vPETITIONER:
DR. (MRS.) VIMAL
Vs.
RESPONDENT:
BHAGUJI & ORS.
DATE OF JUDGMENT12/05/1995
BENCH:
RAY, G.N. (J)
BENCH:
RAY, G.N. (J)
FAIZAN UDDIN (J)
CITATION:
1995 AIR 1836 JT 1995 (6) 198
1995 SCALE (3)423
ACT:
HEADNOTE:
JUDGMENT:
WITH Civil Appeal No. 2571 of 1991
JUDGMENT
G.N. Ray,J.
In both these appeals, the decision of the Bombay High
Court (Aurangabad Bench) dated April 20, 1991 in Election
Petition No. 7 of 1990 is under challenge. The election
petitioner Sri Bhaguji Nivrutii Satpute had questioned the
election of the appellant in C.A. No. 2227 of 1991 Dr.
(Mrs.) Vimal Nandkishore Mundada to the Maharashtra State
Legislative Assembly from 201-Kaij (Scheduled caste)
Constitutency held in 1990 by filing a petition under the
Representation of the People Act 1950 (hereinafter referred
to as the Representation Act) before the Bombay High Court
inter alia on the grounds that Sri Ere Maruti Nivrutti was a
Lingayat by caste but he filed his nomination as Lingder,
that Mangesh Pralhadrao Ranjankar the appellant in Civil
Appeal No. 2571 of 1991 was Kalal by caste but he filed his
nomination as Khatik, that appellant Dr. Vimal Mundada had
although embraced Jainism after her marriage, but filed her
nomination as Chambhar but convassed for vote as Jain
(Hindu) and Dr. Vimal also convassed for votes on the ground
of religion and promoted communal hatred between two classed
of citizen and thereby committed corrupt practices under
Section 123 of the Representation Act. It may be stated here
that the result of election to the Maharashtra Legislative
Assembly from the said 201 Kaij Constituency (S.C) held on
27.2.1990 was declared on 1.3.1990 and the appellant Dr.
Vimal Mudada having secured 35957 votes was declared elected
from the said constituency. The election petitioner Sri
Bhaguji secured 25736 votes and the other appellant Sri
Mangesh Ranjankar secured 15260 votes in the said election.
Both the appellants namely Dr. Vimal and Sri Mangesh filed
their written statements in the election petition before the
High Court and disputed the correctness of the allegations
made against them by the election petitioner. The
allegations and counter allegations regarding other
candidates in the said election petition need not be
referred to for the disposal of these appeals.
The appellant Dr. Vimal Mundada in her written
statement (Ext.18) denied the allegations made against her
regarding caste, community, promotion of hatred between two
classes of citizens and resorting to corrupt practice as
alleged. She also stated that Sri Ere Maruti Nivrutti
belonged to Lingder community and simply because he was
described as Wani, he did not cease to be a Lingder. It was
also contended by Dr. Vimal that the election petitioner had
never objected to the caste certificate of Sri Ere Maruti.
She also contended that Sri Mangesh Ranjankar belonged to
Khatik community and the caste certificate was issued in
1990 by a competent authority on the basis of relevant
documents. Hence the nominations of Sri Ere Maruti and Sri
Mangesh as scheduled caste candidates were correctly
accepted by the returning officer. The appellant Dr. Vimal
also contended that the voters of Kaij constituency was
against Congress-I party and hence votes cast in favour of
Sri Maruti or Sri Mangesh would have never gone in favour of
the election petitioner. It was also stated that in the
Parliamentary constituency of which Kaiz constituency was
one of the segments, the Congress I candidate got defeated
by Janta Dal candidate. That apart, the election petitioner
lost his reputation as M.L.A. Although he contested the
previous election as an independent candidate and had
criticised the policies and achievements of Congress I
party, he joined Congress I party later on and he had also
enemies within his own party and he had failed to develop
public relation.
Dr. Vimal in her written statement specifically denied
that she had posed herself as Marwari Community woman and
having married Sri Nand Kishore Mundada had presented
herself as Jain to the voters. She stated that by marriage
she had not lost her caste or religion more so when marriage
was performed according to vedic rites. She also stated that
she had not published posters or banners nor did she
subscribed the news paper publication. Posters or banners
were also not displayed with her consent. She had appealed
to the voters according to manifesto of B.J.P. and
criticised the policies of the Ruling Party or various
aspects of national life.
Sri Mangesh in his written statement also denied the
allegations made against him in the election petition. He
stated that he obtained a caste certificate as ‘Khatik’ and
the said caste khatik was a recognised scheuled caste. Such
caste certificate was issued as far back as on 29.2.1990 and
such certificate had been correctly issued by the Executive
Magistrate Kaij on the basis of relevant documents. He also
stated that although the caste of his brother was shown as
‘kalal’ such description of caste of his brother was not
made on the statement of their father and the caste of the
brother was wrongly mentioned. Sri Mangesh stated that
person belonging to khatik caste also engaged themselves in
toddy business on contract and they were denoted as ‘kalals’
although they factually belonged to khatik caste. He also
denied that the vote cast in his favour or in favour of Ere
Maruti would have gone in favour of the election petitioner.
He also stated that the election petitioner had failed to
keep contact with his constituency and became unpopular.
In the election petition No. 7 of 1990 before the
Aurangabad Bench of the Bombay High Court, several issues
were framed for adjudication. Several issues including
issues No.5 and 9 related to the illegal acceptance of
nomination papers of both the appellants and of the said Ere
maruti even though they did not belong to scheduled caste
thereby adversely affecting the voting prospect of election
petitioner and rendering the said election of 201 kaij s.c.
constituency as illegal and void. In respect of Dr. vimal
Mundada issues No. 4,6,7,8 and 9 were framed for deciding as
to whether Dr. Mundadada and her election agents acted in
projecting her as member of Marwari Community for securing
marwari votes of about 7 to 8 thousands and whether they
resorted to publication of posters banners and news paper
items as detailed in paragraphs 56 to 63 of the election
petition attacking the personal character of election
petitioner and whether they had also resorted to corrupt
practice on account of delivering speeches by Sm. jayantiben
Mehta and Sri Promod Mahajan with the consent of Dr. Vimal
in the electoral constituency on the ground of religion and
also with a view to promote communal hatred as stated in
paragraphs 64 to 70 of the election petition.
By the impugned judgment , a Single Bench of the Bombay
High Court (Aurangabad Bench) held inter alia that Sri Ere
Maruti and Sri Mangesh Ranjankar who is the appellant in
Civil Appeal No. 2571 of 1991, were not the membrs of the
scheduled caste and acceptance of their nomination forms as
contestant in the said election in 201 kaiz constituency was
illegal. The High Court however held that the contest by the
said Sri Ere Maruti and Sri Mangesh did not materially
affect the election result of Dr. Vimal. The High Court also
held that the declaration that Dr. Vimal got elected from
the said 201 kaiz Constituency was void. The High Court also
answered the issue No. 7 relating to resorting of corrupt
practice adopted by Dr. Vimal and her supporter in making
propaganda on the score of religion and promoting communal
hatred between two communities through speeches delivered by
Sm. Jayantiben Mehta and Sri Promod Mahajan in the
affirmative.
In her appeal before this Court, Dr. Vimal Mundada has
challenged the decision of the High Court declaring his
election from the 201 kaij constituency as illegal and void
and holding him guilty of corrupt practice under section 123
of the Representantion Act for making propaganda to the
voters on the score of religion and promoting hatred between
two communities through the speeches delivered with her
consent by Sm. Jayantiben Mehta and Sri Promod Mahajan. In
the other appeal, Sri Mangesh Rajankar has challenged the
decision of the High Court that Sri Mangesh was not a member
of the scheduled caste and acceptance of his nomination
paper for the said reserved constituency for scheduled caste
candidate in 201 kaij constituency was illegal.
Coming to the question of invalidity of the election of
the appellant Dr. Vimal, we may indicate that Issue No.3 as
to whether election petitioner had proved that Dr.Vimal
ceased to be a Scheduled Caste candidate on her marriage
with Sri Nand Kishore Mudanda who is Jain, has been answered
in the negative by the High Court. Similarly, the High Court
has also answered in the negative Issue No.4 as to whether
the election petitioner had proved that Dr. Mudanda got
35957 votes on account of her propaganda that she was a
Marwari by caste and such action on her part amounted to
corrupt practice. Although Issue No.5 has been answered in
the affirmative to the extent that nomination of Ere Maruti
Nivrutti and Sri Mangesh the appellant in the other appeal
had been worongly accepted, the High Court has specifically
held that the result of wrong acceptantance of the
nomination of the said persion as members of scheduled Caste
has not adversely affected the election of the election
petitioner. The High Court has also answered in the negative
Issue No.6 as to whether the election petitioner had proved
that Dr. Mudanda, her agents and other supporters with the
consent of Dr. Mudanda published posters, banners and
newpaper items attacking the personal character and conduct
of the election petitioner as detailed in para 26 of the
election petition. The High Court has also answered in the
negative Issue No.10 as to whether the election in question
was void on account of the improper acceptance of the
nominations of Dr.Mudanda, Sri Ere Maruti Nivrutti and Sri
Mangesh and scheduled castes. The High Court has, however,
answered in the affirmative Issue No.7 as to whether the
election petitioner had proved that Smt.Jayantiben mehta and
Sri. Promod Mahajan with the consent of Dr.Mudanda, had
delivered speeches in the electoral constituencies on the
ground of religion and also with a view to promote communal
hatred as stated in paras 64 to 70 of the election petition.
it is because of such decision on Issue No.7 that the High
Court has declared that the election of Dr. Mudanda was void
and the election petitioner having secured the next highest
vote was entitled to be declared as elected.
It is, therefore, necessary to consider whether the
allegations of corrupt practice alleged to have been
resorted to by Dr. Mudanda because of her appeal to the
voters on the ground of religion through the speeches
delivered with her consent by Smt. Jayantiben Mehta and Sri
Promod Mahajan in the electoral constituencies for promoting
communal hatred between two classes of citizens as stated in
paragraphs 74-77 of the election petition since found to be
correct by the High Court have been properly established.
Dr. Ghatate, learned senior counsel appearing for Dr.
Vimal has contended that the only material on the basis of
which the High court has found that the appellant Dr.
Mudanda had committed corrupt practice under Section 123 (3)
and 123 (3A) of the Representation Act is the report of
speech said to have been delivered by Smt. Jayantiben mehta
on February 14, 1990 as published in Maratha Sathi on
February 15, 1990. The report of the speech said to have
been delivered by Sri Promod Mahajan was published in the
daily Ambajogal Times on February 19, 1990. The evidence of
Sri Sudarshan Rapatwar, P.W.14, Reporter of maratha sathi
and the evidence of Ishwar Chand Gupta P.W.24, the Reporter
of daily Ambajogai Times have been accepted by the High
Court. Dr. Ghatate has submitted that the High Court has not
placed any reliance on the evidence of the election
petitioner and P.W.9, Sri Sambhajirao Jogand and P.W.10 Sri
Banshi N.Jagand. Dr.Ghatate has submitted that the High
Court has committed a grave error in holding that the
speeches of Smt. Mehta as reported in Maratha Sathi amount
to corrupt practice under section 123 (3) and 123 (3A) of
the Representation Act in view of the fact that (a) complete
verbatim speech was not produced to ascertain whether the
extract publication were out of context or not (b) because
even the reporter Sri Rapatwar deposed that the extract of
the said speech of Smt. Mehta was in his language and not in
verbatim. Admittedly, Tipan that is the notes of the speech
were made by D.W.14 when the speech was delivered but such
tipan had not been produced before the Court so as to
ascertain whether the publication was even in accordance
with the Tipan. Dr. Ghatate has also submitted that the
maker of the speech was not produced but the makers of the
reports of the speeches who admittedly reported some parts
of the speeches in their own language were examined. Dr.
Ghatate has submitted that P.W.14 in his deposition stated
categorically that “there is political movement to create
vote bank on the basis of religion. Her approach to religion
was from point of view of politics.” Dr. Ghatate has stated
that the aforesaid statement by P.W.14 is his personal
assessment of the speech delivered by Smt. Mehta and because
of his assessment of the said speech of Smt. Mehta he
published the report according to his own idea of the speech
and it is not at all unlikely that the extract of the speech
as published was out of context. Dr. Ghatate has also
submitted that the newspaper report appears to be factully
wrong because Smt. Mehta could not have said that BJP Shiv
Sena alliance would from the Government of Madhya Pradesh,
Himachal pradesh, Gujrat and Rajasthan as reported in the
publication because such alliance of BJP and Shiv Sena was
only confined to the state of Maharashtra.
Coming to the speech of Sri Mahajan as reported in
Ambajogai Times, Dr.Ghatate has submitted that such speech
was also not extracted in verbatim. The maker of the speech
was not examined and the reporter in his own language
reported the contents of the speech and even his notes on
the basis of which the publication was made about the said
speech was also not produced. He has submitted that the said
reporter according to the subjective understanding of the
effect of the said speech published the said report and no
reliance should be placed on such report based on subjective
assessment of the speech. Dr.Ghatae has also submitted that
P.W.24 , Ishwarchand Gupta admitted in his deposition that
he had recorded necessary items and not the whole speech and
recorded those points which according to him were relevant
and important. Dr.Ghatate has submitted that on the face of
such submission it is quite evident that report also
suffered from subjective assessment of some parts of the
speech which in the opinion of the reporter were important
and it was not unlikely that such report had been made about
portions of the speech taken out of their context thereby
creating a wrong impression. Dr. Ghatate in this connection
has referred to a decision of this Court in Samant N.
Balkrishna etc. Vs.George Fernandez and ors. etc.(1969 (3)
SCR 603 at 636-638), Ziyauddin Burhanuddin Bukhari Vs.
Brijmohan Ramdass mehra and others (1976 (2) SCC 17 para
17), Haji C.H. mohammad koya Etc. Vs. T.K.S.M.A. Muthukoya
(1979 (2) SCC 8 para 35-38). Dr. Ghatate has submitted that
the newspaper report or evidence of the reporter was only
hearsay evidence and Section 78 of the Evidence Act does not
refer to the newspaper report. In this connection, Dr.
Ghatate had relised on a decision of this Court in Laxmi Raj
Shetty and another Vs. State of Tamil Nadu (1988 (3) SCC 319
para 25-26) and Manmohan kalia Vs.Yash and others (1984 (3)
SCC 499 paras 4 and 7) and Qamural Islam (Air 1994 SC 1733
para 44,46,47 and 48). Dr. Ghatate has submitted that is
very difficult to interpret a part of the speech with
certainly that it is not reported out of context as has been
indicated by this court in mohammed koya’s case (ibid). He
has also submitted that in any event, the notes of speech
must be produced to show that the report was according to
the notes and not tainted. For this contention, Dr. Ghatate
has relied on the decision of this Court in Laxminarayan and
another vs. Returning officer and others (1974 (1) SCR 822
at 841-842). It has been contended by Dr. Ghatate that even
if a person is not a member of political party, he may not
necessarily be an independent withness. It is not unlikely
that such person may have his own political ideas close to
the ideas of any political party. Dr. Ghatate has submitted
that it is quite apparent from the deposition of Sri
Rapatwar that he evalued the election speeches delivered by
Smt. Mehta from political angle according to his own
understanding. Dr. Ghatate has submitted that even on the
basis of alleged speech delivered by Smt. Mehta and Sri
Mahajan as published, there was no occasion for the High
Court to come to a finding that such speeches, delivered
with the consent of the appellant could be held to be
corrupt practice under section 123 (3) and 123 (3A) of the
Representation Act. Dr. Ghatate has submitted that the
statement attributed to smt. mehta that “the spark of
‘Hindutwa’ be lit in Maharashtra and should be made to march
upto Delhi” and reference to Hindutwa in two more places
must be held to be out of context because of the categorical
admission of Sri Rapatwar in his deposition – “I cannot say
whether Hindutwa is a symbol of culture and not necessarily
a symbol of religion.” Dr. Ghatate has submitted that
‘Hindutwa” has been derived from the words ’Hindu’ and
‘tatwa’ which means Hindu logic or philosphy and such
‘tatwa’ is different from Hindu religion. Referring to the
passage about the alleged speech of Smt. Mehta regarding
kashmir, Dr. Ghatate has submitted that it is attributed
that Smt. Mehta had said that kashmir was indivisible part
of India and we would not allow kashmir to be seprated in
any situation. Such statement does not offend any religion
and cannot be said to have caused even remotely hatred
between two classes of religion. The alleged speech of smt.
mehta to the effect that present situation in kashmir
wherein the slogans in favour of Pakistan was raised and
burning of Indian national flag on August 14 had taken place
and insult of Hindu Temples in Anant Nag had been witnessed
were consequences of wrong policies of Congress I party
cannot be said to be propaganoa on the score of any religion
or intended to cause any hatred between different classes of
religion. Dr. Ghatate has submitted that terrorism and anti
national movements in the state of Jammu and Kashmir are
being questioned and analysed by all the political parties
and people in general and criticism of the state of affairs
in Jammu and kashmir cannot be held to be propaganda on the
score of religion or a propaganda for causing hatred between
different communities and religious groups.
Coming to the statement attributed to Sri Mahajan Dr.
Ghatate has submitted that Sri Mahajan according to the
report had stated that if his political party would be given
an opportunity to hoist safron flag in Vidhan Sabha, it
would also be hoisted in Islamabad with in five years and
the internal rift in the Congress Party was going to benefit
the BJP Shiv Sena alliance and people would see safron flag
hoisted in Vidhan Sabha. Dr. Ghatate has submitted that
safron flag is the colour of the flag of Shiv Sena which was
a partner of the said alliance. The flag of BJP is safron
and green and the flag of congress party is safron, white
and green. Dr.Ghatate has submitted that hoisting of safron
flag in Vidhan sabha is the symbolic victory of the said
BJP-Shiv sena alliance. The undivided India was partitioned
in 1947 and the desire that again both the countries would
become united through the political efforts of BJP-shiv sena
alliance within a period of five years thereby making it
possible to hoist the said safron flag in Islamabad does not
in any way appeal the voters on the ground of religion of
such statement was nither intended nor had brought into
effect or likely to being into effect any hatred between
different communities and religions. Dr.Ghatate has
submitted that theres no evidence before the court which is
clear, cogent, satisfactory, credible and positive to
establish the charge of corrupt practice. Since such charge
is quasi-criminal in nature and entails criminal nd entails
crimmnal lability apar5t from civil lability to loose the
tight to contest election in ftture the scrutinyt of
theallegati0on of corrupt practice under section 123 (3) and
123 (3A) must be very critical and until and unless thre
evidences being absolutely credible and positive can stand
the test of scrupulous scarutiny and would lead to only oane
irresistible conclusion and unimpechable rwsult that crrupt
that practice under Section 123 (3) and 123 (3A) was
committed court should disist frsom making any finding of
corrupt practice. In this connection ,Dr.ghgatate has
relised on the decison of this court in mohan singh vs.
bhaanwarlal and others (1964(5) SCR 12 at 20), kultar singh
Vs. Mukhtiar singh (1964 (7) SCR 790 at 791-794), D.Venkata
Reddy Vs. R. Sultan and others (1976 (3) SCR 445 at 445-
447). DR ghatate has submitted that there is no room for
inference or conjecture for making a findjng of corrupt
practice. DR.Ghatate has also submitted that hte evidence
about the corrupt practice must be of such unimpeachanble
character that it will lead to onluy one conclusion that
corrupt pracatice has been committed and iff any other
inference is also possible, benefit must go to the returned
candiate and courts shoulsd nbe slow to interfere with the
verdict of the electoratre. In this regard, Dr Ghatate has
relied on the decision of this court in Dault ram chauhan
Vs. Anand sharma (1984 (2) SCC 64 at 14,15,18,19 &20) and
the decision in Laxmi Narayan Nayak Vs. Ramratan Chaturvedi
and others (1990 (2) SCC 173 para 5).
DR. Ghatate has also submitted that section 99 of the
representation ACT is mandatory in nature. He has submitted
that even assuming that the appellant Dr. Vimal oave consent
ot hte speeches delivered by Smt. mehta and sri mahajan, the
High court <In view of the section 98 read with section 99
of the REpresentation Act, cannot be aside the election
before naming the collaborators after giving the
collaborators opportunity to led evidence and to cross-
examine the withnesses examined to prove that they were not
guilty of corrupt practice as alleged. Dr ghatate has
submitted that it has been held in D.P. Mishra Vs.
kamalNarayan sharma nad another (1971 (1) SCR 8 at 28 and
29) that it is the duty of the court to name the person
committing corrupt practice. If the court fails , the case
has to be remanded. He has also referred to another decision
of this court in Rahim khan vs khurshid ahmed and others
9174 (2) SCC 660 at 685) wherein it has been held by this
court that when the court found that the returned candidate
and his one of the supporters had committed caorrupt
practoice, it was under statutory duty to nadme all those
who were guilty of corrupt practices under section 99(a)
(ii) after foloowing the prescribed procedure. Dr. Ghastate
has submited that if the court comes to the conclusion that
prima facie corrupt practice had been committed bu teturned
candidate with the aid of collaborators it becomes bounden
duty of the court to name the collaborators after giving
the opportunity to disprove the allegations before setting
saide the election of the victorious candidate. Dr.Ghateate
has also submitted that without giving opportunity to the
collaborators before naming them as guilty of corrupt
practice along with the candidte in an election, no section
123 (3) and 123 (3A) was committed, the court should desist
from making any finding of cottupt practice. In this
connection, Dr. ghatate has relied on the decision of this
court in mohan singh vs. Bhanwarlal and others (1964 (5) SCR
12 at 20), kultar singh vs mukhtir singh (1964 (7) SCR 790
at 791-794), D.Venkata Reddy Vs. R sultan and others (1976
(3) SCR 445 at 445-447). Dr. Ghatate has sumitted that there
is no room for inferenfce or conjecture for making a finding
of corrupt practice. Dr. ghatate has also submitted that the
evidence about the corrupt practice must be of such
unimpeacdhable character that it will lead to only one
conclusion that corrupt practice has been commited and if
anu other inference is alos possible, benefit must go to the
returned candidate and courts should be slow to interfere
with the verdict of the electorate . In this regard, Dr.
Ghatate has relied on the decision of this court in daulat
ram chauhan Vs. Anand sharma (1984 (2) SCC 64 at 14,15,18,19
&20 and the decision in laxmi Narayan Nayak Vs. Ramratan
chaturvedi and others (1990 (2) SCC 173 para 5)
DR. Ghatate has also submitted tht section 99 of the
Represaentation Act is mandatory in nature. He has submitted
that even consent to the speeches delivered by smt mehta and
sri mahajan, the High Court, in view of the section 98 read
with section 99 of the Representation Act, cannot set aside
the election before naming the collaborators after giving
the collaborators opportunity to lead evidence and to cross-
examine the withesses examined to prove that they were not
guilty of corrupt pracyice as alleged. Dr. Ghatate has
submitted that it has been held in D.P.
Mishra Vs. Kamal Narayan Sharma and another (1971) (1) SCR 8
at 28 and 29) that it is the duty of the Court to name the
person committing corrupt practice. If the Court fails, the
case has to be remanded. He has also rederred to another
decision of this Court in Rahim Khan Vs. Kurshid Ahamed and
others (1974 (2) SCC 660 at 685) where4in it has been held
by this Court that when the Court found that the returened
candidate and his one of the supporters had committed
corrupt practice, it was under statutory duty to name all
thoses who were guilty of corrupt practices under Section 99
(a) (ii) after following the prescribed procedure.
Dr.Ghatate has submitted that if the Court comes to the
conclusion that prima facie corrupt practice had been
committed by returned candidate with the aid of
collaboratiors it becomes bounden duty of the Court to name
the collaborators after giving them opportunity to disprove
the allegations before setting aside the election of the
victorious candidate. Dr.Ghatate has alsc submitted that
without giving opportunity to the collaborators before
naming them as guity of corrupt practice along with the
candidate in an election, on final finding about corrupt
Practice should be made – He has submitted that if without
giving opportunity to the collaborators, a firm finding
about corrupt practice resorted to by a candidate is made
and on that basis the election is set aside, and if for
naming the collaborators subsequently steps are taken by the
Court, it is not unlikelt that a very anamolous situation
may arise if the collaborators on getting such opportunity
satisfy the Court that they had not committed, any corrupt
practice. Dr.Ghatate has, therefore, submitted that in the
aforesaid facts and circumstanes, the finding of the High
Court that Dr. Vimal Mudandaq is guilty of corrupt practrice
under Section 123 (3) and 123 (3a) of the Representation Act
is wholly unjstified and must be struck down. He has
submitted that Dr. Vimal was declared elected by a
convincing marhgin over her nearest rival namely the
election Petitioner and the mandate of the election should
not have been frustrated by making thwe said finding in the
absence of cogent, specific, reliable and admissible
evidence about resorting to corrupt practice by Dr. Vimal on
account of speeches delivered by Smt.Mehta and Sri Mahajan.
He has, therefore, submitted that the appeal by Dr. Vimal
should be allowed and she should be declared to have been
elected in the aforesaid election held in 1990
Mr.Poti, learned senior counsel appearing for the
respondent No-1, namely the election petitioner Sri Bhaguji
has Submitted that though several grounds were urged by the
said election petitioner, the High Court accepted only one
as sufficent to set aside the election of Dr.Vimal on the
ground that Section 123 (3) and 123 (3A) of the
Representaion Act had been infrined. Such finding has been
made in view of the speeches made at election meetings of
the appllant. The first of such meeting was held on February
14, 1990 and the second was held on Fabruary 19, 1990. P.W.
14 has deposed about the meeting held on February 14, 1990
at Nagar Parishad ground and P.W. 24 has deposed about the
meeting held at Municipal ground of February 18, 1990. The
English translation of the report of the speech by Smt.Mehta
was published in Maratha daily Sathi on February 15, 1990
and the report of the speech of Sri Mahajan was published on
February 19, 1990 in Ambajogai Times. Mr. Poti has also
submiteed that speeches were not reported in full. The
reporter who made the reports had deposed that they had
attended the respective meeting and they had reported the
gist of the speeches to the newspapers publishing such
reports. P.W. 14 is the reporter of Sathi and P.W. 24 is the
Editor of Ambajogai Times. Mr. Poti has submitted that the
primary evidednce is the testimony of the speeches and the
testimony is supported by the nespaper reports. It has been
contended by Mr.Poti that the credibility of the evidence
will depend upon other facts and circumstance including the
case attempted to be suggested in the cross examination. It
also depends upon the oral testimony of the parties which
may disclose what their cases are in regard to the eveidence
of the said two withnesses. Mr.Poti has submitted that no
suggestion worth consideration had been made in the cross
examination of P.W. 14 and P.W. 24 which would sugges that
Particular part of their reports or their depositions were
not true. Their reports or their depostions were not true.
There is no serious despute about making of speeches by Smt.
Mehta and sri Mahajan in the presence of the appellant at
the election meetings. The High Court has, therefore,
rightly held that the contents of the speech donot appear to
be in dispute. Even then, the election petitioner proved the
contents of the speech by examining the relevant withnesses.
Mr.Poti has submitted that the election Petitioner has
pleaded in his election petition the facts relating to the
meetings, the speeches made in the meetings and constructive
liability of the appellant Dr.Vimal for such speeches in
clear and specific terms. In reply to such averments made in
paragraphs in her written statement has not holiding of the
meeting and participation of Smt.Mehta and Sri Mahajan has
been admitted. The presence of the appellant in such meeting
has also been proved by leading reliable and convincing
evidence. There is no pssaion, therefore, to pretend that
such speection hed been delivered without her approveal.
Mr.Poti has also submitted that there is no specific denial
that each one of the particular statements attributed to the
said speakers was not made. He has submitted that the only
submission to the withesses was to the effect that such
speeches where on party lines. Mr. Poti has submitted that
according to the rules of pleadings, there must be specific
denial in clear and unambigious terms. If there is not
specific denial of the averments made about the corrupt
practice as contained in paragraphs 62-70 of the election
petition, any att6empt of vague and evesive denial will be
of no consequence acording to the well established
principles of pleadings to pleadings and the provisions of
the Code of Civil Procedure relating to Pleadings of the
parties in a lis. Mr.Poti has submitted that there is no
doubt that the plea of corrupt practice requires a high
standard of proof considering the serious consequences
involved in a decision on the question. But facts relating
to corrupt practice are to be proved in an election petition
in the same manner as facts in the othere case are proved
and there is not double standard od such proof. For this
conterntion he has relied on a decision of this Court in Ram
Singh and others Vs. Col. Ram Singh (1985 Suppl. (2) SCR 399
at 481-482). Mr.Poti has submitted that the learned counsel
for the appellant has referred to various decisions of this
Court including the declsion mde in Gerge Fernadex’s case
(ibid) relating to Madhu Limays’s speech that new paper
reports are not evidence by themaselves. He has submitted
that it is now well settled that newspaper reports by
themselves are not evidence but in the faors of the case.
such decisions have no manner of application. Mr.Poti has
submitted that publication of a newspaper report only shows
that such news itam has been published but standing by
itself it is of very little evidentiary value. Mr.Poti has
submitted that it is, therefore, necessary that the contents
of the speech should be proved by one of the known methods
either by examining the reporter or by proving the
contemporaneopus record of the report or by such other
evidence as may be considered relevant or material.
Evidentiary value of the nespaper reports will ultimately
depend upon haon how and in what manner the report is
sought to be proved. Mr.P{oti has submitted that in the
instant case, the newspaper reports are not the primary
evidence but the secondary of P.W. 14 and P.W.24. Mr.Poti
has submitted that even without newspaper reports, speeches
made by persons at a meeting could be proved by those who
listened to the speeches. It is not expected that a witness
will be in a position to recollect the speeches in full and
reproduce the same verbatim in Court particularly when the
speeches are long. The gist of the points which go home will
be spoken by such withesses. The acceptance of such
evidences will depend upon various circumstances including
the power to recall the speeches at the distance of time
when they are examined. In a case where it is undisputed
that the speeches were made and it is further proved that it
was listened to by gentlemen professionally trained to get
at the gist of the speeches then unless there is strong
reason to disbelived their evidence or there is strong
evidence in rebuttal, the depositions about the gist of the
speech would normally be accepted. Mr.Poti has submitted
that it is also an i mportant fact that the said withnesses
were able an important fact that the said withesses were
able to recall from the speeches because of the newspaper
publications were based on their own reports. Mr.Poti has
also submitted that thw conduct of the appellant Dr. Vimal
is of considerable significance in the facts of the case.
Apart from the vague pleadings and evasive denials in her
written statement, the appellant who was declared elected
and whose election was challenged, did not choose to enter
the withess box and honestly place her version of the matter
before the court. Her fallure to examine herself should not
place her at an advantage over a party who enters the
witness box and speaks about his case and stands to cross
examination. Mr.Poti has submitted that in the instant case
the appellant has not deposed that P.Ws. 14 and 24 did not
attenc the respective meetings or they had not stated what
exactly was spoken at the meetings in question. The
appellant has also not made any statement by examining
herself as to what was the actual gist of the speech and
whether the gist of the speech reported was incorrect or
quoted out of context. Even in the examination of P.Ws.14
and 24, there is no suggestion to the said withesses that
the particular portions of the speech as reported were made
in different from or had not been made at all. Coming to the
scope of appreciation of question of finding of fact in an
appeal before this Court arising from a decision rendered by
the High Cout in an election petition, Mr.Poti has submitted
that it is well setteld that though an appeal lies on a
question of law and fact from a decision rendereds in an
election petition, this Court does not by convention
interfere with the finding of fact unlessa tere is a clear
infirmity against the judgment. for the said contention
Mr.Poti referred to the decision of this Court made in
Nanothombam Ibomcha singh Vs. Leisanghem Chandramani Singh
and others (1977 (1) SCR 573). It has also been held by
this Court in Mohd .Yanus Saleem Vs. Shiv Kumar Shastri and
others (1974 (3) SCR 738) that unless there are convincing
and clinching reasons to take a different view, the finding
arrived at by the High Court should not be interfered with.
In Prahladdas Khandelwal Vs. Narendra Kumar Salve (1973 (2)
SCR 157) it has been held that no interference to the
findings of fact by this Court is called for unless there is
grave error in the appreciation of the facts of the case. In
Shri Shreewant Kumar Chodhary Vs. Shri Baidyanath Panjiar
(1973 (1) SCC 95) it has been indicated by this Court that
this Court does not reapporeciate the case specially in the
matter of corrupt practice.
Coming to the conclusion as to whether the gist of the
speeches if correctly reported justifies the finding of
corrupt practice under Section 123 (3) and 123 (3A) of the
Representation Act, Mr.Poti has submitted that abefore
assessing the impact of the speeches, it is necessary to
notice the object of these two sections as well as certain
Principles laid down by this Court in the matter of
appection of evidence. In Z.B.Bukhari’s case (ibid) this
Court has dealt with the object of Section 123 (3) and 123
(3A) of the Representation Act relating to the Question of
disqualification on account of corrupt practice. This Court
has indicated that our political history makes it
particularly necessary to ensure that differences on the
basis of religion, culture and creed do not deprive the
basis of religion, culture and creed do not deprive the
people of their rational thought and action. In the case
reported in (1985 (2) SCR 159) Justice Sabyasachi Mukherjee
(as His Lordship then was) has indicated that :-
Every citizen must remember that
while he has a fundamental right to
speak he cannot speak at an
election meeting what long speaks
at a political meeting. So he
speaks at a political meeting .So
long as the political parties based
on religion are not banned in this
country, it may be open to them to
organanise themselves on the basis
of religion and avowdly promoting,
what they consider true falth
namely their religious faith. But
so long as their activities
transgress the provisions of Penal
Law intended to preserve peace and
communal harmony, their
fundaamental right of speech will
not be protected. Section 123 (3A)
carves out an area out of this
freedom and restricts such freedom
during such election campatigh.
Section 123 (5) and 124 (5) as they
stood at the relevant time were
challenged as ultra vires as
ofrending the fundamental right of
freedom of speech. The court said
“these laws do not stop a man from
speaking. They merely prescribe
condition which must be obsereved
if you want to enter Parliament
(vide 1955 (1) SCR 608 para 5) .
Therefore, a speaker speaking at an
election meeting must alert himself
that his soeeches do not fall
within the provisions of the
concerned sections
Mr. Poti has also submitted that it is now well
settled that the Court is required to consider the effect of
speech in the mind of the voter. It is not the statement
here or another statement there but the total effect of the
speech in the mind of the voter which calls for assessment
to be considered before the Court. Mr.Poti has submitted
that it is evident from the speech delivered by Smt. Mehta
that an apport to the hindu voters to unite and vote in
support of the appellant Dr.Mudanda was made so that the
sparks of Hinduism could be lit not only in Maharashtra but
there would be a march of such Hinduism upto the seat of
power. In the speech there was no appeal to vots only for
the Bjp candidate or a candidate of the BJP - Shiv sena
alliance so that ideologies of the said political parties
are implemented. Smt,Mehta addressed the voters to the
effect that the coters as hindus would support the candidate
of BJP so that success of the candidate was ensured. Mr.Poti
has submitted that the very approach that the hindus alone
shall be in power and election speeches made on that basis
is bound to create in the mind of hindu voters uncommitted
so fdar that hindus should rule and for that purpose they
should vote for ‘Hinduism’.
Mr.Poti has submitted that the Representation Act
provides for issue of notice for taking action against the
collaborators fdor giving them an opportunity of being heard
if the Court comes to the finding that xorrupt practice was
resorted to with the help of the collaborators. Mr. Poti has
submitted that althought it is the duty of the Court to name
the collaborators by giving them an opportunity of being
heard, it cannot be contended that a party who has committed
corrupt practice has right to insist upon naming the
collaborators. He has submitted that commission of offence
by the party to election petiton has been found on cogent
evidence and so far the as the said party is concerned such
finding is complete. He has also submitted that though the
Court is concerned for taking action against the
collaborators of a corrupt practice the decision rendered
sgainst the appellant about resorting to corrupt practice
must be held to be final and the mather should not be kept
pending for making a finding against the collaborators.
Mr.Poti has submitted that although the Court has the duty
to name the collaborators of corrupt oractice, since the
court has not chose, tro name the collaborators in the facts
of the case, there is no compelling reason for this Court to
interfere with the decision made against the appellant by
issuing notice Section 99 of the Representation Act to the
collaborators and to defer the decison against the appellant
until the collaborators are given opportunity of being heard
for being named as collaborators of corrupt practice. Mr.
Poti has submitted that even if Court is of the view that
collaborators, this Court should make only a limited remand
for the purpose of naming the collaborators by following the
procesures for such naming without disturbing the finding
made against the apoellant and his appeal before this Court
should be dismissed. After giving our
anxious consideration to the facts and circumstances of the
case the submissions of the respective consel for the
partiies it appears to us that the appellan Dr.Vimal was
deciared electre from 201 kaij Constituency by securing
highest votes. She had secured 9221 votes more than her
nearest rival the election Petioner Sri Satpute. The High
Court has held that Sri Maruti Nivrutti and Sri Mangesh were
not members of scheduled caste and their nomination papers
ere wrongly accepted but the High Court has held that Sri
Maruti Nivrutti and Sri Mangesh were not memmbers of
scheduled caste and their nomination papers were wrongly
accepted but the Hight Court. has also held that the contest
by them had not affected the polling prospect of the
election petitioner. The allegations of unfair practice
adopted by the appellant Dr. Vimala and her election agents
and supporters in presenting herself as ‘Marwari’ for
securing Marwari votes and publishing banners , posters and
also making newspaper publications imputing the character of
the election petitioner and attempting to himlate him and
lowereing him down in the estimate of voters in the
constituency to gain advantage in the election propspect hav
not been accepted by the High Court and issues on such
contentions have been answered in the nagative. It is only
on the ground that Dr. Vimal had canvassed on the score of
religion and had attempted to spread hatred of one community
against the other community thereby adopting corrupt
practice under Section 123 and 123 (3A) of the
Representation Act in view of speeches made by Smt.Mehta and
Sri Mhajan with her consent that the election petition was
allowed by declaring that election of Dr. Vimal was void and
the election petitioner haveing secured next highest vote,
should be declared elected from the said said 201 Kaij
Constituency. It apperars to us that the said Smt. Mehta and
Sri Mahajan addressed election meetings of Dr. Vimal on two
dates. Such election meetings were addressed by the said two
speakers for the benefit of Dr. Vimal in the election. We
agree with the finding of the Hight Court that they
addressed such meetings with consent of Dr. Vimal. In our
view there os force in the contention of Mr. Poti, the
learned Senior Counsel of the respondent No.1 that although
reports published in Maratha Sathi and Ambajogai Times about
the contents of the speeches of Smt. Mehta and Sri Mahajan
by themselves are not admissible and they may at best be
secondary evidence but direct evidevne about the speeches by
the two reporeters p.w. 14 and P.W. 24 being peimary
evidence about the contests of the speeches delevered by the
said tow speakers, such speeches amounted to corrupt
practice under Section 123 and 123 (3A) of the
Representation Act. There is also force in the contention of
Mr.Poti that even if there was no publication of the the
speeches, the contents of such speeches could be proved by
examining the persons who had attended the meeting and heard
the speakers. Both P.W. 14 and 24 have stated that they
attended the respective meeting and noted the portions of
the speech which according to their assessment appeared to
be important and relevant. It is true trhat both P.Ws. 14
and 24 are reporters and it is quite likely that they have
some expertise in noting down the gist of the speeches or
statements made by others for the purpose of effectively
reporting the contents of such speeches or statments for
publication in the newspapers. Both the said withesses have
stated that the speeches were long and the speeches could
not be recored verbatim but gist of portions of speeches as
appeared to them important and relevant were noted by them.
Such notings. or ‘tipans’ therefore become very relevant
because admittedly on the basis of notings made at the
sport, the reports were prepared by the said reporters and
such reports were published in the newspapers.
Unfortunately, such notings or tipans have not been produced
for inexplixable resons. such tipans and notings the basis
of the reports published in the newspapers, requires to be
considered for consistent with the notings made at the time
of listening to the speeches by the authours of the report.
In our view, the Court should draw adverse inference against
the authenticity of the gist of the speeches since published
in the newspapers for non production of the said notings. It
may be indicated here that the
authors of the report did not take down the speeches or even
parts of such speeches in the language in which they were
expressed. Admittedly, the notes were prepared in the
language of the authors of the notes were prepared in the
language of the authors of the notes and such protion of the
speeches were highlighted in the notes in their own language
as appeared to the authors of the reports important or
relevant. In such circumstances, even though the authors of
the reports were reporters to newspapers by profession,
chances of misquoting or quoting some portions of speech out
of their context cannot be ruled out. The said reporters
deposed about thw contents of the speech but such deposed
about the contents of the speech but such depositions were
made at a later date when chances of not fully remembering
the speeches in their proper context xannot be ruled out.
Reliance to the depositions of the reporters was made
by the High Cout because having attended the meetings for
the purpose of reporting they were likely to remember the
portions of speeches since noted by them. In our view, in
such circumstsances, it becomes all the more important to
look to the notings made so as tro ascertain wherther oral
depositions are consistent with the notings so that oral
depositions may be held relible. In Manmohan Kalia’s case
(1984 (3) SCC 449), this Court has indicated as a note of
caution that unless oral evidence about the corrupt practice
is satisfactory, the Court should the corrupt practice is
stisfactory, the Court should not rely on such evidence.
This Court has held that :-
<SLS>
“It is very difficult to prove charge of corrupt
practice merely on the face of oral evidence
because in election case it is very easy to get
the help of interested withesses, but very
dilfficult to prove charges of corrupt practices.”
<SLE>
We, therefore, feel hesitant in finding the appellant
quilty of corrupt practice under Section 123 and 123 (3A) of
the Represention Act for want of relible and unimpeachable
evidence. The finding of fact made by the High Court in an
election petition normally should not be tinkered with
unless there are goog reasons to take a different view. As
it appears to us that the evidence about the foundation of
corrupt practice alleged against the appellant Dr. Vimal, is
not clinching and unimpeachable, we feel that the finding of
corrupt practice against the appellant having serious civil
and criminal import is not warranted in the facts and
circumstances of the case. In view of such finding, it is
not necessary to consider, whether the speeches are only
related to ‘Hindu Tatwa’ or Hindu philosophy and not an
appeal to only hindus on the score of religion to vote in
favour of the appellant but on the contrary, such speeches
were intended to whip out communal passion and raise hatred
between two classes od citizens. We may only indicate here
that in earlier decisions, this Court has sounded a note of
caution that finding about corrupt practice should be made
on the basis of clear, cogent and reliable evidence because
such finding entails serious consequences both civil and
criminal against the persons concerned. We may also indicate
here that in order to maintain national integrity and amity
amongst the citiziens of the country and to maintain the
secular character of the pluralistic society to which we
belong section 123 and 123 (3A) of the Representation Act
have been incorporated. For maintaining purity in the
election process and for maintaining peace and harmony in
the social fabric, it becomes essentially necessary not only
to indict the party to an election guilty of corrupt
practice but to name the collaborators of such corrupt
practice if there be any. Precisely, for the said reson,
Provisions have been made in the Representation Act to give
notices to the collaborators on the basis of the prima facie
finding against them so that after giving them an opportunty
of being heard a firm finding against the collaborators can
be made and such collaborators are named. In our view, Dr.
Ghatate has very justly contended that the Court has not
only a duty to name the collaborators by following the
appropriate procedures but a final decision of corrupt
practice should not be made without giving collaborators an
opportunity of veing heard if corrup practice by a party to
the election has been resorted to not by his own act
directly but by acts of the collaborators. It will indeed be
an anamolous position if on the basis of misdeeds of the
collaborators a finding of corrupt practice is finally made
against a party to the election but later on the Court after
hearing the collaborators for the purpose of naming them
comes to a different finding namely the collaborators had
not done anything on the basis of which a finfing of corrupt
practice should be made. We woulfd have inclined to remit
the case bak to the Hight Court for making the finding about
corrupt paractice only after following the appropriate
procedures of giving opportunty to the alleged collaborators
of being heard. But as we have indicated that even prima
facie such finding of corrupt practice cannot be made for
want of convincing and unimpeachable evidence, the question
of remitting the matter to High Court does not arise. For
the aforesaid reasons, We allow the appeal of Dr. Vimal
Mudanda being Civil Appeal No.1117 of 1991 and set aside the
judgmwnt so far Dr. Mudanda is concerned.
In the other appeal i.e. Civil Appeal No.2571 (NCE) of
1991 the appellant Sri Mangesh who was respondent No.17 in
the election petition before the Aurangabad Banch of Bombay
High Court has Challenged the finding of the High Court so
far as his caste is concerned. The High Court has that Sri
Mangesh was ‘Kalal’ by caste which is not Scheduled Caste in
the State of Maharashtra. The High Court has referred to in
great detail in paragraphs 71 to to 91 of the impugened
judgment evidences documentary and oral adduced by both the
parties in support of the rival contention about the caste
of Sri Mangesh. The High Court has noted that the caste
certificate was not issued to Sri Mangesh in a proper manner
after adverting to relevant documents. The revenue records
and school leaving certificate are required to be looked
into for deciding the caste of the person concerned. It has
been indicated by the High Court that the grand father of
Sri Mangesh had affiremed affidavit declaring him as ‘Kala’
by caste and not ‘hatik’ as claimed by Sri Mangesh. Such
affidavit had been affirmed long back. In the school leaving
certificate of the brother of Sri Mangesh, such brother’s
caste has been mentioned as ‘Kalal’. Considering revenue
records and other materials produced before the High Court,
the High Court has come to the finding that the caste
certificate issued in favour of Sri mangesh does not depict
the caste of Sri Mangesh correctly. After elaborate analysis
of the evidences oral and documentary, the High Court has
held that Sri Mangesh is ‘Kala’ by caste and not ‘Khatik’
and ‘Kala’ is not a Scheduled Caste in the State of
Maharashtra, We have been taken through the said paragraphs
71 to 91 of the judgment and after considering the same, we
do not find any reason to take a contrary view. The consel
for the appellant has very strenuousl contended that the
finding of the High Court that Sri Mangesh foes not belong
to scheduled caste not only affects his chance to contest in
the constituency reserved for scheduled caste but it also
affects him prejudicially in various other matters. He is
going to be deprived of all the benefits available to a
member of scheduled caste. As it appears to us that the High
Court on the basis of materials placed before it has come to
a proper conclusion that Sri Mangesh could not be held to be
a ‘Khatik’ by caste but ‘Kalal’ by caste, we do not intend
to interfere with such finding. It will, however, be open to
Sri Mangesh to have his caste redetermined on the basis of
further materials relevant for such determination of caste.
With the above observations, this appeal is dismissed.