Full Judgment Text
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PETITIONER:
PROF. RAMCHANDRA G. KAPSE
Vs.
RESPONDENT:
HARIBANSH RAMAKBAL SINGH
DATE OF JUDGMENT11/12/1995
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
SINGH N.P. (J)
VENKATASWAMI K. (J)
CITATION:
1996 AIR 817 1996 SCC (1) 206
JT 1995 (9) 89 1995 SCALE (7)60
ACT:
HEADNOTE:
JUDGMENT:
WITH
Civil Appeal No. 4430 OF 1994
Pramod Mahajan
V.
Haribansh Ramakbal Singh & Anr.
AND
Civil Appeal No. 4615 OF 1994
Sadhvi Reethambara
V.
Haribansh Ramakbal Singh & Anr.
JUDGMENT
J.S. VERMA, J.
These are appeals under Section 116A of the
Representation of the People Act, 1951 (for short "the
R.P.Act") by the returned candidate Prof. Ramchandra G.
Kapse whose election has been declared void, and by the two
notices Pramod Mahajan and Sadhvi Reethambara who have been
named under Section 99 of the R.P. Act for committing
certain corrupt practices, on the ground of which the
returned candidate’s election has been set aside. At the
election held on 15.6.1991, Prof. Kapse was the BJP
candidate for the Lok Sabha from the Thane Parliamentary
Constituency and he was declared elected on 17.6.1991 having
polled 3,02,928 votes against 2,74,611 votes polled by the
respondent who was the Congress (I) candidate. On 1.8.1991,
the election petition was filed by the respondent for
setting aside the election of Prof. Kapse on the ground of
certain corrupt practices. By the impugned judgment dated
15.4.1994 in Election Petition No.6 of 1991, Ashok Agarwal,
J. of the Bombay High Court has declared the election of
Prof. Kapse to be void on the ground under Section
100(1)(b), and named the notices Sadhvi Reethambara and
Pramod Mahajan also under Section 99 of the R.P. Act of
being guilty of the corrupt practices under Sections 123(3)
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and 123(3A) of the R.P. Act. Even though the operative part
of the impugned judgment mentions the corrupt practice under
Section 123(2) also in addition to those under Sections
123(3) and 123(3A), but there is no finding against any one
for commission of any corrupt practice under Section 123(2).
We are, therefore, concerned only with the corrupt practices
under Sections 123(3) and 123(3A) of the R.P. Act.
The allegation of corrupt practices made in the
election petition was on the basis of three speeches,
namely, on 21.5.1991 by Sadhvi Reethambara, on 1.6.1991 by
L.K. Advani and on 11.6.1991 by Pramod Mahajan. However, the
speech of L.K. Advani made on 1.6.1991 has not been held to
be a corrupt practice either under sub-section (3) or sub-
section (3A) and the claim in the election petition on that
basis has been rejected. The other two speeches have been
held to be corrupt practices under Sections 123(3) and
123(3A). It has been held that both these speeches by Sadhvi
Reethambara and Pramod Mahajan were made in the presence of
Prof. Kapse which proves his consent.
Some facts relating to the first contention on behalf
of the appellant may now be stated. On 7.8.1992 when Prof.
Kapse was being examined as a witness, some questions put to
him in his examination-in-chief indicating his personal
absence in the meeting held on 21.5.1991 wherein the alleged
speech of Sadhvi Reethambara was made, were disallowed by
the court taking the view that there was no specific denial
of his presence in that meeting in his written statement.
This led to an application for amendment of written
statement to expressly deny the presence of Prof. Kapse in
that meeting and to plead his presence at some distant place
at that time. That application was dismissed on 10.8.1992. A
special leave petition in this court against that order was
dismissed on 27.8.1992 obviously for the reason that no
interference was considered appropriate at an interlocutory
stage in the trial. The deposition of Prof. Kapse was then
concluded and his evidence was closed on 7.9.1992.
Thereafter on 24.9.1992, notices under Section 99 of the
R.P. Act were given to Sadhvi Reethambara and Pramod
Mahajan. In March 1993, Sadhvi Reethambara filed her reply
denying the commission of any corrupt practice in making her
speech and she also denied the presence of Prof. Kapse in
her meeting on 21.5.1991. The noticee Sadhvi Reethambara
also made on application for calling some evidence to prove
the absence of Prof. Kapse from her meeting on 21.5.1991 and
his presence at that time at a distant place. Obviously,
this was a ground taken by the noticee to prove the absence
of consent of the candidate for her speech because even if
the language of her speech satisfied the other requirements
of the definition of corrupt practice, it could not be a
corrupt practice under sub-section (3) and/or (3A) of
Section 123 for the purpose of this election petition
without the consent of the candidate Prof. Kapse. The High
Court rejected that application of the noticee on 8.4.1993.
The noticee’s special leave petition to this Court on
12.5.1993 was dismissed obviously because no interference in
the trial at this stage was considered appropriate. The
arguments in the election petition were concluded on
12.4.1994. The operative order allowing the election
petition and declaring the election of Prof. Kapse to be
void was made by Agarwal, J. on 15.4.1994.
The pleading with regard to the speech of Sadhvi
Reethambara on 21.5.1991 is in para 11 of the election
petition which is as under :-
"The Thane MAHANAGRI EXPRESS, Hindi
newspaper is well read in Thane. The
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respondent invited the said Sadhvi
Ritambara at Thane. He himself chalked
out her programme. As per the invitation
given by him to come and canvass for him
in his constituency, she came to Thane
on 21st May 1991. A meeting was held at
Shivaji Maidan, Ambholi Naka, Thane at
about 8.30 A.M. on the 21st May 1991. In
the whole constituency and announcement
was made over the vehicles, auto-
rickshaws etc. engaged by the respondent
or his workers with his consent,
announcing that Sadhvi Ritambara was
going to address the meeting in support
of the respondent. Advertisements were
given in the newspapers about the said
meeting in Novbharat Times dt. 19.5.91.
The petitioner had asked his following
workers to attend the said meeting and
to note down the substance of her
speech:
1. B.N. SINGH
2. KALYAN RAI
3. DILIP NAKHVA
Accordingly the said workers
attended the meeting. The report
appeared in the next day in the morning.
She appealed at length. The respondent
welcomed her and voters who attended the
meeting. The meeting was well attended.
The respondent after welcoming her, sat
in the audience. Whenever she made a
reference to the Hindu religion and to
the fact that the BJP-SHIV SENA
candidate should be voted as they were
standing for protecting the Hindu
religion. The section of public
including the respondent got up."
(emphasis supplied)
The earlier reference in para 10 of the election
petition is to another speech of Sadhvi Reethambara at
Nagpur which is irrelevant for the purpose of this is as
under:-
"25. ................
...... In any event the said Ritambara
Devi is in no way concerned with the
present respondent and her acts and
deeds are in no way relevant for the
decision of the present petition on
merits of the case.
26. With reference to paragraph 11 of
the petition, this respondent denies
that he had invited the said Ritambara
Devi at Thane or that he had chalked out
her programme or that she was invited to
come and canvass for the respondent in
his constituency or that in such
circumstances she came to Thane on
21.5.1991. All the said allegations are
wholly baseless and false. The
petitioner is put to the strict proof of
the alleged meeting held at Thane on
21.5.1991 and that and announcement of
that meeting was made in the town with
the aid of auto-rickshaw allegedly
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engaged by the respondent or his workers
with his consent. It is not true that
the respondent had done anything as
alleged in para 11. ....... The
respondent does not admit that is
attributed to Ritambara Devi as a part
of her speech. The respondent does not
admit the contents of Exhibit B or B-1,
B-2 and B-3. The respondent states that
he had nothing to do with the alleged
meetings or the movements of the said
Ritambara Devi. In any event all the
said allegations are wholly unconnected
with the respondent and hence the
election of the respondent cannot be
challenged on the allegations made in
para 11 of the petition."
"41. With reference to para 24(b) this
respondent denies that the respondent at
any time had invited Ritambara Devi to
canvass for him in public meeting on
21.5.1991. It is not true that the
respondent was present in the meeting of
the office bearers or that it was
decided to invite Ritambara DEvi. The
respondent denies that expressly or
impliedly he had consent to the alleged
offending speeches of Ritambara Devi."
(emphasis supplied)
The contention of the election petitioner which was
accepted by the High Court is reiterated at the hearing
before us that the above pleading amounts to an implied
admission of the personal presence and participation of
Prof. Kapse in the meeting held on 21.5.1991 at Shivaji
Maidan, Thane between 8.30 a.m. and 10.00 a.m. amounting to
his consent, and, therefore, Prof. Kapse was rightly denied
permission to adduce evidence of his absence in that meeting
and presence elsewhere at that time. The High Court’s view
is that this pleading amounts to an implied admission by
Prof. Kapse of his personal presence and participation in
the meeting of Sadhvi Reethambara on 21.5.1991 on account of
which his consent for the entire speech of Sadhvi
Reethambara is proved.
Apart from the question whether the pleadings have been
correctly construed to take this view in respect of Prof.
Kapse, the further question is whether the noticee Sadhvi
Reethambara could be denied the opportunity at the inquiry
held under Section 99 to plead and prove the absence of
Prof. Kapse from her meeting as a part of her defence. If
the noticee under Section 99 has an independent right to
plead and prove the want of any constituent part of the
corrupt practice of which he is liable to be named under
Section 99 of the R.P. Act, visiting him with penal
consequences in addition to the penal consequences which
ensue to the returned candidate, then the denial of that
opportunity to the noticee is itself sufficient to vitiate
the inquiry made under Section 99. Since denial of this
opportunity to the noticee Sadhvi Reethambara is for the
same reason for which it was denied to the returned
candidate Prof. Kapse, namely, the view taken that there was
no specific denial in the written statement of Prof. Kapse
of his personal presence at that meeting, this question with
reference to its effect on the case of the noticee may first
be examined.
Bare perusal of Section 99 leaves no doubt that the
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noticee has an independent right to show cause why he should
not be named thereunder as a person guilty of any corrupt
practice, apart from the right which the candidate has to
defend himself as a respondent in the election petition.
This right of the noticee is the same as that of a person
who is a party to the petition and resort to Section 99
becomes necessary only when the noticee thereunder is not
already a party to the petition and there is a likelihood of
he being named as a person guilty of any corrupt practice.
Section 99 of the R.P. Act is as under :-
99. Other orders to be made by the High
Court. - (1) at the time of making and
order under section 98 the High Court
shall also make and order-
(a) Where any charge is made in the
petition of any corrupt practice having
been committed at the election,
recording-
(i) a finding whether any corrupt
practice has or has not been proved to
have been committed at the election, and
the nature of that corrupt practice; and
(ii) the names of all persons, if any,
who have been proved at the trial to
have been guilty af any corrupt practice
and the nature of that practice; and
(b) fixing the total amount of costs
payable and specifying the persons by
and to whom costs shall be paid:
Provided that a person who is not a
party to the petition shall not be named
in the order under sub-clause (ii) of
clause (a) unless -
(a) he has been given notice to appear
before the High Court and to show cause
why he should not be so named; and
(b) if he appears in pursuance of the
notice, he has been given and
opportunity of cross-examining any
witness who has already been examined by
the High Court and has given evidence
against him, of calling evidence in his
defence and of being heard.
(2) In this section and in section 100,
the expression "agent" has the same
meaning as in section 123."
The proviso in sub-section (1) of Section 99 makes it
clear that the noticee has the same opportunity as a party
to the petition and this is in addition to the right of the
returned candidate who is a party to the petition. Even if
the candidate as a party to the petition omits to deny the
existence of any constituent part of the corrupt practice,
it is open to the noticee under Section 99 who has an
independent right to do so, for the purpose of showing that
all the constituent parts of the corrupt practice are not
made out on account of which the corrupt practice alleged is
not proved and, therefore, he cannot be held guilty of that
corrupt practice and named under Section 99 of the R.P. Act.
In a case where the candidate does not deny the existence of
any constituent part of the corrupt practice, but the
noticee makes the denial, the court cannot refuse to permit
the noticee to make the denial and prove it by adducing
evidence as a part of the noticee’s defence. The credibility
of the noticee’s version and the probative value of his
evidence, in the absence of any denial by the candidate, is
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a different aspect which lies within the domain of
appreciation of evidence but the noticee cannot be shut out
at the threshold by refusing him this opportunity, even if
the candidate has not availed of the same or has omitted to
make that denial for any reason. Nothing of any significance
to require a specific mention was said on behalf of the
respondent to doubt the correctness of this proposition
which is so obvious.
It is difficult to appreciate how the High Court could
reach a different conclusion and on its erroneous impression
deny to the noticee the right she had to plead and prove the
absence of the candidate Prof. Kapse from her meeting and
the want of the candidate’s consent for her speech, in order
to show that the alleged corrupt practice was not made out
for want of an essential constituent part thereof on account
of which she could not be held guilty for the commission of
any corrupt practice. It was for the High Court after giving
her the opportunity contemplated by the proviso to sub-
section (1) of Section 99 to have ultimately formed its
opinion whether her version could be accepted or not. That
stage, however, did not reach because of the error committed
at the threshold of the inquiry made under Section 99 of the
R.P. Act by denial of this opportunity to the noticee. It
must also be borne in mind that the election petition is
based on the ground under Section 100(1)(b) and not Section
100(1)(d)(ii) of the R.P. Act.
We would also indicate later that the pleadings have
been misconstrued to read therein an implied admission when
there is a denial in the written statement.
It is, therefore, obvious that the order naming Sadhvi
Reethambara under Section 99 for commission of the corrupt
practice is vitiated for the above reason alone and the
order made against her has to be set aside. The question now
is of the effect of this conclusion.
It has now to be seen whether an implied admission of
the averment in the election petition of Prof. Kapse’s
presence and conduct at the meeting of Sadhvi Reethambara at
Thane on 21.5.1991 can be read in his written statement on
the ground of non-traverse by virtue of Order 8 Rule 5(1)
C.P.C. To support the view taken by the High Court, Shri
Ashok Desai, learned counsel for the respondent strenously
urged that the implied admission of the allegation made in
para 11 of the election petition flows from the absence of a
specific denial of the relevant facts alleged in para 11 of
the election petition. The pleadings on the point have been
quoted earlier. In para 11 of the election petition, the
material facts pleaded for this purpose are: Visit of Sadhvi
Reethambara to Thane on 21.5.1991 on invitation of Prof.
Kapse; meeting at Shivaji Maidan, Thane at about 8.30 a.m.
on 21.5.1991 at which Prof. Kapse welcomed her and was then
present in the audience; and appreciation by Prof. Kapse and
the audience whenever she made a reference to the Hindu
religion and to the fact that the BJP-Shiv Sena candidate
should be voted as they were standing for protecting the
Hindu religion. These are all the material facts pleaded in
this behalf in the election petition for the purpose of
pleading the consent of Prof. Kapse to the contents of the
speech given by Sadhvi Reethambara which is alleged to
constitute the corrupt practice.
In Badat and Co. vs. East India Trading Co., 1964 (4)
SCR 19, it was held that Rules 3,4 and 5 of Order 8 of
C.P.C. form an integrated code dealing with the manner in
which allegations of fact in the plaint should be traversed
and the legal consequences flowing from its non-compliance.
It was held that the written statement must deal
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specifically with each allegation of fact in the plaint and
when a defendant denies any such fact he must not do so
evasively but answer the point of substance. If his denial
of a fact is not specific but evasive, the said fact shall
be taken to be admitted of which no other proof is necessary
unless the court in its discretion under the proviso to Rule
5 requires any fact so admitted to be proved otherwise than
by such implied admission. The requirement, therefore, is
that the denial should be made of the point of substance to
amount to a specific denial of the allegation of fact. The
written statement has to be read as a whole to see whether
any implied admission can be spelled out therefrom.
In the above-quoted portions extracted from the written
statement, there is specific assertion that Sadhvi
Reethambara was in no way concerned with Prof. Kapse
(respondent in the election petition) and her acts and deeds
were not relevant; Prof. Kapse had not invited her at Thane
on 21.5.1991 and such allegations were wholly baseless and
false; it was denied that Prof. Kapse had done anything as
alleged in para 11 of the election petition; the part
attributed to Sadhvi Reethambara was denied by Prof. Kapse
who had nothing to do with the alleged meetings or movements
of Sadhvi Reethambara; and it was denied that expressly or
impliedly he had consented to the alleged offending speeches
of Sadhvi Reethambara. These are some of the specific
assertions made by Prof. Kapse in his written statement and
reply to the allegations made in the election petition based
on the speech of Sadhvi Reethambara. The conduct attributed
to Prof. Kapse including his personal presence and the act
of welcoming Sadhvi Reethambara at that meeting and
appreciating her utterances were all made for pleading
consent of Prof. Kapse to the act of Sadhvi Reethambara by
necessary implication. In such a situation, the point of
substance was the consent of Prof. Kapse to be implied from
his conduct in inviting and welcoming Sadhvi Reethambara at
that meeting and appreciating her utterances. The specific
assertion by denial enumerated earlier including the
specific denial of his consent can leave no doubt that there
is no room for reading in the written statement of Prof.
Kapse an implied admission of the king read by the High
Court. The fact of physical presence was just one
circumstance alleged for implying the consent. When the
alleged consent was denied to have been given either
expressly or by implication and it was asserted that he was
in no way connected with any act of Sadhvi Reethambara or
responsible for any of her actions, the denial contemplated
under Order 8, Rule 5, C.P.C. was clearly made. At any rate,
there is no occasion to read any implied admission of any
averment in para 11 of the election petition by non-
traverse. The High Court was clearly in error in reading any
admission by Prof. Kapse in his written statement of any
averment of fact contained in para 11 of the election
petition.
Moreover, in view of the denial of the averments made
in para 11 of the election petition relating to the
allegation of corrupt practice based on the speech of Sadhvi
Reethambara, it was permissible for Prof. Kapse to lead
evidence to prove his presence elsewhere at that time to
improbablise the allegation of his personal presence in the
meeting addressed by Sadhvi Reethambara at Thane on
21.5.1991. This could be done even without any specific
averment to that effect in the written statement since it
was a relevant fact of which evidence could be led under
Section 11 of the Indian Evidence Act. The fact that
evidence is led for proving presence at that time elsewhere
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to improbablise the allegation made in the petition without
any express pleading to that effect in the written
statement, may be of significance only to assess the
probative value of such evidence but the evidence cannot be
shut out as irrelevant or inadmissible. The High Court’s
order refusing permission to Prof. Kapse to lead that
evidence and thereafter to amend the written statement for
making a clear assertion to this effect is contrary to law.
The finding on this question even against the returned
candidate Prof. Kapse is, therefore, vitiated due to this
defect. The express denial by Prof. Kapse in his statement
of his presence in the meeting at Thane on 21.5.1991 cannot
be rejected. The implied admission read in the written
statement of Prof.Kapse has earlier been rejected by us.
There is no reliable evidence to prove the alleged conduct
of Prof. Kapse which was relied to prove his consent for the
speech of Sadhvi Reethambara, irrespective of the nature of
her speech. This alone is sufficient to reject the finding
of the High Court that any corrupt practice is proved to
have been committed by Prof. Kapse on the basis of that
speech.
The effect of this conclusion would be considered after
consideration of the only remaining point, namely, the
finding relating to the corrupt practice based on the speech
of Pramod Mahajan.
The allegation of corrupt practice based on the speech
of Pramod Mahajan is contained in para 13 of the election
petition which is as under:-
"Similarly Pramod Mahajan, All
India General Secretary of BJP was also
invited by the respondent to visit his
constituency and to canvas for him
during the course of electioneering, so
that the prospects of his winning the
election would improve. As per the said
invitation and as per the programme
chalked out by the respondent and his
workers with his consent, Pramod Mahajan
visited the constituency. A meeting was
held on the 11th June 1991 at Kalyan
Chowk Kalyan (West) at about 10 p.m. The
petitioner’s following workers attended
the said meeting:
1. DAULAT SINGH PALIWAL
2. R. B. SINGH
3. DR. UDAY SAMEL.
Pramod Mahajan stated in his speech
that secularism preached by other
political parties was only a pretense.
He stated that the other parties were
appeasing the Muslim minority for the
sake of votes. He appealed to the voters
to elect the Government which believed
in devotion to Shri Ram. The respondent
was present in the said meeting. The
respondent was present in the said
meeting. The respondent was sitting on
the dias when Pramod Mahajan gave his
speech. Mahajan further stated that for
prestigious Hindustan and for the
construction of Ram Temple (at Ayodhya)
voters should elect the respondent who
was the candidate of BJP. The area of
Kalyan Chowk, Kalyan (West) falls under
Kalyan Police station. The police
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officials has also attended the said
meeting. The petitioner has learnt that
a record has been kept in the form of
election diary about the said meeting.
The petitioner will examine the officers
of Kalyan Police Station, who attended."
The reply of Prof. Kapse in his written statement is
contained in para 29 as under:-
"With reference to paragraph no. 13
of the petition, this respondent does
not admit that Mr. Pramod Mahajan was
invited by him to visit the
constituency. It is however, true that
he had taken part in the election
campaign in the respondent’s
constituency and had addressed a
meeting. It is, however, not true that
he said in his speech that secularism
preached by other political parties was
only a pretence or that the other
parties were appealing the Muslim
minority for the sake of votes.
The petitioner is put to the strict
proof of the said allegations. This
respondent, however, states that the
portions of speeches quoted by the
petitioner are out of context and hence
misleading. It is also not true that Mr.
Mahajan appealed to the voters to elect
the Govt. which believed devotion of
Ram. The petitioner is put to the strict
proof that the respondent was present at
that time. The respondent does not admit
that Mr. Mahajan further stated that for
prestigious Hindustan and for the
construction of Ram Temple voters should
elect the respondent are wholly baseless
and out of context. The respondent is
not aware whether there is any such
record about the said speeches with the
police."
It was specifically denied in the written statement that
appeal to voters was made to elect the Government which
believed in devotion to ‘Ram’ or that the appeal was made on
the ground of Hindu religion.
The finding of the High Court on appreciation of the
evidence adduced at the trial on this point may be
summarised with reference to certain extracts from the
impugned judgment which are as under:-
"90. ................
xxx xxx xxx
.............As far as Shri Pramod
Mahajan’s speech is concerned, I am not
inclined to place the reliance on the
oral testimony of the party workers of
the petitioner. However, I find that the
police report in respect of the speech,
at Exhibit-J gives a reasonably fair
report in regard to the speech. ....."
"116. I further find that Shri
Pramod Mahajan who is All India
Secretary of the BJP has in his speech
given on 11th June, 1991 at Kalyan
Chowk, Kalyan (W) asked for votes in
favour of the respondent in the name of
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Hindu Religion, which is the religion of
the respondent, and this falls within
the mischief of section 123 (3) of the
Act. I further find that he has promoted
or attempted to promote feelings of
enmity or hatred between different
classes of citizens of India on grounds
of religion and this falls within the
mischief of Section 123 (3A) of the Act.
This he has done by his being an Agent
of the Respondent. This he has done with
the consent of the respondent.
117. I further find on the evidence of
Shri Pramod Mahajan himself that the
election manifesto of the BJP which are
at Exhibites 3 and L, on his own showing
tends to create enmity between Hindus
and Muslims, and this falls within the
mischief of the provisions of section
123 (3A) of the Act. Hence the election
of the respondent is liable to be set
aside and Shri Pramod Mahajan is liable
to be named as a collaborator in the
aforesaid electoral malpractices."
Thereafter in para 120 while rejecting the stay application
at the end of the impugned judgment, it has been stated thus
-
"........... In the instant case,
the respondent as also both the notices
have admitted that appeals were made by
them in the name of Hindu religion which
is the religion of the respondent. It is
also admitted by all the three that
appeals for votes were made in the name
of Ram Janambhoomi - Babri Masjid. The
said issue was raised as per the
manifesto of the BJP. The said Manifesto
recites that after partition Hindus and
Muslims who are blood brothers have not
even remained friends. The issue of
Ramjanambhoomi was raised in this
context. .........."
We have earlier quoted the entire pleadings on this
aspect. There is nothing in the averments contained in para
13 of the election petition which contains the pleading on
this point that the contents of the manifesto of the B.J.P.
was also a basis for pleading this corrupt practice and that
the candidate Prof. Kapse was guilty of corrupt practice for
the contents of the B.J.P. Manifesto. The above extracts
from the impugned judgment show that the manifesto of the
B.J.P. is a strong basis for finding the candidate guilty of
this corrupt practice and that too without any such basis
being pleaded in the election petition. There is also
reference to admission by Pramod Mahajan and the appellant
that appeal for votes was made in the name of Hindu
religion. The admission is spelt out on the basis of the
manifesto of the B.J.P. of which he was a candidate. It is
difficult to appreciate how and where such admissions were
found by the High Court in the depositions of the appellant
Prof. Kapse and Pramod Mahajan.
Registration with the Election Commission as a
political party for the purposes of the R.P. Act is made in
accordance with Section 29-A of the R.P. Act. Sub-section
(5) of Section 29-A requires the memorandum or rules and
regulations of the association or body to contain a specific
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provision that it shall bear true faith and allegiance to
the Constitution of India as by law established, and to the
principles of socialism, secularism and democracy, and would
uphold the sovereignty, unity and integrity of India. Sub-
section (7) requires the Commission to register it as a
political party only after its satisfaction that these
requirements are fulfilled. Admittedly, B.J.P. had been so
registered as a political party and continues to be
registered as a political party under this provision. In
such a situation, contesting as a candidate of BJP could not
be faulted and any part of its manifesto could not by itself
be held to form the basis of holding a B.J.P. candidate
guilty of a corrupt practice when no part in its drafting or
specific use in the campaign is attributed to the candidate
in the pleading or evidence. Ex facie contents of a
manifesto, by itself, cannot be a corrupt practice committed
by a candidate of that party. In this context, reference to
the decision in Kultar Singh Vs. Mukhtiar Singh, 1964 (7)
SCR 790 at 793-795, is useful.
We would now consider the evidence to prove this
corrupt practice at the trial. The entire evidence in
support of the allegation comprises of the testimony of
Daulat Singh Paliwal (PW-6), Uday alias Prashant Laxman
Samel (PW-7), Ram Bachan Singh (PW-8) and Police Inspector
Suhans Bhatchandra Phadke(PW-4), in addition to Exhibits
J/J-1. The High Court has rejected the evidence of PW-6, PW-
7 and PW-8 as unreliable. That leaves only the testimony of
PW-4 S.B. Phadke and the document Exhibits J/J-1. The first
question is whether the testimony of PW-4 or the contents of
the document Exhibit J can be treated as substantive or
legal evidence to prove any part of the speech of Pramod
Mahajan. The submission of Shri Venugopal, learned counsel
for Prof. Kapse and Shri Jethmalani, learned counsel for
Pramod Mahajan is that it is not legal evidence. In the
alternative, it was urged that the testimony of PW-4 S.B.
Phadke also is not reliable and should be rejected and
Exhibit J is innocuous and does not prove anything to
constitute the alleged corrupt practice.
S.B. Phadke (PW-4), a Police Inspector in the Special
Branch at Kalyan, has stated that he was required to attend
election meetings and submit reports of those meetings. He
stated that report Ex. J was scribed by a Head Constable and
was signed by him, but he does not recall who was that Head
Constable. That Head Constable has not been examined. He
also stated that he was taking down notes during the meeting
and after preparation of the report, those notes were
destroyed. The translation of the original Ex.J is marked
Ex.J-1 and it was admitted in evidence subject to objection
relating to its admissibility. This is the entire statement
of S.B. Phadke (PW-4). The witness did not depose to any
fact relating to the meeting or any speech given therein and
he did not even name any of the speakers at that meeting.
The scribe of the document Ex.J has not been examined even
though PW-4 has said that it was signed by him. The
testimony of PW-4 read as a whole proves nothing even if it
is taken at its face value.
There is thus no witness who has deposed to the fact of
Pramod Mahajan giving a speech and the contents thereof. No
particular portion of the alleged speech of Pramod Mahajan
has been proved to show that there was any appeal made for
votes on the ground of religion, much less any particular
religion. Emphasis in the contents of the report of the
speech of Pramod Mahajan in Ex.J/J-1 is on the functioning
of Janata Dal on the basis of caste and religion; the need
for a common rule and law for all in the country; criticism
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of the manner in which the country was being administered
for quite some time; and a note at the end of the report
that the meeting terminated peacefully without any untoward
incident. Even if the report Ex.J/J-1 is looked into without
any witness deposing about the contents of the alleged
speech of Pramod Mahajan or even proving the making of any
speech by Pramod Mahajan in the evidence adduced in support
of the election petition, there is nothing therein to hold
that any appeal was made by the candidate or anyone else
with his consent on the ground of his religion to make out
the corrupt practice under sub-section (3) of Section 123.
The note at the end of the report Ex.J/J-1 that the entire
meeting was peaceful without any untoward incident also
tends to negative an essential ingredient of the corrupt
practice under sub-section (3A) of Section 123. It may be
mentioned that there is no mention of the word "Hindutva"or
Hindu religion in the report of the speech at any place.
This alone is sufficient to indicate that the evidence led
in support of the election petition does not make out the
corrupt practice either under sub-section (3) or sub-section
(3A) of Section 123.
We may now refer to the statement of Prof.Ramchandra
Ganesh Kapse (RW-1). He has expressly stated that he did not
know anything about the meeting of Sadhvi Reethambara in
Thane on 21.5.1991 and that he was out of his constituency
on that day being present in Dahanu Parliamentary
Constituency where he had gone for the election campaign of
the B.J.P. candidate from that constituency. He had also
stated that he never heard any speech of Sadhvi Reethambara.
He has then stated that he or his workers had not invited
Pramod Mahajan to attend the meeting on 11.6.1991 in Kalyan.
He has also stated that Pramod Mahajan did not speak of
Hindutva or Hindu Rashtra, nor did he invoke the voters as
Hindus to vote for B.J.P. He then says that Pramod Mahajan
spoke of the problems of poverty, population and education,
etc. He has stated these facts from personal knowledge
adding that he was present in that meeting. He added that
none of the speakers had asked for votes in the name of
Hindutva or in the name of Ram or Ramjanambhoomi. In his
speech, he spoke only of the work he had done as an M.P. and
also of his future plans. He has been cross-examined at
length about the meaning of "secularism" which according to
him is equality of all religions. He was also cross-examined
about his concept of different religions. There is nothing
in his cross-examination to detract from the merit of his
version relating to the meeting of 11.6.1991 at Kalyan and
his version of the speech of Pramod Mahajan or his own
speech. The roving cross-examination in general about the
religion is wholly irrelevant for the purpose of the charge
which was levelled against him.
Pramod Mahajan also appeared as a witness. According to
him, in his speech made on 11.6.1991 at Kalyan he commented
on the policy of the other political parties and made his
criticism of the same. According to him, he said nothing to
seek votes on the ground of Hindu religion or to support
Hindutva. He criticised misrule of the Congress (I) for
several decades. According to him, he said that for
centuries, Hindus, Muslims and members of other communities
have been living as brothers and sisters and by and large it
is so. He also said that ours is a secular country and that
the state has no religion and it is not true that he and his
party believe that India belongs to Hindus alone, since it
belongs to all. This is the sum and substance of his
deposition.
We have considered the entire evidence on the point and
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we find that the evidence led in support of the election
petition which has already been discussed does not prove the
commission of any corrupt practice either under sub-section
(3) or sub-section (3A) of Section 123. On the other hand,
Prof. Kapse and Pramod Mahajan have appeared as witnesses
and denied the allegation. There is thus no legal evidence
to support the allegation of corrupt practice based on the
alleged speech of Pramod Mahajan. The finding of the High
Court accepting the allegation and holding that a corrupt
practice is proved, is clearly untenable and must be set
aside.
The finding of High Court that corrupt practices are
proved is based essentially on the understanding of the
manifesto of the B.J.P. which is not even pleaded as the
basis of the allegation, and its erroneous assumption that
there are admissions that appeals were made in the name of
Hindu religion which is the religion of the appellant. This
is wholly untenable. There is also no legal evidence to
prove the allegation of corrupt practice. The argument of
learned counsel for the appellant and notice that the High
Court’s judgment is based on certain notions and impressions
instead of the material on record, cannot be treated as
baseless. It is surprising how the election was set aside on
such scanty material.
Consequently, the appeal of the returned candidate as
well as the appeals of the notices are allowed. Appellant
Prof. Ramchandra G. Kapse and the notice Pramod Mahajan will
get their costs throughout from the respondent (election
petitioner). The other notice Sadhvi Reethambara will bear
her own costs since she did not appear as a witness to
personally rebut the allegation made against her.