TaxTMI 
TaxTMI 
1995 (12) TMI 340
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....t practices. By the impugned judgment dated 15.4.1994 in Election Petition No.6 of 1991, Ashok Agarwal, J. of the Bombay High Court has declared the election of Prof. Kapse to be void on the ground under Section 100(1)(b), and named the notices Sadhvi Reethambara and Pramod Mahajan also under Section 99 of the R.P. Act of being guilty of the corrupt practices under Sections 123(3) and 123(3A) of the R.P. Act. Even though the operative part of the impugned judgment mentions the corrupt practice under Section 123(2) also in addition to those under Sections 123(3) and 123(3A), but there is no finding against any one for commission of any corrupt practice under Section 123(2). We are, therefore, concerned only with the corrupt practices under Sections 123(3) and 123(3A) of the R.P. Act. The allegation of corrupt practices made in the election petition was on the basis of three speeches, namely, on 21.5.1991 by Sadhvi Reethambara, on 1.6.1991 by L.K. Advani and on 11.6.1991 by Pramod Mahajan. However, the speech of L.K. Advani made on 1.6.1991 has not been held to be a corrupt practice either under sub-section (3) or subsection (3A) and the claim in the election petition on that basi....
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....ropriate. The arguments in the election petition were concluded on 12.4.1994. The operative order allowing the election petition and declaring the election of Prof. Kapse to be void was made by Agarwal, J. on 15.4.1994. The pleading with regard to the speech of Sadhvi Reethambara on 21.5.1991 is in para 11 of the election petition which is as under :- "The Thane MAHANAGRI EXPRESS, Hindi newspaper is well read in Thane. The respondent invited the said Sadhvi Ritambara at Thane. He himself chalked out her programme. As per the invitation given by him to come and canvass for him in his constituency, she came to Thane on 21st May 1991. A meeting was held at Shivaji Maidan, Ambholi Naka, Thane at about 8.30 A.M. on the 21st May 1991. In the whole constituency and announcement was made over the vehicles, autorickshaws etc. engaged by the respondent or his workers with his consent, announcing that Sadhvi Ritambara was going to address the meeting in support of the respondent. Advertisements were given in the newspapers about the said meeting in Novbharat Times dt. 19.5.91. The petitioner had asked his following workers to attend the said meeting and to note down the substance of her....
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....was present in the meeting of the office bearers or that it was decided to invite Ritambara DEvi. The respondent denies that expressly or impliedly he had consent to the alleged offending speeches of Ritambara Devi." (emphasis supplied) The contention of the election petitioner which was accepted by the High Court is reiterated at the hearing before us that the above pleading amounts to an implied admission of the personal presence and participation of Prof. Kapse in the meeting held on 21.5.1991 at Shivaji Maidan, Thane between 8.30 a.m. and 10.00 a.m. amounting to his consent, and, therefore, Prof. Kapse was rightly denied permission to adduce evidence of his absence in that meeting and presence elsewhere at that time. The High Court's view is that this pleading amounts to an implied admission by Prof. Kapse of his personal presence and participation in the meeting of Sadhvi Reethambara on 21.5.1991 on account of which his consent for the entire speech of Sadhvi Reethambara is proved. Apart from the question whether the pleadings have been correctly construed to take this view in respect of Prof. Kapse, the further question is whether the noticee Sadhvi Reethambara could....
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....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 and 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. (2) In this section and in section 100, the expression "agent" has the same meaning as in section 123." The proviso in sub-section (1) of Section 99 makes it clear that the noticee has the same opportunity as a party to the petition and this is in addition to the right of the returned candidate who is a party to the petition. Even if the candidate as a party to the petition omits to deny the existence of any constituent part of the corrupt practice, it is open to the noticee under Section 99 who has an independent right to do so, for the purpose of showing that all the constituent parts of the corrupt practice are not made out on account of which the corrupt practice alleged is not proved and, therefore, he cannot be held guilty of that corrupt practice and named under Section 99 of the....
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....tion of Prof. Kapse's presence and conduct at the meeting of Sadhvi Reethambara at Thane on 21.5.1991 can be read in his written statement on the ground of non-traverse by virtue of Order 8 Rule 5(1) C.P.C. To support the view taken by the High Court, Shri Ashok Desai, learned counsel for the respondent strenuously urged that the implied admission of the allegation made in para 11 of the election petition flows from the absence of a specific denial of the relevant facts alleged in para 11 of the election petition. The pleadings on the point have been quoted earlier. In para 11 of the election petition, the material facts pleaded for this purpose are: Visit of Sadhvi Reethambara to Thane on 21.5.1991 on invitation of Prof. Kapse; meeting at Shivaji Maidan, Thane at about 8.30 a.m. on 21.5.1991 at which Prof. Kapse welcomed her and was then present in the audience; and appreciation by Prof. Kapse and the audience whenever she made a reference to the Hindu religion and to the fact that the BJP-Shiv Sena candidate should be voted as they were standing for protecting the Hindu religion. These are all the material facts pleaded in this behalf in the election petition for the purpose of p....
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....f substance was the consent of Prof. Kapse to be implied from his conduct in inviting and welcoming Sadhvi Reethambara at that meeting and appreciating her utterances. The specific assertion by denial enumerated earlier including the specific denial of his consent can leave no doubt that there is no room for reading in the written statement of Prof. Kapse an implied admission of the king read by the High Court. The fact of physical presence was just one circumstance alleged for implying the consent. When the alleged consent was denied to have been given either expressly or by implication and it was asserted that he was in no way connected with any act of Sadhvi Reethambara or responsible for any of her actions, the denial contemplated under Order 8, Rule 5, C.P.C. was clearly made. At any rate, there is no occasion to read any implied admission of any averment in para 11 of the election petition by nontraverse. The High Court was clearly in error in reading any admission by Prof. Kapse in his written statement of any averment of fact contained in para 11 of the election petition. Moreover, in view of the denial of the averments made in para 11 of the election petition relating t....
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....dent and his workers with his consent, Pramod Mahajan visited the constituency. A meeting was held on the 11th June 1991 at Kalyan Chowk Kalyan (West) at about 10 p.m. The petitioner's following workers attended the said meeting: 1. DAULAT SINGH PALIWAL 2. R. B. SINGH 3. DR. UDAY SAMEL. Pramod Mahajan stated in his speech that secularism preached by other political parties was only a pretense. He stated that the other parties were appeasing the Muslim minority for the sake of votes. He appealed to the voters to elect the Government which believed in devotion to Shri Ram. The respondent was present in the said meeting. The respondent was present in the said meeting. The respondent was sitting on the dias when Pramod Mahajan gave his speech. Mahajan further stated that for prestigious Hindustan and for the construction of Ram Temple (at Ayodhya) voters should elect the respondent who was the candidate of BJP. The area of Kalyan Chowk, Kalyan (West) falls under Kalyan Police station. The police officials has also attended the said meeting. The petitioner has learnt that a record has been kept in the form of election diary about the said meeting. The petitioner will examine....
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....he mischief of section 123 (3) of the Act. I further find that he has promoted or attempted to promote feelings of enmity or hatred between different classes of citizens of India on grounds of religion and this falls within the mischief of Section 123 (3A) of the Act. This he has done by his being an Agent of the Respondent. This he has done with the consent of the respondent. 117. I further find on the evidence of Shri Pramod Mahajan himself that the election manifesto of the BJP which are at Exhibites 3 and L, on his own showing tends to create enmity between Hindus and Muslims, and this falls within the mischief of the provisions of section 123 (3A) of the Act. Hence the election of the respondent is liable to be set aside and Shri Pramod Mahajan is liable to be named as a collaborator in the aforesaid electoral malpractices." Thereafter in para 120 while rejecting the stay application at the end of the impugned judgment, it has been stated thus "........... In the instant case, the respondent as also both the notices have admitted that appeals were made by them in the name of Hindu religion which is the religion of the respondent. It is also admitted by all the three t....
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....se in the campaign is attributed to the candidate in the pleading or evidence. Ex facie contents of a manifesto, by itself, cannot be a corrupt practice committed by a candidate of that party. In this context, reference to the decision in Kultar Singh Vs. Mukhtiar Singh, 1964 (7) SCR 790 at 793-795, is useful. We would now consider the evidence to prove this corrupt practice at the trial. The entire evidence in support of the allegation comprises of the testimony of Daulat Singh Paliwal (PW-6), Uday alias Prashant Laxman Samel (PW-7), Ram Bachan Singh (PW-8) and Police Inspector Suhans Bhatchandra Phadke(PW-4), in addition to Exhibits J/J-1. The High Court has rejected the evidence of PW-6, PW- 7 and PW-8 as unreliable. That leaves only the testimony of PW-4 S.B. Phadke and the document Exhibits J/J-1. The first question is whether the testimony of PW-4 or the contents of the document Exhibit J can be treated as substantive or legal evidence to prove any part of the speech of Pramod Mahajan. The submission of Shri Venugopal, learned counsel for Prof. Kapse and Shri Jethmalani, learned counsel for Pramod Mahajan is that it is not legal evidence. In the alternative, it was urged t....
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....he report Ex.J/J-1 that the entire meeting was peaceful without any untoward incident also tends to negative an essential ingredient of the corrupt practice under sub-section (3A) of Section 123. It may be mentioned that there is no mention of the word "Hindutva"or Hindu religion in the report of the speech at any place. This alone is sufficient to indicate that the evidence led in support of the election petition does not make out the corrupt practice either under sub-section (3) or sub-section (3A) of Section 123. We may now refer to the statement of Prof.Ramchandra Ganesh Kapse (RW-1). He has expressly stated that he did not know anything about the meeting of Sadhvi Reethambara in Thane on 21.5.1991 and that he was out of his constituency on that day being present in Dahanu Parliamentary Constituency where he had gone for the election campaign of the B.J.P. candidate from that constituency. He had also stated that he never heard any speech of Sadhvi Reethambara. He has then stated that he or his workers had not invited Pramod Mahajan to attend the meeting on 11.6.1991 in Kalyan. He has also stated that Pramod Mahajan did not speak of Hindutva or Hindu Rashtra, nor did he invo....