person who is found guilty of a corrupt practice by an order
under section 99 shall be submitted, as soon as may be,
after such order takes effect, by such authority as the
Central Government may specify in this behalf, to the
President for determination of the question as to whether
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such person shall be disqualified and if so, for what
period. The period of disqualification is not to exceed 6
years from the date on which the order made in relation to
him under Section 99 takes effect. Subsection (3) thereof
requires the President to obtain the opinion of the Election
Commission on such question and to act according to such
opinion. The President exercises this power under Article
103 of the Constitution and the powers of Election
Commission when such a reference is made by the President
are governed by Section 146 of the act.
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12. A reading of all the aforesaid provisions together
would show that the proceedings pursuant to the notice
issued by the High Court under Section 99 of the Act are of
a quasi-criminal nature. It has also been held so by this
Court in so many words, in some of the decisions: See
D.P.Mishra v. Kamal Narain Sharma & Ors .., [1971] 3 SCR
2571 and Rashim Khan v. Khurshid Ahmed & Ors..,[1975] 1 SCR
643. Where, therefore, a corrupt practice is alleged, the
trail of an election petition on such charge is of a quasi-
criminal nature, and a heavy burden rests on the person
alleging the corrupt practice to prove strictly all the
ingredients of the charge. This is as it should be since
the naming of a person as having committed a corrupt
practice has a serious consequence of disqualifying him from
being chosen as or from being member of any House of the
Parliament or of the Legislative Assembly or Council of a
State for a period upto 6 years.
13. What is further, as pointed out above, when the
legislature requires that the election petition shall
contain full particulars of each and every alleged corrupt
practice including as fuller a statement as possible of the
names of the parties and the date and place of the
commission of such practice, it would be contrary to the
object of the said provisions to hold that when a notice is
issued under Section 99 against a person who is not a party
to the election petition for holding him guilty of any
corrupt practice, the notice should not apprise him of the
precise charge against him and give him the full particulars
thereof.
14. Judged in the light of these requirements of law
there is no doubt that the impugned order directing the
issuance of notice as stated theren, is extremely vague and
defective to the point of being contrary to the provision of
law. We have reproduced above the relevant portion of the
order. The order (i) directs issuance of an omnibus notice
against the appellants and one other person;(ii) states
again in an omnibus manner that the Court is satisfied that
the charges alleged in the petition of corrupt practices
under Section 123(3) and 123(3A) of the Act have been proved
to have been committed by all of them (iii) further directs
that each notice shall state that the person named in the
notice shall have an opportunity of cross-examining all
witness who have given evidence against him and that he
shall have a right calling evidence and of being heard. It
then directs that to all the notices to be issued, copies of
(a) the petition and the written statement, (b) oral
deposition, (c) all exhibits (d) the impugned order itself
and (e) audio cassettes containing copies of Exhibits SS to
YY should be annexed
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15. The notices directed to be issued and which have
accordingly been issued are defective in many respects. In
the first instance, they do not spell out the precise
corrupt practice which each of the appellants is called upon
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to meet. As has been pointed out above, Section 123(3) does
not refer to one corrupt practice but a variety of them. Yet
the notice does not specify which particulars corrupt
practice is sought to be brought home to each of the
appellants.
Secondly, although the copies of the petition, written
statement etc. are directed to be sent along with the
notices, the order does not direct the notices to state and
therefore, they do not state which of the portions of the
petition, written statement, oral evidence, documentary
evidence and audio cassettes is being relied upon to sustain
which of the charges and against which of the appellants. As
pointed out earlier, it is a pre-condition for the trial of
the charges of the corrupt practices that the person called
upon to face the charge should be apprised, in advance, of
the precise charge or charges against him and also the
precise evidence--oral or documentary, which is sought to
be relied upon in support of the said charge or each of the
said charges. It is obvious that the kind of notice which is
directed to be issued by the impugned order is defective in
all these respects and conveys nothing to the appellants.
The impugned order and the notices issued pursuant to it
falling short of the requirement of law are, therefore,
liable to be struck down.
16. It is true that this Court in its order dated
December 1, 1988 had refused to interfere with a similar
order and had held that such a notice is not against the
provisions of the law. It has, however, to be remembered in
this connection that even while doing so, the Court had
given an opportunity to the petitioner therein to make an
application before the High Court for specifying those
portions of the speeches of the petitioner which prima facie
according to the High Court came within the purview of sub-
sections (3) or (3A) of Section 123. The Court had further
directed that if any such application is made, the High
Court should dispose it of in accordance with law. It
appears that consequent upon the direction, an application
was made by the petitioner for specifying the portions of
the speeches which were sought to be relied upon to sustain
the charges under sub-sections (3) and (3A). The High Court
held that the provisions of Section 99 did not require it to
analyse the evidence and specify either in the notice under
the said section or at any time prior to hearing the person
to whom it is issued, what portion or portions thereof
seemed in its view prima facie to make out the case which he
was called upon to answer.
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This the High Court did in spite of the fact that it
recorded correctly that the person to whom a notice under
Section 99 is issued is entitled to be put in the same
position as the elected candidate and that his position can
be no better. We have pointed out earlier that in fact the
vague notice which is directed to be issued by the impugned
order does in fact place the person against whom the notice
is issued in a worse position than not only the elected
candidate but other persons who are parties to the election
petition. It is with a view to see that he is not placed in
a disadvantaged position as against the parties to the
petition that it is necessary to apprise him also of the
details of the specific charges against him in advance. We
have also pointed out that the trial being of a quasi-
criminal nature and the consequence of the named person
being serious, he is entitled to this minimum safeguard. The
view taken by the High Court was, therefore, obviously
wrong. Unfortunately, the special leave petition filed even
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against that order of the High Court came to be dismissed in
limine and without a speaking order. We are of the view that
for the reasons which we have stated above, neither the
order of December, 1 1988 nor the later non-speaking order
of January 23, 1989 lays down the correct position of law
and should be deemed to have been overruled by this
decision. However, we make it clear that these observations
will not in any way affect the validity of the decision
rendered by the High Court in that election petition being
Election Petition No. 1 of 1988. We further make it clear
that the law laid down here will operate only prospectively,
i.e., to final orders of indictment passed under Section 99
of the Act, hereafter.
17. In the view we have taken above, we should set
aside the impugned order and the notices issued in each case
in pursuance of the said order. However, we are of the view
that it is not necessary to do so. Instead, we direct that
the appellants will appear before the High Court on 25th
March, 1991 and the High Court will on that day or on such
other day as it may deem convenient, issue proper notices to
the appellants in the light of the law laid down and then
proceed to hear and dispose of the notices in accordance
with law.
The appeals are allowed accordingly. In the
circumstances of the case, there will be no order as to
costs.
R.S.S. Appeals allowed.
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