State of Punjab Vs. Vilasrao D.
Deshmukh [1999] INSC 415 (3 December 1999)
R.C.Lahoti, S.Ragendra Babu
R.C. LAHOTI,J This is an appeal under Section
116A of the Representation of the People Act, 1951 (hereinafter RPA, for short)
preferred by a candidate successful at the election but against whom an
election petition filed by a candidate who had lost at the election has been
allowed by the High Court on the ground of commission of corrupt practices as
defined in sub-sections (3A) and (4) of Section 123 of the RPA. For the sake of
convenience the parties will be referred to as they are arrayed before this
Court in this appeal, that is to say, Vilasrao Dagdojirao Deshmukh who had
filed the election petition and is arrayed as respondent in this appeal shall be
referred to as the respondent and Shivajirao Balwantrao Patil Kawekar who was
arrayed as defendant/respondent before the High Court and is appellant before
us shall be referred to as the appellant.
Elections to the Maharashtra State
Legislative Assembly from 206 - Latur Assembly constituency took place on
9.2.1995. The respondent was a candidate sponsored by Congress (I). The
appellant was sponsored by Janta Dal.
Result of the election was declared on
12.3.1995. The respondent got 79077 votes while the appellant secured 1,12,901
votes. The appellant was thus declared elected.
The election petition alleged commission of
several corrupt practices. As many as 28 issues were framed by the learned
designated Election Judge based on the pleadings of the parties. As the
judgment under appeal shows the learned designated Election Judge has found
issues numbers 6 to 10 and 11 to 15 proved. On the rest of the issues the
findings recorded are in the negative. The subject matter of this appeal are
the affirmative findings recorded on issues numbers 6 to 15. The finding on
issue no.3 is also subject matter of challenge laid by the appellant before us.
These issues are extracted and reproduced hereunder:- 3) Is it proved by the
respondent that the petition is liable for dismissal for non-compliance of Rule
94A read with Rule 25 of the Conduct of Election Rules? xxxx xxxx xxxxx xxxx
xxxx xxxxx 6) Does petitioner prove that Prof. Mohan Kamble has published in a
daily `Jan Jagran' dated 25.1.1995 the statement that petition is having MAMULI
opposition and petitioner be opposed by MAMULI? 7) Does petitioner prove that
Prof. Mohan Kamble published said statement in `Jan Jagran' dated 25.1.1995
with the consent of the respondent? 8) Does Petitioner prove that Prof. Mohan
Kamble and respondent published said statement in `Jan Jagran' dated 25.1.1995
for promotion or attempting to promote feelings of hatred and enmity between
different communities of Latur constituency on the ground of religion, caste
and community for prejudicially affecting the election of petitioner and
thereby committed corrupt practice under Section 123 (3A) of the Act? 9) Does
petitioner prove that the respondent made a statement on 20.2.1995 in a meeting
held at Town Hall Latur that the respondent's victory at election is as a
result of the magic played by the words "Mamuli" and thereby accepted
the commission of corrupt practice under Section 123(3A) of the Representation
of the People Act? 10) Does petitioner prove that Prof. M.B. Pathan Editor of weekly
`Lawa Lawi' published article on 5.2.1995 under heading "Vilasrao's father
Dagdoji Deshmukh and his relatives inhumanely attacked on Muslims", as
stated in para Nos. 12 and 13 and Exhibit `C' of the petition? 11) Does
petitioner prove that Prof. M.B. Pathan published said article with the consent
of the respondent? 12) Does petitioner prove that Prof. M.B. Pathan and the
respondent published the statements of facts in the said article which is false
and which the respondent and Prof.M.B. Pathan believed to be false or do not
believe to be true? 13) Does petitioner prove that the statement of facts
published in the said article are in relation to the personal character and
conduct of the petitioner and was reasonably calculated to prejudice the
prospects of the petitioner's election and thereby committed corrupt practice
under section 123(4) of the Act? 14) Does petitioner prove that as a result of
said article dated 5.2.1995 in weekly "Lawa Lawi", communal tension
was created in constituency and Muslim voters had gathered in groups and
thereby ultimately complaint under section 125 of the Representation of People
Act and Section 153A of the Indian Penal Code bearing No.9/1993 was filed with
the Gandhi Chowk Police Station, Latur? 15) Does petitioner prove that Prof.
M.B. Pathan and respondent published said article for promotion or attempting
to promote feeling of enmity and hatred against petitioner amongst the Muslim
voters of Latur constituency on the ground of religion and community for
prejudicially affecting the election of petitioner and thereby committed
corrupt practice under section 123(3A) of the Representation of People Act?
Preliminary objections were raised in the written statement filed before the
High Court by the appellant submitting that material facts and particulars
relating to the alleged corrupt practices were not fully and adequately set out
in the election petition and that the verification of the election petition as
also the affidavit filed in support of the election petition did not satisfy
the requirements of the law i.e., Sec.83 of the RPA and R.94A of Conduct of
Election Rules, 1961 and therefore the petition was liable to be dismissed
without being tried. These objections were overruled by the learned designated
Election Judge by order dated 17.4.1996. The appellant had approached this
Court by filing Special Leave Petition (Civil)No.13996/1996 which was disposed
of by order dated 23.4.1996 by this court observing that in the event of the
election petition being allowed by the High Court it will be open to the
appellant (petitioner before the Supreme Court in SLP) to raise all the
questions which have been raised in that SLP. Thus, the appellant's plea
putting in issue the deficiencies and defects in the pleadings, verification
and affidavit filed by the respondent are available to be raised by the
appellant and to be considered by this court. We will refer to the same at
appropriate places.
A perusal of the above quoted issues shows
that there are three corrupt practices forming subject matter of this appeal
and they are preferable to the three publications namely Ext. `A', Ext.`B' and
Ext. `C'. Insofar as the statement made by the appellant in the meeting dated
20.2.95 forming subject matter of issue no.9 is concerned, it is not relied on
as a corrupt practice by itself; from the contents of the statement so made
support is sought to be drawn for proving the corrupt practices forming subject
matter of issues nos. 6, 7 and 8.
We now proceed to briefly set out the
pleadings insofar as relevant to the issues surviving for decision and forming
subject matter of appeal before us. The three corrupt practices which form the
subject matter of the abovequoted issues have been so alleged as is stated in
succeeding paragraphs.
According to the respondent, the appellant
and with his consent his agents and workers got published in Daily Sanchar an
article by Raja Mane who is a special reporter of the newspaper for Latur
District based on a report dated 31.1.1995. The newspaper was having
circulation in Latur constituency. It is stated in the report that the word
MAMULI has a hidden meaning. MA means Marawadi; MU means Muslims; LI means
Lingayats; and RE means Reddy. Exhibit A is the copy of Daily Sanchar newspaper
dated 31.1.1995.
Daily Janjagar dated 25.1.1995 published by
the Editor, Professor Mohan Kamble has quoted the respondent to be against
"MUMULI RE" communities and pleaded for MAMULI to oppose the
respondent. The publisher was an active canvasser of the appellant during
election process. The article was published to promote feelings of enmity and
hatred between different classes of citizens and voters of the constituency.
The publication by Mr. Mohan Kamble was with the consent of the appellant for
the furtherance of his election prospects and for prejudicially affecting the
election of the respondent.
The appellant spoke in a public meeting at
Town Hall Latur on 20.2.19995 soon after he was declared elected.
Therein he stated that his victory was as a
result of the magic played by the word MAMULI.
Professor M.B. Pathan, an active worker and
supporter of the appellant was editor of weekly `LAVA LAVI'. With the consent
of the appellant he published a newsreport in the issue dated 5.2.1995 under
the heading and caption - "Vilas Rao's father Dagdoji Deshmukh and his
relatives unhumanly attacked on Muslims". The report then quotes an
incident wherein the father and uncle of the respondent with a view to take
possession of some land at Nilanga which was in possession of Pasha Sahib
Bagwan and his family member for last sixty years resorted to threat by gun and
also molested the ladies of the said muslim family. The report was totally
false and frivolous to the knowledge of the publisher and the appellant. The
publication was intended to promote or attempt to promote the feelings of
communal hatred amongst the muslim voters. Copies of `LAVA LAVI' dated 5.2.1995
were widely circulated in Latur constituency with the consent of the appellant.
There was communal tension in the constituency and muslim voters had gathered
in groups. This constituted corrupt practice under section 123(3A) of the RPA.
It is not necessary to reproduce verbatim the
contents of Exhibits A, B and C. It would suffice to briefly set out the gist
of the three documents with necessary extracts therefrom to the extent
necessary.
As to Ext.`A' : The news item in Sanchar
dated 31.1.1995 is titled as - "Insistence of MA.MU.LI.RE." It states
inter alia- ..............In this constituency MA-MU-LI-RE has become a magic
word...............What is in this word that makes it so important. Let me
reveal. MA-Means Marawadi, MU-Means Muslim, LI-means Lingayat and RE-Means
Reddy. The equation of assembly election of every party is based on MA-
MU-LI-RE. Though one feels this word MAMULI. (OFF LESS IMPORTANT). It carries
much meaning as far as caste set up is concerned. But the persons who use this
word as their election gimmick are playing with fire. They must be prevented
forthwith. If these persons intend to bring us home their cast calculation we
must destroy their game.....................
- Raje Mane As to Ext. `B' :The news item in
Jan Jagar dated 25.1.1995 is titled as - "MA-MU-LI oppose of
Vilasrao":- "A new 'pattern' of speaking true has been developed in
Latur Assembly constituency in the election period..............Vilasrao faces
a MAMULI (LESS IMPORTANT) opposition. That is why Shivaji Kawhekar is bound to
win.
The abbreviation of MA-MU-LI is as under.
MA - MARAWADI - MAHAR - MANG MU - MUSLIM LI -
LINGAYAT Abbreviation of the support on which MR. KAWHEKAR is going TO BE MLA
is as under.
M - MARATHA, MAHAR, MANG L - LINGAYAT A - AND
ALL IS IT NOT THEN THAT VILASRAO FACES MAMULI As to Ext. `C' : The reporting in
`LAVALAVI' dated 5.2.1995 is titled as - "Unhuman attack on muslims by
Dagadoji Deshmukh; Father of Vilasrao and Relative". The opening paras
read as under:
Mr. Dagadoji Vyankatrao Deshmukh, Father of
Revenue Minister Shri Vilasrao Deshmukh incited some goons with guns to beat
the family of Shri Elahi Pashasab Bagwan with sticks to deprive him of his
possession on the farm he had since 60 years. The goons also tried to molest a
muslim female.
Ibrahim Fakirsab Bagwan (Chaudhari) was tried
to be assassinated by immolating him after pouring kerosene. All the males and
females were arranged to put in confinement for two days." Police
protection is sought for by the Bagwan family in of threat to their lives from
Mr. Dagadoji, father of Vilasrao, Rajaji, husband of Vilasrao's aunt and
other's. A crime also has been registered with 1st class Judicial Magistrate,
Nilanga.
Following is the information our
representative received after personally meeting the Bagwan family." It is
then stated that "following information" was received by the
reporting representative of the newspaper " after personally meeting the
Bagwan family". The story narrated is that Pashasab Bagwan was possessed
of some land since before 1935. The land was taken on Batai from the
father-in-law of aunt of Mr. Vilasrao. Rajaji Deshmukh initiated legal
proceedings for taking possession of the land but did not succeed because of
the legal protection available to tenants of land. The matter was taken to the
court of Commissioner. A special Commissioner was appointed to deal with this
case only because it related to Mr.Vilasrao Deshmukh. For the same reason,
Bagwan's advocate refused to plead for Bagwan and returned the file with
apology. In such circumstances, Bagwan lost the case.
Thereafter, forcibly possession was taken.
The article goes on to allege that though the Congress Party assured the
security of minority but father of Mr. Vilasrao Deshmukh, a Minister of
Congress Party was acting contrary to such principles. " The members of
Elahi Pashasab told this sad story with tears in their eyes...... father of
Vilasrao used all the methods by hook or crook and made us homeless, they
narrated." In the written statement filed by the appellant all the
material averments made in the election petition have been denied. The
appellant has completely denied any association with or responsibility for the
said publications. It is denied that any one of the persons associated with the
three publications was a worker or canvasser for the appellant. The appellant
has denied his consent for any of the said publications.
Before we may proceed to deal with the charges
of corrupt practices levelled against the appellant by reference to the above
said three publication's -Ext.`A', Ext.`B' and Ext.`C', it will be useful to
keep in view a few well-settled legal propositions in the field of election
jurisprudence and relevant for the purpose of this appeal.
This court very recently in the case of Jeet
Mohinder Singh vs. Harminder Singh Jassi JT 1999 (8) SC 432 summed-up such
principles on a review of the decided case as under:
(i) The success of a candidate who has won at
an election should not be lightly interfered with. Any petition seeking such
interference must strictly conform to the requirements of the law. Though the
purity of the election process has to be safeguarded and the Court shall be
vigilant to see that people do not get elected by flagrant breaches of law or
by committing corrupt practices, the setting aside of an election involves
serious consequences not only for the returned candidate and the constituency,
but also for the public at large inasmuch as re-election involves enormous load
on the public funds and administration.
(ii) Charge of corrupt practice is
quasi-criminal in character. If substantiated it leads not only to the setting
aside of the election of the successful candidate, but also to his being
disqualified to contest an election for a certain period. It may entail
extinction of a person's public life and political career. A trial of an
election petition though within the realm of civil law is akin to trial on a
criminal charge. Two consequences follow. Firstly, the allegations relating to
commission of a corrupt practice should be sufficiently clear and stated
precisely so as to afford the person charged a full opportunity of meeting the
same. Secondly, the charges when put to issue should be proved by clear, cogent
and credible evidence. To prove charge of corrupt practice a mere preponderance
of probabilities would not be enough. There would be a presumption of innocence
available to the person charged. The charge shall have to be proved to hilt,
the standard of proof being the same as in a criminal trial.
(iii) Section 83 of the RPA requires every
election petition to contain a concise statement of the material facts on which
the petitioner relies. If the election petition alleges commission of corrupt
practice at the election, the election petition shall set forth full
particulars of any corrupt practice including as full a statement as possible
of the names of the parties alleged to have committed such corrupt practice and
the date and place of the commission of each such practice. Every election
petition must be signed and verified by the petitioner in the manner laid down
for the verification of pleadings in the CPC. An election petition alleging
corrupt practice is required to be accompanied by an affidavit in Form 25 read
with Rule 94A of the Conduct of Election Rules, 1961. Form 25 contemplates the
various particulars as to the corrupt practices mentioned in the election
petition being verified by the petitioner separately under two headings: (i)
which of such statements including particulars are true to petitioner's own
knowledge, and (ii) which of the statements including the particulars are true
to information of the appellant. It has been held in Gajanan Krishnaji Bapat
vs.Dattaji Raghobaji Megha JT 1995 (5) SC 410 that the election petitioner is
also obliged to disclose his source of information in respect of the commission
of the corrupt practice so as to bind him to the charge levelled by him and to
prevent any fishing or roving enquiry, also to prevent the returned candidate
from being taken by surprise.
In Sri Harasingh Charan Mohanty vs. Surendra
Mohanty AIR 1974 SC 47, this Court has held:
In order to establish a corrupt practice
under the above provisions the petitioner must prove - (I) For the purposes of
corrupt practice under sub- s.(3) of S.123 of the Act that the statement is an
appeal to the religious symbol and has been made (a) for the furtherance of the
prospects of the election of that candidate; or (b) for prejudicially affecting
the election of any candidate; and (II) For the purposes of corrupt practice
under sub- s.(4) of S.123 of the Act that the publication of a statement of
fact is by (a) the candidate,or (b) his agent, or (c) any other person with the
consent of the candidate or his election agent; (d) that the statement is false
and the candidate believes it to be false or does not believe it to be true;
(e) that it relates to personal character or conduct of a candidate; and (f)
that the statement is reasonably calculated to prejudice the prospects of the
candidate's election. The word `agent' under the Explanation to S.123 of the
Act includes an election agent, a polling agent and any person who is held to
have acted as an agent in connection with the election with the consent of the
candidate. If the corrupt practice is committed by the returned candidate or
his election agent, under S. 100 (1) (b) of the Act the election is void
without any further condition being fulfilled. But if the petitioner relies on a
corrupt practice committed by any agent other than an election agent, the
petitioner must prove that it was committed by him with his consent or with the
consent of his election agent.
In the case of Sri Harasingh Charan Mohanty's
case (supra) the court quoted and followed the following statement of law from
Samant N. Balkrishna vs. George Fernandez AIR 1969 SC 1201 while dealing with
different burdens of proof as to whether an offending statement was made by the
candidate himself or by his agent other than an election agent:- " There
are many kinds of corrupt practices according as to who commits them. The first
class consists of corrupt practices committed by the candidate or his election
agent or any other person with the consent of the candidate or his election
agent. These, if established, avoid the election without any further condition
being fulfilled. Then there is the corrupt practice committed by an agent other
than an election agent. Here an additional fact has to be proved that the
result of the election was materially affected. We may attempt to put the same
matter in easily understandable language. The petitioner may prove a corrupt
practice by the candidate himself or his election agent, or someone with the
consent of the candidate or his election agent, in which case he need not
establish what the result of the election would have been without the corrupt
practice. The expression "Any other person" in this part will include
an agent other than an election agent. This is clear from a special provision
later in the section about an agent other than an election agent." With so
much statement of law, we now proceed to deal with each of the three
publications.
Re: Daily Sanchar dated 31.1.1995 Ext. `A':-
Vide para 9 of election petition, the respondent has averred that the appellant
and with his consent his agents and workers have got published in the local
newspapers, having circulation in Latur constituency i.e. Daily Sanchar a
special article of Raja Mane, a report dated 31.1.95. The respondent has not
named the alleged agents and workers where the local newspaper carrying the
impugned publication is said to have been distributed. Names of even a few
persons by way of illustration to whom the newspaper might have been delivered
are not given.
The averments made in para 9 of the election
petition have been verified as " based on information received by me from
the persons and newspapers mentioned in the said paras which I believe to be
true". Para 9 does not mention name of any person; only the name of
newspaper is given. In the affidavit filed in support of the petition, vide
para 2 the said article has been stated to have been contributed by Raja Mane
who is a special reporter for Latur district.
Thus, so far as, the contents of the election
petition, verification thereon and the supporting affidavit are concerned, the
only person who would speak in support of the averments is indicated to be Raja
Mane and none else.
Needless to say, the averments in this regard
are not claimed by the respondent to be based on his personal knowledge.
Raja Mane has appeared in the witness box as
PW 2. In the examination-in-chief itself he has stated that the article was his
own creation based on the discussions which were going on in the constituency
about the word `MAMULI'.
He has further stated - "the very object
in writing this article was that I felt that the campaign in elections should
not be on the basis of communal footing and the constituency and the voters
should not adopt such culture".
Raja Mane was neither an election agent nor
an agent of the respondent. He was "any other person" a charge of
corrupt practice by reference to sub section (4) of Section 123 of the RPA
cannot be said to have been brought home to the respondent unless it was proved
that the said publication was with the consent of the candidate i.e. the
appellant or his election agent. There is no evidence adduced in this regard.
Thus the appellant cannot be connected with the publication in Daily Sanchar
dated 31.1.1995.
Shri V.A. Mohta, the learned senior counsel
for the appellant has submitted that the contents of the publication Ext. `A'
do not even prima-facie make out a case of corrupt practice. There is no
reference to either of the two candidates in the publication. There is no
`appeal' as such to vote or refrain from voting for any person on the ground of
his religion, race, caste, community or language as such.On the contrary, the
article condemned the activity or tendency on the part of any person to use
caste/community formulas/equations in the election. The charge of corrupt
practice against the appellant in this regard cannot be said to have been made
out even prima facie.
Re: Daily Jan Jagar dated 25.1.1995 Ext. `B'
:- Vide para 10 of the election petition Prof. Mohan Kamble, the editor of
Daily Jan Jagar has been alleged to be an "active canvasser" of
appellant "during election process". It is also alleged that "
the said publication by Mr. Mohan Kamble is with the consent of the respondent
(i.e. the appellant before us) for the furtherance of his election prospect and
for prejudicially affecting the election of the petitioner (i.e. the respondent
before us) ." Prof. Mohan Kamble was not an election agent of the
appellant. An inference as to Prof. Mohan Kamble being agent of the appellant
is supposed to be drawn from the allegation that he was an active canvasser of
the appellant during election process.
The averment so made in the election petition
is verified " on information received by me from the persons and
newspapers mentioned in the said paras" and believed to be true. Vide para
3 of the affidavit filed in support of the election petition, it is again
stated that the publisher was "active canvasser of respondent during
election campaign" and that "the said publication by Mr. Mohan Kamble
is with the consent of the respondent for furtherance of his election prospect
and for prejudicially affecting the election of me". The respondent does
not claim the averment made in this regard to be based on his personal
knowledge.
The pleadings, the verification and the
affidavit give an indication only of Prof. Mohan Kamble being the person who
would substantiate the averments made in the petition.
Prof. Mohan Kamble has not been examined in
the court.
There is no other evidence, muchless satisfactory
evidence, available on record to hold that Prof. Mohan Kamble was an active
canvasser of the appellant as alleged in the petition. Vide para 11 of the
election petition, it is alleged that after the election a public meeting was
addressed by the respondent on 20.2.1995 at Town Hall Latur.
From what the appellant spoke at the public
meeting some link between the appellant and the two reportings Ext.`A' and
Ext.`B' was sought to be established. The petition itself alleges the
proceedings of the meeting having been video recorded on a cassette by Madhav
Pachare. The said video recording has not been produced in the court. When the
best evidence available in respect of the issue has been withheld, an adverse
inference has to be drawn and the issue cannot be held to have been proved.
In Manohar Joshi vs. Nitin Bhaurao Patil and
another (1996) 1 SCC 169, this court noticed the distinction between clause (b)
of sub-section (1) of sub -clause (ii) of clause (d) of sub section (1) of
Section 100 of the RPA and stated that under the former provision the
commission of any corrupt practice by a returned candidate or his election
agent or by any other person with the consent of a returned candidate or his
election agent by itself is sufficient to declare the election to be void;
while under the later provision the commission of any corrupt practice in the
interests of the returned candidate by an agent other than his election agent
(without the further requirement of the ingredient of consent of a returned
candidate or his election agent) is a ground for declaring the election to be
void only when it is further pleaded and proved that the result of the election
insofar as it concerns a returned candidate has been materially affected. It
was further held:- "Even if the acknowledged leaders of a party have
committed any corrupt practice which results in benefit to the returned
candidate then on proof of the benefit having materially affected the election
result in favour of the candidate, his election would be set aside on the
ground under Section 100(1)(d)(ii)of the R.P.Act. There is thus no occasion to
read into the ground in Section 100 (1)(b) or the definition of "corrupt
practice" the implied consent of the candidate for any act done by a
leader of that party to dispense with a clear pleading and proof of the
candidate's or his election agent's consent as a constituent part of the
corrupt practice for the ground under Section 100 (1)(b) of the R.P. Act."
"Whenever the requirement is of consent, it must be free consent given by
the giver of the consent, of his own volition. Ordinarily, it also implies a
subservient role of the person to whom consent is given and the authority of
the giver of the consent to control the actions of the agent.
It is difficult to ascribe to an acknowledged
leader of the party a role subservient to the candidate set up by that party
inasmuch as the candidate is ordinarily in no position to control the actions
of his leader. However, if even without giving his consent, the candidate has
received benefit from the leader's act in a manner which materially affects his
election favourably, on pleading and proof of such material effect on the
election, the candidate's election is liable to be set aside on the ground
under Section 100 (1)(d)(ii) unless, as provided in sub-section (2) of Section
100 he further discharges the onus placed upon him that in spite of his
opposition and taking due precautions that act had been committed for which he
cannot be responsible." The court observed that in the of pleadings it
would not suffice to merely repeat the language of the statutory provision in
the pleadings; material facts have to be pleaded. General averments suffering
from deficiency of requisite pleading of all the constituent parts of the
corrupt practice would not constitute a pleading of the full cause of action
and shall have to be ignored and struck out in accordance with order 6 rule 16
of the CPC.
Singh - (1996) 1 SCC 206 a leader of the
political party to which the respondent returned candidate belonged addressed a
meeting during the election in which the said leader made some statements on
ground of religion amounting to corrupt practice under Sections 123(3) and (3A)
of RPA. The returned candidate was alleged to be present at the time of speech
by the said leader and he had also invited and welcomed the political leader at
the meeting. It was held that an inference as to implied consent of the
returned candidate to the contents of the speech by the leader of the Singh
Jodh Singh Kohli - (1996) 1 SCC 378 it was held that the leader of the
political party to which the candidate belongs was not an election agent of the
candidate. Implied consent of the candidate to the speeches made by such leader
could not be inferred. The factum of consent of the candidate or his election
agent had to be specifically pleaded and proved. So is the view taken in
Moreshwar Save Constitution Bench has drawn a distinction between the concepts
of `connivance' and `consent'. The two cannot be equated. It has been held that
connivance may in certain situations amount to consent but consent implies that
parties are ad idem.
In the case at hand, there are neither facts
alleged nor any evidence adduced wherefrom an inference as to agency of Mohan
Kamble or his having acted with the consent of appellant could be drawn.
Section 100 (1) (b) is not therefore attracted. There are no averments nor
evidence attracting applicability of Section 100 (1)(d)(ii) and to hold the
corrupt practice having been committed in the interest of the returned
candidate and consequent thereupon the result of the election having been
materially affected.
The up-shot of the above said infirmities in
the pleadings and the evidence is that the charge of corrupt practice by
reference to the reporting in Daily Jan Jagar dated 25.1.1995 Ext.`B' can also
not be said to have been proved against the appellant as required by law.
Re: Reporting in Weekly `LAWALAVI' dated
5.2.1995 Ext.`C':- Dr. A.M. Singhvi, the learned senior counsel for the
respondent assisted by Shri A.M. Khanwilkar advocate has during the course of
hearing heavily laid emphasis on the findings recorded by the learned
designated Election Judge as regards the corrupt practice committed by the
appellant referable to publication Ext. `C' and submitted that even if the
alleged corrupt practices referable to two documents Ext. `A' and Ext `B' were
not proved, the charge of corrupt practice referable to publication Ext. `C'
was certainly made out beyond any shadow of doubt against the appellant and all
the ingredients contemplated by sub sections (3A) and (4) of Section 123 of RPA
were also made out. Dr. Singhvi submitted that very title of the article was -
"unhuman attack on muslims". The contents suggested old aged and
helpless members of the muslim family having been brutally attacked. The
modesty of female members of a muslim family was alleged to have been violated.
Such allegations were aimed at promoting feelings of enmity or hatred against
the respondent (who is a non-muslim) in the minds of muslim population of
voters. The preparators of the criminal assault were referred to as the father
of the respondent and his relations. Thus, the publication was aimed at
prejudicially affecting the election of the respondent. The contents were
partly false as also highly exaggerated. The incident was of December, 1994
published in the issue dated 5.2.1995 of Weekly `LAWALAVI' and widely
circulated soon after publication. The date of publication strategically
preceded the date of polling i.e. 9.2.1995 which was just three days hence.
Ample evidence has been adduced proving the factum of publication and
circulation of the weekly newspaper in the Latur constituency. Thus, charge of
corrupt practice atleast by reference to Ext.`C' was undoubtedly brought home
to the appellant.
The respondent's case as regards Ext.`C' is
set out in para 12 of the election petition. The verification states the
contents of para 12 were based on "information received" by the
appellant from the persons and newspapers mentioned therein. The only name
mentioned in this para 12 is of Prof. M.B. Pathan and the newspaper mentioned
is obviously `LAWALAVI'. In the affidavit filed in support of the petition,
vide para 5, it is stated that Prof. M.B. Pathan, editor of weekly `LAWALAVI'
was an active worker, during the election campaign, and supporter of the
appellant. The oral evidence adduced in this regard consists of the statements
of the respondent himself (PW1) and Mahboob Khan Pathan (PW 3). In rebuttal,
there is the testimony of the appellant Pradeep Patil (DW 2) and Jagdish
Suryavanshi, a legal practioner (DW 4).
As already stated, the respondent Vilasrao
Deshmukh has not claimed any personal knowledge about the publication Ext.`C'
though he did state that the contents were false, highly exaggerated and
motivated with the idea of assassinating his character. He also stated that
M.B.
Pathan was an active campaigner for the
appellant though he has not given any particulars or such facts based whereon
the court could draw an inference that M.B. Pathan was an active campaigner for
the appellant.
Mahboob Khan (PW 3) stated that he was a
professor and also proprietor and editor of Weekly `LAWALAVI'. As to the source
of information by which he prepared the article, he has stated that he had
visited the office of Janta Dal where the officers of the Janta Dal were
discussing the matter.
He heard the story and prepared his notes. On
reaching home he put down the story in a narrative form. He also stated that
the contents of his writing were true and correct. He was specifically asked if
he had obtained anybody's consent for the publication ? His reply was that the
question did not arise "because it was already discussed with the
candidate and other workers". In the later part of cross-examination, the
witness stated that he was not sure if the contents of his writing published on
5.2.1995 in Weekly `LAWALAVI' were the same facts as were told to him by Elahi
Pasha Bagwan. Obviously, this part of the statement is false in the light of
the contents of the news item Ext.`C' which itself stated that the reporting
was based on the information collected by personally meeting the Bagwan family.
Pradeep Patil (DW 2) is himself a journalist
and editor of a newspaper "Jan Morcha". He had accompanied M.B. Pathan
when the latter was collecting information about the incident. The inference
which flows from the testimony of this witness is that M.B. Pathan had taken
care to ascertain the correctness of the facts narrated in the news item and
then only he had made the reporting.
A criminal complaint appears to have been
filed in the court relating to the incident referred to in the news item
Ext.`C'. The counsel for the complainant was .pl80 the witness Jagdish
Suryavanshi (DW 4). He has stated that what was published in the newspaper was
similar to the facts stated in the complaint which was filed by Elahi Pasha
through this witness.
It is clear from the evaluation of the
evidence adduced by the parties that the contents of the news item were
substantially correct. They were based on the information collected by M.B.
Pathan from the various witnesses specially members of Bagwan family. The
version of the witness M.B. Pathan that the reporting was based on the
information gathered from the talks which were going on in the office of Janta
Dal whereat the appellant was also present does not appear to be correct. Such
evidence is also liable to the excluded from consideration because such is not
the case set out in the election petition. The incident had formed subject
matter of a criminal prosecution. The complainant had set out his version in
the criminal complaint filed before a criminal court and the contents of the
news item were substantially the same as set out in the criminal complaint.
Neither the respondent has stated in his deposition nor was it suggested to the
appellant during his cross-examination that the contents of the publication
were false and believed to be false or not believed to be true by the
appellant. The ingredients of sub section (4) of Section 123 of the RPA were
therefore not satisfied. Though truth is no .pa defence under sub-section (3-A)
of Section 123 if the impugned activity has the requisite consequence as its
result, but Prof. M.B. Pathan is not proved to have made publication with the
consent of the appellant or his election agent.
On the material available on the record, an
inference as to the publication having been made with the consent of the
appellant cannot at all be drawn merely because Mahboob Khan Pathan has been
alleged to be canvasser of the appellant. As we have already pointed out, from
the statement of Mahboob Khan Pathan (PW 3) himself, it is clear that he as
journalist and owner of a newspaper, was, of his own, collecting information
relating to the incident covered by Ext.`C'. Having collected the facts, also
having verified the correctness thereof, he of his own wrote out the facts
collected in a narrative form so as to give it the shape of newsreport and then
published the same in his newspaper. The publication was neither sponsored by
nor made with the express consent of the appellant. There are no facts and
circumstances brought on record to draw an inference as to existence of even
implied consent of the appellant in the publication. No evidence has been
adduced to prove how many copies of `LAWALAVI' and on which date to whom and by
whom were distributed.
A careful appraisal of the evidence shows
that the respondent has failed to establish the charge of corrupt .pa practice
against the appellant. The judgment has proceeded more on "assumptions"
and "surmises" than on any established facts. For the foregoing
reasons we are of the opinion that the High Court was not right in holding the
issues numbers 6 to 15 proved. The High Court was also not right in holding
that the petition did not suffer from the infirmity of non- compliance with
Rule 94 A read with Form 25 of the Conduct of Election Rules. In fact, a
substantial part of the allegations made in the election petition could not and
should not have been put to trial at all on account of such non-compliance. The
findings of the High Court on all the issues i.e. issue no. 3 and issues
numbers 6 to 15 being erroneous are hereby set aside. The appeal is allowed.
The election petition filed by the respondent is directed to be dismissed with
costs throughout. The costs incurred in this court are quantified at
Rs.10,000/-.
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