Kanti Prasad Jayshanker Yagnik Vs.
Purshottamdas Ranchhoddas Patel & Ors  INSC 13 (24 January 1969)
24/01/1969 SIKRI, S.M.
CITATION: 1969 AIR 851 1969 SCR (3) 400 1969
SCC (1) 495
D 1974 SC 66 (62,63) R 1975 SC1788 (25) R
1977 SC 489 (20) R 1980 SC 354 (9)
Representation of the People Act (43 of
1951), s. 123 (2) and (3)-Appeal to voters to vote in the name of religion-if
corrupt practice -Appeal to vote on the basis of candidate's caste-If corrupt
practice Statement that voting for a party would amount to the continuance of
cow slaughter and consequent incurring of divine displeasure-If corruptpractice.
Evidence Act (1 of 1872), s. 160-Reports made
from notes taken down at meetings-if admissible,-Method of proof-Weight to be
attached to reports.
The poll for election to the Gujarat State
Assembly from Mehsana State Assembly constituency was taken on February 21,
1967. On February 18, 1967 one S.M. addressed public meetings at various
villages which were part of the constituency. The appellant who was the
successful candidate was present at those meetings and did not dissociate
himself from any of the remarks in the speeches.
Police con tables, under instructions of the
Government, took down notes of the speeches and reported to their superior
officers. These police constables did not take down every word spoken by S.M.
but whatever was taken down was spoken by S.M.; and in the reports, though the
exact words were not reproduced the substance of the speeches was correctly
reproduced. These reports showed that S.M. made the following statements in his
speeches (i) He appealed to the Hindu voters as such not to vote for the
Congress Party lest they might be betraying their religious leader (Jagadguru
Sankaracharya of Puri), particularly when he had fasted for 73 days in the
cause of preventing cow slaughter;
(ii) He put forward an appeal to the electors
not to vote for the Congress Party but to vote for the Swatantra Party in the
name of religion;
(iii) He said that a relationship of cause
and effect existed between the slaughter of 33,000 bullocks every day and
natural calamities like famine and flood;
(iv) He asked his voters to vote for the
appellant because he was a Brahmin; and (v) He said that if the voters voted
for the Congress who are responsible for 24 crore of cows being slaughtered
then God will be displeased.
On the questions : (1) whether the reports
made by the police constables were admissible in evidence; (2) Whether any
weight should be attached to them; and (3) Whether they showed that the
appellant was guilty of corrupt practice within the meaning of s. 123(2) and
(3) of the Representation of the People Act, 1951
HELD (Per Sikri and Bachawat, JJ.) (1) The reports
were properly used under s. 160 of the Evidence Act, 1872, and were admissible
in evidence. [406 C-D] 401 Before a witness testifies to facts stated in a
document, under s. 160 of the Evidence Act two conditions must be satisfied
namely : (a) that the witness bad no specific recollection of the facts
themselves; and (b) the witness says that he is sure that the facts were
correctly recorded in the document. For satisfying the conditions it is however
not necessary that the witness should specifically state that he has no
specific recollection of the facts and that he is sure that the facts were
correctly recorded in the document. It is enough if it appears from the
evidence of the witness that those conditions are established. [405 C-E] In the
present case, it could be implied from the Circumstances that the conditions of
s. 160 were satisfied.
The witnesses were giving their testimony in
Court after a lapse 'of 9 months after the speeches were made and it is
implicit that they could have no specific recollection of the speeches,
especially when they attended and 'reported many similar meeting as part of
their duty during. the election campaign. The second condition is also
satisfied because, the witnesses made notes on the spot and made out reports from
those notes when the speeches were fresh in their memory. The reports are,
strictly not substantive evidence as such and could only be used as part of the
oral evidence on oath. The reports should therefore have been read out in Court
and not marked as exhibits. But the practice of marking such a report as in
exhibit is well established and avoids the useless formal ceremony of reading
it out as part of the oral evidence. [405 E-G; 406 D-E] Wigmore on Evidence
(Third Edn. Vol. III pp. 97-98), Mylapore Krishnaswami v. Emperor, 32 Mad. 384,
395 and Mohan Singh Laxmansingh v. Bhanwarlal Rajmal Nahata, A.I.R. 1964, M.P.
137, 146, referred to.
Public Prosecutor v. Venkatarama Naidu,
I.L.R. , Mad.
Jagannath v. Emperor, A.I.R. 1932 Lah. 7 and
Sodhi Pindi Das V. Emperor, A.I.R. 1938 Lah. 629, disapproved.
(2) Though the reports were not taken down in
short-hand nor were the exact words spoken by S.M. taken down by the various
police constables. the reports show a remarkable similarity of approach, appeal
and attack on the Congress Party; and in those circumstances it must he held
the police constables correctly reproduced the substance of the speeches. It is
not necessary that the exact words must be reproduced before a speech can be
held to amount to corrupt practice. [414 A-C] (3) (i) This statement does not
amount to corrupt practice, because, there was no proof that the Jagadguru was
the religious head of the majority of the electors in this constituency or that
he exercised great influence on them, and so, it could not be held that an
ordinary Hindu voter of the constituency would feel that he would be committing
a sin if he disregarded the alleged directive of the Jagadguru. [410 A-C] Ram
Dial v. Sant Lal,  Supp. 2 S.C.R. 748, distinguished.
(Per Hegde, J. dissenting) : The statement
amounted to corrupt practice.
What s. 123(2) requires is to induce or
attempt to induce 'an elector' which means even a single elector-that he will
be rendered an object of spiritual censure if he exercises or refuses to
exercise his electoral right in a particular manner. While undoubtedly the
inducement or attempt 40 2 to induce complained of should be such as to amount
to a direct or indirect interference with the free exercise of the electoral right
it is not in the public interest to cut down the scope of the sub-section.
Whether a particular statement comes within it or not depends on various
factors such as the nature of the statement, the person who makes it and the
persons to whom it is addressed. Therefore, when a respected religious preacher
induces or attempts to induce the illiterate and 'superstitious voters who form
the bulk of the voters that they will become objects of divine displeasure if
they do not exercise their franchise in a particular manner, though his
statements are not supported by religious books and he himself may not be a
religious head of the majority of electors, the statements may yet amount to a
corrupt practice in law. [415 C-G] (Per Sikri, and Bachawat, JJ.) : (ii) There
is no bar to a candidate or his supporters appealing to the electors not to
vote for the Congress in the name of religion, or appealing to vote for the
Swatantra Party because the people in that party are fond of their religion.
What s. 123(2) of the Representation of the People Act bars is-that a candidate
or his agent or any other person with the consent of the candidate or his agent
should appeal to the voters to vote or refrain from voting for any person on
the ground of his religion, that is the religion of the candidate. [410 C-D;
411F] (iii) This statement does not amount to
corrupt practice within s.123(2) proviso (a)(ii), because, the law does not
place any bar on describing a party as irreligious or saying that because that
political party is irreligious natural calamities had resulted on account if
its disregard of religion. [411 E-F] (iv) Asking the voters to vote for the
appellant because he was a Brahmin, fell within the mischief of s. 123(3). [411
F-G] (Per Hegde, J. dissenting).: When he stated that there should be at least
one Brahmin Minister in the Cabinet, S.M.
was merely giving expression to the fact that
communal and regional representations in our political institutions have come
to stay and was not appealing to the voters to vote on the basis of the
appellant's caste. [415H] (By Full Court) : (v) As this statement constitutes
an attempt to induce the electors to believe that they would become objects of
divine displeasure if they voted for the Congress and thereby allowed cow slaughter
to be continued, and as in the circumstances of the case, it must be deemed to
have been made with the appellant's consent, the appellant was guilty of
corrupt practice within the meaning of s. 123(2) proviso (a) (ii) [413C;
415B-C] Narbada Prasad v. Chhagan Lal,  1 S.C.R., 499 followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 979 of 1968.
Appeal under s. 116-A of the Representation
of the People Act, 1951 from the judgment and order dated December 5, 1967 of
the Gujarat High Court in Election Petition No. 3 of 1967.
S. T. Desai, A. K. Verma, A. L. Barot, and J.
B. Dadachanji, for the appellant.
Purshottamdas Trikamdas and I. N. Shroff, for
respondent No. 1.
403 The Judgment of Sum and BACHAwAT, JJ. was
delivered by SIKRI, J. HEGDE, J. delivered a separate Opinion.
Sikri, J. This appeal under s. 116-A of the
Representation of the People Act, 1951, is directed against the Judgment and
order of the High Court of Gujarat in Election Petition No. 3 of 1967, setting
aside the election of Kanti Prasad Jayshankar Yagnik, appellant before us, to
the Gujarat State Assembly from Mehsana State Assembly Constituency under s. 123(2),
s. 123(3) and s. 100(1)(b) of the Representation of the People Act,
1951hereinafter referred to as the Act.
The High Court held that certain speeches
made by Shambhu Maharaj, with the consent of the appellant, amounted to
'corrupt practices' within the meaning of ss. 123(2) and 123(3) of the Act.
Since we are in agreement with some of the conclusions arrived at by the High
Court it is not necessary to deal I with all the speeches made by Shambhu
Maharaj, but only with the speeches which the High Court held to amount to
'corrupt practices' within the meaning of ss. 123 (2) and 123 (3). Before we
set out the impugned passages from the speeches we may give a few preliminary
The poll for the election was taken on
February 21, 1967, and the result of the election declared on February 22,
1967. Purshottamdass Ranchoddas Patel, the petitioner in the High Court and respondent
before us, secured 16,159 votes whereas the appellant secured 23,055 votes. The
other candidates, who were respondents to the petition secured 720 votes, 1,017
votes and 454 votes, respectively. The petition out of the which this. ,appeal
arises was filed on April 5, 1967, and the petitioner prayed for the relief
that the election of the appellant be declared void and further prayed that he
be declared duly elected to the Assembly' Various grounds were urged in the
petition but we need only deal with the ground that the appellant and his
agents arranged public meetings of Shri Shambhu Maharaj on February 18, 1967,
at various villages which were part of the Mehsana Assembly constituency, and
Shambhu Maharaj made a systematic appeal in his speeches to a large section of
the electors to vote for the appellant on ground of religion, caste, and
community, and the electors were told that it would be an irreligious act to
vote for the petitioner who was a Congress candidate as Congress allowed
slaughtering of cows and bullocks. It was also alleged that Shri Shambhu
Maharaj had used undue influence and interfered with the free electoral rights
of electors by inducing or attempting to induce them to believe that they would
become object of divine displeasure or spiritual Censure by his speeches.
404 The petitioner sought to prove the
speeches by producing members of the Police Force, as witnesses, who had under
instructions of Government taken down notes of the, speeches and reported them
to their officers. The High Court relied on the reports of these members of the
Police Force and held that their reports were correctly recorded and fairly
represented the speeches made by Shambhu Maharaj. In this connection, the High
Court discarded the testimony of the petitioner's witnesses (P.W.s 25 to 33) on
the ground that it would be safe not to accept the evidence of artisan
witnesses unless it was corroborated by independent witnesses.
The learned counsel,for the appellant, Mr. S.
T. Desai, contends, first, that the reports made by the members of the Police
Force are not admissible in evidence, and secondly, that in the circumstances
of the case no weight should be attached to these reports. We may first deal
with the question of the admissibility of, the evidence before we set out the
The learned counsel contends that under the
Indian Evidence Act written reports of speeches can only be used in two ways;
one, to refresh a witness's memory under S. 159, and secondly, under S. 160
after satisfying two conditions : (1) that the witness has no specific
recollection of the facts themselves and (2) the witness says that he is sure
that the facts were correctly recorded in the document. He urges that in this
case the reports were not used to refresh any witness's memory, and that the
conditions requisite under S. 160 had not been satisfied. it is true that these
reports have not been' used for the purpose of refreshing the memory of any
witness under S. 159, but these have been used under s. 160.
We may, here set out ss. 159, 160 and 161 of
the Indian Evidence Act.
"S. 159. A witness may, while under
examination, refresh his memory by referring to any writing made by himself at
the time of the transaction concerning which he is questioned, or so soon
afterwards that the Court considers it likely that the transaction was at that
time fresh in his memory.
The witness may also refer to any such
writing made by any other person, and read by the witness within the time
aforesaid, if when he read it he knew it to be correct.
Whenever a witness may refresh his memory by
reference to any document, he may, with the permission ,of the Court, refer to
a copy of such document 40 5 Provided the Court be satisfied that there is
sufficient reason for the non-production of the original.
An expert may refresh his memory by reference
to professional treatises.
S. 160. A witness may also testify to facts
mentioned in any such document as is mentioned in section 159, although he has
no specific recollection of the facts themselves, if he is sure that the facts
were correctly recorded in the, document.
S. 161. Any writing referred to under the
provisions of the two last preceding sections must be produced and shown to the
adverse party if he requires it; such party may, if he pleases, cross-examine
the witness thereupon." In this case it is clear that the reports were
written by the witnesses themselves at the time of the speeches or soon
afterwards when the speeches were fresh in their memory. It seems to us that it
is not necessary that a witness should specifically state that he has no
specific recollection of the facts and that he is sure that the facts were
correctly recorded in the document, before the document can be used under s.
160. It is enough if it appears from his evidence that these conditions are
established. In this particular case the witnesses were giving their testimony
in Court after a lapse of nearly nine months and one would have to have
super-human memory to specifically recollect the details of the speeches, especially
when the witness may have attended and reported many similar meetings as a part
of his duty during the election campaign. It may be implied in this case that
the witnesses had no specific recollection of the facts.
The second requirement would be satisfied if
the Court comes to the conclusion that the witness was in a position to
correctly record the facts in the document.
Are then the requirements of s. 160 satisfied
in this case ? As an example we may consider the evidence of P.W. 7, who
testified regarding the speech, Ex. J., delivered at village Motidav. He stated
that Shambhu Maharaj addressed the meeting at Motidav at about 5.30 p.m. on
February 18, 1967, and the appellant was present at that meeting;
Maganlal A. Patel was also present at the
time when Shambhu Maharaj was speaking; while the speeches were being delivered
he was making notes of what was being spoken; in this manner he had written out
a report regarding all that had happened at the meeting; after returning to
Mehsana he submitted his report of the meeting to P.S.I. Choudhary. He was
shown two reports about the meetings at Motidav, and he stated 406 Both these
reports, part of 'X', are in my handwriting. I wrote out the contents of these
two reports at Motidav when the meetings were going on." (The two reports
put in and marked Ex. "J" collectively).
In cross-examination questions were directed
to establishing that the reports were not exact reports. He stated that he was
taking down all the speeches of Shambhu Maharaj who was speaking at medium pace
and he wrote whatever Shambhu Maharaj spoke. He further stated that he was
writing down from memory immediately after the words were spoken by Shambhu
Maharaj. He admitted that "it is true that every word spoken by Shambhu
Maharaj was not taken down by me in my report but what I have taken down was in
fact spoken by him." He, however, added that "it not true that what I
have written out in Ex. 'J' was not written down at Motidav village." On
this evidence it seems to us that it is quite clear that both the conditions
required by S. 160 have been compiled with. While the speech was delivered on
February 18, 1967, he was giving his evidence on November 7, 1967. It is
implicit that he had no specific recollection of the speeches, and the second
condition is also satisfied because he made notes and then made out the report
from his notes.
It may be that the counsel would have been
well-advised to have read out Ex. 'J' rather than produce it as an exhibit, but
this is apparently done in some Indian Courts to save.
time and it is now too late in the day to
condemn such practice, specially as it is a difference without any substance.
It is true that the report is, strictly speaking, not substantive evidence as
such, and the document can only be used as a part of the oral evidence
sanctified by the oath.
The position seems to be the same in some
States in U.S.A., vide Wigmore on Evidence (Third Edition; Vol. III pp. 9798,
extracted below :
"1871, Per Curiam in Moots v. State, 21
St. 653: The entry in the book and the oath
of the witness supplement each other. The book was really a part of the oath,
and therefore admissible with it in evidence." "1879, Earl, J., in
Howard v. McDonough 77 N.Y. 592 : After the witness has testified, the memorandum
which he has used may be put in evidence,-not as proving anything of itself,
but as a detailed statement of the items testified to by the witness. The
manner in which the memorandum in such a case may be used is very much in the
discretion of the trial Judge." 407 "1882, Cooley, J., in Mason v.
Phelps, 48 Mich. 126, 11 N.W. 413, 837 : After she had testified that she knew
it to be correct, she might have read the entries or repeated them as her
evidence. Showing the book was no more than this".
"1886, Smith, C.J., in Bryan v. Moring,
94 N.C. 687 : The memorandum thus supported and identified becomes part of the
testimony of the witness, just as if without it the witness had orally repeated
the words from memory." There is much to be said for the modern doctrine
in some of the States in the United States, which "seems to be that such
documents are admissible evidence and that the Court will not go through the
useless ceremony of having the witness read a document relating to a fact of
which he had no present recollection, except that he knew it was correct when
made." (see McCormick on Evidence; p. 593; footnote 3).
The learned counsel relied on the dissenting
judgment of Sankaran-Nair, J., in Mylapore Krishnasami v. Emperor(1) where he
"If therefore the constable has not
recorded correctly the words used by the speaker but only his impression, then
the notes would be inadmissible under section 160 of the Indian Evidence Act to
prove the words used. They may be admissible to prove the impression created in
the mind of the constable, which is very different. " We are unable to
appreciate how this passage assists the appellant. If it is proved that the
constable did not correctly record the words, a fortiori one of the conditions
of s. 160 has not been satisfied and the writing cannot be used to prove the
The learned counsel also referred to the
decision of the Madhya Pradesh High Court in Mohansingh Laxmansingh v. Bhanwarlal
Rajmal Nahata(2). The High Court seems to have held that on the facts, the
statements prepared by the witness in that case did not become primary evidence
of the speech said to have been delivered by the speaker and cannot be used as
such. Later on the High Court seems to have held that the notes were taken down
for a particular purpose, to wit, for an election petition, and raise a
reasonable suspicion that what the witness recorded was not a correct record of
the speech. If the High Court meant to say that Ex-P-12 (the notes in that
case) could not be used (1) 32 Mad. 384; 395.
(2) A.I.R. 1964 M.P. 137,146.
408 under s. 160 we must hold that the case
was wrongly decided, but if the High Court meant to say that there was
suspicion that the speech was 'not a correct record then nothing can be said
against the decision on this point.
Blacker, J. in Sodhi Pindi Das v. Emperor(1)
held, relying on Jagan Nath v. Emperor(2) that it is essential that the witness
must state orally before the Court that although he had no specific
recollection of the facts themselves, he was sure that the facts were correctly
recorded in the document.
We are unable to agree with this
interpretation. As we have already stated, if the requisite conditions can be
satisfied from the record, the lack of an express declaration by witness does
not make the evidence inadmissible.
In Public Prosecutor v. Venkatarama Naidu(3)
Mockett, J., rightly dissented from the judgment of the Lahore High Court in
Sodhi Pindi Das v. Emperor(1).
In England the Law of Evidence has been
changed and many of such documents made directly admissible (see Phipson on
Evidence, Tenth Edition, Ch. 22).
It seems to us that on the facts the report,
Ex. J., was properly used under s. 160 of the Indian Evidence Act. The question
of the weight to be attached to the various reports of the speeches is another
matter and we will deal with the question presently.
The High Court has found three speeches to
constitute " corrupt practices". The following three passages in Ex. 'J'speech
delivered by Shambhu Maharaj at village Motidav on February 18, 1967-were
complained of by the learned Counsel in the High Court :
"(1) I will say one fact and that is
that at present the Congress is stating everywhere that nobody else will make
the people happy except themselves. But I say that apart from God no other
Government either Congress or Swatantra Party can make people happy. An
agriculturist may have one bigha of land (about half an acre) and he might have
sown wheat but if there is heavy frost or locusts or if one bullock worth Rs.
1000/dies, Government may give him money, may give him bullock, but I do not
think that that man can be happy; but nature can make him happy.
Today in our India, everyday 33,000 cows are
being slaughtered throughout the country. Ten to eleven lacs of bullocks are
being slaughtered during the year and in Ahmedabad Town alone 10,000 bullocks
(1) A.I.R. 1938 Lah. 629.
(3) I.L.R.  Mad. 11 3.
(2) A.T.R. 1932 Lah. 7.
409 (2) This unworthy Congress Government has
cut, the nose of Hindu Society. Sant Fateh Singh, the religious preceptor of
the Sikhs, fasted for 10 days; whereas Jagadguru fasted for 73 days, still this
Government is not even thinking of opening negotiations. This unworthy
Government accepted the contention of the Sikhs after the fast of IO days;
whereas in spite of the penance undertaken by Jagadguru by his fast of 73 days,
the Government has not considered any topic in this connection. Your Jagadguru
had full confidence that, except for ten crores who are the followers of the Congress,
twenty to thirty crores from the Hindu Society would help him.
(3) For example, if any Maulvi from Mucca had
fasted for 73 days and had given such a mandate to our Muslim brothers, then
would they have voted for the Congress. That you have to consider. In the same
manner, if Fateh Singh, the religious leader of Sikhs, had fasted for 73 days,
would they (Sikhs) have voted for the Congress ? In the same manner if there
were Parsis or Christians, then they also would vote for their religious preceptor.
This is what you have to consider.
The mandate of your religious preceptor is
that do not cast your vote for anyone, the mandate of the Jagadguru is that let
cows be slaughtered, let bullocks be slaughtered. In Gujarat State though there
is ban, still bullocks are allowed to 'be slaughtered, the bullocks which give
every individual happiness throughout the life. This Government asks for votes
in the name of the 'bullocks (the Congress Party election symbol being a pair
of bullocks with yoke on) and I am, therefore, having an experience. Do not
vote for the Congress and by putting the mark of vote on the symbol of bullocks
amounts to cutting the throat of a bullock by a knife symbolized by your vote.
It is my mandate that you should not do this dastardly act." The High
Court did not find the first two passages to constitute "corrupt
practices". The third passage was held by the High Court to constitute
"corrupt practice" on the ground that "though there is no proof
that Shankaracharya had any religious following as such in this particular
constituency, there is ,no mandate in writing from the Jagadguru and there is
no direct address to his followers by the Jagadguru, Shambhu Maharaj has
clearly appealed to the Hindu voters as such not to vote for the Congress Party
lest they might be betraying their religious leader, particularly when he had
fasted for 73 days' in a cause which had some basis in the religious beliefs of
the Hindus." 410 We are unable to agree with the High Court in this
The decision of this Court in Ram Dial v.
Sant Lal(1) is clearly distinguishable because there it was held by this Court
that Shri Sat Guru wielded great local influence among the large number of
Namdharis who were voters in the Sirsa constituency. In the present case there
is no proof that Jagadguru Shankaracharya of Puri was the religious head of the
majority of the electors in this constituency or exercised great influence on
them. It cannot be held on the facts of this case that an ordinary Hindu voter
in this constituency would feel that he would be committing a sin if he
disregarded the alleged directive on the Jagadguru.
One other ground given by the High Court is
that "there can be no doubt that in this passage (passage No. 3) Shambhu
Maharaj had put forward an appeal to the electors not to vote for the Congress
Party in the name of the religion." In our ,opinion, there is no bar to a
candidate or his supporters appealing to the electors not to vote for the
Congress in the name of religion. What S. 123(3) bars is that an appeal by a
candidate ,or his agent or any other person with the consent of the candidate
or Ms election agent to vote or refrain from voting for any person ,on the
ground of his religion, i.e., the religion of the candidate.
The following four passages in Ex. K, a
speech delivered by Shambhu Maharaj at Kherwa after midnight of February 18,
1967, were objected to :
"(1) The Congress says that it has
brought happiness and will give happiness in future;
but even a father cannot give happiness to
his son, nor can a son give happiness to his father. Giving happiness rests in
the hands of God. But God gives happiness where there is religion. 'He does not
give happiness to the irreligious.
(2) Formerly there were no famines.
Possibly once in 100 years there might be one
famine. As against that nowadays every year there is some natural calamity like
Either there is no rain or there is frost or
there is visitation of locust or there is some disease in the crops and some
calamity or the other is constantly visiting us. The reason for this is that
Congress permits slaughter of 33,000 bullocks every day. When slaughter of cows
is banned, bullocks are allowed to be slaughtered. In Gujarat 12,000 bullocks
are being slaughtered.
(3) Nobody would sit till 12-30 at night to
listen to any talks by the Congress-walas.
But I have come (1)  Supp. 2 S. C. R.
411 to tell the public, which is fond of its
religion, to elect the Swatantra Party, so that the slaughter of bullocks might
be stopped and all people who are fond of their religion are also keeping away
till 12-30 at night.
(4) Vijaykumarbhai has gone. A Brahmin
minister must be there and hence Kantilalbhai is going to be a minister, hence
vote for him.
We must have at least one minister who is a
Brahmin. Hence vote for Kantilalbhai. At the same time vote for Bhaikaka and
H.M. Patel by putting your voting mark on the star." The High Court held
the first two passages read together to constitute "corrupt practice"
on the ground that "they amounted to interference with the free exercise
of the electoral right of voters by holding out threats of divine displeasure
and spiritual censure." The High Court held that in these passages there
was a direct causal relationship between the cow slaughter and the natural
calamities and this clearly showed that the: voters were told that if they did
not want such natural calamities to visit them they should not vote for the
Congress Party and thug avoid the divine displeasure which was responsible for
these natural calamities. It seems to us that this is not a fair reading of
these two passages. Cow slaughter is not mentioned in these passages except to
say that sow slaughter is banned in Gujarat. The causal relationship, if any,
exists between slaughter of 33,000 bullocks every day and natural calamities.
This, in our view, cannot amount to constitute "corrupt practice"
within s. 123 (2) proviso (a) (ii) 'Me law does not place any bar on describing
a party as irreligious or saying that because that political party is
irreligious natural calamities have resulted because of its disregard of
We do not find anything objectionable in the
third passage because here again it is only an appeal to elect the Swatantra
Party because the people in that party are fond of their religion.
The last passage in Ex. 'K' clearly fell
within the mischief of s. 123(3). The High Court in this connection observed:
.lm15 " The reference to Vijaykumarbhai
is to Vijaykumar Trivedi, who was a Brahmin and was a minister in the Gujarat
Government till March 1967, and when this speech was delivered. The reference
to Kantilalbhai is to the first respondent, who is also a Brahmin and the
reference to Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra Party
and H.M. Patel is another leader of the Swatantra Party and what Shambhu
Maharaj was asking in this connection was that it was necessary that there
should be one Brahmin in the Gujarat State Ministry and if one Brahmin, 412
Vijaykumar Trivedi, was to leave the ministry, another Brahmin Minister, viz.,
the first respondent should be first elected so that he might get a seat in the
Legislature and thereafter become a minister, and thus it is clear that in the
passage, Shambhu Maharaj was asking the people to vote for the first respondent
because he was a Brahmin by caste.
It has been stated as a categorical statement
that there must be at least one Minister, who was a Brahmin. Under S. 123 (3)
of the Act, an appeal by any person to vote for any person on the ground of his
caste or community is a corrupt practice, provided, of course, that such person
has made such appeal with the consent of the candidate concerned. I will come
to the question of consent a bit later on, but it is clear that in this
particular passage an appeal was being made to the electors to cast their votes
for the first respondent because the first respondent is a Brahmin and also
because of the promise, which had been put forward in this passage, that there
should be at least one Brahmin Minister in the Ministry. I may point out that
so far as the petitioner is concerned, the petitioner is a Patidar and it is in
the context of this background that an appeal is made in the name of caste of
the first respondent and the people are asked to vote for the first respondent,
because he was a Brahmin." It seems to us that the High Court is correct
in drawing the inference that Shambhu Maharaj was asking his voters to, vote
for the first respondent, because he was a Brahmin.
Shambhu Maharaj is reported to have adopted
the same theme in Ex. 'P' when he said that "Vijaykumarbhai had gone out
and Kantilalbhai is going to be the Minister." Following three passages
were objected in Ex. 'P', a speech made at Dangerwa:
"(1) The time of election has arrived.
The Congress Party is carrying on its propaganda desparately but what I want to
say is that if Swatantra Party comes into power then it will (not turn your
roof-tiles into gold. Only God gives happiness. There is frost, there is rust
in the crops, there is excess of rains, there is a famine all these are due to
the workings of God. Every day twenty four crores of cows are being
slaughtered, then how God will tolerate that and how will you get happiness ?
413 (2) Look at the Congressmen who are destroyers of Hindu Religion.
(3) Every year we get cow or the other
natural calamity like excessive rain, or failure of rain or earthquake. This
happens because they ask for votes in the name of live bullocks, whereas they
get the bullocks slaughtered. The symbol should be of butcher and except
ruthless and hard-hearted Congress nobody else will get bullocks
slaughtered." It seems to us that the first and the third passages, read
together, constitute an attempt to induce the electors to believe that they
would become objects of divine displeasure if they voted for the Congress and
thereby allowed cow slaughter to be continued.
Hidayatullah, C.J., in Narbada Prasad v.
Chhagan Lal(1), observed :
"It is not necessary to enlarge upon the
fact that cow is venerated in our country by the vast majority of the people
and that they believe not only in its utility but its holiness. It is also
believed that one of the cardinal sins is that of gohatya. Therefore, it is
quite obvious that to remind the voters that they would be committing the sin
of, gohatya would be to remind them that they would be objects of divine
displeasure-or, spiritual censure." In the first and third passages of Ex.
'P', therefore there is clear implication that if you vote for the Congress who
are responsible for 24 crores of cows being slaughtered then God will be
displeased; in other words there will be divine displeasure and the voters will
not get happiness.
The second passage does not seem to be
objectionable and the High Court has not found it to be so.
The learned counsel for the appellant
contends that very little weight should be attached to the speeches because the
reports were not taken in shorthand but from notes and it is very difficult to
be certain of what were the' exact words used by Shambhu Maharaj. The High
Court examined the speeches, Exs. 'I', 'J' 'K', 'L', and 'P', in connection
with this question and came to the conclusion that common topics, common
language and common approach existed in all the speeches, and this indicated
that Shambhu Maharaj did deliver the speeches. Further., according to the High
Court, the reports were submitted by different constables at different times
and to different Police Station and the learned Judge found that there could
possibly be no consultation between the Various police constables who took down
the statements (1)  1 S.C.R. 499.
8 Sup.C.I./69-8 414, and that the totality of
the effect emerging from different reports made the reports credible.
We agree with the conclusions arrived at by
the High Court.
It is true that the exact words were not
taken down by the various police constables, but the similarity of approach,
appeal and the attack on the Congress is remarkable and in these circumstances
it must be held that the police constables correctly reproduced the substance
of the speeches. It is pot necessary in these cases that exact words must be
reproduced before a speech can be held to amount to "corrupt
The learned counsel further contends that the
appellant's consent to these speeches had not been proved. We agree with the
High Court that there is no force in this contention. The High Court observed :
"As shown in the handbill setting out
the programme, the manuscript of which was written out by the first respondent
himself in consultation with Maganlal Abram Patel, this tour programme had been
arranged to bring success to the first respondent in his election contest.
Shambhu Maharaj was touring these villages specifically so that the first
respondent might succeed in his contest.
Further it would be natural on the part of
the first respondent to take advantage of being seen in the presence of a good
speaker like Shambhu Maharaj. Some of the meetings of Shambu Maharaj appear to
have been wellattended. It is highly probable that the first respondent
accompanied Shambhu Maharaj.
To my mind, therefore, it is clear that the
first respondent had accompanied Shambhu Maharaj and was present in each of the
meetings at MotiDav, Kherwa and Dangerwa when Shambhu Maharaj delivered
speeches at these three villages............ In the instant case also, the
first respondent, according to the conclusion that I have reached, was present
at the meetings which were addressed by Shambhu Maharaj at MotiDav, Dangerwa
and Kherwa and in each of these three meetings at least, according to the
conclusions reached by me, Shambhu, Maharaj in the course of his speeches had
committed breaches of the provisions of s.
123(2) and s. '123(3) of the Act........
Under these circumstances, it is clear to my mind, judging by the manner in
which the first respondent was touring with Shambhu Maharaj. the manner in
which tour programme was arranged and judging from the fact that this tour was
specially arranged to bring success to the first respondent, that the first
respon415 dent did consent to the commission of the breaches of the proviso of
s. 123(2) and s. 123(3) of the Act by Shambhu Maharaj." We may add that
many police witnesses depose that the appellant was present and it has not been
shown to us that he dissociated himself with any of the remarks in the
In-the result the appeal fails and is
dismissed with costs.
Hegde, J. I agree that the statements
contained in Exh. P amount to a corrupt practice under s. 123(2) of the
Representation of the People Act and also agree that those statements were made
with the consent of the returned candidate. Hence this appeal has to be
dismissed but I am unable to agree that before a statement can be considered as
an attempt to induce an elector to believe that he will be rendered an object
of spiritual censure if he acts in a particular manner that statement must have
been made by a person who is a religious head of the majority of the electors
in the constituency concerned. What s. 123(2) requires is to induce or attempt
to induce "an elector "which means even a single elector-that he will
be rendered an object of spiritual censure if he exercises or refuses to
exercise his electoral right in a particular manner. But undoubtedly the
inducement or an attempt to induce complained of should be such as to amount to
a direct or indirect interference or attempt to interfere with the free
exercise of electoral right. Whether a particular statement comes within s. 123
(2) or not depends on various factors such as the nature of the statement, the
person who made it and the persons to whom it is addressed. No doubt the nature
of the statements in question is of utmost importance. They may exploit well
accepted religious beliefs but that is not the only thing that comes within the
mischief of s. 123(2). A respected religious preacher may induce or attempt to
induce the illiterate and superstitious voters who form the bulk of our voters
that they will become the object of divine displeasure if they do not exercise
their franchise in a particular manner. His statements may not have any support
from the religious books but yet they may amount to a corrupt practice in law.
I see no justification to cut down the scope of s. 123 (2). It will not be in
public interest to do so.
I am unable to agree that the appeal to vote
(in Exh. K) for the appellant on the ground that he is likely to be a Minister
as according to Shambhu Maharaj there should be at least one Brahmin Minister
in the cabinet is an appeal to vote on the ground of the appellant's caste.
There is no use hiding the fact that communal and regional representations in
all our political institutions have become a must. Shambhu Maharaj merely gave
expression to that fact from public platforms. One may not appreciate his 416
campaigning for that point of view but I am unable to agree that his statements
in that regard amount to corrupt practice under s. 123 (3). Those statements
cannot be considered as an appeal to vote on the basis of the appellant's
caste. The caste of the appellant has come into the picture incidentally.
V.P.S. Appeal dismissed.