Full Judgment Text
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PETITIONER:
KANTI PRASAD JAYSHANKER YAGNIK
Vs.
RESPONDENT:
PURSHOTTAMDAS RANCHHODDAS PATEL AND OTHERS
DATE OF JUDGMENT:
24/01/1969
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
BACHAWAT, R.S.
HEGDE, K.S.
CITATION:
1969 AIR 851 1969 SCR (3) 400
1969 SCC (1) 495
CITATOR INFO :
D 1974 SC 66 (62,63)
R 1975 SC1788 (25)
R 1977 SC 489 (20)
R 1980 SC 354 (9)
ACT:
Representation of the People Act (43 of 1951), s. 123 (2)
and (3)-Appeal to voters to vote in the name of religion-if
corrupt practice -Appeal to vote on the basis of candidate’s
caste-If corrupt practice Statement that voting for a party
would amount to the continuance of cow slaughter and
consequent incurring of divine displeasure-If corrupt-
practice.
Evidence Act (1 of 1872), s. 160-Reports made from notes
taken down at meetings-if admissible,-Method of proof-Weight
to be attached to reports.
HEADNOTE:
The poll for election to the Gujarat State Assembly from
Mehsana State Assembly constituency was taken on February
21, 1967. On February 18, 1967 one S.M. addressed public
meetings at various villages which were part of the
constituency. The appellant who was the successful
candidate was present at those meetings and did not
dissociate himself from any of the remarks in the speeches.
Police con tables, under instructions of the Government,
took down notes of the speeches and reported to their
superior officers. These police constables did not take
down every word spoken by S.M. but whatever was taken down
was spoken by S.M.; and in the reports, though the exact
words were not reproduced the substance of the speeches was
correctly reproduced. These reports showed that S.M. made
the following statements in his speeches
(i) He appealed to the Hindu voters as such not to vote for
the Congress Party lest they might be betraying their
religious leader (Jagadguru Sankaracharya of Puri),
particularly when he had fasted for 73 days in the cause of
preventing cow slaughter;
(ii) He put forward an appeal to the electors not to vote
for the Congress Party but to vote for the Swatantra Party
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in the name of religion;
(iii) He said that a relationship of cause and effect
existed between the slaughter of 33,000 bullocks every day
and natural calamities like famine and flood;
(iv) He asked his voters to vote for the appellant because
he was a Brahmin; and
(v) He said that if the voters voted for the Congress who
are responsible for 24 crore of cows being slaughtered then
God will be displeased.
On the questions : (1) whether the reports made by the
police constables were admissible in evidence; (2) Whether
any weight should be attached to them; and (3) Whether they
showed that the appellant was guilty of corrupt practice
within the meaning of s. 123(2) and (3) of the
Representation of the People Act, 1951
HELD (Per Sikri and Bachawat, JJ.) (1) The reports were
properly used under s. 160 of the Evidence Act, 1872, and
were admissible in evidence. [406 C-D]
401
Before a witness testifies to facts stated in a document,
under s. 160 of the Evidence Act two conditions must be
satisfied namely : (a) that the witness bad no specific
recollection of the facts themselves; and (b) the witness
says that he is sure that the facts were correctly recorded
in the document. For satisfying the conditions it is
however not necessary that the witness should specifically
state that he has no specific recollection of the facts and
that he is sure that the facts were correctly recorded in
the document. It is enough if it appears from the evidence
of the witness that those conditions are established. [405
C-E]
In the present case, it could be implied from the
Circumstances that the conditions of s. 160 were satisfied.
The witnesses were giving their testimony in Court after a
lapse ’of 9 months after the speeches were made and it is
implicit that they could have no specific recollection of
the speeches, especially when they attended and ’reported
many similar meeting as part of their duty during. the
election campaign. The second condition is also satisfied
because, the witnesses made notes on the spot and made out
reports from those notes when the speeches were fresh in
their memory. The reports are, strictly not substantive
evidence as such and could only be used as part of the oral
evidence on oath. The reports should therefore have been
read out in Court and not marked as exhibits. But the
practice of marking such a report as in exhibit is well
established and avoids the useless formal ceremony of
reading it out as part of the oral evidence. [405 E-G; 406
D-E]
Wigmore on Evidence (Third Edn. Vol. III pp. 97-98),
Mylapore Krishnaswami v. Emperor, 32 Mad. 384, 395 and Mohan
Singh Laxmansingh v. Bhanwarlal Rajmal Nahata, A.I.R. 1964,
M.P. 137, 146, referred to.
Public Prosecutor v. Venkatarama Naidu, I.L.R. [1944], Mad.
113, approved.
Jagannath v. Emperor, A.I.R. 1932 Lah. 7 and Sodhi Pindi Das
V. Emperor, A.I.R. 1938 Lah. 629, disapproved.
(2) Though the reports were not taken down in short-hand
nor were the exact words spoken by S.M. taken down by the
various police constables. the reports show a remarkable
similarity of approach, appeal and attack on the Congress
Party; and in those circumstances it must he held the police
constables correctly reproduced the substance of the
speeches. It is not necessary that the exact words must be
reproduced before a speech can be held to amount to corrupt
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practice. [414 A-C]
(3) (i) This statement does not amount to corrupt practice,
because, there was no proof that the Jagadguru was the
religious head of the majority of the electors in this
constituency or that he exercised great influence on them,
and so, it could not be held that an ordinary Hindu voter of
the constituency would feel that he would be committing a
sin if he disregarded the alleged directive of the
Jagadguru. [410 A-C]
Ram Dial v. Sant Lal, [1959] Supp. 2 S.C.R. 748,
distinguished.
(Per Hegde, J. dissenting) : The statement amounted to
corrupt practice.
What s. 123(2) requires is to induce or attempt to induce
’an elector’ which means even a single elector-that he will
be rendered an object of spiritual censure if he exercises
or refuses to exercise his electoral right in a particular
manner. While undoubtedly the inducement or attempt
40 2
to induce complained of should be such as to amount to a
direct or indirect interference with the free exercise of
the electoral right it is not in the public interest to cut
down the scope of the sub-section. Whether a particular
statement comes within it or not depends on various factors
such as the nature of the statement, the person who makes it
and the persons to whom it is addressed. Therefore, when a
respected religious preacher induces or attempts to induce
the illiterate and ’superstitious voters who form the bulk
of the voters that they will become objects of divine
displeasure if they do not exercise their franchise in a
particular manner, though his statements are not supported
by religious books and he himself may not be a religious
head of the majority of electors, the statements may yet
amount to a corrupt practice in law. [415 C-G]
(Per Sikri, and Bachawat, JJ.) : (ii) There is no bar to a
candidate or his supporters appealing to the electors not to
vote for the Congress in the name of religion, or appealing
to vote for the Swatantra Party because the people in that
party are fond of their religion. What s. 123(2) of the
Representation of the People Act bars is-that a candidate or
his agent or any other person with the consent of the
candidate or his agent should appeal to the voters to vote
or refrain from voting for any person on the ground of his
religion, that is the religion of the candidate. [410 C-D;
411F]
(iii) This statement does not amount to corrupt practice
within s.123(2) proviso (a)(ii), because, the law does not
place any bar on describing a party as irreligious or saying
that because that political party is irreligious natural
calamities had resulted on account if its disregard of
religion. [411 E-F]
(iv) Asking the voters to vote for the appellant because he
was a Brahmin, fell within the mischief of s. 123(3). [411
F-G]
(Per Hegde, J. dissenting).: When he stated that there
should be at least one Brahmin Minister in the Cabinet, S.M.
was merely giving expression to the fact that communal and
regional representations in our political institutions have
come to stay and was not appealing to the voters to vote on
the basis of the appellant’s caste. [415H]
(By Full Court) : (v) As this statement constitutes an
attempt to induce the electors to believe that they would
become objects of divine displeasure if they voted for the
Congress and thereby allowed cow slaughter to be continued,
and as in the circumstances of the case, it must be deemed
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to have been made with the appellant’s consent, the
appellant was guilty of corrupt practice within the meaning
of s. 123(2) proviso (a) (ii) [413C; 415B-C]
Narbada Prasad v. Chhagan Lal, [1969] 1 S.C.R., 499
followed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 979 of 1968.
Appeal under s. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated December 5, 1967
of the Gujarat High Court in Election Petition No. 3 of
1967.
S. T. Desai, A. K. Verma, A. L. Barot, and J. B.
Dadachanji, for the appellant.
Purshottamdas Trikamdas and I. N. Shroff, for respondent
No. 1.
403
The Judgment of Sum and BACHAwAT, JJ. was delivered by
SIKRI, J. HEGDE, J. delivered a separate Opinion.
Sikri, J. This appeal under s. 116-A of the Representation
of the People Act, 1951, is directed against the Judgment
and order of the High Court of Gujarat in Election Petition
No. 3 of 1967, setting aside the election of Kanti Prasad
Jayshankar Yagnik, appellant before us, to the Gujarat State
Assembly from Mehsana State Assembly Constituency under s.
123(2), s. 123(3) and s. 100(1)(b) of the Representation of
the People Act, 1951hereinafter referred to as the Act.
The High Court held that certain speeches made by Shambhu
Maharaj, with the consent of the appellant, amounted to
’corrupt practices’ within the meaning of ss. 123(2) and
123(3) of the Act. Since we are in agreement with some of
the conclusions arrived at by the High Court it is not
necessary to deal I with all the speeches made by Shambhu
Maharaj, but only with the speeches which the High Court
held to amount to ’corrupt practices’ within the meaning of
ss. 123 (2) and 123 (3). Before we set out the impugned
passages from the speeches we may give a few preliminary
facts.
The poll for the election was taken on February 21, 1967,
and the result of the election declared on February 22,
1967. Purshottamdass Ranchoddas Patel, the petitioner in
the High Court and respondent before us, secured 16,159
votes whereas the appellant_secured 23,055 votes. The other
candidates, who were respondents to the petition secured 720
votes, 1,017 votes and 454 votes, respectively. The
petition out of the which this. ,appeal arises was filed on
April 5, 1967, and the petitioner prayed for the relief that
the election of the appellant be declared void and further
prayed that he be declared duly elected to the Assembly’
Various grounds were urged in the petition but we need only
deal with the ground that the appellant and his agents
arranged public meetings of Shri Shambhu Maharaj on February
18, 1967, at various villages which were part of the Mehsana
Assembly constituency, and Shambhu Maharaj made a systematic
appeal in his speeches to a large section of the electors to
vote for the appellant on ground of religion, caste, and
community, and the electors were told that it would be an
irreligious act to vote for the petitioner who was a
Congress candidate as Congress allowed slaughtering of cows
and bullocks. It was also alleged that Shri Shambhu Maharaj
had used undue influence and interfered with the free
electoral rights of electors by inducing or attempting to
induce them to believe that they would become object of
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divine displeasure or spiritual Censure by his speeches.
404
The petitioner sought to prove the speeches by producing
members of the Police Force, as witnesses, who had under
instructions of Government taken down notes of the, speeches
and reported them to their officers. The High Court relied
on the reports of these members of the Police Force and held
that their reports were correctly recorded and fairly
represented the speeches made by Shambhu Maharaj. In this
connection, the High Court discarded the testimony of the
petitioner’s witnesses (P.W.s 25 to 33) on the ground that
it would be safe not to accept the evidence of artisan
witnesses unless it was corroborated by independent
witnesses.
The learned counsel,for the appellant, Mr. S. T. Desai, con-
tends, first, that the reports made by the members of the
Police Force are not admissible in evidence, and secondly,
that in the circumstances of the case no weight should be
attached to these reports. We may first deal with the
question of the admissibility of, the evidence before we set
out the speeches.
The learned counsel contends that under the Indian Evidence
Act written reports of speeches can only be used in two
ways; one, to refresh a witness’s memory under S. 159, and
secondly, under S. 160 after satisfying two conditions : (1)
that the witness has no specific recollection of the facts
themselves and (2) the witness says that he is sure that the
facts were correctly recorded in the document. He urges
that in this case the reports were not used to refresh any
witness’s memory, and that the conditions requisite under
S. 160 had not been satisfied. it is true that these reports
have not been’ used for the purpose of refreshing the memory
of any witness under S. 159, but these have been used under
s. 160.
We may, here set out ss. 159, 160 and 161 of the Indian
Evidence Act.
"S. 159. A witness may, while under
examination, refresh his memory by referring
to any writing made by himself at the time of
the transaction concerning which he is
questioned, or so soon afterwards that the
Court considers it likely that the transaction
was at that time fresh in his memory.
The witness may also refer to any such writing
made by any other person, and read by the
witness within the time aforesaid, if when he
read it he knew it to be correct.
Whenever a witness may refresh his memory by
reference to any document, he may, with the
permission ,of the Court, refer to a copy of
such decument
40 5
Provided the Court be satisfied that there is
sufficient reason for the non-production of
the original.
An expert may refresh his memory by reference
to professional treatises.
S. 160. A witness may also testify to
facts mentioned in any such document as is
mentioned in section 159, although he has no
specific recollection of the facts themselves,
if he is sure that the facts were correctly
recorded in the, document.
S. 161. Any writing referred to under the
provisions of the two last preceding sections
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must be produced and shown to the adverse
party if he requires it; such party may, if he
pleases, cross-examine the witness thereupon."
In this case it is clear that the reports were written by
the witnesses themselves at the time of the speeches or soon
afterwards when the speeches were fresh in their memory. It
seems to us that it is not necessary that a witness should
specifically state that he has no specific recollection of
the facts and that he is sure that the facts were correctly
recorded in the document, before the document can be used
under s. 160. It is enough if it appears from his evidence
that these conditions are established. In this particular
case the witnesses were giving their testimony in Court
after a lapse of nearly nine months and one would have to
have super-human memory to specifically recollect the
details of the speeches, especially when the witness may
have attended and reported many similar meetings as a part
of his duty during the election campaign. It may be implied
in this case that the witnesses had no specific recollection
of the facts.
The second requirement would be satisfied if the Court comes
to the conclusion that the witness was in a position to
correctly record the facts in the document.
Are then the requirements of s. 160 satisfied in this case ?
As an example we may consider the evidence of P.W. 7, who
testified regarding the speech, Ex. J., delivered at
village Motidav. He stated that Shambhu Maharaj addressed
the meeting at Motidav at about 5.30 p.m. on February 18,
1967, and the appellant was present at that meeting;
Maganlal A. Patel was also present at the time when Shambhu
Maharaj was speaking; while the speeches were being
delivered he was making notes of what was being spoken; in
this manner he had written out a report regarding all that
had happened at the meeting; after returning to Mehsana he
submitted his report of the meeting to P.S.I. Choudhary. He
was shown two reports about the meetings at Motidav, and he
stated
406
Both these reports, part of ’X’, are in my
handwriting. I wrote out the contents of
these two reports at Motidav when the meetings
were going on." (The two reports put in and
marked Ex. "J" collectively).
In cross-examination questions were directed to establishing
that the reports were not exact reports. He stated that he
was taking down all the speeches of Shambhu Maharaj who was
speaking at medium pace and he wrote whatever Shambhu
Maharaj spoke. He further stated that he was writing down
from memory immediately after the words were spoken by
Shambhu Maharaj. He admitted that "it is true that every
word spoken by Shambhu Maharaj was not taken down by me in
my report but what I have taken down was in fact spoken by
him." He, however, added that "it not true that what I have
written out in Ex. ’J’ was not written down at Motidav
village."
On this evidence it seems to us that it is quite clear that
both the conditions required by S. 160 have been compiled
with. While the speech was delivered on February 18, 1967,
he was giving his evidence on November 7, 1967. It is
implicit that he had no specific recollection of the
speeches, and the second condition is also satisfied because
he made notes and then made out the report from his notes.
It may be that the counsel would have been well-advised to
have read out Ex. ’J’ rather than produce it as an exhibit,
but this is apparently done in some Indian Courts to save.
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time and it is now too late in the day to condemn such
practice, specially as it is a difference without any
substance. It is true that the report is, strictly
speaking, not substantive evidence as such, and the document
can only be used as a part of the oral evidence sanctified
by the oath.
The position seems to be the same in some States in U.S.A.,
vide Wigmore on Evidence (Third Edition; Vol. III pp. 97-
98, extracted below :
"1871, Per Curiam in Moots v. State, 21 Oh.
St. 653: The entry in the book and the oath of
the witness supplement each other. The book
was really a part of the oath, and therefore
admissible with it in evidence."
"1879, Earl, J., in Howard v. McDonough 77
N.Y. 592 : After the witness has testified,
the memorandum which he has used may be put in
evidence,-not as proving anything of itself,
but as a detailed statement of the items
testified to by the witness. The manner in
which the memorandum in such a case may be
used is very much in the discretion of the
trial Judge."
407
"1882, Cooley, J., in Mason v. Phelps, 48
Mich. 126, 11 N.W. 413, 837 : After she had
testified that she knew it to be correct, she
might have read the entries or repeated them
as her evidence. Showing the book was no more
than this".
"1886, Smith, C.J., in Bryan v. Moring, 94
N.C. 687 : The memorandum thus supported and
identified becomes part of the testimony of
the witness, just as if without it the witness
had orally repeated the words from memory."
There is much to be said for the modern doctrine in some of
the States in the United States, which "seems to be that
such documents are admissible evidence and that the Court
will not go through the useless ceremony of having the
witness read a document relating to a fact of which he had
no present recollection, except that he knew it was correct
when made." (see McCormick on Evidence; p. 593; footnote 3).
The learned counsel relied on the dissenting judgment of
Sankaran-Nair, J., in Mylapore Krishnasami v. Emperor(1)
where he observed :
"If therefore the constable has not recorded
correctly the words used by the speaker but
only his impression, then the notes would be
inadmissible under section 160 of the Indian
Evidence Act to prove the words used. They
may be admissible to prove the impression
created in the mind of the constable, which is
very different. "
We are unable to appreciate how this passage assists the
appellant. If it is proved that the constable did not
correctly record the words, a fortiori one of the conditions
of s. 160 has not been satisfied and the writing cannot be
used to prove the words.
The learned counsel also referred to the decision of the
Madhya Pradesh High Court in Mohansingh Laxmansingh v.
Bhanwarlal Rajmal Nahata(2). The High Court seems to have
held that on the facts, the statements prepared by the
witness in that case did not become primary evidence of the
speech said to have been delivered by the speaker and cannot
be used as such. Later on the High Court seems to have held
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that the notes were taken down for a particular purpose, to
wit, for an election petition, and raise a reasonable
suspicion that what the witness recorded was not a correct
record of the speech. If the High Court meant to say that
Ex-P-12 (the notes in that case) could not be used
(1) 32 Mad. 384; 395.
(2) A.I.R. 1964 M.P. 137,146.
408
under s. 160 we must hold that the case was wrongly decided,
but if the High Court meant to say that there was suspicion
that the speech was ’not a correct record then nothing can
be said against the decision on this point.
Blacker, J. in Sodhi Pindi Das v. Emperor(1) held, relying
on Jagan Nath v. Emperor(2) that it is essential that the
witness must state orally before the Court that although he
had no specific recollection of the facts themselves, he was
sure that the facts were correctly recorded in the document.
We are unable to agree with this interpretation. As we have
already stated, if the requisite conditions can be satisfied
from the record, the lack of an express declaration by
witness does not make the evidence inadmissible.
In Public Prosecutor v. Venkatarama Naidu(3) Mockett, J.,
rightly dissented from the judgment of the Lahore High Court
in Sodhi Pindi Das v. Emperor(1).
In England the Law of Evidence has been changed and many of
such documents made directly admissible (see Phipson on
Evidence, Tenth Edition, Ch. 22).
It seems to us that on the facts the report, Ex. J., was
properly used under s. 160 of the Indian Evidence Act. The
question of the weight to be attached to the various reports
of the speeches is another matter and we will deal with the
question presently.
The High Court has found three speeches to constitute "
corrupt practices". The following three passages in Ex.
’J’speech delivered by Shambhu Maharaj at village Motidav on
February 18, 1967-were complained of by the learned Counsel
in the High Court :
"(1) I will say one fact and that is that at
present the Congress is stating everywhere
that nobody else will make the people happy
except themselves. But I say that apart from
God no other Government either Congress or
Swatantra Party can make people happy. An
agriculturist may have one bigha of land
(about half an acre) and he might have sown
wheat but if there is heavy frost or locusts
or if one bullock worth Rs. 1000/- dies,
Government may give him money, may give him
bullock, but I do not think that that man can
be happy; but nature can make him happy.
Today in our India, everyday 33,000 cows are
being slaughtered throughout the country. Ten
to eleven lacs of bullocks are being
slaughtered during the year and in Ahmedabad
Town alone 10,000 bullocks are slaughtered.
(1) A.I.R. 1938 Lah. 629.
(3) I.L.R. [1944] Mad. 11 3.
(2) A.T.R. 1932 Lah. 7.
409
(2) This unworthy Congress Government has
cut, the nose of Hindu Society. Sant Fateh
Singh, the religious preceptor of the Sikhs,
fasted for 10 days; where as Jagadguru fasted
for 73 days, still this Government is not even
thinking of opening negotiations. This un-
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worthy Government accepted the contention of
the Sikhs after the fast of IO days; whereas
in spite of the penance undertaken by
Jagadguru by his fast of 73 days, the
Government has not considered any topic in
this connection. Your Jagadguru had full
confidence that, except for ten crores who are
the followers of the Congress, twenty to
thirty crores from the Hindu Society would
help him.
(3) For example, if any Maulvi from Mucca
had fasted for 73 days and had given such a
mandate to our Muslim brothers, then would
they have voted for the Congress. That you
have to consider. In the same manner, if
Fateh Singh, the religious leader of Sikhs,
had fasted for 73 days, would they (Sikhs)
have voted for the Congress ? In the same
manner if there were Parsis or Christians,
then they also would vote for their religious
preceptor. This is what you have to consider.
The mandate of your religious preceptor is
that do not cast your vote for anyone, the
mandate of the Jagadguru is that let cows be
slaughtered, let bullocks be slaughtered. In
Gujarat State though there is ban, still
bullocks are allowed to ’be slaughtered, the
bullocks which give every individual happiness
throughout the life. This Government asks for
votes in the name of the ’bullocks (the
Congress Party election symbol being a pair of
bullocks with yoke on) and I am, therefore,
having an experience. Do not vote for the
Congress and by putting the mark of vote on
the symbol of bullocks amounts to cutting the
throat of a bullock by a knife symbolized by
your vote. It is my mandate that you should
not do this dastardly act."
The High Court did not find the first two passages to
constitute "corrupt practices". The third passage was held
by the High Court to constitute "corrupt practice" on the
ground that "though there is no proof that Shankaracharya
had any religious following as such in this particular
constituency, there is ,no mandate in writing from the
Jagadguru and there is no direct address to his followers by
the Jagadguru, Shambhu Maharaj has clearly appealed to the
Hindu voters as such not to vote for the Congress Party lest
they might be betraying their religious leader, particularly
when he had fasted for 73 days’ in a cause which had some
basis in the religious beliefs of the Hindus."
410
We are unable to agree with the High Court in this respect.
The decision of this Court in Ram Dial v. Sant Lal(1) is
clearly distinguishable because there it was held by this
Court that Shri Sat Guru wielded great local influence among
the large number of Namdharis who were voters in the Sirsa
constituency. In the present case there is no proof that
Jagadguru Shankaracharya of Puri was the religious head of
the majority of the electors in this constituency or
exercised great influence on them. It cannot be held on the
facts of this case that an ordinary Hindu voter in this
constituency would feel that he would be committing a sin if
he disregarded the alleged directive on the Jagadguru.
One other ground given by the High Court is that "there can
be no doubt that in this passage (passage No. 3) Shambhu
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Maharaj had put forward an appeal to the electors not to
vote for the Congress Party in the name of the religion." In
our ,opinion, there is no bar to a candidate or his
supporters appealing to the electors not to vote for the
Congress in the name of religion. What S. 123(3) bars is
that an appeal by a candidate ,or his agent or any other
person with the consent of the candidate or Ms election
agent to vote or refrain from voting for any person ,on the
ground of his religion, i.e., the religion of the candidate.
The following four passages in Ex. K, a speech delivered by
Shambhu Maharaj at Kherwa after midnight of February 18,
1967, were objected to :
"(1) The Congress says that it has brought
happiness and will give happiness in future;
but even a father cannot give happiness to his
son, nor can a son give happiness to his
father. Giving happiness rests in the hands
of God. But God gives happiness where there
is religion. ’He does not give happiness to
the irreligious.
(2) Formerly there were no famines.
Possibly once in 100 years there might be one
famine. As against that nowadays every year
there is some natural calamity like a famine.
Either there is no rain or there is frost or
there is visitation of locust or there is some
disease in the crops and some calamity or the
other is constantly visiting us. The reason
for this is that Congress permits slaughter of
33,000 bullocks everyday. When slaughter of
cows is banned, bullocks are allowed to be
slaughtered. In Gujarat 12,000 bullocks are
being slaughtered.
(3) Nobody would sit till 12-30 at night to
listen to any talks by the Congress-walas.
But I have come
(1) [1959] Supp. 2 S. C. R. 748.
411
to tell the public, which is fond of its
religion, to elect the Swatantra Party, so
that the slaughter of bullocks might be
stopped and all people who are fond of their
religion are also keeping away till 12-30 at
night.
(4) Vijaykumarbhai has gone. A Brahmin
minister must be there and hence Kantilalbhai
is going to be a minister, hence vote for him.
We must have at least one minister who is a
Brahmin. Hence vote for Kantilalbhai. At the
same time vote for Bhaikaka and H.M. Patel by
putting your voting mark on the star."
The High Court held the first two passages read together to
constitute "corrupt practice" on the ground that "they
amounted to interference with the free exercise of the
electoral right of voters by holding out threats of divine
displeasure and spiritual censure." The High Court held that
in these passages there was a direct causal relationship
between the cow slaughter and the natural calamities and
this clearly showed that the: voters were told that if they
did not want such natural calamities to visit them they
should not vote for the Congress Party and thug avoid the
divine displeasure which was responsible for these natural
calamities. It seems to us that this is not a fair reading
of these two passages. Cow slaughter is not mentioned in
these passages except to say that sow slaughter is banned in
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Gujarat. The causal relationship, if any, exists between
slaughter of 33,000 bullocks every day and natural
calamities. This, in our view, cannot amount to constitute
"corrupt practice" within s. 123 (2) proviso (a) (ii) ’Me
law does not place any bar on describing a party as
irreligious or saying that because that political party is
irreligious natural calamities have resulted because of its
disregard of religion.
We do not find anything objectionable in the third passage
because here again it is only an appeal to elect the
Swatantra Party because the people in that party are fond of
their religion.
The last passage in Ex. ’K’ clearly fell within the
mischief of s. 123(3). The High Court in this connection
observed:
.lm15
" The reference to Vijaykumarbhai is to Vijaykumar Trivedi,
who was a Brahmin and was a minister in the Gujarat
Government till March 1967, and when this speech was
delivered. The reference to Kantilalbhai is to the first
respondent, who is also a Brahmin and the reference to
Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra
Party and H.M. Patel is another leader of the Swatantra
Party and what Shambhu Maharaj was asking in this connection
was that it was necessary that there should be one Brahmin
in the Gujarat State Ministry and if one Brahmin,
412
Vijaykumar Trivedi, was to leave the
ministry, another Brahmin Minister, viz., the
first respondent should be first elected so
that he might get a seat in the Legislature
and thereafter become a minister, and thus it
is clear that in the passage, Shambhu Maharaj
was asking the people to vote for the first
respondent because he was a Brahmin by caste.
It has been stated as a categorical statement
that there must be at least one Minister, who
was a Brahmin. Under S. 123 (3) of the Act,
an appeal by any person to vote for any person
on the ground of his caste or community is a
corrupt practice, provided, of course, that
such person has made such appeal with the
consent of the candidate concerned. I will
come to the question of consent a bit later
on, but it is clear that in this particular
passage an appeal was being made to the
electors to cast their votes for the first
respondent because the first respondent is a
Brahmin and also because of the promise, which
had been put forward in this passage, that
there should be at least one Brahmin Minister
in the Ministry. I may point out that so far
as the petitioner is concerned, the petitioner
is a Patidar and it is in the context of this
background that an appeal is made in the name
of caste of the first respondent and the
people are asked to vote for the first
respondent, because he was a Brahmin."
It seems to us that the High Court is correct in drawing the
inference that Shambhu Maharaj was asking his voters to,
vote for the first respondent, because he was a Brahmin.
Shambhu Maharaj is reported to have adopted the same theme
in Ex. ’P’ when he said that "Vijaykumarbhai had gone out
and Kantilalbhai is going to be the Minister."
Following three passages were objected in Ex. ’P’, a speech
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made at Dangerwa:
"(1) The time of election has arrived. The
Congress Party is carrying on its propaganda
desparately but what I want to say is that if
Swatantra Party comes into power then it will
(not turn your roof-tiles into gold. Only God
gives happiness. There is frost, there is
rust in the crops, there is excess of rains,
there is a famine all these are due to the
workings of God. Every day twenty four crores
of cows are being slaughtered, then how God
will tolerate that and how will you get happi-
ness ?
413
(2) Look at the Congressmen who are
destroyers of Hindu Religion.
(3) Every year we get cow or the other
natural calamity like excessive rain, or
failure of rain or earthquake. This happens
because they ask for votes in the name of live
bullocks, whereas they get the bullocks
slaughtered. The symbol should be of butcher
and except ruthless and hard-hearted Congress
nobody else will get bullocks slaughtered."
It seems to us that the first and the third passages, read
together, constitute an attempt to induce the electors to
believe that they would become objects of divine displeasure
if they voted for the Congress and thereby allowed cow
slaughter to be continued.
Hidayatullah, C.J., in Narbada Prasad v. Chhagan Lal(1),
observed :
"It is not necessary to enlarge upon the fact
that cow is venerated in our country by the
vast majority of the people and that they
believe not only in its utility but its
holiness. It is also believed that one of the
cardinal sins is that of gohatya. Therefore,
it is quite obvious that to remind the voters
that they would be committing the sin of,
gohatya would be to remind them that they
would be objects of divine displeasure-or,
spiritual censure."
In the first and third passages of Ex. ’P’, therefore there
is clear implication that if you vote for the Congress who
are responsible for 24 crores of cows being slaughtered then
God will be displeased; in other words there will be divine
displeasure and the voters will not get happiness.
The second passage does not seem to be objectionable and the
High Court has not found it to be so.
The learned counsel for the appellant contends that very
little weight should be attached to the speeches because the
reports were not taken in shorthand but from notes and it is
very difficult to be certain of what were the’ exact words
used by Shambhu Maharaj. The High Court examined the
speeches, Exs. ’I’, ’J’ ’K’, ’L’, and ’P’, in connection
with this question and came to the conclusion that common
topics, common language and common approach existed in all
the speeches, and this indicated that Shambhu Maharaj did
deliver the speeches. Further., according to the High
Court, the reports were submitted by different constables at
different times and to different Police Station and the
learned Judge found that there could possibly be no
consultation between the Various police constables who took
down the state-
(1) [1969] 1 S.C.R. 499.
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8 Sup.C.I./69-8
414
ments, and that the totality of the effect emerging from
different reports made the reports credible.
We agree with the conclusions arrived at by the High Court.
It is true that the exact words were not taken down by the
various police constables, but the similarity of approach,
appeal and the attack on the Congress is remarkable and in
these circumstances it must be held that the police
constables correctly reproduced the substance of the
speeches. It is pot necessary in these cases that exact
words must be reproduced before a speech can be held to
amount to "corrupt practice".
The learned counsel further contends that the appellant’s
consent to these speeches had not been proved. We agree
with the High Court that there is no force in this
contention. The High Court observed :
"As shown in the handbill setting out the pro-
gramme, the manuscript of which was written
out by the first respondent himself in
consultation with Maganlal Abram Patel, this
tour programme had been arranged to bring
success to the first respondent in his
election contest. Shambhu Maharaj was touring
these villages specifically so that the first
respondent might succeed in his contest.
Further it would be natural on the part of the
first respondent to take advantage of being
seen in the presence of a good speaker like
Shambhu Maharaj. Some of the meetings of
Shambu Maharaj appear to have been well-
attended. It is highly probable that the
first respondent accompanied Shambhu Maharaj.
To my mind, therefore, it is clear that the
first respondent had accompanied Shambhu
Maharaj and was present in each of the
meetings at MotiDav, Kherwa and Dangerwa when
Shambhu Maharaj delivered speeches at these
three villages............ In the instant case
also, the first respondent, according to the
conclusion that I have reached, was present at
the meetings which were addressed by Shambhu
Maharaj at MotiDav, Dangerwa and Kherwa and in
each of these three meetings at least,
according to the conclusions reached by me,
Shambhu, Maharaj in the course of his speeches
had committed breaches of the provisions of s.
123(2) and s. ’123(3) of the Act........ Under
these circumstances, it is clear to my mind,
judging by the manner in which the first res-
pondent was touring with Shambhu Maharaj. the
manner in which tour programme was arranged
and judging from the fact that this tour was
specially arranged to bring success to the
first respondent, that the first respon-
415
dent did consent to the commission of the
breaches of the proviso of s. 123(2) and s.
123(3) of the Act by Shambhu Maharaj."
We may add that many police witnesses depose that the appel-
lant was present and it has not been shown to us that he
dissociated himself with any of the remarks in the
speeches.
In-the result the appeal fails and is dismissed with costs.
Hegde, J. I agree that the statements contained in Exh. P
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amount to a corrupt practice under s. 123(2) of the
Representation of the People Act and also agree that those
statements were made with the consent of the returned
candidate. Hence this appeal has to be dismissed but I am
unable to agree that before a statement can be considered as
an attempt to induce an elector to believe that he will be
rendered an object of spiritual censure if he acts in a
particular manner that statement must have been made by a
person who is a religious head of the majority of the
electors in the constituency concerned. What s. 123(2)
requires is to induce or attempt to induce "an elector"-
which means even a single elector-that he will be rendered
an object of spiritual censure if he exercises or refuses to
exercise his electoral right in a particular manner. But
undoubtedly the inducement or an attempt to induce
complained of should be such as to amount to a direct or
indirect interference or attempt to interfere with the free
exercise of electoral right. Whether a particular statement
comes within s. 123 (2) or not depends on various factors
such as the nature of the statement, the person who made it
and the persons to whom it is addressed. No doubt the
nature of the statements in question is of utmost
importance. They may exploit well accepted religious
beliefs but that is not the only thing that comes within the
mischief of s. 123(2). A respected religious preacher may
induce or attempt to induce the illiterate and superstitious
voters who form the bulk of our voters that they will become
the object of divine displeasure if they do not exercise
their franchise in a particular manner. His statements may
not have any support from the religious books but yet they
may amount to a corrupt practice in law. I see no
justification to cut down the scope of s. 123 (2). It will
not be in public interest to do so.
I am unable to agree that the appeal to vote (in Exh. K)
for the appellant on the ground that he is likely to be a
Minister as according to Shambhu Maharaj there should be at
least one Brahmin Minister in the cabinet is an appeal to
vote on the ground of the appellant’s caste. There is no
use hiding the fact that communal and regional
representations in all our political institutions have
become a must. Shambhu Maharaj merely gave expression to
that fact from public platforms. One may not appreciate his
416
campaigning for that point of view but I am unable to agree
that his statements in that regard amount to corrupt
practice under s. 123 (3). Those statements cannot be
considered as an appeal to vote on the basis of the
appellant’s caste. The caste of the appellant has come into
the picture incidentally.
V.P.S. Appeal dismissed.
417