Manubhai, Nandlal Amersey Vs. Popatial
Manilal Joshi & Ors [1969] INSC 2 (7 January 1969)
07/01/1969 BACHAWAT, R.S.
BACHAWAT, R.S.
SIKRI, S.M.
HEGDE, K.S.
CITATION: 1969 AIR 734 1969 SCR (3) 217 1969
SCC (1) 372
CITATOR INFO:
RF 1970 SC2097 (264) RF 1975 SC1788 (8) R
1982 SC 515 (20) R 1986 SC1253 (14,18) D 1990 SC1731 (9)
ACT:
Representation of the People Act (43 of
1951), ss. 86(5) 116A, 23(2), proviso (a)(ii)-Amendment of election petition-
When should be allowed-Jurisdiction of Supreme Court under s. 116
A-Interference with discretion of High Court-Undue influence-Threat of divine
displeasure.
HEADNOTE:
The appellant, the Swatantra party candidate,
was declared elected to the Lok Sabha as against the Congress party candidate.
On April 10, 1967, the first respondent, an elector in the constituency filed
an election petition. In the petition he charged the appellant with corrupt
practice under s. 123(2) proviso (a) (ii) of the Representation of the People
Act, 1951. The allegation was that one: S.M., with the consent of the appellant
or his election agents, told the electors in speeches that if they voted for
the Congress candidate, they would commit the sin of cow Slaughter and would
become objects of divine displeasure.
On September 25, 1967 the first respondent
'obtained 'an order giving him leave ,o amend the petition by adding a charge
with regard to the sin of Brahma hatya and Sadhu hatya. On February 29, 1968
the trial commenced and one of the witnesses said that he heard S.M. giving a
speech on February 8, 1967, where S.M. told the electors that Sri
Shankaracharya had commanded them not to vote for the Congress and that a
contravention of the mandate would be visited with spiritual censure. On an
objection being raised by the appellant's counsel, the first respondent agreed
that the statement of the witness should not be treated as part of the
evidence. The trial proceeded, 11 witnesses were examined and the appellant
agreed to the marking of the full reports of the speeches of S.M. as exhibits
and adopted a definite line of cross-examination on the footing that the first
respondent would not rely on the charge with regard to the command of Sri
Shankaracharya.
However on March 5, 1968, the first
respondent 'applied for an amendment of his petition to include a charge of
corrupt practice based on the command of Sri Shankaracharya and the High Court
allowed the amendment. The, High Court set aside the 'appellants election on
its finding that the corrupt practice in relation to the command of Sri
Shankaracharya was proved.
In appeal to this Court on the questions (1)
Whether the High Court should have allowed the amendment; and (2) Whether the
appellant was guilty of any corrupt practice, HELD : The appellant's election
was rightly set aside.
(Per Bachawat, J.) : (1) The High, Court
erred in allowing the amendment.
When a corrupt practice is charged against
the returned candidate the election petition Must set forth full particulars of
the corrupt practice so as to give the charge a definite character and to
enable the Court to understand what the charge is. It must be substantially
proved as laid and evidence cannot be allowed to be given in respect of a
charge not dis 7Sup CI/69-15 218 closed in the particulars. Section 86(5) of
the Act, however, allows amendment of particulars, but the Court shall not
allow any amendment of the petition which will have the effect of introducing
particulars of a corrupt practice not previously alleged in the petition, and
normally, an application for amendment should be made within a reasonable time.
Though the Court has power to allow an amendment even after commencement of the
trial, leave to amend would not he granted if the petitioner was not acting in
good faith or had kept back facts known to him. [221 B-D, G-H; 222 A-B] In the
present ease, the first respondent knew of both items of corrupt practice' from
his witnesses who were present at the speeches made by S.M. If S.M. had told
the electors about the mandate of Sri Shankaracharya, the witnesses must have
given information to the first respondent, and no explanation was given by the
first respondent as to why he withheld the information at the time of filing
the petition or when he first amended his petition. He was aware of the
difference between the two charges of telling the electors about the sin of
gohatya and that of telling the electors about the sin of disobeying the
command of their religious leader. But the :first respondent deliberately
refrained from taking the new charge earlier and moved the application for
amendment in bad faith at a very late stage of the trial. Ordinarily, in an
appeal under s. 116A of the Act, this Court would not interfere with the
discretion of the High Court in granting amendments, but since the order of the
High Court has resulted in 'manifest injustice, this Court has the power and
duty to correct the error. [222 B-D, F-H; 223,A-E] (Per Hegde, J.) The High
Court has given good reasons in support of its order allowing the amendment and
no case was made out to interfere with it. [227 D] (2) (Per Bachawat, J.) There
is' no absolute ban on cow slaughter in several states in India and the
Swatantra party was agitating for such a total ban. Public criticism 'of the
Congress party for not abolishing cow 'Slaughter was permissible, but the
criticism ceases to be legitimate if the speaker commits the corrupt practice
of undue influence under s. 123(2) of the Act. Under s. 123(2), proviso (-a)
el. (ii), there is such undue influence if any person, with the consent of the
candidate or his election agent, attempts to induce an elector to, believe that
he will be tendered an object of divine displeasure or spiritual censure. [224
D-F] In the present case, S.M. spoke at the meeting on February8, 1967 with the
consent of the election agent of the appellant. S.M.was a Kirtankar of repute
and well known and respected for his lectures on Hindu religion, while his
audience consisted mostly of illiterate and ortho- dox Hindus of rural areas
who are filled with horror at the slaughter of a cow. The dominant theme of the
speech was that those who commit the sin of gohatya would be visited with
divine displeasure. Therefore, even apart from the charge relating to the
command of Sri Shankaracharya, the speech was calculated to interfere with the
free exercise of electroral right. The corrupt practice was thus committed at
the meeting on February 8, 1967, with the consent of the election agent of the
appellant. [224 G-H; 225 G-H; 226 F-G 227 B-C] Narbada Prasad v. Chhagan Lal,
[1969] 1 S.C.R. 499, followed.
(Per Hegde, J.) Everyone of the speeches made
by S.M., read as a whole, are fanatical outpourings and a direct challenge to
the concept of a secular democracy, and fell within the vice of the proviso
(a)(ii) of s. 123(2) of the Act. [227 E] 219
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1438 of 1968.
Appeal under s. 116-A of the Representation
of the People Act, 1951 from the judgment and order dated April 22, 23, 1968 of
the Gujarat High Court in Election Petition No. 22 of 1967.
I.M. Nanavati, P. M. Raval, D. N. Mishra and
J. B. Dada- chanji, for the appellant.
H.R. Gokhale, K. G. Vakharia, K. L. Hathi and
Atiqur Rahman, for respondents Nos. 1 and 2.
The Judgment of SIKRI and BACHAWAT, JJ. was
delivered by BACHAWAT, J. HEGDE, J. delivered a separate opinion.
Bachawat, J. This appeal is directed against
a judgment of single judge of the Gujarat High Court setting aside the election
of the appellant from the Banaskantha Parliamentary constituency. At the last
general election to the Lok Sabha from the' Banaskantha constituency in Gujarat
there were three contesting candidates. The appellant, the Swatantra party
candidate, secured 110,028 votes. Respondent No. 2, the Congress party
candidate secured 1,05,621 votes.
Respondent No. 3, an independent candidate
secured 14,265 votes. The appellant was declared elected.
The election petition was filed by respondent
No. 1, an elector in the constituency. Respondent No. 1 alleged a number of
corrupt practices on the part of the appellant or his election agents, but at
the trial, he pressed only the charge of corrupt practice under s. 123 (2)
proviso (a) (ii) of the Representation of the People Act, 195 1. In the
petition- the charge was that several persons with the consent of the appellant
or his election agents induced or attempted to induce the electors to believe
that if they voted for the congress party candidate they would become the
objects of divine displeasure and spiritual, censure. In the particulars of
this charge it was alleged that in the public meetings held at Amirgadh,
Ikbalgadh, Wav, Laxmipura, Tharad Bhabhar and other places one Shambhu Maharaj
told the electors that if they voted for the congress candidate they would
commit the sin of cow slaughter and urged them in the name of mother cow to
take a vow not to vote for the congress candidate with the result that several
members of the audience publicly took the vow.
At a late stage of the trial on March 7,
1968, the High Court gave leave, to respondent No. 1 to, amend the petition by
adding fresh particulars of the corrupt practice. The substance of the new
charge was that at those meetings Shambhu Maharaj 220 induced or attempted to
induce the electors to believe that their religious head Jagadguru
Shankracharya had commanded them not to vote for the congress and that
contravention of his Command would be a sin and would be visited with spiritual
censure and divine displeasure. The High Court found that the aforesaid
practice was committed by Shambhu Maharaj with the Consent of one Punambhai,
the election agent of the appellant, and declared the appellant's election to
be void.
The appellant challenges the legality of the
order passed by the High Court on March 7, 1968 allowing the amendment. The
election petition was filed on April 10, 1967. The appellant filed his written
statement on June 1; on September 9, the High Court gave leave to respondent
No. 1 to amend the petition, by adding the charge that certain persons were
threatened that they would commit the sins of go hatya, Brahma-hatya and
Sadhuhatya, if they worked for the congress candidate. The order disallowed
amendments seeking to introduce, charges of appeal to voters in the name of
religion under S. 123 (3). The appellant filed his additional written statement
on October 19. Issues were framed on November 30. Respondent No. 1 filed his
list of witnesses on January 11, 1968. On February 21, the trial started and
P.W. 1, P.W. 2, P.W. 3 and P.W. 4 were examined.
P.W. 4, Ram Swarup was a witness with regard
to the meeting at Amirgadh. The issues were amended on March 1, so as to make
it clear that there was no charge of any corrupt practice under S. 123(3). On
the same date, respondent No. 1 was examined as P.W. 5. On March 2, P.W. 6,
P.W. 7, P.W. 8 and P.W. 9 were examined. P.W. 7 and P.W. 8 spoke about the
meetings at Palanpur and Bhabhar. P.W. 9 Bhogilal spoke about the meeting at
Ikbalgadh. On March 4, P.W. 10 and P.W. 11 were examined and spoke, about the
meetings at Wav and Laxmipura. On the same day, P.W. 12 S. P. Pandya, a
sub-inspector of police at Palanpur, and P.W. 13, C.B.
Barot, a short-hand writer were examined. The
examination of Barot was concluded on March 6. Barot proved that he, took
shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh, Amirgadh, Bhabhar,
Laxmipura, Wav and Tharad and sent reports of the speeches to S. P. Pandya. On
March 6, P.W. 14 and P.W. 15 were examined. On March 5, respondent No. 1 filed,
an application for leave to amend the petition by adding portions of the
speeches which referred to the command of Shankracharya not to vote for the
congress and the consequences of not- obeying the command. The application was
allowed on March 7, 1968. The trial was, then adjourned and started again on
April 8. Between April 8 and April 15, P.W. 17, P.W. 18, D.W. 1 and, D.W. 2
were examined., The judgment was delivered on April,22 and 23.
221 The first question is whether the trial
judge should have allowed the amendment. Section 83(1)(b) provides that
"An election petition shall set-forth full particulars of any corrupt
practice that the petitioner alleges, including as full a statement ;as
possible of the names of the parties alleged to have committed such corrupt
practice and the date, and place of the commission of each such practice".
The section is mandatory. Where a corrupt
practice is charged against the returned candidate the election petition must
set-forth full particulars of the corrupt practice so as to give the charge a
definite character and to. enable the court to understand what the charge is.
The charge must be substantially proved as laid and evidence cannot be allowed
to be given in respect of a charge not disclosed in the particulars. On a
charge, of telling the electors that by giving their vote to the Congress
candidate, they would commit the sin of go-hatya, evidence cannot be led to
prove the charge of telling them that they would commit a sin of Brahma-hatya
or the sin of disobeying the command of their religious leader. Section 86(5)
allows amendment of the particulars,. It provides that "the High Court
may, upon such terms. as to, costs and otherwise as it may deem fit, allow the
particulars of- any corrupt' practice alleged in the, petition to, be amended
or amplified in- such manner as may in its opinion be necessary for ensuring a
fair and effective trial of the petition, but shall not allow any amendment of
the petition which will have the effect of introducing particulars of a corrupt
practice, not previously alleged in the petition." In Harish Chandra Bajpai
v. Triloki Singh(1) the Court held that though under the English law the
petitioner was not obliged to give, the particulars of the corrupt practice in
his petition the difference was a matter of form and not of substance and that
under S. 83(3) as it stood before 1955 the Court could allow an amendment
introducing fresh instances of the corrupt practice alleged in the petition.
Referring to the English practice the Court observed at page 382 : "it is
sufficient if the particulars are ordered to be furnished within a reasonable
time before the commencement of the trial". Section 83(3) has been
repealed and is now replaced by s. 86(5) which forbids any amendment
introducing particulars of a corrupt practice not previously alleged in the
petition. Assuming that the amendment of March 7, 1967 was permissible under s.
86(5), the question is whether the High Court rightly allowed it. Normally an
application for amendment under s. 86(5) should be made within a reasonable
time before the commencement of the trial. The Court has power to allow an
amendment even after the commencement of the trial, but as a rule leave to
amend at a late stage should be given in exceptional cases where the petitioner
could not with (1)[1957] S.C.R. 371.
222 reasonable diligence have discovered the
new facts earlier.
Leave to amend will not be given if the
petitioner is not acting in good faith or has kept back the facts known to him
before the trial started.
According to respondent No. 1 Shambhu Maharaj
committed corrupt practice at election meetings held at Ikbalgadh where P.W. 9
was present, Amirgadh where P.W. 4 Was present and at Wav where. one Chotaji
Bhattji was present and that he came to know of the, corrupt practices from
those persons. All the meetings are referred to in the election petition. If
Shambhu Maharaj had told the electors that Sri Shankracharya had commanded them
not to vote for the congress candidate and that disobedience of his command
would be sinful, P.W. 4 and Chotaji Bhattji must have informed respondent No. 1
of this corrupt practice before April 10, 1967 when the election petition was
filed. No explanation is given as to why respondent No. 1 withheld this
information in the petition. Respondent No. 1 now says that on April'17, 1967
he applied for certified copies of the reports of C. B. Barot to the Deputy
Inspector-General of Police, C.I.D., Ahmedabad but the application was rejected
on May 14, 1967. Assuming that he could not get certified copies of the
reports, he could set-forth in the petition' the substance of the charge with
regard to the command of Sri Shankracharya from the information supplied by his
informants. He knew of the reports of C. B. Barot before April 17, 1967.
Immediately after filing the election petition he could subpoena the reports
and under orders of the Court he could inspect them long before the trial
started. He was aware that the charge of telling the electors that they would
commit the sin of go-hatya was quite different from the charge of telling them
that they would commit the sin of Brahma-hatya or the sin of disobeying the
command of their religious leader Sri Shankracharya. On September 25, 1967, he
obtained an order giving him leave to amend the petition by adding the charge
with regard to the sins of Brahma-hatya and Sadhu-hatya, but he deliberately
refrained from adding the charge with regard to the sin of disobeying the
command of Sri Shankracharya.
The, trial commenced on February 29, 1968. On
that date P.W. 4 said that at the Amirgadh meeting Shambhu Maharaj told the
electors that he had brought a mandate from Jagadguru Shankracharya. On an
objection being raised by the appellant's counsel Mr. Mehta, counsel for
respondent No. 1, agreed that the statement of P.W. 4 would not be treated as
part of the evidence on the record. Thereafter the trial proceeded and 11 more
witnesses were examined on the footing that respondent No. 1 would not rely on
the charge with regard to the, command of Jagadguru Shankra- charya. On that
footing the appellant's counsel adopted a definite 223 line of
cross-examination. On March 4, he consented to the marking of the full reports
of the speeches of , Shambhu Maharaj as exhibits and on March 5, he extracted
an admission from Barot that the witness had taken verbatim notes of the
speeches of Shambhu Maharaj. Counsel adopted this line of cross-examination
because he took, the stand that the speeches did not prove the corrupt practice
alleged in the petition. The application, for amendment was filed on March 5
and was allowed on March 7. The order allowing the amendment has resulted in
manifest injustice to the appellant. His counsel could not thereafter take the
stand that the reports had been fabricated at the instance of the congress
party , Respondent No. 1 moved the application for amendment in bad faith at a
very late stage of the trial.
He deliberately refrained from taking the new
charge earlier.
Under s. 116A an appeal lies to this Court on
any question whether of law or fact from the order of the High Court.
The procedure in appeal is regulated by s.
116C. All the provisions of the Code of Civil Procedure including s. 105 apply
to the appeal, and any error in an order of the Trial court affecting the
decision of the case may be taken as a ground of objection in the appeal. In an
appeal under s.
116A the whole case is within the
jurisdiction of this Court. Normally the Court does not interfere with the
Judge's discretion in granting amendments except on grounds of law but where,
as in this case, the order has resulted in manifest injustice, the Court has
the power and the duty to correct the error. In Evans v. Bartlam(1) Lord Atkin
observed "Appellate jurisdiction is always statutory :
there is in the statute no restriction upon
the jurisdiction of the court of appeal: and while the appellate court in the
exercise of its appellate power is no doubt entirely justified in saying that
normally it will not interfere with the exercise of the judge's discretion
except on grounds of law, yet if it sees, that on other grounds the decision
will result in injustice being done it has both the power and the duty to
remedy it." We, therefore, hold that the order of the trial judge allowing
the amendment was erroneous and must be set aside.
Respondent No. 1 proved six speeches of
Shambhu Maharaj. He did not rely in the trial court on the speeches at
Laxmipura, Bhabhar and Tharad. Mr. Gokhale stated that he did not rely on these
'speeches for any purpose whatsoever.
Accordingly, those speeches were not read in
this Court.
There is no charge (1) [1937] A.C.473,480-481
224 against the, appellant on the ground of appeal to the electors ,on the
ground of religion. The only. charge against him is that in his speeches at
lkbalgadh, Amirgadh and Wav, Shambhu Maharaj with the consent- of his election
agent Punambhai told the electors that "if they voted for the congress
party candidates the voters would commit the sin of cow slaughter (gaumata
vadh)." Respondent No. 1 has not proved the charge that the electors were
urged in the name of mother cow to take a vow not to vote for the congress
party candidates, with the ,result that several members of the, audience
publicly took the vow. The Ikbalgadh speech (Ex. B1) and the Amirgadh speech
(Ex. B3) were delivered on February 8, 1967. The Wav speech (Ex. B4) was
delivered on February 9, 1967. There was then an acute political controversy
with regard to the total ban on cow slaughter. Section 5(1) of the Bombay
Animal Preservation Act, 1954 (Bombay Act No. LXXII of 1954) as amended by
Gujarat Act No. XVI of 1961, there was a total ban on cow slaughter in Gujarat.
But there was no absolute ban, on cow slaughter in several other States. The
Swatantra party was agitating for a total ban on cow slaughter throughout
India. Public criticism of the Congress party for not abolishing cow slaughter
throughout the country was permissible and legitimate. But the criticism ceases
to be legitimate if the speaker commits the corrupt practice of undue influence
under s. 123(2), that is, if he interferes or attempts to interfere with the
free exercise of electoral right. Under. s. 123(2) proviso (a) cl. (ii) there
is such undue influence if any person with the consent of the candidate or his
election agent induces or attempts to induce a candidate or an elector to
believe that be, or any person in whom he is interested, will become or will be
rendered an object of divine displeasure or spiritual censure." The actual
effect of the speech is not material,. Corrupt practice, is committed if the
speech is calculated to interfere with the free exercise of electoral right and
to leave no choice to the: electors in- the matter, see Ram Dial v., San; Lal
& Others(1).
In considering the speeches the status of the
speaker and the character of the audience are relevant considerations.
Shambhu Maharaj was a kirtankar of repute and
well known and respected for his lectures on Hindu religion. The audience
consisted mostly of illiterate and orthodox Hindus of the rural areas, adivasis
and rabaris belonging to the scheduled tribes and scheduled castes. In this background,
let us now consider the speeches. Respondent No. 1 charges corrupt practice in
respect of 4 passages in the Ikbalgadh speech (Ex. B1), passages in the Wav
speech (Ex. B4) and 3 passages'. in the Amirgadh speech (Ex. B3).
(1) [1959] Supp. 2. S.C.R. 748, 758, 760.
225 The learned trial judge found that the
corrupt practice was not committed by the 1st and 2nd passages in Ex. B1, the
1st, 2nd and 3rd and 6th passages in Ex. B4 and the 1st passage in Ex. B3.
But the learned Judge held that 3rd and 4th
passages in Ex. B1 and the 4th and 5th passages in Ex. B4 amounted to corrupt
practice as the electors were told that Sri Shankracharya had commanded them
not to vote for the congress and that if they disobeyed his command they would
incur divine displeasure and spiritual censure. We have disallowed the
amendment introducing this charge and we must therefore set aside the finding
of the learned judge with regard to those passages. We find that the passages
do not show any corrupt practice as alleged in the petition.
In the 2nd passage, in the, Amirgadh speech
(Ex. B3) the speaker referred to-the ban on cow slaughter in Pakistan,
Afghanistan and Madhya Pradesh and said that the Swatantra Party had promised
to ban slaughter of cow progeny and exemption of land revenue. He also said :
"Sun rises and twenty two thousand cows are slaughtered .... In Ahmedabad
there is a prohibition oh cow slaughter but the slaughtering of calf and ox is
continued. The earth took the form of a cow and if they said 'Gaumata' or ox is
slaughtered how can earth be satisfied and so long as the earth is not
satisfied how can there be fertility in the earth." In the third passage
(Ex. B3), the speaker said:- "In the year 1942 sixteen lacs and in. 1946
twenty four lacs and in 1947 after India became separate and at present about 1
crore cows are slaughtered. You say whether to vote for congress is to become
partner in sin or anything else. If you give cooperation for good cause you may
get good fruit and if you cooperate in committing a sin you become a partner of
sin. Why you become a partner of sin by giving votes to congress ?" He
then referred to the command of Sri Shankracharya that the electors should not
vote for the Congress party. But even apart from the command of Sri Shankracharya
the electors are distinctly told that though there was a ban on cow slaughter
in Ahmedabad, the congress was permitting the slaughter of crores of cows
elsewhere in India and was committing the sin of gohatya and those who vote for
the congress would be partners in the sin. The dominant theme of the speech was
that those who commit the sin of go-hatya would be visited with divine
displeasure. Having regard to the character of the audience, the speech was
calculated to interfere with the free exercise of 226 electoral right. In
Narbada Prasad v. Chhagan Lal & Ors. Hidayatullah, C.J., 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 go-hatya.
Therefore, it is quite obvious that to remind
the voters that they would be committing the sin of go-hatya would be to remind
them that they would be objects of divine displeasure or spiritual
censure." In Encyclopaedia of Religion and Ethics, edited by James
Hastings, vol. 4, pp. 225, 226, it is stated:- "A well known verse
(Mahabharata, xiii. 74.4) says : 'All that kill, eat and permit the slaughter
of cows, rot in hell for as many years as there are hairs on the body of the
cow so slain.
"Reverence for the cow has not
diminished in modem times. It is well known that the Hindus of the present day
'are filled with horror at the slaughter of the cow, which is therefore
prohibited in native States under treaties with the English." According to
B. N. Mehta's Modern Gujarati-English Dictionary, vol. 1, page 480, gohatya
(go, a cow+hatya, killing) means in Gujarat "slaughter of a cow; killing a
cow, being one of the five great sins according to Hindu scriptures which can
be atoned for only with capital punishment." Accordingly, the offending
passages in the Amirgadh speech fell within s. 123 (2) proviso (a) (ii). We are
satisfied that Shambhu Maharaj spoke at the Amirgadh meeting with the consent
of Punambhai, the election agent of the appellant.
Punambhai was present at the Amirgadh
meeting. He addressed the meeting before Shambhu Maharaj spoke. Shambhu Maharaj
addressed several other election meetings of the Swatantra party. Punambhai
issued a pamphlet calling one of the meetings. P.W. 10 proved that he was asked
by Punambhai to call Shambhu Maharaj for addressing another meeting as the
voters were uneducated and had deep belief in religion.
Punambhai accompanied Shambhu Maharaj from
one place to another. On February 8, 1967 he went with Shambhu Maharaj to the
meeting at Ikbalgadh (1) [1969] S.C.E. 499.
227 and thereafter went to Amirgadh. On
February 9, he went with Shambhu Maharaj to the meeting at Wav. The offending
passages of the speech at the Amirgadh meeting are integral parts of the
dominant theme of the sin of cow slaughter.
They cannot be regarded as stray words spoken
by Shambhu Maharaj without Punambhai's consent. Punambhai did not raise any
objection to the impugned speeches at the 'meeting. He gave evidence in Court
but did not say that he was not a consenting party to the offending passages.
We hold that the corrupt practice under s. 123(2) proviso (a) (ii) was
committed at the Amirgadh meeting on February 8, 1967 with the consent of the
election agent of the appellant.
In the result, the appeal is dismissed. There
will be no order as to costs.
Hegde, J. I have had the advantage of reading
the judgment just now read out by Bachawat, J. I agree that the appeal should
be dismissed. But I am unable to agree that the amendment complained of was not
properly allowed. The learned trial judge has given good reasons in support of
his order. In my opinion no case is made out to interfere with that order. I am
also of the opinion that each and every one of the speeches made by Shambhu
Maharaj which are the subject matter of this appeal, read as a whole as we
should do, fall within the vice of proviso a(ii) of s. 123(2) of the
Representation of the People Act, 1951. Nothing so bad as those speeches I have
come across in election cases.
They are fanatical outpourings and a direct
challenge to the concept of a secular democracy.
Appeal dismissed.
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