Full Judgment Text
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PETITIONER:
MULLAPUDI VENKATA KRISHNA RAO
Vs.
RESPONDENT:
VEDULASURYANARAYANA
DATE OF JUDGMENT16/03/1993
BENCH:
BHARUCHA S.P. (J)
BENCH:
BHARUCHA S.P. (J)
KULDIP SINGH (J)
KASLIWAL, N.M. (J)
CITATION:
1994 AIR 1627 1993 SCR (2) 346
1993 SCC Supl. (3) 504 JT 1993 Supl. 100
1993 SCALE (2)170
ACT:
Representation of the People Act 1951:
Section 123(3)--Corrupt practice--Religious symbol--Use
of--Charge against elected candidate--Establishing
of--Standard of proof required in such cases.
HEADNOTE:
The appellant’s election to the Legislative Assembly was
challenged by the Respondent in his election petition before
the High Court. It was contended by the election petitioner
that the respondent had used a religious symbol for the
furtherance of his election prospects which was a corrupt
practice under Section 123(3) of the Representation of the
People Act, 1951. The High Court declared the election of
the successful candidate to be void and set it aside. The
successful candidate preferred the present appeal.
On the question whether the use of a religious symbol in the
election of Respondent amounted to corrupt practice u/s
123(3) of the Representation of the People Act, 1951, this
court,
HELD:1.1. There is no doubt that the offending poster is a
religious symbol. The depiction of anyone in the attire of
Lord Krishna blowing a ’shanku’ and quoting the words from
the Bhagavad Gita addressed by Lord Krishna to Arjuna that
his incarnation would be born upon the earth in age after
age to restore dharma is not only to a Hindu by religion but
to every Indian symbolic of the Hindu religion. The use by
a candidate of such a symbol coupled with the printing upon
it of words derogatory of a rival political party must lead
to the conclusion that the religious symbol was used with a
view to prejudicially affect the election of the candidate
of the rival political party. [350G-H]
1.2.But there is no evidence to show that the offending
poster was printed by or at the behest of the successful
candidate. The successful 346
347
candidate himself in his evidence denied that he had the
offending posters printed or pasted. The averment in the
election petition that the offending posters were pasted by
followers, supporters and party men of the successful
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candidate is not established. [351B-D]
1.3.The evidence on record does not establish that the
offending posters were used at the election by the
successful candidate or his election agent or with their
consent. [352D]
1.4.The standard of proof in an election petition is
rigorous, having regard to the quasi-criminal nature of the
proceeding. The charge laid against the successful
candidate under section 123(3) has not been established on
the basis of the evidence on record. [351G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3719 of 1991.
From the Judgment and Order dated 3.9.1991 of the Andhra
Pradesh High Court in Election Petition No. 22 of 1990.
P.P. Rao, D. Prakash Reddy and A.V.V. Nair for the
Appellant.
C. Sitaramaiah, B. Rajeshwar Rao, Vimal Dave, Mrs. Rani
Chhabra (NP) for the Respondent.
The Judgment of the Court was delivered by
BHARUCHA, J. This is an appeal under the provisions of the
Representation of the People Act, 1951, against the judgment
and order of the High Court of Andhra Pradesh whereby the
election of the appellant before us to the Andhra Pradesh
Legislative Assembly from the Tanuku Assembly constituency
was declared void and set aside in view of the finding that
he had committed the corrupt practice proscribed by section
123(3) of the Act.
Section 123(3), inter alia, states that
"the appeal by a candidate or his agent or by
any other person with the consent of a
candidate or his election agent to vote or
refrain from voting for any person on the
ground of his religion.......... or the use of
or appeal to
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religious symbols for the furtherance of the
prospects of the election of that candidate or
for prejudicially affecting the election of
any other candidate is a corrupt practice".
The respondent, a candidate of the Telugu Desam Party,
secured the largest number of votes at the said election,
which was held on 22nd November, 1989. The High Court found
that during the election campaign posters depicting N.T.
Rama Rao, the leader of the Telugu Desam Party, in the role
of Lord Krishna, blowing a conch shell, had been used. The
offending poster bore at the top a ’sloka’ from the Bhagavad
Gita, which said, roughly translated, that the Lord would be
born upon this earth in age after age to establish dharma or
righteouness. At its bottom the offending poster stated
that the deceitful Congress, which had sold out the country,
should be defeated. It was the contention of the election
petitioner before the High Court, who was a voter in the
Constituency, that the offending posters had been exhibited
by or at the behest of the successful candidate. It was
held by the High Court that it had no doubt that the
offending poster was a religious symbol, its implication
being that N.T. Rama Rao, who was an incarnation of Lord
Krishna, exhorted voters to defeat the deceitful Congress.
The High Court went on to consider whether the offending
posters had been affixed by the successful candidate or his
election agent or by any person with the consent of the
successful candidate or his election agent. It came to the
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conclusion that it was clear from the evidence "that the
respondent or his agent or other persons with his consent
have used religious symbol for the furtherance of the
prospects of the respondent or for prejudicially affecting
the election of the Congress I candidate’. Accordingly, the
corrupt practice under section 123(3) was found to have been
established. The High Court did not accept the case of the
election petitioner in regard to the other corrupt practices
that had been alleged. Upon the basis of the finding in
regard to the corrupt practice under section 123(3), the
High Court allowed the election petition, declared the
election of the successful candidate to be void and set it
aside.
As aforestated, the successful candidate is in appeal.
The election petition alleged that the "respondent
herein....... and, with his consent and connivance, his
followers, supporters and his party men and election agent
had resorted to large scale display of wall posters and
paintings on the walls of the picture of Lord Krishna". The
offending
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posters, which were described, had been pasted on walls at
important places in all villages and towns throughout the
Constituency and also on the sides of vans and vehicles used
for canvassing. The election petition stated that
particulars of some of the instances where, inter alia, the
offending posters were exhibited were given in Schedule A
thereto. Schedule A gave various addresses whereat the
offending posters had been pasted. Photographs would, it
was stated, be produced in support of the allegation and
four witnesses, would depose thereto, namely, Penicherla
Rama Krishna Raju, Dukka Suri Appa Rao, Allabani Venkanna,
Venni Subba Rao. The schedule also referred to "oil
painting and posters" on the publicity vans at three
locations, which would be established by photographs and by
leading the evidence of Bollina Satvanarayana and Kudapa
Akkanna.
In his written statement the successful candidate denied the
allegations afore-stated.
The election petitioner filed documents along with the
election petition, which included the affidavits of the four
first named persons. The affidavit of Dukkasuri Appa Rao is
representative of the three affidavits of those who are
alleged to have pasted the offending posters. The fourth
affidavit is of the photographer. The affidavit of
Dukkasuri Appa Rao stated that the successful candidate had
assigned to him the work of pasting wall posters and he had
been paid Rs. 25 per day. Among these wall posters there
were a few "photos showing Sri N.T. Rama Rao in the disguise
of Lord Krishna Playing ’shanku"’.
The election petitioner examined Dukkasuri Appa Rao and
Venne Subba Rao before the High Court. He did not examine
the third person who was alleged to have pasted the wall
posters at the addresses mentioned in Schedule A to the
petition. The examination-in-chief of Dukkasuri Appa Rao
and Venne Subba Rao is almost identical. The cross
examination of the former is more extensive. It is
therefore that we refer to his evidence. Dukkasuri Appa Rao
deposed that he was a labourer in Tanuku. He and two others
had pasted wall posters on behalf of the successful
candidate. They had affixed wall posters and door posters.
The posters had been given to them about 15 days prior to
the election when they had gone to the Telugu Desam Party
election office. The successful candidate, his election
agent and some others were present there. The successful
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candidate had
350
engaged Dukkasuri Appa Rao and two others to affix the
posters on wages of Rs. 25 per head. They were given about
1500 wall posters and 5000 door posters. The wall posters
depicted N.T. Rama Rao in the role of Lord Krishna. The
wages had been paid daily. Dukkasuri Appa Rao had retained
with himself one poster because he had liked it and he had
given it to the election petitioner about three months
before the date of his deposition. In cross examination
Dukkasuri Appa Rao stated that he also did agricultural
work. He was not a member of the Telugu Desam Party. He
had not been called to the election office of that party
either before or after the election. while he had been
working near a coffee hotel somebody, whose name he did not
know, had come and called him to the Telugu Desam Party
office. The election petitioner had asked him in the
Congress Party office whether he had any election posters.
He had replied that he had one and gave it to the election
petitioner. It was similar to the poster at Ex. A-2 (the
offending poster). His affidavit had been taken by the
election petitioner at Tanuku. After having made that
affidavit the election petitioner had asked for the poster
and he had given it to him.
It must be stated here that no evidence was led by the
election petitioner to show that the offending posters had
been got printed by or on behalf of the successful
candidate. Learned counsel for the election petitioner drew
our attention to the cross-examination of the successful
candidate wherein it had been stated that he had incurred
the expenditure of Rs. 4,000 upon writing wall posters,
painting and other publicity and had also paid Rs. 8,000 to
a printer. These statements, however, were not followed up
in further cross-examination. There is, therefore, no
evidence to show that the offending posters were printed by
or on behalf of the successful candidate.
There is no doubt in our mind that the offending poster is a
religious symbol. The depiction of anyone, be it N.T. Rama
Rao or any other person, in the attire of Lord Krishna
blowing a ’shanku’ and quoting the words from the Bhagavad
Gita addressed by Lord Krishna to Arjuna that his
incarnation would be born upon the earth in age after age to
restore dharma is not only to a Hindu by religion but to
every Indian symbolic of the Hindu religion. The use by a
candidate of such a symbol coupled with the printing upon it
of words derogatory of a rival political party must lead to
the conclusion that the religious symbol was used with a
view to prejudicially affect the election of the candidate
of the rival political party.
351
The question, therefore, is : is it established upon the
record that the offending poster was used at the election by
the successful candidate or his agent or by any other person
with the consent of the successful candidate or his election
agent. As has been stated, there is no evidence to show
that the offending poster was printed by or at the behest of
the successful candidate. The successful candidate himself
in his evidence denied that he had had the offending posters
printed or pasted. The evidence of Dukkasuri Appa Rao and
Venne Subba Rao is, in our view, not satisfactory. In the
first place, the averment in the election petition was that
the offending posters had been pasted by the "respondent
herein who is a Telugu Desam party candidate and with his
consent and connivance his followers supporters and his
party men and election agent........ Both Dukkasuri Appa Rao
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and Venne Subba Rao stated in the witness-box that they were
not members of the Telugu Desam Party. They were called to
the Telugu Desam Party election office for the first time on
the day on which they were engaged for a daily wage to paste
the wall posters. The averment in the election petition
that the offending posters were pasted by followers,
supporters and party men of the successful candidate is,
therefore, not established. If the evidence of Dukkasuri
Appa Rao and Venne Subba Rao was true the election petition
would have stated that the successful candidate and his
election agent had engaged Dukkasuri Appa Rao and Venne
Subba Rao on daily wages to affix the offending posters.
Secondly, the offending posters were not put to Dukkasuri
Appa Rao and Venne Subba Rao in examination in chief and
were not identified by them as being the posters that they
had pasted. Thirdly, neither of these two witnesses
identified the places at which they had pasted the offending
posters. It was not stated by them that they had pasted the
posters at any of the addresses in Tanuku mentioned in
Schedule A to the election petition. The evidence of
Dukkasuri Appa Rao is suspect also because he claimed to
have retained one offending poster which he gave to the
petitioner; this is not borne out by the election petition
or the affidavit made by him.
The standard of proof in an election petition is rigorous,
having regard to the quasi-criminal nature of the
proceeding. We are not satisfied that upon the evidence
before us the charge laid against the successful candidate
under section 123(3) has been established.
Learned counsel on behalf of the election petitioner drew
our atten-
352
tion to the statements made by the successful candidate’s
election agent in regard to a van used for canvassing. He
stated that the van toured the Constituency. There were
photographs of N.T. Rama Rao in his various film roles
exhibited in the van. He said that exhibit A-13 was a
photograph which showed "that a poster showing N.T. Rama Rao
in the role of Krishna blowing a conch was affixed to
publicity van but I have no personal knowledge about it".
The statement that the election agent had no personal
knowledge in this behalf was not probed in further cross-
examination. It is also not established that the poster
shown by the photograph exhibit A-13 was what we have called
the offending poster in that it not only showed N.T. Rama
Rao in the role of Lord Krishna blowing a conch but also
contained the afore-mentioned ’sloka’ from the Bhagavad Gita
and the statement that the Congress was a deceitful party
which should be defeated. So far as we can ascertain from
the judgment under appeal, the offending posters were
produced only at exhibits A-2 and A-18.
The evidence upon the record does not, to our mind,
establish that the offending posters were used at the
election by the successful candidate or his election agent
or with their consent.
Having regard to our finding that the charge of corrupt
practice under section 123(3) has not been established, we
do not find it necessary to consider the argument that the
election petition did not plead all necessary material facts
and did not give all necessary particulars so that the
election petition was liable to be dismissed in limine.
In the result the appeal is allowed and the election
petition is dismissed. The respondent shall pay to the
appellant costs quantified at Rs. 10,000.
G.N.
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Appeal allowed.
353