TMI Blog2003 (7) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... which arises out of a judgment and order dated 31.07.2002 passed in Misc. Case No. 28/01 in Election Petition No. 17/2001 whereby and where under the Election Petition filed by the appellant herein was dismissed. The last general election for Assam Assembly was held in May 2001. Abhayapuri South Legislative Assembly Constituency is a reserved constituency. The respondent herein filed his nomination for contesting election from the said constituency. On the date of scrutiny of nominations, an objection was made that the respondent was not a member of the Scheduled Caste and, therefore, his nomination was liable to be rejected. However, the Returning Officer overruled this objection. The respondent having received majority of valid votes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Article 136 of the Constitution was not maintainable. In any event as no application along with affidavit has been filed for conodonation of delay; the same became barred by time having not been filed within 30 days of the order of the High Court. Learned counsel appearing on behalf of the appellant, on the other hand, would urge that having regard to the fact that no trial had taken place, the provisions of Section 116A of the Act were not attracted. According to the learned counsel, an appeal would lie to this Court under the said provision only when an order is passed by the High Court at the conclusion of the trial as is provided for in Section 98 of the Act. Chapter III occurring in part VI of the Act deals with trial of Elect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. (6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter III is 'Trial of Election Petitions'. Sub- section (1) of Section 86 empowers the High Court to dismiss an Election Petition if the same does not conform to the requirements of Sections 81, 82 and 117. It may be true that other sub-sections of Section 86 provide as to the different stages of trial. Would it mean that an order passed under sub-section (1) of Section 86 would not be one passed at the trial. The Explanation appended to sub-section (1) of Section 86 makes the position absolutely clear and implicit. Explanation as is well-known has various functions. This Court in S. Sundaram v. V.R. Pattabhiraman, AIR (1985) SC 582 stated: We have now to consider as to what is the impact of the Explanation on the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same. Explanation to Section 86(1) of the Act has been inserted for clarifying vagueness which might have otherwise occurred in sub-section (1) of Section 86 of the Act. By reason of the said provision, thus, a legal fiction has been created in terms whereof an order passed under sub-section (1) of Section 86 would be an order under clause (a) of Section 98. The legal fiction created by reason of the said Explanation must be given its full effect. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd and Ors., [2003] 2 SCC 111, this Court stated: The purpose and object of creating a legal fiction in the statute is well- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Black's Law Dictionary at page 1348 it is stated: A judicial examination and determination of issue between parties to action Gulf, C. S.F. Ry. Co. v. Smit, Okl., 270 F.2d 629, 633; whether they be issues of law or of fact, Pulaski v. State, 23 Wis. 2d 138, 126 N.W. 2d 625, 628. A judicial examination, in accordance with law of the land, of a cause, either civil or criminal, of the issues between the parties whether of law or fact, before a court that has proper jurisdiction. It is, therefore, not necessary that the trial must be a full dressed or a jury trial or a trial which concludes only after taking evidence of the parties in support of their respective cases. Section 116A provides for an appeal. The said provision mus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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