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1994 (1) TMI 277
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....dates also in the fray belonging to different political parties besides six independent candidates. Respondent No.2 contesting on the ticket of Congress (I) secured 12,675 votes while all other candidates secured insignificant number of votes. Respondent No. l questioned the election of the appellant through an Election Petition on various grounds, alleging the commission of corrupt practices by him within the meaning of Sections 123(2), 123(3), 123(3A), 123(4) and 124(7) of the Act. Allegations regarding receipt of improper votes, rejection of valid votes besides adoption of illegal procedure during the counting were also made. The learned single Judge trying the Election Petition after recording the evidence and taking into account documents etc., produced at the trial, found that the appellant had committed the corrupt practices defined in sub-sections (2), (3), (3A) and (4) of Section 123 of the Act and, therefore, declared the election of the appellant void. The other allegations were held not established. The Election Petition was allowed with costs. The returned candidate, was, unseated. 3. According to the averments in the Election Petition, the appellant was described as ....
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....r of Muslim Unity. Issued by Indian Union Muslim League". The newspaper of 5th November, 1989 contained a message to the following effect :- "Person must have links with the religion without that he is nothing as the Waves in the river and out of river nothing. Your utmost power should be used to strengthen the Muslim Unity". The paper of 8th November, 1989 contained the message to the following effect :- "Do you like to partition the city in two parts for representing only one community which is being represented since last six years by a particular person; should he be elected again? Certainly this time you will elect your own representative in Assembly. Issued by Indian Union Muslim League'. The message to the following effect was, allegedly published on 14,11.1989 in the same newspaper : "It is the voice of every Muslaman, No Babari Masjid No Vote". Issued by Muslim Youth League, Gulbarga. The newspaper of the 15th November, 1989 contained the message to the following effect :- "Muslim League's Victory is your victory. For Gulbarga Assembly Constituency, vote and elect Indian Union Muslim League's strong, young candidat....
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....as also made in the Election Petition to the effect that the publication dated 15.1.1989 in the Bahmani News not only con-veyed a message but also contained a sacred religious symbol written in urdu which when translated means "Ershad-e- Nabhi" (voice of prophet), and on that basis, it was asserted that the appellant had made use of religious symbol and thereby committed the corrupt practice covered by Section 123(3). 5. .Respondent no. I also alleged that the appellant had by the said publications attempted to promote feelings of enmity and hatred between different classes of citizens of India on grounds of religion, race, caste and community. These publications were alleged to have been made with the consent of the appellant by the convenor of MYL for the furtherance of the prospects of election of the appellant and which action amounted to commission of corrupt practices within the meaning of Section 123(3A) of the Act. 6. The appellant is also alleged to have committed the corrupt practices within the meaning of Section 123(4) of the Act. The grounds contained in the Election Petition in respect of the said allegation read as follows: "That apart from the publ....
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.... jeeyade vote diye. Aap ko sabz parcham ki Izzad Rakhana hai. Apnay Ittebad ko Mazhooth Karna hooga. Hindustan Mein Jab Tah Ek bhi Musalman Kal-maa Haquee bolnay walaa hai Muslim league ki Naheen Meetta sakta. Jab toom Apnay mohailey main javogey the athraaf dekho kaheen umnaafikhary Islam (Islaam kay Gaddar) Meer Jafar, Mir Sadiq, jaisay com may Millath Kay khilaaf Muslim League Kay kheelaaf kaheen sazecsh tho nahee kar rahey hain". The utterances of the respondent-I excerpted above amounts to corrupt practice or undue influence and religious appeal on the ground of caste and religion". The appellant is also alleged to have procured the assistance of the returning officer, a gazetted officer of the rank of special Deputy Commissioner for the furtherance of the prospects of his election thereby commit-ting a corrupt practice under Section 123(7) of the Act. 7. According to respondent no. l, the appellant committed the "corrupt practices referred to above by himself and with his consent by the said Mohd. Moiuddin Pasha, who has acted as his election agent". 8. Though in the election petition, allegations were also made by respondent no. l against the appellan....
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....ation to the effect that the appellant was the General Secretary of the Karnataka branch of IUML and in that capacity he had enlisted the support of the MYL was false. It was categorically asserted that "this respondent has not appointed Mohd. Moiuddin Pasha as the election agent at any time. One Kesar Mohd. was the election agent of the respondent". The appellant-respondent stated that the publications (messages and ad- vertiesments) extracted in the election petition allegedly issued by the IUML or by MYL had nothing to do with him as he was not a member of the IUML much less, its General Secretary. That the appellant-respondent was also not a member of MYL either and had nothing to do with the messages and advertisements allegedly published in "Bahmani News" and that the same were not originated or sponsored by the respondent nor were the same published either at the instance of this respondent or his election agent. The appellant-respondent also denied that he had delivered speeches as alleged in the election petition or that he had made any appeal on the ground of religion etc. The respondent also stated that : "It is not possible to understand the gr....
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....he election of Respondent No. l is vitiated on account of illegal or improper. (i) exclusion of voters from exercising their votes and/or (ii) Acceptance of votes which are invalid and/or (iii) rejection or refusal of votes, which are valid (8) Whether the petitioner proves that the election of Respondent No. l is vitiated on account of improper or illegal procedure adopted or irregularities in the conduct of election? (9) Whether the recrimination petition is bad for want of compliance of any of the provisions of the Representation of the People Act, 1951? (10) Whether Respondent No. l proves that the petitioner or any person acting as his agent or any other person with his knowledge and consent committed acts at-tracting Section 123(3) and 123(3A) of the Representation of the People Act, 1951 as alleged in the recrimination petition? (11) Whether Respondent No. l proves that petitioner or any person acting as his agent or any other person with his knowledge and consent restrained voters from ex-ercising their franchise as alleged in para-9 of the recrimination petition? (12) To what reliefs, if any, the parties are entitled? 12. The High Court dealt with issues 1-4 attrac....
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....h arose out of the recrimination petition which was not pressed before the trial court. 15. Mr. Kapil Sibal, the learned senior advocate appearing for the appellant, the returned candidate whose election was set aside by the High Court, in the first place submitted .that the pleadings of the election petitioner in his petition were so vague, general in nature, lacking in material facts and particulars, besides being frivolous and vexatious, that the learned trial court should have stuck down and deleted all the pleadings and dismissed the election petition as the averments in the election petition did not give rise to any triable issue at the threshold. Learned counsel argued that the pleadings in an election petition are required to be absolutely precise and clear, containing all necessary facts and particulars, as required by law which discloses a complete cause of action and in the absence of the same, the returned candidate cannot be called upon to meet the charge set out in a defective election petition. Learned counsel for the respondent did not dispute the proposition of law as canvassed by Mr. Sibal but submitted that having failed to raise any objection about the alleged ....
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....edly on the person who assails an election which has been concluded vide Rahim Khan v. Khurshid Ahmed, Mohan Singh v. Bhanwarial, and Ramji Prasad Singh v. Ram Bilas Jha". 17. We are in respectful agreement with the above principles and that saves us the botheration or" referring to the various judgments, which were considered and noticed by the Division Bench while dealing with the subject. We shall, therefore, only consider such of the judgments, as in our opinion, have a direct bearing on the controversy before us. 18. In Samant N. Balkrishna and anr. v. George Fernandez and Ors., [1969] 3 S.C.C. 238, after dealing with the substantive law on the subject of election petition, this Court dealt with the procedural provisions contained in Sections 81,83 and 84 of the Act. It was noticed that Section 81 provides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also set forth full particulars of any corrupt practice that he alleges including as full a statement as possible of all the names of parties alleged to have committed such corrupt practice and the date and place of the commiss....
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.... in the petition and the particulars in a schedule. It is inconceivable that a petition could be filed without the material facts and the schedule by merely citing the corrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did not com-ply with the requirement. Today the particulars need not be separately included in a schedule but the distinction remains. The entire and complete cause of action must be in the petition in the shape of material facts, the par- ticulars being the further information to complete the picture......" 19, The Court then went on to consider the power of the trial court to allow amendment of an election petition found deficient in its pleadings and laid down that the said power can be exercised only to allow particulars to be amplified but that there is a complete prohibition against an amend-ment "which will have the effect of introducing particulars of corrupt practice not previously alleged in the petition". The allegation of corrupt practice in the election petition must show a complete cause of action by disclosing all material facts and if the election petitioner has omitted to allg....
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.... entire election. We have already extracted the offending messages which were published in "The Bahmani News" allegedly by IUML and MYL in the earlier part of this judgment. The petitioner went on to say : "......These publications have been made by respondent-1 and with his consent in the daily Urdu News paper referred to above. Many such publications have been made throughout the period of election i.e. between 1.11.1989 to 24.11.1989 including the date of election. The appeals made by the publications have been made by respondent-I and with his consent by the Muslim Youth League and these appeals have been made to further the prospects of the election of respondent-I prejudicially affecting the election of this petitioners. The said appeals are made on the ground of religion and caste viz. the Muslim Community. Respondent-I belongs to the Mohammedan community. Respondent-I belongs to the Mohammedan electorate in particular and the said appeals amount to religious appeal as referred to in Section 123(3) of the Representation of the People Act, 1951". 23. The election petitioner, thereafter, referred to the message and advertisement in "The Bahmani News&....
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....encing the religious feelings of the communities and thereby bringing a rift between the other communities and Muslims, amounting a corrupt practice as stated in Section 123(3) and (3A) of the Act. In fact at Roza Market area, about 8 days prior to the date of poll at about 9.30 p.m. respondent-11 at an election meeting, among other things uttered the following speech in Urdu, which clearly indicates that there has been interference in the free exercise of the electoral right by the Electorate on the basis of the religion and community feelings. The extract of the speech reads thus :- "Muslim Youth League ke convenor Mister Mohiuddin Pasha. Gujeesta Numaindane Main passport form per dasthakat nahin karoonga, Kahakar Fiikha prasthi Ka Ainae Lagaya. Sabekha MIA Nay Muslim Ilakhaun main Borewell kay liye sifarish tak nahee ki. Prakash Akash Kore nay chay saath muslim Makan today hain. Musal-manaun kaa Imaani Josh Tha jo unhonney Muslim league to bar bear jeeyade vote diye. Aap ko sabz parcham ki Izzad Rakhana hai. Apnay Ittehad ko Mazhooth Kama hooga. Hindustan Meb Jab Tab Ek hi Musalman Kahnaa Haquee bolnay walaa hai Muslim league ko Naheen Meet-ta sakta. Jab loom Apnay mohall....
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....nied making speeches as alleged in para 5 of the petition and stated that the allegations were false and a figment of the imagination of the petitioner. The appellant supported his assertion that he was a candidate of the Muslim League Party and not of the IUML by annexing with his written statement, Form A and Form B, as prescribed by para 13(b) of the Election Symbols (Reservation and Allotment Order 1968). 26. It transpires from the record that after evidence was led by the parties, the election petitioner filed yet another affidavit on 4.9.1992. In the said affidavit, which was filed after the arguments were over, Mr. Moiuddin Pasha, who had been described as an election agent in the first affidavit filed in support of the allegations of corrupt practices along with the election petition, was now described "only as an agent". The averments made in the second affidavit dated 4.9.1992 were stated to be based on "personal knowledge" and not on the basis of 'belief or "information" unlike in the first affidavit. We are at a loss to understand as to how the learned trial judge permitted the filing of an affidavit on 4.9.1992, in support of the elec....
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....eferred to and relied upon in the election petition had not been filed along with the election petition. The copies of newspapers and some other documents were filed subsequently and in the accompanying application it was stated by the election petitioner that the same were not available with him earlier. Those documents were filed after the evidence had commenced. The returned candidate (appellant) raised objections to the production of those documents at that late stage. In the affidavit filed in support of the objections, the appellant stated : "3. In the entire Election Petition there is no reference to any of these documents now sought to be produced. 4. On the pleadings, this Hon'ble Court has framed issues which are mainly referable to Section 123 of the Representation of Peoples' Act. Section 123 of the Act refers to corrupt practice. The statement that the petitioner could not produce the copies of the newspaper as they were not available, is false. In an Election Petition wherein the allegations relate to corrupt practice the law is clear, in that, Section 83 of the Act provides that the Election Petition should contain a concise statement of facts on which....
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....ence and at this stage, such contingency does not require a debate. Since PW4 has failed to produce these documents, the petitioner can lead a secondary evidence under Section of the Indian Evidence Act, if law provides such contingency. 24. What we are concerned at this stage is condoning the late production of documents by the petitioner and appreciating the reason assigned for such late production as contemplate under Order 13 Rule 2 of the Code of Civil Procedure. The Judgments of the Supreme Court averted by Sri Mohandas Hegde are not relevant at this stage of the case. Since the petitioner has shown sufficient cause for non-production of these documents, I.A. I is liable to be allowed......" 29. In our opinion, the approach of the trial judge was not correct and it seems that he was treating the trial of the election petition in a rather casual manner, unmindful of the provisions of the Act and the Rules framed thereunder as also the law laid down by this Court from time to time on the relevant aspect. 30. The election petitioner filed the first list of witnesses on 21.9.1990. At serial No3, the election petitioner summoned "Circle Inspector of Police Gulbarga&qu....
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....ve been given by the learned trial judge to this aspect and without examining the two lists, orders came to be made to summon the witnesses in a mechanical manner. The procedure adopted by the learned trial judge was not the proper procedure to be followed while trying an election petition. The list of witnesses are required to be carefully scrutinised before issuance of summons. That apparently was not done in the present case. 31. The allegations of corrupt practice in the election petition, in our opinion, are rather vague. The allegations as noticed in the earlier part of this judgment, are not specific, precise ad clear. Both material facts and particulars have not been supplied with sufficient clarity. The original affidavit filed in support of the election petition and the affidavit filed at the stage of arguments, with an attempt to bring it in tune with the evidence led in the case, are also not clear and expose the shifting stand of the election petitioner. We have already commented upon the manner in which the list of witnesses were filed and two different witnesses in the different lists were asked to produce the same material object i.e. the tape recorded speech of th....
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.... deal with the allegations with regard to the com- mission of corrupt practice under Section 123(4) of the Act which are contained in ground no. 10 of the petition and extracted in an earlier part of this judgment. A careful perusal of the allegation shows that it is not even asserted by the election petitioner, that the statement alleged to have been made by the returned candidate on 1.11.1989 about the non-signing of the passport forms was false to the knowledge of the returned candidate or that he made it without believing that statement to be true. There was, thus, no allegation whatsoever which satisfied the basic requirements of Section 123(4) of the Act. It was not even alleged by the election petitioner that the returned candidate made a statement of fact which was false to his knowledge or which he did not believe to be true and in the absence of any such averment in the election petition and the affidavit filed in support thereof, the trial court should not even have framed an issue relating to the said corrupt practice. Even in the evidence, it was not deposed by the election petitioner that the statement allegedly made by the returned candidate as contained in the said ....
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....egations regarding the commission of these corrupt practices are sought to be proved firstly by the production of copies of "Bahamani News", to prove which the election petitioner examined Shrt Azizullah Sharmast PW4, the editor and publisher of the Bahmani Newspaper. 38. We shall first advert to and deal with the reports relating to the speeches allegedly made by the appellant and his election agent, at Roza Market, Jalanabad and Muslim Chowk on different dates as alleged in the petition. Admittedly, on his own showing, the said witness Shri Azizullah, PW4 was not present at the time when the speeches were delivered by the returned candidate at different meetings and the publications in the newspaper were made on the basis of the reports sent by reporter. It is in the evidence of PW4, Azizulla Sharmast, that the reports about the meet- ings were sent to him by the reporter, Mr. Mohd. Feroz who had covered those meetings. Mr. Feroz, however, was not examined by the election petitioner as a witness. Mr. Azizullah, PW4, also did not produce the original reports as sent to him by Mr, Feroz as according to the witness, those reports were not preserved. No manuscript of the r....
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....lection agent or by any other person with the consent of his election agent. The evidence of the election petitioner himself or of PW4 and PW5 to prove the contents of the messages and advertisements in the newspaper in our opinion was wrongly admitted and relied upon as evidence of the contents of the statement contained therein. 40. This Court in Laxmi Raj Shetty v. State of Tamil Nadu, (1988] 3 S.C.C. 319 at 346, considered the question of admissibility of the news items appearing in a press report in the Newspaper and opined : "We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein. It is now well settled that a statement of fact contained in a newspaper is nerely hearsay and, therefore, inadmissible in evidence in the absence of the mak....
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....s it was in my custody. (Witness volunteers that he has also not made attempt to listen to the cassette) I do not have the transcript of the speech recorded in Ex P-7.) During the cross examination, the witness admitted : "I did not inform anybody about the recording of speeches in this Election Campaign. I have not informed the petitioner about informed the petitioner about record-ing the speech made by R-l. I do not know how the petitioner came to know about my possessing the cassette at Ex. P-7.1 have recorded the speeches of various persons in this Election in 5 to 6 cassettes. After recording I did not play these cassettes in my house. I have kept these cassettes in a cupboard (Almirah owned by me). I carried the cassettes along with me when I was transferred from Humnabad. The Almirah I referred above had only one key. My wife had no access to the said Almirah. In Ex P-7 two pieces of speeches are recorded at Rozar and Jilanabad. It was not contained full speech but a part of the speech of each place and the Tape was completely used. I recorded the speech from a distance of 100 yards from the place where the Dias kept. I did not find any objectionable statements in t....
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....rded in this Court, are of significance, to appreciate the credibility of the ace evidence led by the election petitioner regarding the cassette, Ex.P7. "Question: Did you meet Mr. S.K. Kanta at any point of time after the election? Answer: Yes. Question: When and in what connection? Answer: Once or twice in law and order problem. Question: After you were transferred from Gulbarga Police Station............... Answer: I did not meet Mr. Kanta after I was transferred from Gulbarga constituency. Question: Have you made any entry in your General Diary that you tape recorded the speeches of candidates on the instructions of Superintendent of Police and that you are having the tape recorded speeches in your possession? Answer: No. Question: Did you inform Mr. Kanta that you had tape-recorded the speech of Mr. Quamarul Islam and you are in possession of the recorded speech? Asnwer: At no point of tune I informed Mr. Kanta that I am in possession of the recorded speech. Question: Did he ask you at any point of time that you are in possession of his tape recorded speech? Answer: No. Question: When did you hand over the recorded speech to the Court and on which date? Answer....
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....se and the witness replied in the affirmative. He was then asked : "Question; Therefore you believed that the instructions were official instructions? Answer: Yes". The witness was then asked whether he had made any entry about attend-ing the meeting of the appellant at Roza Market in the daily diary and after referring to the daily diary relating to 16.11.1989, written on 17.11.1989, the witness admitted that "I have not mentioned Roza Market speech of Quamarul Islam" in the daily diary report for the relevant date. The witness when further questioned deposed that after his transfer from Gulbarga police station, he had carried the tape recorded cassettes along with the tape recorder with him and had kept the cassettes in the almirah at his residence alongwith his other cassettes and contrary to what he had stated before the trial judge, admitted that "my wife and children had access to the almirah only in which the cassettes were kept but they were to use only music cassettes". 47. We have carefully perused the relevant pleadings, the deposition of Shri Ingini at the trial, the testimony of the election petitioner and the deposition of Shri Ingin....
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....now by general information. I cannot say which person on which date and at what time informed me about this tape recording. I was aware about the general information of recording the speeches of Tape recording at the time of my filing of Election Petition. I did not take any efforts to get at that cassette. I did not make any mention in my Election Petition in respect of this tape recording. It is not correct to suggest that even though I was aware of the existence of a tape, I did not mention in my Petition" deliberately. The election petitioner - respondent no.l then stated that "I did not hear the said cassette completely before filing the petition" implying thereby that he had 'partially1 heard the cassette before the same was played in the High Court. From the evidence of Basavaraj Ingini, PWI, and the election petitioner, we find that the story regarding the recording of the cassette Ex.P7 by Shri Ingini is shrouded in mystery and the cassette. Ex.P7 appears to be a piece of evidence on which reliance cannot be placed since the very basis as to how it came to be recorded and why it was preserved or how the election petitioner came to know about it, has no....
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....petitioner admitted during his cross examination that he had heard the cassette before the filing of the petition but when of the police, there is no mention of the appellant having delivered any speech at Roza Market on the relevant date and it was admitted by Sh. Ingini that the diary contained no entry of the relevant date evidencing the holding of any meeting by the appellant at Roza Market. Thus, we find that no reliable evidence has at all been led by the election petitioner to prove the holding of the meeting at Roza Market, as alleged in the petition, by the returned candidate or about the contents of the alleged speech made by him. No witness of the locality was examined to substantiate the charge levelled in the election petition. The evidence on the record is not reliable or trustworthy to hold that the appellant delivered the offending speech as alleged in Roza Market which may come within the mischief of Sections 123(2), (3), (3A) of the Act or to hold the appellant guilty of committing the alleged corrupt practices. 50. According to the election petitioner, the returned candidate also delivered an offensive speech at Jalanabad, the substratum whereof has already been....
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....he election petitioner either at Roza Market or at Jalanabad. 51. As already noticed, even if, it be assumed for the sake of argument that some of the advertisements and messages published in the newspapers, the contents whereof have not been proved for the reasons already given, do bring home the charge of committing the corrupt practices as envisaged by Sections 123(2), (3), (3A) of the Act, the election petitioner has failed on facts, to connect the returned candidate with the commission of the alleged corrupt practices either by himself or through his election agent or by any other agent or person with his consent or with the consent of his election agent through any admissible and reliable evidence. The learned trial judge was, therefore, not justified to set aside the election of the appellant on the basis of inadmissible and unreliable evidence. We are unable to accept the reasoning or the conclusions reached by the High Court. 52. We are conscious of the fact that there is an increase of electoral malpractices of which making an appeal on the ground of religion or attempting to create or promote feelings of enmity or hatred between different classes of citizens of India o....
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....e that the High Court before invalidating the election and upsetting the verdict of the electorate, in its zeal to maintain purity of elections, ignored not only the defects in the pleadings in the election petition but also failed to analyse the evidence in its proper perspective and even relied upon such evidence as is not admissible in law. 55. The maintenance of purity of elections is indeed essential but the court must be clear in its approach and appreciate that the proof of commission of corrupt practices must be dear, cogent, specific and reliable as the charge of a corrupt practice is almost like a criminal charge and the one who brings forth that charge has the obligation to discharge the onus of proof by leading reliable, trustworthy and satisfactory evidence. The learned trial judge appears to have lost sight of the above salutary principles of election law. 56. Though a number of judgments were cited at the bar, both on the question of defective pleadings and the requirements of proving allegations of making an appeal on the grounds of religion or exercising or attempting to exercise undue influence on the free exercise of the electoral right by the voters, we do not....