Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13
PETITIONER:
STATE OF PUNJAB
Vs.
RESPONDENT:
VILASRAO D. DESHMUKH
DATE OF JUDGMENT: 03/12/1999
BENCH:
R.C.Lahoti, S.Ragendra Babu
JUDGMENT:
R.C. LAHOTI,J
This is an appeal under Section 116A of the
Representation of the People Act, 1951 (hereinafter RPA, for
short) preferred by a candidate successful at the election
but against whom an election petition filed by a candidate
who had lost at the election has been allowed by the High
Court on the ground of commission of corrupt practices as
defined in sub-sections (3A) and (4) of Section 123 of the
RPA. For the sake of convenience the parties will be
referred to as they are arrayed before this Court in this
appeal, that is to say, Vilasrao Dagdojirao Deshmukh who had
filed the election petition and is arrayed as respondent in
this appeal shall be referred to as the respondent and
Shivajirao Balwantrao Patil Kawekar who was arrayed as
defendant/respondent before the High Court and is appellant
before us shall be referred to as the appellant.
Elections to the Maharashtra State Legislative
Assembly from 206 - Latur Assembly constituency took place
on 9.2.1995. The respondent was a candidate sponsored by
Congress (I). The appellant was sponsored by Janta Dal.
Result of the election was declared on 12.3.1995. The
respondent got 79077 votes while the appellant secured
1,12,901 votes. The appellant was thus declared elected.
The election petition alleged commission of several
corrupt practices. As many as 28 issues were framed by the
learned designated Election Judge based on the pleadings of
the parties. As the judgment under appeal shows the learned
designated Election Judge has found issues numbers 6 to 10
and 11 to 15 proved. On the rest of the issues the findings
recorded are in the negative. The subject matter of this
appeal are the affirmative findings recorded on issues
numbers 6 to 15. The finding on issue no.3 is also subject
matter of challenge laid by the appellant before us. These
issues are extracted and reproduced hereunder:-
3) Is it proved by the respondent that the petition is
liable for dismissal for non-compliance of Rule 94A read
with Rule 25 of the Conduct of Election Rules?
xxxx xxxx xxxxx
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13
xxxx xxxx xxxxx
6) Does petitioner prove that Prof. Mohan Kamble has
published in a daily ‘Jan Jagran’ dated 25.1.1995 the
statement that petition is having MAMULI opposition and
petitioner be opposed by MAMULI?
7) Does petitioner prove that Prof. Mohan Kamble
published said statement in ‘Jan Jagran’ dated 25.1.1995
with the consent of the respondent?
8) Does Petitioner prove that Prof. Mohan Kamble and
respondent published said statement in ‘Jan Jagran’ dated
25.1.1995 for promotion or attempting to promote feelings of
hatred and enmity between different communities of Latur
constituency on the ground of religion, caste and community
for prejudicially affecting the election of petitioner and
thereby committed corrupt practice under Section 123 (3A) of
the Act?
9) Does petitioner prove that the respondent made a
statement on 20.2.1995 in a meeting held at Town Hall Latur
that the respondent’s victory at election is as a result of
the magic played by the words "Mamuli" and thereby accepted
the commission of corrupt practice under Section 123(3A) of
the Representation of the People Act?
10) Does petitioner prove that Prof. M.B. Pathan
Editor of weekly ‘Lawa Lawi’ published article on 5.2.1995
under heading "Vilasrao’s father Dagdoji Deshmukh and his
relatives inhumanely attacked on Muslims", as stated in para
Nos. 12 and 13 and Exhibit ‘C’ of the petition?
11) Does petitioner prove that Prof. M.B. Pathan
published said article with the consent of the respondent?
12) Does petitioner prove that Prof. M.B. Pathan and
the respondent published the statements of facts in the said
article which is false and which the respondent and Prof.
M.B. Pathan believed to be false or do not believe to be
true?
13) Does petitioner prove that the statement of facts
published in the said article are in relation to the
personal character and conduct of the petitioner and was
reasonably calculated to prejudice the prospects of the
petitioner’s election and thereby committed corrupt practice
under section 123(4) of the Act?
14) Does petitioner prove that as a result of said
article dated 5.2.1995 in weekly "Lawa Lawi", communal
tension was created in constituency and Muslim voters had
gathered in groups and thereby ultimately complaint under
section 125 of the Representation of People Act and Section
153A of the Indian Penal Code bearing No.9/1993 was filed
with the Gandhi Chowk Police Station, Latur?
15) Does petitioner prove that Prof. M.B. Pathan and
respondent published said article for promotion or
attempting to promote feeling of enmity and hatred against
petitioner amongst the Muslim voters of Latur constituency
on the ground of religion and community for prejudicially
affecting the election of petitioner and thereby committed
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13
corrupt practice under section 123(3A) of the Representation
of People Act?
Preliminary objections were raised in the written
statement filed before the High Court by the appellant
submitting that material facts and particulars relating to
the alleged corrupt practices were not fully and adequately
set out in the election petition and that the verification
of the election petition as also the affidavit filed in
support of the election petition did not satisfy the
requirements of the law i.e., Sec.83 of the RPA and R.94A of
Conduct of Election Rules, 1961 and therefore the petition
was liable to be dismissed without being tried. These
objections were overruled by the learned designated Election
Judge by order dated 17.4.1996. The appellant had
approached this Court by filing Special Leave Petition
(Civil)No.13996/1996 which was disposed of by order dated
23.4.1996 by this court observing that in the event of the
election petition being allowed by the High Court it will be
open to the appellant (petitioner before the Supreme Court
in SLP) to raise all the questions which have been raised in
that SLP. Thus, the appellant’s plea putting in issue the
deficiencies and defects in the pleadings, verification and
affidavit filed by the respondent are available to be raised
by the appellant and to be considered by this court. We
will refer to the same at appropriate places.
A perusal of the above quoted issues shows that there
are three corrupt practices forming subject matter of this
appeal and they are referable to the three publications
namely Ext. ‘A’, Ext.‘B’ and Ext. ‘C’. Insofar as the
statement made by the appellant in the meeting dated 20.2.95
forming subject matter of issue no.9 is concerned, it is not
relied on as a corrupt practice by itself; from the
contents of the statement so made support is sought to be
drawn for proving the corrupt practices forming subject
matter of issues nos. 6, 7 and 8.
We now proceed to briefly set out the pleadings
insofar as relevant to the issues surviving for decision and
forming subject matter of appeal before us. The three
corrupt practices which form the subject matter of the
abovequoted issues have been so alleged as is stated in
succeeding paragraphs.
According to the respondent, the appellant and with
his consent his agents and workers got published in Daily
Sanchar an article by Raja Mane who is a special reporter of
the newspaper for Latur District based on a report dated
31.1.1995. The newspaper was having circulation in Latur
constituency. It is stated in the report that the word
MAMULI has a hidden meaning. MA means Marawadi; MU means
Muslims; LI means Lingayats; and RE means Reddy. Exhibit
A is the copy of Daily Sanchar newspaper dated 31.1.1995.
Daily Janjagar dated 25.1.1995 published by the
Editor, Professor Mohan Kamble has quoted the respondent to
be against "MUMULI RE" communities and pleaded for MAMULI to
oppose the respondent. The publisher was an active
canvasser of the appellant during election process. The
article was published to promote feelings of enmity and
hatred between different classes of citizens and voters of
the constituency. The publication by Mr. Mohan Kamble was
with the consent of the appellant for the furtherance of his
election prospects and for prejudicially affecting the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13
election of the respondent.
The appellant spoke in a public meeting at Town Hall
Latur on 20.2.19995 soon after he was declared elected.
Therein he stated that his victory was as a result of the
magic played by the word MAMULI.
Professor M.B. Pathan, an active worker and supporter
of the appellant was editor of weekly ‘LAVA LAVI’. With the
consent of the appellant he published a newsreport in the
issue dated 5.2.1995 under the heading and caption - "Vilas
Rao’s father Dagdoji Deshmukh and his relatives unhumanly
attacked on Muslims". The report then quotes an incident
wherein the father and uncle of the respondent with a view
to take possession of some land at Nilanga which was in
possession of Pasha Sahib Bagwan and his family member for
last sixty years resorted to threat by gun and also molested
the ladies of the said muslim family. The report was
totally false and frivolous to the knowledge of the
publisher and the appellant. The publication was intended
to promote or attempt to promote the feelings of communal
hatred amongst the muslim voters. Copies of ‘LAVA LAVI’
dated 5.2.1995 were widely circulated in Latur constituency
with the consent of the appellant. There was communal
tension in the constituency and muslim voters had gathered
in groups. This constituted corrupt practice under section
123(3A) of the RPA.
It is not necessary to reproduce verbatim the contents
of Exhibits A, B and C. It would suffice to briefly set out
the gist of the three documents with necessary extracts
therefrom to the extent necessary.
As to Ext.‘A’ : The news item in Sanchar dated
31.1.1995 is titled as - "Insistence of MA.MU.LI.RE." It
states inter alia-
..............In this constituency MA-MU-LI-RE has
become a magic word...............What is in this word that
makes it so important. Let me reveal. MA-Means Marawadi,
MU-Means Muslim, LI-means Lingayat and RE-Means Reddy. The
equation of assembly election of every party is based on MA-
MU-LI-RE. Though one feels this word MAMULI. (OFF LESS
IMPORTANT). It carries much meaning as far as caste set up
is concerned. But the persons who use this word as their
election gimmick are playing with fire. They must be
prevented forthwith. If these persons intend to bring us
home their cast calculation we must destroy their
game.....................
- Raje Mane
As to Ext. ‘B’ :The news item in Jan Jagar dated
25.1.1995 is titled as - "MA-MU-LI oppose of Vilasrao":-
"A new ’pattern’ of speaking true has been developed
in Latur Assembly constituency in the election
period..............Vilasrao faces a MAMULI (LESS IMPORTANT)
opposition. That is why Shivaji Kawhekar is bound to win.
The abbreviation of MA-MU-LI is as under.
MA - MARAWADI - MAHAR - MANG MU - MUSLIM LI - LINGAYAT
Abbreviation of the support on which MR. KAWHEKAR is
going TO BE MLA is as under.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13
M - MARATHA, MAHAR, MANG L - LINGAYAT A - AND ALL
IS IT NOT THEN THAT VILASRAO FACES MAMULI
As to Ext. ‘C’ : The reporting in ‘LAVALAVI’ dated
5.2.1995 is titled as - "Unhuman attack on muslims by
Dagadoji Deshmukh; Father of Vilasrao and Relative". The
opening paras read as under:
Mr. Dagadoji Vyankatrao Deshmukh, Father of Revenue
Minister Shri Vilasrao Deshmukh incited some goons with guns
to beat the family of Shri Elahi Pashasab Bagwan with sticks
to deprive him of his possession on the farm he had since 60
years. The goons also tried to molest a muslim female.
Ibrahim Fakirsab Bagwan (Chaudhari) was tried to be
assassinated by immolating him after pouring kerosene. All
the males and females were arranged to put in confinement
for two days."
Police protection is sought for by the Bagwan family
in of threat to their lives from Mr. Dagadoji, father of
Vilasrao, Rajaji, husband of Vilasrao’s aunt and other’s. A
crime also has been registered with 1st class Judicial
Magistrate, Nilanga.
Following is the information our representative
received after personally meeting the Bagwan family."
It is then stated that "following information" was
received by the reporting representative of the newspaper "
after personally meeting the Bagwan family". The story
narrated is that Pashasab Bagwan was possessed of some land
since before 1935. The land was taken on Batai from the
father-in-law of aunt of Mr. Vilasrao. Rajaji Deshmukh
initiated legal proceedings for taking possession of the
land but did not succeed because of the legal protection
available to tenants of land. The matter was taken to the
court of Commissioner. A special Commissioner was appointed
to deal with this case only because it related to Mr.
Vilasrao Deshmukh. For the same reason, Bagwan’s advocate
refused to plead for Bagwan and returned the file with
apology. In such circumstances, Bagwan lost the case.
Thereafter, forcibly possession was taken. The article goes
on to allege that though the Congress Party assured the
security of minority but father of Mr. Vilasrao Deshmukh, a
Minister of Congress Party was acting contrary to such
principles. " The members of Elahi Pashasab told this sad
story with tears in their eyes...... father of Vilasrao
used all the methods by hook or crook and made us homeless,
they narrated."
In the written statement filed by the appellant all
the material averments made in the election petition have
been denied. The appellant has completely denied any
association with or responsibility for the said
publications. It is denied that any one of the persons
associated with the three publications was a worker or
canvasser for the appellant. The appellant has denied his
consent for any of the said publications.
Before we may proceed to deal with the charges of
corrupt practices levelled against the appellant by
reference to the above said three publication’s -Ext.‘A’,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13
Ext.‘B’ and Ext.‘C’, it will be useful to keep in view a few
well-settled legal propositions in the field of election
jurisprudence and relevant for the purpose of this appeal.
This court very recently in the case of Jeet Mohinder Singh
vs. Harminder Singh Jassi JT 1999 (8) SC 432 summed-up such
principles on a review of the decided case as under:
(i) The success of a candidate who has won at an
election should not be lightly interfered with. Any
petition seeking such interference must strictly conform to
the requirements of the law. Though the purity of the
election process has to be safeguarded and the Court shall
be vigilant to see that people do not get elected by
flagrant breaches of law or by committing corrupt practices,
the setting aside of an election involves serious
consequences not only for the returned candidate and the
constituency, but also for the public at large inasmuch as
re-election involves enormous load on the public funds and
administration.
(ii) Charge of corrupt practice is quasi-criminal in
character. If substantiated it leads not only to the
setting aside of the election of the successful candidate,
but also to his being disqualified to contest an election
for a certain period. It may entail extinction of a
person’s public life and political career. A trial of an
election petition though within the realm of civil law is
akin to trial on a criminal charge. Two consequences
follow. Firstly, the allegations relating to commission of
a corrupt practice should be sufficiently clear and stated
precisely so as to afford the person charged a full
opportunity of meeting the same. Secondly, the charges when
put to issue should be proved by clear, cogent and credible
evidence. To prove charge of corrupt practice a mere
preponderance of probabilities would not be enough. There
would be a presumption of innocence available to the person
charged. The charge shall have to be proved to hilt, the
standard of proof being the same as in a criminal trial.
(iii) Section 83 of the RPA requires every election
petition to contain a concise statement of the material
facts on which the petitioner relies. If the election
petition alleges commission of corrupt practice at the
election, the election petition shall set forth full
particulars of any corrupt practice including as full a
statement as possible of the names of the parties alleged to
have committed such corrupt practice and the date and place
of the commission of each such practice. Every election
petition must be signed and verified by the petitioner in
the manner laid down for the verification of pleadings in
the CPC. An election petition alleging corrupt practice is
required to be accompanied by an affidavit in Form 25 read
with Rule 94A of the Conduct of Election Rules, 1961. Form
25 contemplates the various particulars as to the corrupt
practices mentioned in the election petition being verified
by the petitioner separately under two headings: (i) which
of such statements including particulars are true to
petitioner’s own knowledge, and (ii) which of the statements
including the particulars are true to information of the
appellant. It has been held in Gajanan Krishnaji Bapat vs.
Dattaji Raghobaji Megha JT 1995 (5) SC 410 that the election
petitioner is also obliged to disclose his source of
information in respect of the commission of the corrupt
practice so as to bind him to the charge levelled by him and
to prevent any fishing or roving enquiry, also to prevent
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13
the returned candidate from being taken by surprise.
In Sri Harasingh Charan Mohanty vs. Surendra Mohanty
AIR 1974 SC 47, this Court has held:
In order to establish a corrupt practice under the
above provisions the petitioner must prove -
(I) For the purposes of corrupt practice under sub-
s.(3) of S.123 of the Act that the statement is an appeal to
the religious symbol and has been made (a) for the
furtherance of the prospects of the election of that
candidate; or (b) for prejudicially affecting the election
of any candidate; and
(II) For the purposes of corrupt practice under sub-
s.(4) of S.123 of the Act that the publication of a
statement of fact is by (a) the candidate,or (b) his agent,
or (c) any other person with the consent of the candidate or
his election agent; (d) that the statement is false and the
candidate believes it to be false or does not believe it to
be true; (e) that it relates to personal character or
conduct of a candidate; and (f) that the statement is
reasonably calculated to prejudice the prospects of the
candidate’s election. The word ‘agent’ under the
Explanation to S.123 of the Act includes an election agent,
a polling agent and any person who is held to have acted as
an agent in connection with the election with the consent of
the candidate. If the corrupt practice is committed by the
returned candidate or his election agent, under S. 100 (1)
(b) of the Act the election is void without any further
condition being fulfilled. But if the petitioner relies on
a corrupt practice committed by any agent other than an
election agent, the petitioner must prove that it was
committed by him with his consent or with the consent of his
election agent.
In the case of Sri Harasingh Charan Mohanty’s case
(supra) the court quoted and followed the following
statement of law from Samant N. Balkrishna vs. George
Fernandez AIR 1969 SC 1201 while dealing with different
burdens of proof as to whether an offending statement was
made by the candidate himself or by his agent other than an
election agent:-
" There are many kinds of corrupt practices according
as to who commits them. The first class consists of corrupt
practices committed by the candidate or his election agent
or any other person with the consent of the candidate or his
election agent. These, if established, avoid the election
without any further condition being fulfilled. Then there
is the corrupt practice committed by an agent other than an
election agent. Here an additional fact has to be proved
that the result of the election was materially affected. We
may attempt to put the same matter in easily understandable
language. The petitioner may prove a corrupt practice by
the candidate himself or his election agent, or someone with
the consent of the candidate or his election agent, in which
case he need not establish what the result of the election
would have been without the corrupt practice. The
expression "Any other person" in this part will include an
agent other than an election agent. This is clear from a
special provision later in the section about an agent other
than an election agent."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13
With so much statement of law, we now proceed to deal
with each of the three publications.
Re: Daily Sanchar dated 31.1.1995 Ext. ‘A’:- Vide
para 9 of election petition, the respondent has averred that
the appellant and with his consent his agents and workers
have got published in the local newspapers, having
circulation in Latur constituency i.e. Daily Sanchar a
special article of Raja Mane, a report dated 31.1.95. The
respondent has not named the alleged agents and workers
where the local newspaper carrying the impugned publication
is said to have been distributed. Names of even a few
persons by way of illustration to whom the newspaper might
have been delivered are not given.
The averments made in para 9 of the election petition
have been verified as " based on information received by me
from the persons and newspapers mentioned in the said paras
which I believe to be true". Para 9 does not mention name
of any person; only the name of newspaper is given. In the
affidavit filed in support of the petition, vide para 2 the
said article has been stated to have been contributed by
Raja Mane who is a special reporter for Latur district.
Thus, so far as, the contents of the election petition,
verification thereon and the supporting affidavit are
concerned, the only person who would speak in support of the
averments is indicated to be Raja Mane and none else.
Needless to say, the averments in this regard are not
claimed by the respondent to be based on his personal
knowledge.
Raja Mane has appeared in the witness box as PW 2. In
the examination-in-chief itself he has stated that the
article was his own creation based on the discussions which
were going on in the constituency about the word ‘MAMULI’.
He has further stated - "the very object in writing this
article was that I felt that the campaign in elections
should not be on the basis of communal footing and the
constituency and the voters should not adopt such culture".
Raja Mane was neither an election agent nor an agent
of the respondent. He was "any other person" a charge of
corrupt practice by reference to sub section (4) of Section
123 of the RPA cannot be said to have been brought home to
the respondent unless it was proved that the said
publication was with the consent of the candidate i.e. the
appellant or his election agent. There is no evidence
adduced in this regard. Thus the appellant cannot be
connected with the publication in Daily Sanchar dated
31.1.1995.
Shri V.A. Mohta, the learned senior counsel for the
appellant has submitted that the contents of the publication
Ext. ‘A’ do not even prima-facie make out a case of corrupt
practice. There is no reference to either of the two
candidates in the publication. There is no ‘appeal’ as such
to vote or refrain from voting for any person on the ground
of his religion, race, caste, community or language as
such.On the contrary, the article condemned the activity or
tendency on the part of any person to use caste/community
formulas/equations in the election. The charge of corrupt
practice against the appellant in this regard cannot be said
to have been made out even prima facie.
Re: Daily Jan Jagar dated 25.1.1995 Ext. ‘B’ :- Vide
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13
para 10 of the election petition Prof. Mohan Kamble, the
editor of Daily Jan Jagar has been alleged to be an "active
canvasser" of appellant "during election process". It is
also alleged that " the said publication by Mr. Mohan
Kamble is with the consent of the respondent (i.e. the
appellant before us) for the furtherance of his election
prospect and for prejudicially affecting the election of the
petitioner (i.e. the respondent before us) ." Prof. Mohan
Kamble was not an election agent of the appellant. An
inference as to Prof. Mohan Kamble being agent of the
appellant is supposed to be drawn from the allegation that
he was an active canvasser of the appellant during election
process.
The averment so made in the election petition is
verified " on information received by me from the persons
and newspapers mentioned in the said paras" and believed to
be true. Vide para 3 of the affidavit filed in support of
the election petition, it is again stated that the publisher
was "active canvasser of respondent during election
campaign" and that "the said publication by Mr. Mohan
Kamble is with the consent of the respondent for furtherance
of his election prospect and for prejudicially affecting the
election of me". The respondent does not claim the averment
made in this regard to be based on his personal knowledge.
The pleadings, the verification and the affidavit give an
indication only of Prof. Mohan Kamble being the person who
would substantiate the averments made in the petition.
Prof. Mohan Kamble has not been examined in the court.
There is no other evidence, muchless satisfactory
evidence, available on record to hold that Prof. Mohan
Kamble was an active canvasser of the appellant as alleged
in the petition. Vide para 11 of the election petition, it
is alleged that after the election a public meeting was
addressed by the respondent on 20.2.1995 at Town Hall Latur.
From what the appellant spoke at the public meeting some
link between the appellant and the two reportings Ext.‘A’
and Ext.‘B’ was sought to be established. The petition
itself alleges the proceedings of the meeting having been
video recorded on a cassette by Madhav Pachare. The said
video recording has not been produced in the court. When
the best evidence available in respect of the issue has been
withheld, an adverse inference has to be drawn and the issue
cannot be held to have been proved.
In Manohar Joshi vs. Nitin Bhaurao Patil and another
(1996) 1 SCC 169, this court noticed the distinction between
clause (b) of sub-section (1) of sub -clause (ii) of clause
(d) of sub section (1) of Section 100 of the RPA and stated
that under the former provision the commission of any
corrupt practice by a returned candidate or his election
agent or by any other person with the consent of a returned
candidate or his election agent by itself is sufficient to
declare the election to be void; while under the later
provision the commission of any corrupt practice in the
interests of the returned candidate by an agent other than
his election agent (without the further requirement of the
ingredient of consent of a returned candidate or his
election agent) is a ground for declaring the election to be
void only when it is further pleaded and proved that the
result of the election insofar as it concerns a returned
candidate has been materially affected. It was further
held:-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13
"Even if the acknowledged leaders of a party have
committed any corrupt practice which results in benefit to
the returned candidate then on proof of the benefit having
materially affected the election result in favour of the
candidate, his election would be set aside on the ground
under Section 100(1)(d)(ii)of the R.P.Act. There is thus no
occasion to read into the ground in Section 100 (1)(b) or
the definition of "corrupt practice" the implied consent of
the candidate for any act done by a leader of that party to
dispense with a clear pleading and proof of the candidate’s
or his election agent’s consent as a constituent part of the
corrupt practice for the ground under Section 100 (1)(b) of
the R.P. Act."
"Whenever the requirement is of consent, it must be
free consent given by the giver of the consent, of his own
volition. Ordinarily, it also implies a subservient role of
the person to whom consent is given and the authority of the
giver of the consent to control the actions of the agent.
It is difficult to ascribe to an acknowledged leader of the
party a role subservient to the candidate set up by that
party inasmuch as the candidate is ordinarily in no position
to control the actions of his leader. However, if even
without giving his consent, the candidate has received
benefit from the leader’s act in a manner which materially
affects his election favourably, on pleading and proof of
such material effect on the election, the candidate’s
election is liable to be set aside on the ground under
Section 100 (1)(d)(ii) unless, as provided in sub-section
(2) of Section 100 he further discharges the onus placed
upon him that in spite of his opposition and taking due
precautions that act had been committed for which he cannot
be responsible."
The court observed that in the of pleadings it would
not suffice to merely repeat the language of the statutory
provision in the pleadings; material facts have to be
pleaded. General averments suffering from deficiency of
requisite pleading of all the constituent parts of the
corrupt practice would not constitute a pleading of the full
cause of action and shall have to be ignored and struck out
in accordance with order 6 rule 16 of the CPC.
In Prof. Ramchandra G. Kapse Vs. Haribansh Ramakbal
Singh - (1996) 1 SCC 206 a leader of the political party to
which the respondent returned candidate belonged addressed a
meeting during the election in which the said leader made
some statements on ground of religion amounting to corrupt
practice under Sections 123(3) and (3A) of RPA. The
returned candidate was alleged to be present at the time of
speech by the said leader and he had also invited and
welcomed the political leader at the meeting. It was held
that an inference as to implied consent of the returned
candidate to the contents of the speech by the leader of the
party could not be drawn. In Chandrakanta Goyal Vs. Sohan
Singh Jodh Singh Kohli - (1996) 1 SCC 378 it was held that
the leader of the political party to which the candidate
belongs was not an election agent of the candidate. Implied
consent of the candidate to the speeches made by such leader
could not be inferred. The factum of consent of the
candidate or his election agent had to be specifically
pleaded and proved. So is the view taken in Moreshwar Save
Vs. Dwarkadas Yashwantrao Pathrikar - (1996) 1 SCC 394 and
Ramakant Mayekar Vs. Celine D’silva - (1996) 1 SCC 399. In
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13
Charan Lal Sahu Vs. Giani Jail Singh - 1984 (1) SCC 390 the
Constitution Bench has drawn a distinction between the
concepts of ‘connivance’ and ‘consent’. The two cannot be
equated. It has been held that connivance may in certain
situations amount to consent but consent implies that
parties are ad idem.
In the case at hand, there are neither facts alleged
nor any evidence adduced wherefrom an inference as to agency
of Mohan Kamble or his having acted with the consent of
appellant could be drawn. Section 100 (1) (b) is not
therefore attracted. There are no averments nor evidence
attracting applicability of Section 100 (1)(d)(ii) and to
hold the corrupt practice having been committed in the
interest of the returned candidate and consequent thereupon
the result of the election having been materially affected.
The up-shot of the abovesaid infirmities in the pleadings
and the evidence is that the charge of corrupt practice by
reference to the reporting in Daily Jan Jagar dated
25.1.1995 Ext.‘B’ can also not be said to have been proved
against the appellant as required by law.
Re: Reporting in Weekly ‘LAWALAVI’ dated 5.2.1995
Ext.‘C’:- Dr. A.M. Singhvi, the learned senior counsel for
the respondent assisted by Shri A.M. Khanwilkar advocate
has during the course of hearing heavily laid emphasis on
the findings recorded by the learned designated Election
Judge as regards the corrupt practice committed by the
appellant referable to publication Ext. ‘C’ and submitted
that even if the alleged corrupt practices referable to two
documents Ext. ‘A’ and Ext ‘B’ were not proved, the charge
of corrupt practice referable to publication Ext. ‘C’ was
certainly made out beyond any shadow of doubt against the
appellant and all the ingredients contemplated by sub
sections (3A) and (4) of Section 123 of RPA were also made
out. Dr. Singhvi submitted that very title of the article
was - "unhuman attack on muslims". The contents suggested
old aged and helpless members of the muslim family having
been brutally attacked. The modesty of female members of a
muslim family was alleged to have been violated. Such
allegations were aimed at promoting feelings of enmity or
hatred against the respondent (who is a non-muslim) in the
minds of muslim population of voters. The preparators of
the criminal assault were referred to as the father of the
respondent and his relations. Thus, the publication was
aimed at prejudicially affecting the election of the
respondent. The contents were partly false as also highly
exaggerated. The incident was of December, 1994 published
in the issue dated 5.2.1995 of Weekly ‘LAWALAVI’ and widely
circulated soon after publication. The date of publication
strategically preceded the date of polling i.e. 9.2.1995
which was just three days hence. Ample evidence has been
adduced proving the factum of publication and circulation of
the weekly newspaper in the Latur constituency. Thus,
charge of corrupt practice atleast by reference to Ext.‘C’
was undoubtedly brought home to the appellant.
The respondent’s case as regards Ext.‘C’ is set out in
para 12 of the election petition. The verification states
the contents of para 12 were based on "information received"
by the appellant from the persons and newspapers mentioned
therein. The only name mentioned in this para 12 is of
Prof. M.B. Pathan and the newspaper mentioned is obviously
‘LAWALAVI’. In the affidavit filed in support of the
petition, vide para 5, it is stated that Prof. M.B.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13
Pathan, editor of weekly ‘LAWALAVI’ was an active worker,
during the election campaign, and supporter of the
appellant. The oral evidence adduced in this regard
consists of the statements of the respondent himself (PW1)
and Mahboob Khan Pathan (PW 3). In rebuttal, there is the
testimony of the appellant Pradeep Patil (DW 2) and Jagdish
Suryavanshi, a legal practioner (DW 4).
As already stated, the respondent Vilasrao Deshmukh
has not claimed any personal knowledge about the publication
Ext.‘C’ though he did state that the contents were false,
highly exaggerated and motivated with the idea of
assassinating his character. He also stated that M.B.
Pathan was an active campaigner for the appellant though he
has not given any particulars or such facts based whereon
the court could draw an inference that M.B. Pathan was an
active campaigner for the appellant.
Mahboob Khan (PW 3) stated that he was a professor and
also proprietor and editor of Weekly ‘LAWALAVI’. As to the
source of information by which he prepared the article, he
has stated that he had visited the office of Janta Dal where
the officers of the Janta Dal were discussing the matter.
He heard the story and prepared his notes. On reaching home
he put down the story in a narrative form. He also stated
that the contents of his writing were true and correct. He
was specifically asked if he had obtained anybody’s consent
for the publication ? His reply was that the question did
not arise "because it was already discussed with the
candidate and other workers". In the later part of
cross-examination, the witness stated that he was not sure
if the contents of his writing published on 5.2.1995 in
Weekly ‘LAWALAVI’ were the same facts as were told to him by
Elahi Pasha Bagwan. Obviously, this part of the statement
is false in the light of the contents of the news item
Ext.‘C’ which itself stated that the reporting was based on
the information collected by personally meeting the Bagwan
family.
Pradeep Patil (DW 2) is himself a journalist and
editor of a newspaper "Jan Morcha". He had accompanied M.B.
Pathan when the latter was collecting information about the
incident. The inference which flows from the testimony of
this witness is that M.B. Pathan had taken care to
ascertain the correctness of the facts narrated in the news
item and then only he had made the reporting.
A criminal complaint appears to have been filed in the
court relating to the incident referred to in the news item
Ext.‘C’. The counsel for the complainant was .pl80 the
witness Jagdish Suryavanshi (DW 4). He has stated that what
was published in the newspaper was similar to the facts
stated in the complaint which was filed by Elahi Pasha
through this witness.
It is clear from the evaluation of the evidence
adduced by the parties that the contents of the news item
were substantially correct. They were based on the
information collected by M.B. Pathan from the various
witnesses specially members of Bagwan family. The version
of the witness M.B. Pathan that the reporting was based on
the information gathered from the talks which were going on
in the office of Janta Dal whereat the appellant was also
present does not appear to be correct. Such evidence is
also liable to the excluded from consideration because such
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13
is not the case set out in the election petition. The
incident had formed subject matter of a criminal
prosecution. The complainant had set out his version in the
criminal complaint filed before a criminal court and the
contents of the news item were substantially the same as set
out in the criminal complaint. Neither the respondent has
stated in his deposition nor was it suggested to the
appellant during his cross-examination that the contents of
the publication were false and believed to be false or not
believed to be true by the appellant. The ingredients of
sub section (4) of Section 123 of the RPA were therefore not
satisfied. Though truth is no .pa defence under sub-section
(3-A) of Section 123 if the impugned activity has the
requisite consequence as its result, but Prof. M.B. Pathan
is not proved to have made publication with the consent of
the appellant or his election agent.
On the material available on the record, an inference
as to the publication having been made with the consent of
the appellant cannot at all be drawn merely because Mahboob
Khan Pathan has been alleged to be canvasser of the
appellant. As we have already pointed out, from the
statement of Mahboob Khan Pathan (PW 3) himself, it is clear
that he as journalist and owner of a newspaper, was, of his
own, collecting information relating to the incident covered
by Ext.‘C’. Having collected the facts, also having
verified the correctness thereof, he of his own wrote out
the facts collected in a narrative form so as to give it the
shape of newsreport and then published the same in his
newspaper. The publication was neither sponsored by nor
made with the express consent of the appellant. There are
no facts and circumstances brought on record to draw an
inference as to existence of even implied consent of the
appellant in the publication. No evidence has been adduced
to prove how many copies of ‘LAWALAVI’ and on which date to
whom and by whom were distributed.
A careful appraisal of the evidence shows that the
respondent has failed to establish the charge of corrupt .pa
practice against the appellant. The judgment has proceeded
more on "assumptions" and "surmises" than on any established
facts. For the foregoing reasons we are of the opinion that
the High Court was not right in holding the issues numbers 6
to 15 proved. The High Court was also not right in holding
that the petition did not suffer from the infirmity of non-
compliance with Rule 94 A read with Form 25 of the Conduct
of Election Rules. In fact, a substantial part of the
allegations made in the election petition could not and
should not have been put to trial at all on account of such
non-compliance. The findings of the High Court on all the
issues i.e. issue no. 3 and issues numbers 6 to 15 being
erroneous are hereby set aside. The appeal is allowed. The
election petition filed by the respondent is directed to be
dismissed with costs throughout. The costs incurred in this
court are quantified at Rs.10,000/-.