H. Suresh, J.@mdashThe petitioner Sharad Rao, a Member of the party of Janata Dal contested election to 42, Goregaon Legislative Assembly Constituency, held on February 27, 1990. Respondent No. 1, Subhash Desai, a Shiv-Sena Member, contested in the same constituency against the petitioner. Respondent No. 1 was declared as elected. There were other candidates from other parties who have all been made parties to the petition. The petitioner has filed this petition to set aside the election of respondent No. 1 on the ground of certain corrupt practices as provided under the representation of the People Act, 1951 (hereinafter referred to as the Act, 1951). The charges are u/s 123(1), bribery, by way of gift of various articles to the voters 123(3), appeal by respondent No. 1 or his agent or any other person with his consent to vote or refrain from voting on the ground of religion or community 123(3-A), promotion of or attempt to promote feelings of enmity or hatred between different classes of the citizens of India on ground of religion, race, caste, community, or language, 123(40, by the publication of a false statement in relation to the character or conduct of the petitioner with a view to prejudice the prospects of his election. In addition to the above, the petitioner has also alleged that thee has been an improper reception of votes which were void and by non-compliance with the provisions of the Constitution or of the said Act of 1951 or of any of the rules or orders made under the Act as provided u/s 100(1)(d)(iii) and (iv).
2. Broadly, the facts as alleged in the petition are as follows : I will deal with the details of the pleadings as and when each issue is taken up. The allegation in the petition is that the elections to the Legislative Assembly of Maharashtra were declared on January 18, 1990. The last date for filing nominations was February 3, 1990. The last date for the scrutiny of the nominations was February 5, 1990. February 7, 1990, was the last date for withdrawal of candidature and the polling was fixed for February 27, 1990, and the results were declared on March 1, 1990.
3. The petitioner''s case is that earlier there was a Parliamentary election for the Loksabha which took place on November 24, 1989. Prior to the election to the Loksabha, draft Election Roll of the North Bombay Parliamentary constituency including 42, Goregaon Legislative Assembly constituency was published. There were 1,67,209 voters in the said goregaon constituency. The petitioner noticed that 38,000 voters were added to the said Draft Roll before the elections for the Loksabha. For the Assembly elections this final roll of the Loksabha was treated as a draft roll and that was published on or about December 17, 1989. Thereafter January 2, 1990, was fixed as the last date for receiving additional applications for enrolment of voters in the electoral roll. The last date for filing objections was January 9, 1990. After scrutiny the final roll was to be published on January 15, 1990. It is the petitioner''s case that he noticed between December 17, 1989, and January 2, 1990, about 12,000 new applicants had filed their applications for enrolment as voters. The petitioner thought that this was too large a number to be included within such a short span of about fifteen days, particularly because there had already been 38,000 new names entered into the earlier roll just before the Loksabha elections. The petitioner learnt by about January 9, 1990, that many of these applications were not genuine applications. The petitioner and his election agent Mr. Krishnanath Nevrekar made enquiries and collected sufficient material to show that these applicants were bogus applicants and that, therefore, their names could not have been entered in the final roll. However, by January 15, 1990, one Mr. D.U. Peera, the electoral registration officer, finalised the roll and added about 11,057 new names in the final roll. The petitioner, therefore, complained about it to the concerned authorities. After considerable correspondence and meeting the concerned authorities, since there was no sufficient response from the officers concerned, the petitioner was advised to file a writ petition in this High Court being Writ Petition No. 260 of 1990, against the electoral officers and the State of Maharashtra. This was filed on January 24, 1990. The petitioner alleged that the additional voters were all bogus voters and they were all included in the final roll at the instance of Shiv-Sena and respondent No. 1 and that the officers were linked with Shiv-Sena. The petition was posted for admission on January 30, 1990. On that day a statement was made on behalf of the respondents and the officers that they would scrutinise the list of bogus voters submitted by the petitioner and that the same would be done within the constraints of time inasmuch as the date for filing nominations was February 3, 1990. This was on February 1, 1990, and on the said statement, the petition was disposed of. The petitioner had a given a list of 5,002 bogus voters to the officers and the said list was taken on record by the High Court. It appears that the officers in all deleted 2,293 names. The petitioner referred to various documents in support of this contention that many of the applicants were not existing at the addresses given in their applications. He has also given various discrepancies in the application forms and illegalities perpetrated by the officers concerned. I must mention that initially as the petition was filed, the officers were all made parties to this petition as respondents Nos. 11 to 15. However, later on, on an application made by the officers that they could not be impleaded as party-respondents in an election petition, their names were deleted. However, at that point of time I had made it clear to the parties that if necessary the officers could be called as Court-witnesses. Accordingly later on, two of the officers viz., Dawoodbhai Usman Peera, Assistant Registration Officer (C.W. No. 1), and Gangaram Raghunath Nachankar, Registration Officer (C.W. No. 2), have been examined as Court-witnesses. The petitioner says, out of these remaining additional voters about two thousand and odd voters have cast their voters at the time of the election. The petitioner''s case is that those persons could to have been allowed to cast their votes. The petitioner lost the election by a narrow margin. Respondent No. 1 secured 47,021 votes while the petitioner who stood second secured 46,426 votes, the margin being of only 595 votes. The petitioner submits that by virtue of this improper reception of votes, he was prejudicially affected.
4. On the other charges, broadly, the allegations are that there has been an election alliance in the State of Maharashtra between the B.J.P. and Shiv-Sena about June 1989. The said alliance contested the Parliamentary elections. The B.J.P. has intimate association with Vishwa Hindu Parishad (hereinafter referred to as the "V.H.P.") and Rashtriya Swayamsevak Sangh (hereinafter referred to as the "R.S.S."), the organisations, both propagating the cause of Hindutva. The petitioner also says that many of the office-bearers of the V.H.P. and R.S.S. are common. These organisations used Hinduism and their plan of replacement of three Masjids at Ayodhya, Mathura and Varanasi by erection of Hindu temples of Shree Ram, Shree Krishna and Shree Shankar respectively.
5. In this connection, the petitioner refers to a general background of the political situation in the country, such as the problem that had cropped up in States like Jammu & Kashmir and Punjab etc. He also refers to Ram Janambhoomi and Babari Masjid issue and how parties like the B.J.P. and Shiv-Sena and organisations like the V.H.P. have exploited these political situations. In that connection he refers to the election that took place in the Vile-Parle constitutency on December 31, 1987, when one Dr. Ramesh Prabhoo of Shiv-Sena contested the election and appealed to the voters in the name of Hindu religion and succeeded. This election was challenged by one Mr. Prabhakar Kunte, Congress (I) candidate, by filing Election Petition No. 1 of 1988. By a judgment and order dated April 7, 1989, this Court set aside the election of Mr. Prabhoo on the ground that he had committed corrupt practices within the meaning of section 123(3) and 123(3A) of the Act of 1951. The notice u/s 99 was also issued to Bal Thackery, the supreme leader of Shiv-Sena, to show cause as to why he should not be named as having committed corrupt practice as provided under the said Act. After a prolonged trial, he was also named for having committed the corrupt practices in the said election. As against the said judgment and order the matter has been taken to the Supreme Court in appeal and it appears that the same is still pending.
6. The petitioners says that despite this judgment the said alliance of B.J.P. and Shiv-Sena fought elections of Loksabha on the common plank of Hindutva. The leaders of the said alliance addressed various public meetings prior to the said election to the Loksabha. There was a meeting on October 10, 1989, at 6.30 p.m. at Shivaji Park, Dadar, Bombay, when Bal Thackery announced that the said alliance would fight the ninth Loksabha elections on the common plank of Hinduism/Hindutva/ Hindu Religion. He also announced that the said alliance would continue to fight elections on the same plank even in the elections to be held in February/March 1990. The speech of Bal Thackery and other leaders was reported in the Marathi Daily "Samna" the mouth-piece of Shiv-Sena, on October 11, 1989. During this period Bal Thackery and other leaders made various statements. The petitioner refers to an interview given by Bal Thackery to a journalist called Janardhan Thakur which came to be published in an English fortnightly "On looker" on September 30, 1989. The interview that was given to "On looker" was also published in the Marathi Daily "Samna" on October 18, 1989, and these reports clearly spell out the plank of Hindutva as canvassed by the said B.J.P. Shiv-Sena alliance. There was also a meeting on November 5, 1989, at Girgaum Chowpaty, where again appeal was made on the same plank and the proceedings of the said meeting were reported in "Samna" on the next day. As a result of these appeals in the general election for the Loksabha, four Shiv-Sena candidates and ten candidates of the B.J.P. were declared elected. This was celebrated ion a victory rally on December 3, 1989, held at Shivaji Park where again Bal Thackery acknowledged the success due to the appeal to the voters on the basis of Hindutva.
7. It appears that in Goregaon constituency there was a certain incident in the month of September 1989. The incident relates to the immersion of the idol of Ganapati. The allegation is that there was a Muslim Police Sub-Inspector by name Iqbal Bhargir who had attacked and confiscated the loud speaker used by Ganesh Utsav Mandal of one Baba Singh at Bansari Hill, near Malad Police station. This was done by the said Police Officer at the instance of the local residents. However, this was taken advantage of by respondent No. 1 and the whole incident was converted into Hindu-Muslim controversy, as a result of which, the respondent and the said two parties viz. B.J.P. and Shiv-Sena and the said Baba Singh refused to immerse the Ganapati idol till the said Police Officer was suspended. In this connection there was a meeting held at Siddharth Nagar, Goregaon, in the evening of October 15, 1989. In that meeting the respondent, one Pramod Mahajan, Secretary of the Maharashtra Unit of B.J.P., one Mrs. Jayawantiben Mehta, one of the candidates, were present. Bal Thackery and others addressed the audience and asserted that the B.J.P. Shiv-Sena alliance will never to lead the insult to Hindus. The proceedings of the meeting were reported in the Marathi Daily "Samna" on October 16, 1989. Thereafter during the present campaign there was another incident relating to the festival of Ganesh. It appears that there is a Trust known as Shri Shankalpa Siddhi Ganesh Mandir Trust in Goregaon which has set up an idol of Ganesh in a temple. The sixth anniversary of the temple was celebrated on February 13, and 14, 1990. The trustees had arranged several religious programmes on this occasion. On February 14, 1990, between 11 a.m. and 3 p.m. there was a programme of Mahaprasad (Sahasra Bhojan) and the trustees had invited thousands of residents and prominent citizens of Goregaon for these celebrations. The petitioner and Mr. Nevrekar (petitioner''s election agent) and about fifty party workers had attended the festival and they had also taken the food i.e. Mahaprasad. No untowardly incident had taken place at that time. However, in the Marathi Daily "Samna" dated February 15, 1990, a nes item appeared under the heading misbehavior of Musclemen of the ''Green'' Janata Dal at the function of Mahaprasad of Shri Ganesh at Goregaon". The report alleges that the Janata Dal workers created havoc in the function and shouted slogans of "Allah Ho Akbar" and that this had agitated the feelings of devotees of Ganesh. The petitioner says that it was an attempt to create a communal division between Hindus and Muslims and this was done for prejudicially affecting the election of the petitioner and for promoting the prospects of election of respondent No. 1 on the ground of religion. Mr. Nevrekar by a letter dated February 17, 1990, wrote to the Editor of Marathi Daily "Damna" and stated that the entire report was false and called on him to publish the said letter, but instead, they published a small explanation by the Chairman of the Reception Committee. The petitioner says, this is a publication of statement of fact which is false of the knowledge of respondent No. 1 and this was done with a view to margin the petitioner in the minds of the voters.
8. The petitioner further says that during this election-campaign respondent No. 1 and Shiv-Sena have produced a video cassette called "Avhan Ani Awahan". The said cassette contains various speeches of Bal Thackery. It also contains various other statements relating to their appeal on the ground of Hindutva. It is the case of the petitioner that this video cassette was shown at a number of places and this was one of the important modes of canvassing for the votes.
9. The petitioner says that there was a public meeting at Girgaum Chowpaty on January 29, 1990, where all the candidates of the B.J.P. Shiv-Sena alliance were introduced to public by Bal Thackery and other leaders. It was declared in the said meeting by Bal Thackery and other leaders that the alliance was fighting the election on the plank of Hindutva. The proceedings of the said meeting were reported in the "Times of India" dated January 30, 1990, and also in other newspapers such as "Samna", "Loksatta", "Navshakti" etc. The petitioner has also set out briefly the offending parts of the speech made by Bal Thackery in para 59 of the petition, with which I will deal, if necessary, at a later stage. Similarly, the petitioner also refers to a public meeting held at Shivaji Park, Dadar, on February 24, 1990, wherein again it was reiterated by Bal Thackery that the said alliance was contesting the election in the name of Hindutva. All the newspapers carried the detailed reports of the said meeting in the issues published on February 25, 1990, and February 26, 1990. Wide publicity was given to the speeches made by Bal Thackery and other leaders appealing to the voters to vote on the ground of Hindutva. It is the case of the petitioner that this has affected the prospects o the petitioner''s election.
10. The petitioner also refers to certain other speeches made by Bal Thackery even outside the city of Bombay inasmuch as the speeches were reported in Marathi Daily "Samna" and the said reports were put up on the public-boards at number of places in the said constituency. The petitioner also alleges that number of posters has been put up at number of places containing offending statements all canvassing on the basis of an appeal to the voters on the ground of Hindutva or Hindu religion.
11. The petitioner, in addition to these corrupt practices and improper reception of void votes, also alleges that while counting was done there were malpractices on the part of the officers concerned. According to the petitioner the ballot-papers were bundled separately on the basis of the votes cast for each of the candidates. Thereafter each of the group of the ballot-papers was bundled into a bundle of fifty ballot-papers. however, as far as the petitioner was concerned, though some of the bundles contained more than fifty ballot-papers, they were counted as fifty only while some of the bundles containing votes in favour of respondent No. 1, though they contained less than fifty ballot-papers they were counted as fifty ballot-papers. It is in this manner the counting was faulty and if properly counted, the petitioner says, that he should get more number of votes than the voters cast in favour of respondent No. 1. This is broadly the sum and substance of the petition filed by the petitioner.
12. Respondent No. 1 has filed a written statement and an additional written statement. He admits that there was such an alliance but he denies the various allegations made against him and the said alliance by petitioner. He further submits that all the events that had taken place prior to the election period, (that is from the date of nomination upto the date of election) are relevant and cannot be looked into.
13. However, on the ground of improper reception of votes respondent No. 1 denies and states that the allegations are false, and respondent No. 1 or the Shiv-Sena has nothing to do with any alleged enrolment of bogus voters. He submits that the issue raised in the petition relating to proper or improper publication of final electoral roll is barred by res judicata or principles analogous to res judicata by virtue of the judgment and order dated February 1, 1990 given in Writ Petition No. 260 of 1990. He further submits that in Writ Petition No. 260 of 1990, the petitioner had agreed and represented that he would make no grievance about the genuineness of the electoral roll. He says that this respondent acted on such representations of the petitioner and accepted the roll as prepared by original respondent Nos. 11 to 15, as proper and valid, and contested the election. Respondent No. 1, therefore, submits that the petitioner is estopped from contending that the electoral roll is not valid. In any event, he submits, it is not open to the petitioner to raise the said issue in this petition inasmuch as he ought to have exhausted the remedies as provided under the representation of the People Act, 1950 (hereinafter referred to as "the Act of 1950"), and having failed to do so, electoral roll becomes final and cannot be questioned in an election petition.
14. On the allegation that V.H.P. and R.S.S. were supporters of the B.J.P. Shiv-Sena alliance, respondent No . 1 denies that these organisations have any association with Shiv-Sena party or B.J.P. as alleged. He also denies that the B.J.P. Shiv-Sena alliance at any time propounded the cause of Hinduism as their goal for the election. He further denies that Shiv-Sena and/or B.J.P. have used Hinduism and/or the alleged plan of replacement of Masjid by erection of Hindu temple at Mathura, Ayodhya and Varanasi as their issues in the election. He denies that any boards were put up either by him or by any person authorised by him or by any person with his consent or knowledge or with the consent or knowledge of his election agent. He denies that Marathi Daily "Samna" is a mouth-piece of Shiv-Sena. He admits that Bal Thackery is its Editor and this respondent is its printer and publisher. However, he says that it is an independent newspaper He says that he is not aware and, therefore, he does not admit that the petitioner or Mr. Nevrekar or any of their workers attended the said function organised by Shri Sankalpa sidhi Ganesh Mandir Trust at Goregaon on February 14, 1990. However, he admits that he published the said news item on the next day. But, he also says that the said report was not in any manner perverted and/or incriminatory as alleged. He published the same in good faith. He denies that he got any letter from Mr. Nevrekar either on February 17, 1990, and/or on any other date. He also says that the said letter was never received by the Editor of the news paper "Samna" or by any person working in the office of the said news paper. He further denies the rest of the allegations that the said news item was published to black mail the petitioner and/or his party Janata Dal as alleged, or with a view to create communal division between Hindus and Muslims or for the of prejudicially affecting the prospects of the election of the petitioner.
15. As regards the incident relating to immersion of the idol of Ganesh, he only denies that the alleged incident was sought to be exploited or capitalised as alleged by the petitioner. According to him the entire allegation is irrelevant. He says that the speeches made in that connection as mentioned in the petition, are wholly irrelevant.
16. As regards the allegation of canvassing on the basis of Hindutva, respondent No. 1 admits all those meetings but he denies that he was present in any of those meetings. He denies that he was present in the meeting held on January 29, 1990. As regards the election of Dr. Ramesh Prabhoo he denies that Shiv-Sena or any of its candidate had campaigned in the Vile-Parle constitutency in the name of Hindu religion. As regards the meeting held in the month of October 1989 as also in the month of November 1989, he denies that Shiv-Sena B.J.P. alliance had put forth any appeal on the basis of the cause of Hinduism as alleged. As regards the allegation that the portions of speeches delivered by Bal Thackeray have been incorporated in a video cassette called "Avhan Ani Awahan" and that these cassettes were displayed in the constituency in question, the respondent only says that he is not aware and, therefore, does not admit the allegations made by the petitioner. In other words, there is no categorical denial, in the written statement, of the existence of such a cassette.
17. Though, respondent No. 1 has denied that Shiv-Sena and/or B.J.P. appealed on the ground of Hindu religion, he emphatically states that Shiv-Sena B.J.P. refer the word "Hindu" to every Indian who is loyal to this country and the words Hindutva and/or Hinduism, therefore, mean nationalism, and this stand has been repeatedly mentioned by various leaders of Shiv-Sena B.J.P. during the election. Rest is all denial of the various allegations made as against respondent No. 1.
18. The allegation with regard to counting of votes as made by the petitioner has also been categorically denied. He has categorically denied that he has committed any corrupt practice as alleged by the petitioner.
19. In the supplementary written statement, apart from various other contentions, respondent No. 1 has contended that section 123(3) of the Act of 1951 to the extent it envisages or lays down that if a candidate appeals to the electorate or voters to vote for him and not to vote for any other candidate on the ground of religion, is ultra vires being contrary to or infringing the provisions of Article 25 of the Constitution of India. I has also been stated in the said supplementary written statement that at the time of registration of Shiv-Sena as political party it had declared its allegiance to the Constitution of India and its faith in democracy, secularism and socialism. It is, therefore, contended that the petitioner is not entitled to contended that the Shiv-Sena does not believe in democracy, socialism or secularism, or that the programmes of the party promote or attempt to promote communal hatred and/or enmity between different classes of people on the ground of religion, caste, creed etc.
20. Some time in September 1990, respondent No. took out a Chamber Summons No. 925 of 1990 for dismissing this petition by reason of the failure of the petitioner to comply with the requirements of sections 81 and 83 of the Act of 1951 and also to strike out certain paragraphs under Order 6, Rule 16 of the CPC read with section 87 of the Act of 1951. This Chamber Summons was elaborately argued before me along with other similar chamber summonses taken out in other petitions and by my judgment and order dated October 13, 1990, I dismissed all the chamber summonses. One of the contentions which was hotly argued before me was that the petition refers to various events that had taken place much prior to the commencing of the election process of the present election and that, therefore, the same cannot be looked into. I had negatived this contention mainly on the basis that these facts were relevant for the purpose of understanding the allegations u/s 123(3) and 123(3A) of the Act of 1951. It is the contention of the petitioner that there has been a systematic attempt on the part of the B.J.P. Shiv-Sena alliance to project Hindutva as the only saviour for all the ills and disturbances in the country and that all the other parties betrayed Hindu community by pampering other religious minorities and it becomes necessary to form an alliance to defeat those other parties thereby to promote and secure Hindutva. These allegations cannot be understood unless one has the full background as to how these appeals came to be made in the recent years. It was also contended in the said chamber summons that number of allegations lacked material particulars and that, therefore, the petition should be dismissed. I had negatived this contention and observed that if the particulars are not sufficient or they are in-exact, the respondent must say in what manner the particulars are deficient and the respondent can call upon the petitioner to furnish better particulars. It appears, my judgment and order was challenged in the Supreme Court and they were successful in the same. What is relevant here is that as and when the trial began, the respondent proceeded with the trial without asking for any particulars whatsoever from the petitioner.
21. On the basis of these pleadings, the following issues have been framed :
Issues No. 1 : Whether the provisions of section 123(3) of the Representation of People Act, 1951, are ultra vires Article 25 of the Constitution of India ?
Issues No. 2 : Whether by reason of judgment and order dated February 1, 1990, passed in Writ Petition No. 260 of 1990, the petition is barred by res judicata or the principles analogous to res judicata or on the basis of estoppel from raising the issue of finality of Electoral Roll ?
Issues No. 3 : Whether bogus voters were enrolled as alleged in the petition. If so, whether such enrolment was at the instance of the first respondent or his associates ? In any event whether the enrolment of such bogus voters materially affected the results of the election?
Issues No. 4 : Whether the petitioner is entitled to call in question the finality of the Electoral Roll ?
Issues No. 5 : Whether the result of the election has been materially affected by reason of reception of any vote in favour of the first respondent or by the reception of any vote in his favour which is void ?
Issues No. 6 : Whether for the reasons alleged in paras 69 to 73 of the petition, the original thirteenth respondent wrongfully rejected the petitioner''s application for recount of the votes cast at the election ?
Issues No. 7 : Whether the petitioner establishes after deletion of void votes and/or recount of valid votes that, in fact, he received a majority of the valid votes ?
Issues No. 8 : If the answer to Issue No. 5 and/or No. 6 and/or No. 7 is in the affirmative, whether the petitioner is entitled to a recount and to a declaration of the result in accordance with such recount?
Issues No. 9 : Whether the first respondent deliberately published a false, perverted or incriminatory news item in Daily "Samna" on February 15, 1990 (Ex. CC to the petition) for prejudicially affecting the election of the petitioner and for furtherance of the prospects of the first respondent as alleged in paras 50-A, 51 and 52 of the petition ?
Issues No. 10 : Whether the first respondent in good faith published the said news items as alleged in para 70 of the written statement of the first respondent ?
Issues No. 11 : If the answer of Issue No. 9 is in the affirmative and that to No. 10 is in the negative, whether the first respondent is guilty of corrupt practice u/s 123(4) of the Representation of People Act, 1951 ?
Issues No. 12 : Whether the first respondent his election agent or any other agent or any other person with the consent of the first respondent or his election agent distributed ball-pens, match boxes, juries calendars to the electors to induce them to vote for the first respondent ?
Issues No. 13 : If the answer to Issue No. 12 is in the affirmative, whether the first respondent is guilty of corrupt practice u/s 123(1) of the Representation of People Act, 1951?
Issues No. 14 : Whether the first respondent or his election agent or any other agent or any other person with his consent or with the consent of his election agent appealed to vote on the ground of his religion as alleged in the petition and thereby committed any of the corrupt practices as defined in section 123(3) of the Representation of People Act, 1951, as alleged in the petition ?
Issues No. 15 : Whether the first respondent or his election agent or any other agent of the first respondent or any other person with his consent or with the consent of his election agent promoted or attempted to promote feelings of hatred or enmity between two different classes of citizens of India of the ground of religion or community and thereby committed any of the corrupt practices as defined in section 123(3A) of the Representation of People Act, 1951, as alleged in the petition ?
Issues No. 16 : Whether the result of the election of the petitioner was materially affected by reason of any corrupt practice found to have been committed by any agent other than the election agent of the first respondent ?
Issues No. 17 : if the answer of Issue Nos. 11 to 15 is in the affirmative whether the petitioner is entitled to a declaration that he is duly elected in the said election?
Issues No. 18 : Generally what order ?
22. On behalf of the petitioner, the petitioner examined himself. He also examined his election agent, Mr. Krishnanath Ramchandran Nevrekar (P.W. No. 4), Jayant Shankar Jadhav (P.W. No. 2), being the person who recorded and produced the video cassette "Avhan Ani Awahan", Nishikant Ananth Balerao (P.W. No. 6), a Reporter of Marathi Daily "Marathwada", Sitaram Balkrishna Nagarkar (P.W. No. 7), Joint Secretary of V.H.P. in Bombay, Arun Laxman Ghadi (P.W. No. 8), an active worker of Janata Dal working for the petitioner and Mr. Nevrekar, Hamid Adam Haji (P.W. No. 9), Special Executive Magistrate and an active worker of Janata Dal, Narayan Dattatrya Dange (P.W. No. 14), Police Inspector, S.B.I., C.I.D., Bombay, who produced various audio cassettes containing the speeches of Bal Thackery and others, Nitil Prasannakumar Vaida (P.W. No. 24), a journalist from Marathi Daily "Maharashtra Times" and English Daily "Times of India", Prakash Ganesh Akolkar (P.W. No. 25), also a journalist from Marathi Daily "Maharashtra Times", and certain other witnesses, in all 25 witnesses. The respondent examined himself and Ashok Dattatrya Padbidri (R.W. No. 3), Executive Editor of the Marathi Daily "Samna", Bal Dhonde Kudtarkar (R. W. No. 4), the person who spoke for the cassette "Avhan Ani Awahan", and certain other witnesses, in all 8 witnesses. Since the allegations were against the officers of the electoral office and the allegations were serious and neither party was in a position to call those officers as their own witnesses and as requested by both the parties, two officers were examined as Court-witnesses. They were, Dawoodbhai Usman Peera (C.W. No. 1), the Assistant Registration Officer, and Gangaram Raghunath Nachankar (C.W. No. 2), the Deputy Collector and Deputy Election Officer.
Issues No. 1.
23. Mr. Hattangadi, appearing for the first respondent, submitted that section 123(3) of the Act of 1951 to the extent it prohibits appeal to voters on the ground of religion is ultra vires Article 25 of the Constitution of India. He submitted that Article 25 confers freedom of conscience and free profession, practice and propagation of religion. He referred to the Preamble to the Constitution and submitted that it guarantees liberty of thought, expression, belief, faith and worship and, therefore, it must necessarily include propagation of religion. Though ours is a secular State, it cannot be said that ours is irreligious State. He submitted that there is no contradiction between religion and secularism. Under Article 25, the only restrictions as against practice and propagation of religion are public order, morality and public health. It cannot be said that the Act of 1951 pertains to any of these three items. In this connection, he also pointed out that the word "religion" is not defined anywhere. So also the word "propagate" is not defined anywhere. He submitted, if any person believes in any particular religion and he wants to propagate that religion he can do so by appealing to the public. Consequently, he submitted, if such a person wants to stand for an election and he wants to appeal to the voters on the ground of religion itself, a propagation to that effect would be within the scope of Article 25 of the Constitution of India and the same cannot be cortile Right to propagate includes right to canvas on the basis of religion. In this connection he referred to certain statements made by Constituent Assembly Members at the time of drafting of the Constitution and though this article was incorporated for the purpose of guaranteeing freedom of religion for the minorities, it cannot be said that such a protection cannot be had for the majority community also. Article 25 by itself does not restrict the scope of the application of the said article to the minority communities only. It is universal in its application and all persons are equally entitled to freedom of conscience and right to profess, practice and propagate religion.
24. In support of his contention Mr. Hattangadi relied on the case of
"........ there is no fundamental right to convert another person to one''s own religion because if a person purposely undertakes the conversion of another person to his religion as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the "freedom of conscience" guaranteed to all the citizens of the country alike".
The Supreme Court, after referring to the case of
"This Court has given the correct meaning of the articles, and we find no justification for the view that it grants a fundamental right to convert persons to one''s own religion. It has to be appreciated that the freedom of religion enshrined in the article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercise his right in the manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore, be no such thing as a fundamental right to convert any person to one''s own religion".
Mr. Hattangadi has also relied on the case of
25. As against this Mr. Kotwal has drawn my attention to the case of
"There is nothing in this contention. These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament.
The right to stand as a candidate and contest an election is no a common law right. It is a special right created by the statute and can only be exercised on the condition laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. If they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them. We hold that these sections are "intra vires".
Mr. Hattangadi sought to contend that the provisions was upheld on the basis of considerations pertaining to Article 19(1)(a) of the Constitution of India and not on the basis of Article 25 as such. But, I think, Mr. Hattangadi is not right for the simple reason that there is no fundamental right to anyone to stand for election. It is a statutory right. If anyone wants to contest election he must comply with the requirements of the statute. The statute says that he cannot appeal to any voter on the ground of his religion. Despite this prohibition he cannot say that he will still canvas on the ground of his religion. Article 25 itself mentions that it is subject to the "other provisions of this Part", which will at once bring in, Article 19 and Article 14 of the Constitution of India. To propagate religion does not mean to appeal to the voters on the basis of the religion as such. It is always to professes, practices or propagates and propagate one''s tenets of religion., one''s belief in one''s religion. A person always professes, practices or propagates religion by expression. It could be by way of a speech, it could be by way of writing, it could be by way of any other form of speech or expression. Whatever it be. The freedom of one''s speech or expression cannot be in conflict with another person''s freedom of speech and/or expression. Therefore, apart from the fact that freedom of conscience and right to profess, practice and propagate religion can be curtailed on the ground of a public order, morality or public health. It can also be curtailed on the basis of reasonable restrictions as call fall within the scope of Article 19(1)(a) read with Clause (2) of the Constitution of India. In my view, Article 25 cannot be read disjunctively from Article 19. The test is whether the right claimed by the respondent is an integral part of Article 25, or whether it partakes the same basic character under Article 19(1)(a)? If, in reality and in substance, the right claimed is political in its nature, such a right cannot be regarded as included in Article 25. Therefore, looking at the matter from this angle it become simple. It just says that no candidate can bring religion in politics. That is the scope and the meaning of Article 25 read with Article 19(1)(a) of the Constitution of India. While every citizen of India has freedom of conscience to propagate his belief in his religion and practice his religion, he can do so without coming into conflict with another person''s religion. The moment he canvasses and appeals to the voter on the basis of his religion and thereby springs religion into politics, and politics being a concern involving masses of people, any such attempt on the part of the citizen is bound to come in conflict with an equally large number of persons on the other side who hold contrary beliefs, as regards their conscience, religion, beliefs, rights and tenets of their religion, the charge stands indicate. Therefore, section 123(3) or section 123(3-A) of the Act of 1951, (so also section 153-A of the Indian Penal Code), all are reasonable restrictions as against any such indulgence on the part of any citizen, if such a citizen wants to propagate religion through politics. Therefore, looking at the matter in this manner, I find no substance whatsoever in the contention advanced by Mr. Hattangadi on this issue.
Issue Nos. 12 and 13.
26. The charge is u/s 123(1) of the Act of 1951. According to the petitioner, the respondent bribed his voters by distributing certain gifts. The gifts are ball-pens (like Article 1), Calendars (like Article 2), match-boxes (like Article 3) and juries (like Article 4). The allegation is that during the election campaign, respondent No. 1 and his workers distributed these articles. There is no evidence to hold that these articles were manufactured by or on behalf of Shiv-Sena. An attempt was made to lead evidence as to who manufactured the match-boxes through witness-Khushaldas Purushottam Shah (P.W. No. 15). He has not supported the petitioner. There is a suggestion that the said witness and his family members have some fire-cracker shop in Goregaon. The suggestion is that they are the supporters of Shiv-Sena and it was through them the Shiv-Sena placed orders for the manufacture of the match-boxes and thereafter they were distributed amongst the voters. As regards the other articles, there is no evidence whatsoever as to who manufactured them. Respondent No. 1 has categorically denied that he has anything to do with these articles. Assuming that these articles were distributed by respondent No. 1 or his workers, that by itself is not sufficient to hold that respondent No. 1 has bribed the voters. There must be further evidence to hold that respondent No. 1 in turn asked the voters to vote for him as against the gifts he was giving. That evidence is lacking. I therefore, hold that there is no evidence whatsoever in support of the petitioner against the respondent u/s 123(1) of the Act of 1951.
Issue No. 6.
27. Here again, there is no substance in the petitioner''s case. The petitioner''s case is that while the votes were being counted they were sorted out on the basis of the votes cast in favour of each of the contesting candidate. Thereafter, they were all bundled in groups of fifty ballot papers each. The allegation is that in respect of some of the bundles, the petitioner found that his bundle had more than fifty ballot papers, but the officer concerned, while counting them, counted as fifty only. The further allegation is that as far as respondent No. 1 was concerned, his bundles contained less than fifty votes in each bundle, but they were counted as fifty. It appears that the petitioner immediately made a complaint by his letter dated March 1, 1990, in which he pointed out that the bundling of bellow papers is done wrongly and the difference in the votes polled by him and that by the leading candidate is marginal and that rejection of votes which number about 1,133 was wrongly and that the persons whose names were not in the electoral roll, were allowed to vote in this election. To this, there is a reply by the officer concerned (his letter dated March 1, 1990, (Ex. Z), and he has denied all these allegations. One of the counting agents of the petitioner by name Syed Fida Abbas Zaiul Hassan (P.W. No. 11), has referred to this in his evidence. His evidence has been challenged. I am not prepared to accept this evidence to hold positively that in fact the bundles were not properly counted or the ballot papers were not properly included in each of the bundles. Mr. Syed has also stated that before the ballot papers were bundled they were counted. If they were counted, it cannot be said that they counted wrongly. In any case, there should be better evidence to give a finding in favour of the petitioner on this point. In the result, this issue also will have to be answered against the petitioner.
Issue Nos. 2, 3 & 4.
28. In Writ Petition No. 260 of 1990, the petitioner and Nevrekar had alleged large scale enrolment of bogus votes by the officers concerned. They had alleged fraud and collusion against the officer and Shiv-Sena. But the problem was one of time. Despite their diligence, it was apparently not possible to have those names verified and bogus names deleted. I will deal with the evidence relating to the allegation of fraud, later on, when I deal with Issue No. 3, as I am more than convinced that such a fraud has indeed taken place. But when the Court dealt with the writ petition, there was a gap of only two days before the date fixed for receipt of nominations. Perhaps, the Court felt that it was not proper to stay the election process, yet the order shows the anxiety on the part of the Court to exclude as many as bogus voters as possible. It was in this background the following order was passed :
"It is now agreed between the parties that the petitioners, who have submitted list of 5,002 (approximately) voters, which according to them are not genuine voters, the respondent shall verify the correctness of the statements made by the petitioners as regards these voters to the best of their ability bearing in mind the time at their disposal. The petitioners are ready to co-operate with the respondents in doing this verification job. In view of this agreed position, no further relief needs to be granted to the petitioners. Accordingly writ petition is disposed of in terms of the above directions".
29. It is on record that pursuant to this order dated February 1, 1990, about 850 names were deleted. This was now under any provision of any rule, but mainly on the basis that over five thousands and odd names were shown to have been included without verification and, therefore, not in accordance with the provisions of the statute. The remaining names could not be verified for want of time. The Court also had not decided the petition as such. Without going into the merits of the contentions, mainly on the basis of the statement made by the officers that they are willing to consider the allegations made by the petitioner and Mr. Nevrekar, that they would eliminate the bogus voters, the Court passed the said order. In factum just as the petition cam to be filed and before the writ petition came to be disposed of, on their own, the officers had eliminated 1,400 names. Therefore, certainly it cannot be said that there is any question of res judicata in the present case. Mr. Hattangadi says that the petitioner is estopped from raising those contentions, here, as they have gone to the election with the electoral roll as finalised on the date of nomination. In the supplementary written statement the plea is to the effect that respondent No. 1 acted on the representation that the petitioner would go for election on the basis of the roll that was finalised and that it was on that basis the respondent too had contested election. I have not been able to appreciate this contention of the respondent. He was a candidate. He had filed his nomination. He had not contested the election just because the petitioner had not pressed his earlier writ petition. Therefore, it cannot be said that there is any plea of estoppel available to the first respondent. If there is any fraud, there can be no estoppel against fraud. Fraud vitiates everything. There cannot be any estoppel against any Statute, if the officer says that he has not complied with the law. Hence, Issue No. 2 will have to be answered against respondent No. 1.
30. But before I deal with the evidence relating to the enrolment of bogus voters, (Issue No. 3), I must consider the main contention of Mr. Hattangadi that the petitioner cannot go behind the electoral roll as the same has become final and this Court has no jurisdiction to deal with such a question. He submitted that the charge is u/s 100(1)(d)(iii) & (iv) of the Act of 1951, and there is no provision in section 100 to call in question the finality of the roll. He says that the test is whether voter''s name appears in the electoral roll or not. If his name does not appear, u/s 62 of the Act of 1951, he is not entitled to vote. But, if his name appears he is entitled to vote. It is not a question whether a person claims to be entitled to vote. It is a question whether his name appears or not, and if his name appears, that is an end of the matter. In this connection he relied on section 30 of the Act of 1950, which says as follows :
"30. Jurisdiction of Civil Courts barred.---No Civil Court shall have jurisdiction ---
(a) to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll for a constituency ; or
(b) to question the legality of any action taken by or under the authority of an Electoral Registration Officer, or of any decision give by any authority appointed under this Act for the revision of any such roll".
He says, it is for the Election Commission to decide all such questions and not in an Election Tribunal, which presently is the High Court.
31. Mr. Hattangadi has strongly relied on the case of Nripendra v. Jai Ram Verma AIR 1977 S.C. 192, where in Bench consisting of two Judges of the Supreme Court held as follows:
"Thus in a catena of cases this Court has consistently taken the view that finality of the electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll of if subsequent disqualification had taken place and the electoral roll had on that score not been corrected before the last hour of making nominations. After that deadline the electoral roll of a constituency cannot be interfered with and no one can go behind the entries except for the purpose of considering disqualification u/s 16 of the 1950 Act.
The election could be set aside only on the grounds mentioned in section 100 of the 1951 Act. In this case reliance was placed u/s 100(1)(d)(iii) for invalidating the election on the ground of reception of void votes. We have already shown that the electoral roll containing the particular names of voters was valid and there is, therefore, no question of reception of any vote which was void. There is, thus, no substance in that ground for challenging the election".
There are certain other cases referred to in this judgment, and I will deal with them one by one.
32. The earliest is the case of
33. In the case of
34. The next case of
35. Thereafter comes the case of
36. In the case of
37. In the case of
"........ we do think that a wrong decision on a question of ordinary residence for the purpose of entering a person''s name in the electoral roll should be treated as a jurisdictional error which can be judicially reviewed either in a Civil Court or before an election tribunal".
But the Court took note of Baidyanath (supra) and Wopansao (supra) and observed as follows:
"We think that neither the decision of this Court in
Therefore, if there had been an adjudication on the inclusion of the names of the voters, there would have been no question of going into that question in an election petition. But as in the present case before me, wherein Registration Officer receives over 12,000 applications, and that too out of those as many as 6,000 applications within the last two days for the receipt of such applications, and without verifying as to the age, residence, or for that matter even as to their existence, just includes their names in the electoral roll, can it be said that it is just an erroneous exercise of power ? Or is it a case of total lack of exercise of power ? If the officer concerned has not complied with any of the requirements of the rules, leave alone adjudication, can it be said that it is an improper exercise of power ? Or is it a case of non-exercise of power at all ? In such a case, it is as good as the officer including the names of voters on his own without any jurisdiction whatsoever. If that is so, the Supreme Court has not barred such a question to be tried in an election petition.
38. In the case of
"This sub-section may be split up into two parts so as to make its meaning and intendment clear. It provides, in the first place that a person who is not entered in an electoral roll of a constituency shall not be entitled to vote in the constituency. Secondly it provides that, except as expressly provided by the Act every person who is for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. It is implicit in these provisions that the name of the person who claims to be entitled to vote in a constituency must have been entered in the electoral roll for that particular constituency in accordance with law. Section 23(3) of the Representation of the People Act, 1950 provides that no amendment, transportation or deletion of any entry shall be made and no direction for the inclusion of a name in the electoral roll of a constituency shall be given after the last date for making nominations for an election in that constituency and before the completion of the election. If the name of a person is entered in the electoral roll in violation of the mandate contained in this section he can have no right to vote by reason merely of the entitlement conferred by section 62(1) of the Act of 1951 must be taken to mean "for the time being entered in the electoral roll in accordance with law".
39. Mr. Kotwal has argued that the charge in the present case could as well fall into only u/s 100(1)(d)(iii) but also u/s (iv) of the Act. He submits, to be a voter under Article 326 of the Constitution of India, he must be a person who is existing. A non-existing person cannot be a voter. The existence of the person and the address will have to be determined in accordance with the law. If any such name is included sans such verification or without any application, it is in violation of the Constitution itself. If, therefore, the names of persons have been included in an electoral roll without complying with the requirements of the statute, it is not a mere irregularity. It is in fact an illegality which the Court can look into. If such a person cast any vote it can as well be said that it is cast by a non-existing voter, and therefore, such a vote is void.
40. Now, let us see the relevant provisions for the purpose of enrolment of new voters. The Preamble to the Representation of the People Act, 1950, inter alia, says that it is an Act to provide qualification of voters in such elections, the preparation of electoral rolls, and matter connected therewith. u/s 13-B, the electoral roll for each Parliamentary (or Assembly) constituency shall be prepared and revised by an Electoral Registration Officer. In the present case, such officer was Mr. Nachankar (C.W. No. 2). Section 13-C provides for an appointment of one or more persons as Assistant Electoral Registration Officers to assist any Electoral Registration Officer in the performance of his functions. In the present case Mr. D.U. Peera (C.W. No. 1) was such an Assistant Electoral Registration Officer. Section 19 provides for conditions of registration, the conditions being not less than eighteen years of age on the qualifying date and being ordinary resident in a constituency. Section 20 explains the meaning of "ordinary resident". Section 21 provides for preparation and revision of electoral roll in the prescribed manner by reference to the qualifying date, and it shall come into force immediately upon its final publication in accordance with the rules made under this Act. The proviso to sub-clause (2) of section 21 clearly indicates that an electoral roll remains continuously in existence. It is only required to be revised from time to time. If it is not revised the existing roll or the continued operation thereto shall not be affected. Mr. Kotwal by relying on the case of Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman AIR 1985 S.C. 1233, submits that in so far as the electoral rolls are concerned there is never a moment in the life of a political community when some electoral roll or the other is not in force. The elections laws abhor a vacuum. Section 22 provides for correction of entries in the electoral rolls. Section 23 provides for inclusions of names in the electoral rolls. If applications have been made for enrolment of voters, in the present case, it was u/s 23. The Electoral Registration Officer shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein. The satisfaction has to be arrived at on a proper verification. Section 24 provides for appeal as against any order that may be passed either u/s 22 on the question of residence or u/s 23 on the question of registration or enrolment. Section 25 expressly says that every applications u/s 22 or section 23 and every appeal u/s 24 shall be accompanied by the prescribed fee which shall, in no case be refunded. Mr. Nachankar sought to contend that an application for enrolment as a voter though u/s 23, requires no fee, which contention had to be rejected for the mere asking as it is contrary to the plain meaning of section 23. Mr. Nachankar, in all probability, sought to say in that manner, because, in the present case, no fee was collected though nearly 12,000 applications were received in this constituency alone.
41. For the purpose of verification, rules have been made. The rules are the Registration of Electoral Rules, 1960. The relevant rule as far as this petition is concerned, is Rule 10 which provides for publication of roll in draft. This was done, some time on or about December 17, 1989. Rule 13 is as follows :
"13. Form for claims and objection.---
(1) Every claim shall be
(a) in Form 6;
(b) signed by the person desiring his name to be included in the roll; and
(c) countersigned by another person whose name is already included in that part of the roll in which the claimant desires his name to be include".
Rule 14 prescribes the manner of lodging claims and objections and it is as follows :
"14. Manner of lodging claims and objections.---Every claims or objection shall -
(a) either be presented to the registration officer or to such other officer as may be designated by him in this behalf; or
(b) be sent by 1 *** post to registration officer".
In the present case, if one has regard for the evidence of Mr. Peera (C.W. No. 1), though he was the officer designated for the purpose of receipt of applications forms, he joined the duty only after the last date for filing such applications for registration. Rule 15 provides as to what the officer should do. He should maintain in duplicate a list of claim in Form 9, a list of objections to the inclusions of names in Form 10 and a list of objections to particulars in Form 11. These things have not been done in the present case at all. The officer must also keep exhibited one copy of each such list on a notice board in his office. I will presently point out that in all probability even this was not complied with. Rule 16 provides for the procedure of registration of officer. Thereafter, the rules provides for objections, notice of hearing of the claims and objections and an enquiry into the claims and objections. Rule 22 provides for final publication of roll and Rule 23 provides for appeals from orders deciding claims and objections. Rules 26 is as follows :
"26. Correction of entries and inclusion of names is electoral rolls. ---(1) Every application u/s 22 of sub-section (1) of section 23 shall be made in duplicate in such one of the form 6, 8, 8-A and 8-B as may be appropriate and shall be accompanied by a fee of ten paise.
(2) The fee specified in sub-rule (1) shall be ---
(a) paid by means of non-judicial stamps; or
(b) deposited in a Government treasury or the Reserve Bank of India in favour of the registration officer concerned; or
(c) paid in such other manner as may be directed by the Election Commission.
(2-A) Where the fee is deposited under Clause (b) of sub-rule (2), the applicant shall enclose with the application a Government treasury receipt in proof of the fee having been deposited.
(3) The 2 *** Registration Officer shall, immediately on receipt of such application, direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting.
(4) The 2 *** registration officer shall, as soon as may be after the expiry of the period specified in sub-rule (3), consider the objections, if any, received by him and shall, is satisfied that the applicant is entitled to be registered in the roll, direct his name to be include therein :
Provided that when an application is rejected by the Registration Officer, he shall record in writing a brief statement of reasons for such rejection".
The requirement of this rule were not complied with at all. A right to vote is not a Constitutional right. It is a statutory right. Therefore, before any person claims any right to vote, it is necessary that the requirements of the statute will have to be complied with. If the requirements of statute and the rules made thereunder are not complied with at all, it cannot be said that such a roll has been prepared in accordance with the statute or in accordance with the rule made under the statute. Article 326 read with Article 327, provides for adult suffrage for any person of the age of eighteen or above to exercise this right to vote, but such an exercise can only be in accordance with the statute made thereunder.
42. The evidence in this case clearly establishes that there was a gross dereliction of duty, almost amounting to reckless remiss on the part of the officers can as well be regarded as fraud on the statute itself. It appear that prior to November 1989 election, this assembly segment had about 1,50,000 registered voters. But soon 50,000 new voters were registered. (See Ex. A). Thus, the draft roll for the present election had about 2,00,000 voters. The Election Commissioners had fixed the date of December 20, 1989, as the date for receipt of applications. The last date was January 2, 1990. Objections were to be filed upto January 9, 1990. And the final roll was published on January 15, 1990.
43. It is in evidence that between December 20, 1989 and January 2, 1990, about 11,800 new applications for enforcement were filed in the Election Office. Out of these, about 6,000 applications were received on the last two days. Out of these about 500 forms were rejected on the basis that the name of the applicants were already there. The rest was finalised and published by the officer on January 15,1990. On or about January 9, 1990, Mr. Nevrekar came to know of mass scale enrolment of bogus voters. He and the petitioner took up the matter. Mr. Nevrekar then met Mr. D.U. Peera (C.W. No. 1), the Assistant Registration Officer, and told him that these forms were bogus and should not be included in the election roll. Mr. Peera informed him that the last date for raising objections being over, he would do nothing. Then the correspondence started. Mr. Narverkar, as Secretary of the Janata Dal, North Bombay District, wrote a letter dated January 11, 1990, addressed to the Assistant Electoral Registration Officer (Ex. ZB) and pointed out that the signature of the voters supporting almost all the applications were false. In the said letter, it was mentioned that Mr. Arun Ghadi (P.W. No. 8), had already given in writing that his signatures on the applications were false. So also one Mr. Manohar Lokhande. One Mr. Vijay Chavan who is supposed to have signed for a voter had already left about six months prior to the filing of these applications. So also one Dinkar Chavan had left about a year back. It was further mentioned that one Mr. Ram Gavade who is supposed to have signed large number of application forms, was not there at the serial number of the electoral roll mentioned on these application forms. He, therefore, requested the officer concerned to scrutinise every application, and accordingly take the necessary precautions. Thereafter, Mr. Arun Laxman Ghadi (P.W. No. 8), and Suryakant Bhagwan Kamble, by their letter dated January 13, 1990, (Ex. ZD), addressed to the Assistant Electoral Registration Officer, expressly stated that they had not signed any such application forms as supporters, and the signatures appearing on those applications were false. There is also a letter from one Vijay Krishna Chavan, dated January 12, 1990, to the same effect that he had not signed any such application which was also forwarded to the officer. Mr. Peera, replied by his letter dated January 14, 1990, (Ex. ZH), stating that the applications are beyond time as the last date for receiving objections was over on January 9, 1990, and treated the applications as disposed of. Thereafter the petitioner and Mr. Narverkar met the Collector on January 15, 1990, and explained as to what was going on. The petitioner also wrote a letter to the Collector on the same date (Part of Ex. 1 collectively). On January 16, 1990, a Press-Conference was called and the petitioner addressed the said press-conference. He indicated Shiv-Sena who along with the staff of the election office had manipulated the electoral roll. Thereafter they went and saw Mr. Iyer, who was the Chief Election Officer for the State of Maharashtra. It appears that Mr. Iyer expressed his inability to check the entire roll but he offered to give inspection of all the forms to petitioner and Nevrekar. Mr. Nevrekar was asked to contact Mr. Nachankar for taking inspection. On January 17, 1990, Mr. Nevrekar wrote a letter of the same date for inspection. After a talk with Mr. Nachankar, the date of January 19, 1990, was fixed for inspection. Accordingly, Mr. Nevrekar and his party workers could take inspection of about 6,000 application forms. Thereafter further inspection was continued and inspection of these forms was also taken on January 22, 1990. On the basis of the inspection of these forms Mr. Nevrekar prepared a certain cyclostyled format of the letter as above to collect more information in this regard. Naturally, this was a time consuming job. Mr. Nevrekar could collect considerable information. He then wrote a letter dated January 24, 1990, to the Collector. He set out in detail how in many cases the applicants were not traceable and the signatures of the so-called supporters were all forged signatures and not genuine signatures. He requested the Collector to delete all the bogus names from the roll. To this letter, there was no reply. Hence, they had to file a writ petition being Writ Petition No. 260 of 1990 on January 25, 1990. It was kept for hearing on February 1, 1990. As stated above at the time of the hearing the Government Pleader made a statement that on their own they had deleted 1,444 names and they will continue to verify and scrutinise as many as they could. That is how the writ petition came to be disposed of.
44. As a result of the effort put in by Mr. Nevrekar and his workmen and as a result of the order passed in the said writ petition about two thousand and odd names were deleted, but obviously no further deletion was possible. If Mr. Nevrekar and the petitioner had not put in this effort all these names which were obviously bogus names would have been included in the electoral roll as finalised by Mr. Peera, mechanically, on January 15, 1990. If there had been enough time to verify and scrutinise, a large number of application forms could have been rejected.
45. In this background, let us consider what the two officers, Mr. Peera and Mr. Nachankar, had done in this matter. In fact, the petitioner has made serious allegations against these officers. Since, the allegations were that there was an improper reception of void votes, it became necessary for the Court the examine these two officers as Court-witnesses.
46. Mr. Peera (C.W. 1), was the Assistant Registration Officer. Under the rules he was the one to receive all these application forms. The last date for receipt of applications was January 2, 1990. But he joins the office of January 5, 1990. One Mrs. Naik, a clerk from the Collector''s office was in charge of that office, prior to his joining. But she was not the designated officer as required under the rules. In other words, there was no one to whom the new applications could be presented as required under the rules. Perhaps, that explains as to why the receipts in respect of all these application forms could not be signed and detached and given to the applicants on presentation of their application forms. In other words, all these forms were just dumped in the electoral office.
47. Under the rules, the application forms were to be received in duplicate. Mr. Peera has categorically stated that not a single application was received in duplicate, the applicant forms are necessary inasmuch as one goes to the file and the other to be pasted on the notice board. Under the rules, a fee of ten paise was required to be paid in respect of every form. No such fee was collected or paid in respect of any of these forms. Under the rules, all these forms were to be put up on the notice board. Mr. Peera has not seen a single form put up on the notice board. The board itself was a board of 4'' x 3'' and I doubt whether all these 12,000 forms could have ever been affixed on such a board. Under the rules, a list under Form 9 was required to be prepared and that was not done. Again, let us see how did the officers scrutinise these application forms. Mr. Peera says that he verified the age of each of the applicant mentioned the application forms. But how did he verify? When he was questioned about this, this is how he answered:
"I verified the age of the applicant on the basis of birth certificate or the school certificate. It is true that there is nothing to show in any of these application forms whether any birth certificate or school certificate was produced along with the application forms.
Question: In the absence of any birth certificate or school certificate or any other documentary evidence how do you verify the age of the persons?
Answer: I have no answer. In that case, for the purpose of verifying the age of the person, one will have to see the person concerned. I did not verify the age of any of these applicants by going to their places at the addresses mentioned in their application forms. I gave no notice to any individual requiring him to produce any proof of his age or residence. I have not appointed anyone form my staff to personally go round and enquire and verify as to the age or the residence of the applicant. Before I joined, the Inspector of the officer had asked the staff members to go and verify the age or residence of the applicants".
But he does not know who were the staff members. He does not know their names. He does not even have a muster-roll to show how many persons were really engaged.
48. Mr. Peera said there were enumerators who did the scrutiny work. But he admitted that they did not report to him what they found. He himself did not bother. He plainly confessed that he could not say that all those forms were scrutinised. He received the complaint from Mr. Nevrekar and his workmen. He was informed that in respect of several forms the supporters informed him that they had not signed such forms and the purported signatures were not theirs. He did not bother. He took shelter under the plea that after January 9, 1990, he was not concerned with the objections. He stated that before publication of the roll on January 15, 1990, about five to six hundred applications were rejected by him. That was on the basis that their names were already there in the electoral roll. But did he really scrutinise the electoral roll? for example, his attention was drawn to the applications supported by one Mr. Ram Gavade. In the witness-box his attention was also drawn to 28 form (Ex. ZV 3 collectively). In these forms, Ram Gavade''s name has been shown as voter in Ward No. 106, Part No. 79 at Sr. No. 155. When he was asked to look into the draft roll, he admitted that at that serial number, in that ward, there is no Ram Gavade at all. The name is of one Smt. Jagdale Saraswati Shankar. He admitted that he did not make any enquiries about these forms. Again, at a later stage the very Ram Gavade was shown as supporter in another eighty forms. All these forms contain Ram Gavade''s signature. He has given his serial number as voter at Part No. 107, Serial No. 155. But at that Part number and Serial number, there is no Ram Gavade and somebody else is shown as voter. When he was questioned about it he admitted that he had not seen all the forms that were filed in the office. He also admitted that in the case of some of the forms, signatures of some supporters differed from form to form. But he says these things were not brought to his notice. At the top of each of these forms, a certain number is written. When he was questioned about it, he stated that the number could be the number of the ration-card of the concerned applicant. But he admitted that he could not say whether his office processed these forms and verified the ration-card numbers supposed to have been written at the top of each of these forms. He admitted that in fact in all the two thousand and odd forms which were deleted by the office, there were such similar numbers supposed to be the ration-card numbers of those applicants. If there had been no scrutiny one would have believed that they were in fact such ration-card numbers and the persons were really existing. But it is on record that on verification those persons were found not existing and they could not have been enrolled as voters at all. In other words, it is clear that the numbers supposed to be the numbers of the ration-cards were just written to show that there had been some proof that these persons are really existing. All these things ought to have been looked into and verified by the officers concerned.
49. The petitioner has also pointed out that most of these application forms were not supplied by the Government. Initially, Mr. Peera sought to justify that that they were all supplied by the department; but later on when he was confronted, he had to concede that he could not say that those forms were really supplied by the Government. Perhaps, it is possible for one to contend that it is not necessary that they should be supplied only by the Government as such. But, it is necessary that the voter has to apply in a form containing the particulars of Form 6, and the same has to be processed as required under the rules. But, in the present case, what was done was a deliberate act to fill up thousands of forms and to tender in the office of the electoral office, knowing full well that there would be no enquiry or scrutiny whatsoever. In the result, we have, here, an officer who has neither any concern for his conscience nor any regard for his duty. He did no work at all. He did not discharge any of his duties as expected of him under the law. He only did the mechanical job of including all those names in the voter''s list, without any application of mind which is not his function. In other words, he acted without jurisdiction.
50. Mr. Nachankar (C.W. 2), did nothing much. He himself would not take any initiative. It was Mr. Iyer who asked him to give inspection to the petitioner and his party-men. He could have scrutinised on his own when his attention was drawn to these mal-practices. He ought to have realised that the requirements of the statute have not been complied with. No fee was collected. No form was received in duplicate. The requirements of filling up of Form 9 was not complied with. He also did not bother. In fact, Mr. Kotwal submitted that fee has been statutorily fixed and since the applications were received without any requisite fee or stamp duty, u/s 35 of the Indian Stamp Act, the officer could not have acted upon it at all. Whatever it be, it is clear, both, Mr. Peera and Mr. Nachankar, acted in a mechanical fashion without exercising or discharging any of their functions in accordance with law. It is on record that after January 15, 1990, various names were deleted after verification. Mr. Nachankar says that that was done by Mr. Peera. Mr. Peera says that he did nothing after January 15, 1990. This is rather strange that between them they had no sense of responsibility. When fraud is practised on the statute, it is for the officers who are concerned with the implementation of the statute to act and prevent such fraud. If the officers fail and if the citizens are not vigilant, the law fails and that is how the rule of law fails.
51. Mr. Kotwal submitted that these voters came to be enrolled by Shiv-Sena. In that connection, he submitted that Shiv-Sena was keen to see that in this constituency, which is said to be a socialist constituency, the socialist candidate is defeated somehow or the other. Earlier, in the Parliamentary election, Mrs. Mrinal Gore had contested and as far as this segment was concerned she had a lead of about 5,000 votes. This was in spite of the fact that about 50,000 voters were enrolled as additional voters in this segment prior to the Parliamentary election. Mr. Kotwal''s contention is that since Shiv-Sena realised that in this constituency, the petitioner had an edge over respondent No. 1, it was necessary for them to see that there were additional voters enrolled so that the petitioner could be defeated. He, therefore, submits that large number of forms were privately printed and filled-in and they were all done by Shiv-Sena, respondent No. 1 and his workers. But I am afraid, there is no sufficient material to hold that these bogus voters were enrolled at the instance of respondent No. 1 or at the instance of Shiv-Sena. At best, it could be suspicion or a conjecture but the Court will not act upon such things. There is no evidence as to who printed these forms. There is no evidence to show who filled-up these forms. There is no evidence to show that the officers had any kind of secret understanding with Shiv-Sena. Therefore, that part of the allegation will have to be rejected.
52. The question now is as to whether it could be said that the result of the election has been materially affected by the improper acceptance or receipt of votes which were void. In this connection Mr. Kotwal submits that the margin of difference between the petitioner and respondent No. 1 is only 595 votes. Mr. Kotwal also submitted that from the new added list of voters, about 2,300 voters have voted. He, therefore, submitted that if these voters had not voted, the margin being so minimal, in all probability, the petitioner would have secured more votes than respondent No. 1. What is significant in the present case is that in respect of these 12,000 application forms. It was the petitioner and Mr. Nevrekar who agitated against such enrolment. It was their case that all these forms were bogus forms. By and large, they have been able to substantiate the same. It is they who took up the matter, brought before the Court and continued their agitation throughout. Ultimately, since all the names could not be deleted for reasons as explained above, about 8,000 and odd voters continued to be on record and out of which 2,300 have exercised their votes. It is in these circumstances, it is but proper for me to presume that if all these names had been deleted, perhaps, the petitioner would have had the majority of votes in this constituency. It is in this sense, it can be said that the result of the election had been materially affected.
53. Mr. Kotwal has drawn my attention to the case of
54. As against this, Mr. Hattangadi submitted that that would be the function of the Registration Officer under the Act of 1950. He further submitted that if any such attempt was to be ventured into, he would be able to produce all those persons who have cast their votes and show that they were really existing. He further submitted that if their names are found on the electoral roll and if they had exercised their votes it is not for this Court to verify and find out whether they were really the voters or not.
55. While I make it clear that there is no question of verifying whether the voters existed or not, inasmuch as the existence of a person is not a relevant criteria for the purpose of determining whether they are the voters within the meaning of the statute or not, I am not inclined to grant the request of Mr. Kotwal. It is true, right to vote is a statutory right. It is not an inherent right. It is not even a human right. Nor is it a natural right of any person. Right to vote is according to the statute. In the present case, I am more that satisfied that these 2,300 persons from the newly added list had no such right to vote and that, therefore, if they have cast their votes they are all void votes. But that is different from saying that I will verify now and find out whether they could have been included in the list or not. That was the function of Mr. Peera, which I would not do.
56. Similarly, I think, there is no question of scrutinising the ballot-papers in the manner suggested by Mr. Kotwal. It is sufficient, if I say that by inclusion of these persons as voters and by their voting the result of the election of the petitioner is prejudicially affected. That itself would entitle the petitioner to the declaration that he has sought for. But, I think, I am not prepared to say that it is for that reason, the ballot-papers should be compared.
57. As regards the question of deletion of these 2,300 votes and recounting is concerned, I will deal with it separately when I deal with Issue No. 5, 7 & 8.
Issue Nos. 9, 10 & 11
58. These issues relate to the charge of corrupt practice u/s 123(4) of the Act of 1951. The ingredients of the charge are as follows:
(a) There should be publication of statement of fact which is false;
(b) The publication should be by the candidate or his agent or by any other person with the consent of the candidate or his election agent;
(c) The candidate should believe it to be false or does not believe it to be true;
(d) The statement must be in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal of any candidate; and
(e) The statement is reasonably calculated to prejudice the prospects of that candidate''s election.
59. The statement which is published is Ex. R. It was published in the issue of "Samna" dated February 15, 1990. The relevant portion is as under:
"Uproar, of this type, by green Janata Dal Goondas in Mahaprasad i.e. of the Lord Ganesh at Goregaon.
Bombay, date: 14th (from our representative)-The Janata Dal workers, tying green coloured handkerchiefs in the mahaprasad function that was held in the compound of "Sankalpa Siddhi" Ganesh Temple located in Motilal Nagar at Goregaon, created an atmosphere of chaos and behaved indecently with loud acclamation Allah Ho Akbar.
The sixth anniversary day function of installation of the idol of Lord Ganesh in "Sankalpa Siddhi" Ganesh Temple of Goregaon, was arranged on the occasion of Angarika Chathurthi (A lunar day a fourth day of waning moon occurring on a Tuesday (marsday) and continuing till moonrise). For that occasion a programme of various religious rites and of Mahaprasad was arranged. More than about ten thousand devotees visited the said temple and took Mahaprasad. However, on this occasion of this Hindu religious function, the Janata Dal workers created such an uproarious conduct, as a result thereof a great chaos was seen there.
For this religious function, the Shiv-Sena leader Shri Subhash Desai, Smt. Indumati Patel of Congress, Shiv-Sena corporator Suhas Samant, Mukesh Khanna playing the role of Bhisma in the T.V. serial of Mahabharat etc. were present.
The volunteers of Ganesh Mandir Trust and the Shiv-Sena B.J.P. workers alongwith them were involved in the distribution programme of Mahaprasad. On this occasion, the women from "Mahila ghadi" (front) were also present. At that time Shri Sharad Rao the candidate of Janata Dal accompanied by his followers came there. The supporters who accompanied him had tied green handkerchiefs over their heads; the said workers came there in the manner in which the people danced in Urus procession. While the solemn occasion of taking Mahaprasad was going on, devotees of Ganesh who were taking their food, half way, were made to get up, with a view to give precedence to these hooligans. The organisers were stunned at this incident.
"Loud Acclamation of Allah Ho Akbar"
In this extremely disciplined and otherwise envious programme of Hindus, these people came shouting Alla Ho Akbar and dancing in a wild indecent manner and beat the drums and they created chaos and went away. It is learnt that in this gang of Janata Dal a Muslim Goonda externed from Kurla was also there."
60. In the petition, the allegation are as under:
In paragraph 50A, the petitioner says that respondent No. 1 has published a false perverted and incriminatory account of petitioner''s visits to the said function. The said report has been annexed to the petition as Ex.CC. In paragraph 51, the petitioner says that it was falsely and fraudulently published to black mail the petitioner and his party, Janata Dal. It is also alleged that that was an attempt to create a communal division between Hindus and Muslims and to promote or attempt to promote feeling of enmity or hatred between different classes of citizens of India on grounds of religion for the furtherance of the prospects of the election of respondent No. 1 and for prejudicially affecting the election of the petitioner. In the concise statement, para 2 item (v) it is mentioned that respondent No. 1 and his agent committed corrupt practice of publishing false information about the petitioner.
61. In the written statement, the respondent denies that he has published any false or perverted or incriminatory account of the petitioner''s alleged visit to the said function. He admits that he published the news item submitted to him by his news reporter. He denies categorically that the news item published in "Samna" was in any manner perverted or incriminatory. He says that he, in good faith, published the said item submitted to him by his news reporter. In paragraph 71, he categorically denies that the report published was false or fraudulent report or that it was published to black mail the petitioner or his party, Janata Dal, or it was an attempt to create any communal division between Hindus and Muslims and to promote or attempt to promote any feeling of enmity or hatred between different classes of citizens of India on grounds of religion for furtherance of prospects of election of respondent No. 1 and for prejudicially affecting the election of the petitioner. These are the pleadings.
62. It was on the basis of these pleadings and documents, the above issues were framed. However, Mr. Hattangadi relying on
63. There is no evidence to hold that the incident as published in Ex. R. had ever taken place. The petitioner and Nevrekar along with their workers had been to Sankalpa Siddhi Ganesh Mandir Festival on the day in question, at about 1.00 p.m. They were received warmly by the Trustees, Shiv-Sena Councillor Suhas Samant and the Chairman of the Reception Committee. Mr. Baburao Naik. They took Darshan of the idol. Thereafter they had Mahaprasad i.e. food and after an hour or so they all left the said place. Certain photographs had been taken when they were there. The petitioner says that he had not seen any reporter at that place. Mr. Nevrekar in his evidence also says the same things. He says, there were Shiv-Sainiks in the temple. According to him, petitioner''s volunteers had displayed their party symbol and their flag which was green in colour with a symbol of wheel. The Shiv-Sainiks picked up a quarrel and thereupon the Trustees came there and removed the Shiv-Sainiks from the temple. Everything went on very peacefully. After taking Mahaprasad they left the temple. So also respondent No. 1 had gone to the festival on an invitation. He went there at about 12 noon. He took Darshan and Mahaprasad and went away at about 12.30 p.m. He does not know what happened thereafter. There is no other evidence as to what transpired when the petitioner and Nevrekar visited the place. According to respondent No. 1 and Ashok Padbidri (R.W, 3), it was Sanjay Dahale, a reporter, who reported the incident. But the very next day both Nevrekar and Baburao Naik by their letter dated February 17, 1990, denied the statement contained in report. They have denied the incident. Mr. Sanjay Dahale was cited as witness by respondent No. 1. He has not been examined. Therefore, it must necessarily be held that no such incident, as reported in "Samna", had taken place at all. If that is so, it must necessarily be held that the publication, Ex.R., contains statements of facts which were false.
64. The next question is, who published such a statement. In the written statement, respondent No. 1 has categorically admitted that he published the said news item submitted to him by his news reporter. In the witness-box, he stated that on that day in the evening he had gone to the office of "Samna" when one reporter by name Sanjay Dahale showed him a hand-written copy of a news item. He showed this to him in the corridors as he was about to go out. That news item was about Sankalpa Siddhi Ganesh Mandir Trust festival. He says that he was in hurry and he could not read the same fully and he told Sanjay Dahale to verify and if the news was true have the same printed. He admits that Ex.R. was that news item. In his cross-examination, he was confronted with his statement made in para 70 of the written statement. He admitted that the statements are correct because as a printer and publisher of "Samna" he made the said statements. It has come on record that he is a printer and publisher of Marathi Daily "Samna". It began its publication on January 23, 1989. Bal Thackeray is the Editor. The ownership and the publication is by a trust known "Prabodhan Prakashan Trust" which is a registered Public Trust. Respondent No. 1 is one of the Trustees. One Ashok Padbidri is its Executive Editor. According to respondent No. 1, the Trustees do not interfere in the publication of any news item. Respondent no. 1 has further stated that in the publication of the news items, he is usually not consulted. But he added that if it would be concerning him, he would be consulted. But when it came to the publication of the report, Ex.R., he says that he was shown the report by Sanjay Dahale, but was not consulted. Later on, he was confronted with the news item which had appeared in "Pravasi" (morning edition of "Janmabhoomi") dated February 15, 1990 (Ex. 11). It was pointed out to him that he was the one who gave information in respect of the said news item published in "Pravasi". That news item relates to the same incident. He admits that he got a telephone call from a reporter from "Janmabhoomi" and according to him he referred that reporter to "Samna". He tried to suggest that the telephone had come between 10 and 10.30 p.m. He has been cross-examined to show that, in all probability, he could not have had this telephone call at that time because on his own showing, he was in the office of "Samna" till about 9 p.m. Thereafter at about 10 p.m. he had gone to address a meeting at Jawahar Nagar. He was asked as to whether he told the reporter of "Janmabhoomi" to contact Suhas Samant who would have been the best person to tell as to what transpired in that festival. But he did not do so.
65. It is interesting to note in this connections as to what Ashok Padbidri (R.W. No. 3) says. According to him respondent No. 1 looks after the administrative side and he does not interfere with the editorial policy or the publication of news items. He says that normally, the reports from the reporters would come to him mostly or to the News Editor. The News Editor is one Nandkumar Teni. If there are reports of serious nature or sensitive items, he goes through the same himself before they are published. He then adds that the news items that appear in "Samna" are always correct. Accordingly, he confirms the news item, Ex.R., and says that the same has been correctly reported. In his cross-examination, he admits that if he has to publish any news item in respect of a known person, he would consult such a person before it is published. He also admits that if the news item or the report relates to Hindu-Muslim relations or it relates to spoiling the relations between them, they would not ordinarily publish such items as they treat them as sensitive items. When he was shown Ex. R, firstly, he stated that he did not consider this news item as sensitive or explosive. He admitted that the item relates to Hindu-Muslim relations. He then admits that he must have got this report in the night after about 8 p.m. and must have consulted respondent No. 1 thereafter. He says, he consulted with him on phone. He did not come to him. When Ashok Padbidri says that he consulted respondent No. 1 on phone, in all probability, he is not telling the truth because respondent No. 1 has stated that he was in the office of "Samna" till 9 p.m. Again, the statement of respondent No. 1 that Dahale had casually shown the report while respondent was in a hurry to go, cannot be accepted because Ashok Padbidri had received the report at about 8 p.m. and there was no question of Sanjay Dahale showing the report to respondent No. 1 or respondent No. 1 leaving the office of "Samna" in a hurry. In other words, it is clear, that the office of "Samna" got the report at about 8 p.m. Respondent No. 1 was very much there. The Executive Editor-Ashok Padbidri did consult respondent No. 1 and thereafter in consultation with one another they decided to have this report published in "Samna". It was published in "Samna" with express consent of respondent No. 1. It also shows that there could have been no question of respondent No. 1 referring the reporter of "Janmabhoomi" to Mr. Dahale, because respondent No. 1 knew all the facts which were published in "Samna". Therefore, when the report, (Ex. 11), in "Pravasi" says that respondent No. 1, a Shiv-Sena candidate, "had leveled" accusations that Sharad Rao, a candidate of Janata Dal and his green handkerchief holder supporters committed act such as to hurt religious feelings of Ganesh devotees", it must be correct inasmuch as it was respondent No. 1 who gave this information to "Pravasi". Therefore, it is clear that this was published in "Samna" with express consent of respondent No. 1.
66. Mr. Hattangadi submitted that respondent No. 1 has no control over the editorial staff or the news reporters and therefore it cannot be said that this has been published with his consent. Relying on the case of
67. Thus, having published the news item, Ex.R, did respondent No. 1 prove that he reasonably believed the same to be true. Respondent No. 1 need not prove that it was true or believe it to be not false. But he must certainly show that the alleged incident was reasonably probable, and he did not believe it to be false. Mr. Hattangadi says that it is for the petitioner to establish that respondent No. 1 had believed the statement to be false. Once the petitioner establishes that no such fact had taken place and that respondent No. 1 published such a false report, the burden shifts on respondent No. 1 to show that he believed it to be true. Let us, see how does respondent No. 1 discharges his burden. Firstly, he relies on a similar report in "Pravasi" dated February 15, 1990 (Ex. 11). But the report itself mentions that the information was given by respondent No. 1. He, as pointed out above, has admitted that the reporter of "Pravasi" has contacted him, but he had directed him to Sanjay Dahale. This is obviously a false statement inasmuch as he himself says that it cannot be said that the news item is false. Moreover, "Pravasi" would not have mentioned that respondent No. 1 has "leveled accusation" as contained in the said report. Secondly, Mr. Hattangadi relied on the evidence of Mr. Nevrekar (P.W. No. 4) that some Muslims might have been in the group of their followers. Therefore, Hindu women might have resented their presence and the Muslim Workers might have shouted "Allah Ho Akbar". Thirdly, he says that he had asked Dahale to verify the news item before reporting and therefore he must have verified the same. Let us now analyse all these contentions.
68. When Nevrekar was in the witness-box, respondent No. 1 came with various suggestions. Mr. Kotwal says that about 5 to 6 suggestions were given. Firstly, it was suggested that something might have happened at the gate. Secondly, it was suggested that Shiv-Sainiks picked-up a quarrel because the petitioner and his workers had not removed their Chappals as they entered the temple. Thirdly, it was suggested that while taking Mahaprasad, the persons who were seated were asked to get up in order to accommodate the petitioner''s workers. Fourthly, it was suggested that Hindu ladies resented the Muslim volunteers taking food there and a sort of positive case was sought to be put that thereupon the Muslim workers shouted "Allah Ho Akbar". All these suggestions were denied by Mr. Nevrekar. Both the parties had tendered certain photographs of the petitioner and his workers having food at the pedal.The photographs are at Ex. Q & S. They show no incident of any kind as suggested or as reported in Ex.R. Having come out with these various suggestions and having put up a positive case that Muslim workers shouted "Allah Ho Akbar", respondent No. 1 ought to have led some evidence to show as to what actually happened when the petitioner and his group visited the site. There were number of Shiv-Sainiks admittedly present there. There was Suhas Samant, a Shiv-Sena Municipal Councillor, who received the petitioner and his workers. Respondent No. 1 also admits that he was there and he could be seen in the photographs also. Suhas Samant also had come to the Court, as the trial was going on. He was also cited as witness in the list of witnesses given by the respondent. Yet, he has not been examined. He would have been the best person to say as to what transpired at the pedal while the petitioner and his worker had their Mahaprasad. The inference is clear No. such incident had taken place at all. Similarly, there is no evidence whatsoever to hold that Dahale had verified the news item. There is nothing on record to show that Dahale had even visited the site on that day. He was admittedly not present at the time the petitioner visited the festival. Ashok Padbidri''s evidence is that Dahale had gone there after the incident, after he got a number of telephone calls. He himself had not received any call. He had not sent Dahale. At no time he had asked Dahale to verify the news item, even after he receives the denials from Baburao Naik and Neverkar. The incident, if true, relates to shouting of "Allah Ho Akbar" in a Ganesh festival. Common sense, if not editorial ethical Code should have suggested to him that it was a "sensitive, sensational" report, relating to Hindu-Muslim relations. Yet, he did not bring in objectivity expected of a senior journalist. Thus, he stands thoroughly discredited as a journalist of a partisan character.
69. Mr. Hattangadi says that once they publish Baburao Naik''s letter (Ex 2), respondent No. 1 can be said to have discharged his burden. He also submitted that it was not necessary to publish Ex.S. But what is important, here is the stand taken by respondent No. 1 in his written statement. In paragraph 72 of the written statement he took up a stand that the said letter was never received by the Editor of "Samna" or by any person in the office of the said newspaper as alleged. I must mention here that Dahale has been cited as a witness in the list of witnesses given by respondent No. 1. I am not prepared to say that respondent No. 1 did not know that this letter, given by Nevrekar (Ex. S), had been received by Dahale. In all probability, he knew that such a letter had come. But he took up a false stand in the written statement that no such letter was ever received. The result was, the petitioner had to examine Mr. Govind Shankar Kamtekar (P.W. No. 10), to prove that such a letter was in fact delivered and it was received by one Mr. Sanjay Dahale. It is only thereafter Mr. Hattangadi admitted the receipt of the said letter and a statement to that effect was made. But what is significant is that in spite of there being nothing to indicate that incident was reasonably probable, both respondent No. 1 and Ashok Padbidri (R.W. No. 3), asserted that the report (Ex.R) was correct. Therefore, if Mr. Hattangadi has admitted this letter at a latter stage, it was only with a view to avoid to avoid Sanjay Dahale being examined in the witness-box, for, he knew if he is examined and cross-examined, his evidence would not have supported the stand taken by respondent No. 1
70. Mr. Hattangadi referred to the fact that Mr.. Nevrekar had stated that their visit had been video recorded by the organising committee and that video tape has been suppressed. The video recording was not done by the petitioner or Nevrekar. It was done by Baburao Naik, one of the Trustees. Nevrekar has stated that he does not know where the tape is. Baburao Naik has issued a statement (Ex. 2) denying the incident. Mr. Suhas Samant is also one of the Trustee and there is no explanation as to why Suhas Samant was not examined. Thus, it must be held that respondent No. 1 published Ex. R knowing it to be false and without believing it to be true.
71. This takes me to the next ingredient of this charge, viz, that the statement must be in relation to the personal character or conduct of the petitioner or in relation to his candidature. This must necessarily depend upon the content of the statement at Ex.R. The news item expressly mentions the petitioner''s name. It expressly shows in what manner he came, in the manner of ''Urus''(a Muslim procession). It further says that he came with persons who were shouting "Allah Ho Akbar" and his gang also included an externee from Kurla area. In other words, this news item conveys that Shared Rao, the petitioner, keeps the company of Goondas and Muslims and extrenees. He has no respect for Hindus or Hindu festivals. He deliberately brings in Muslims, while Hindu devotees were having their Mahaprasad. It creates an impression that he is an undesirable person who has no respect for law and order and who is out to defile a Hindu sacred place. Mr. Kotwal submits that the allegation is not against the workers alone, it specifically mentions the petitioner and his group led by him. He submits that this publication relates to the petitioner''s personal character and conduct. It maligns him. It brings him into contempt in the eyes of certain section of the society. He, therefore, submits that this meets the requirements of the ingredients of this particular section.
72. While one''s character may be equated with his mental or moral nature his conduct can be equated with his personal actions or behaviour. Conduct indicates what he did or how he behaved. Therefore, the statement indicates that the petitioner came with his group in the manner of a Muslim procession and created chaos by shouting "Allah Ho Akbar". Certainly it maligns him and it damages him. It is not in relation to public conduct or public character. He had not come there to address a meeting. He had gone there as invited by the Trustees of the temple for the purpose of paying his respects to the idol and thereafter at the invitation of the Trustees to have the Mahaprasad. Apparently, everything was peaceful. In such a situation, if it is be suggested that persons shouted "Allah Ho Akbar", it can only mean that the report wanted to paint the petitioner in such a manner as to be condemned by everyone, including his own kith and kin. It is in fact a serious allegation and it relates to his personal conduct and personal character.
73. Mr. Kotwal referred to the case of T.K. Gangi Reddy v. M.C. Anjaneya Reddy and others ILR 1960 Mys 290, wherein the Supreme Court was dealing with a statement attributing acts of violence, including throwing of stones etc. and the relevant observation is as follows:
"The words "personal character or conduct" are so clear that they do not require further elucidation or definition. The character of a person may ordinarily be equated with his mental or moral nature. Conduct connotes a person''s actions or behaviour. The said acts attributed to the first respondent certainly relate to his personal character and conduct. What is more damaging to a person''s character and conduct than to state that he instigated a murder and he was guilty of violent acts in his political career?"
74. Mr. Hattangadi relied on the case of
75. Mr. Hattangadi has also drawn my attention to the case of
76. Mr. Hattangadi says that, still there is nothing to say that the impugned statement was reasonably calculated to prejudice the prospects of the petitioner''s election. He submitted that to impute such a charge there should be some evidence of pre-planning. The expression "reasonably calculated" is not equated to "likely to". He relied on the case of
"The word "calculated" in section 67(3) suggests design, forethought, or intention to accomplish a purpose. "Calculated" primarily means to compute mathematically, but when applied to a human action it is used in the sense of, to intend, to design, to plan, or to adapt to achieve a purpose."
He also submitted that the very fact that respondent No. 1 told Dahale to verify the news and that later on the statement of Baburao Naik (Ex. 2) was published would at once negative the allegation of design on the part of respondent No. 1
77. I wish, the law could be that naive as submitted by Mr. Hattangadi. Each expression in any statute has to be understood in its context and its purpose. In an election, as in Court, one has to fight fair, and the law frowns upon anything that is foul. It is not so much a question of intention as is a matter of assessment of impact on the votes by the Court. In this connection Mr. Kotwal has referred the case of
"Further one of the ingredients of the corrupt practice u/s 123(4) is that the statement complained of must be one reasonably calculated to prejudice the prospects of the election of the person against whom it is made. It may be note that the section does not merely say being a statement calculated to prejudice the prospects of the candidate''s election, but on the other hand, it says : being a statement responsibly calculated to prejudice the prospects of that candidate''s election. The meaning of that expression is as held by a Division Bench of the Bombay High Court in
78. Therefore, it is necessary for the purpose of determining whether this was published with a reasonable calculation to prejudice the prospects of the election of the petitioner, the Court has to consider the nature of the publication, the evidence tendered in Court, the surrounding circumstances have its natural and probable consequence of prejudicing circumstances and its natural probable consequence of prejudicing the election of the candidate. It is not so much an intention of the publisher but the probable effect on the election of the candidate that has to be taken into account.
79. Mr. Kotwal has relied on the following circumstances in this connection. He submitted that in this constituency, Ganapati (Lord Ganesh) was a very sensitive issue. There is a bit of history which has come on record and that history has to be taken into account. In this connection, Mr. Kotwal, draws my attention firstly to a poster (Ex. O) which shows respondent No. 1 is fighting inter alia "on the issue of humiliation to Shree Ganesh." There is also a report in the Marathi Daily "Samna" dated February 26,1990, on the eve of the election being Ex. BM and BM1. The news item in Ex. BM, is in respect of a street-play "Ganapati Ala Anil Thambun Rahila: (Lord Ganesh came and stayed back). The report shows that this play was written by one Gajanan Kore to campaign for respondent No. 1 The report also contains photograph showing a scene of the play. There is also an exhibit being an advertisement appearing in "Samna" dated February 24, 1990, which contains an appeal to vote for respondent No. 1 on various grounds amongst which Item No. 4 relates to making arrangements for immersion of the Ganesh idol for the convenience of the devotees of Ganesh. The other exhibit is a pamphlet, issued by Subhash Desai Mitra Mandal, which is at Ex. BE in which also there is a reference to respondent No. 1 as the person who successfully conducted the agitation for an action against Police Sub-Inspector Iqbal Bhargir who had desecrated the idol of the public Ganapati in the Wasri-Dongri area of Goregaon. Mr. Kotwal submits that all these exhibits together with Ex.R clearly show as to why respondent No. 1 published this news item. The idea was to bring to the notice of the public that the issue of Lord Ganesh is kept alive and it was on that basis he could project himself as a person who fights for the sanctity of the place belonging to Lord Ganesh.
80. To appreciate this, one must go back to certain incident which has come on record. Of course, the incident has been referred to in the petition. It appears that some time in September 1989 the idol of Lord Ganesh was kept at Wasri area. There was one Police Sub-Inspector by name Iqbal Bhargir. According to respondent No. 1, the officer had stopped reading recitations of Ramayana and also entered the pandal with the shoes on and removed the loud-speakers. The devotees demanded that an action should be taken against him. In that connection, respondent No. 1 says that all had not joined together for the protection of Hindus but they had joined as against injustice. He further says that four Ganesh-mandals had stopped immersion of this Ganpati. He admits that he had played a lead role in this agitation. The immersion was stopped until the demands of the four Mandals were met and according to him only when the Police Commissioner announced action against the concerned Sub-Inspector, the agitation was withdrawn. Thus respondent No. 1 had projected himself in this constituency as a person who had led the agitation in respect of an insult to the idol of Ganesh as was done by the Sub-Inspector-Iqbal Bhargir. In this agitation he says, B.J.P.-Shiv-Sena, V.H.P. and R.S.S. and all parties had joined together. The Muslim League was not there and the Janata Dal. Party was not there but there was a worker of Janata Dal. But , of Course, the prominent leader was respondent No. 1 There is a report of this incident as published in "Samna" dated September 17, 1989, (Ex.BO). The report indicates that the Janata Dal President, Mrs. Mrinal Gore, had come forward on defence of the Sub-Inspector Iqbal Bhargir. The report also mentions that while thousands of Hindu devotees, mothers and sisters and the people at large were upset with rage because of the desecration of the Vighneshwar (obstacle remover God), Mrinal Gore says, "Islam is in danger" and that Hindu communalists have framed false accusations against Iqbal Bhargir. The report further indicates that Mrs. Gore was supporting Iqbal Bhargir mainly because she wants the vote-bank of the Musalmans (Muslims). It is not necessary for me to refer to the details of this report, but it is significant to note that as far as this incident was concerned, the Janata Dal President Mrs. Mrinal Gore was against the agitators of whom respondent No. 1 had taken leadership. There is also another report in the Marathi Daily "Samna" published on October 16,1989 (Ex. BG), which relates to a speech given by respondent No. 1 when he said "the glory of Shree Ganesh still survives." In, this speech he is reported to have said that "behind the big display of the huge Hindu power, made before devotees of Ganesh in the Ganesh festival at Goregaon there was the power of Shiv-Sena Chief and as a result of which the battle has been won". The report further shows that the respondent pointed out how socialists were indulging in pranks to appease the Muslims for their votes. He is then reported to have said that if any Iqbal Bhargir tried to harm them in the least they would not let him remain in his office.
81. Thus, it is clear that though there was no incident pertaining to the idol of Ganesh during the period of the Assembly elections, it was necessary for respondent No. 1 to keep this issue alive somehow. It had to be brought back to the memory of the people . It was in this sense the report cannot be said to be an innocent publication. The reference to the street-play dated February 26,1990, is clear that it was a summary of what transpired in September 1989 and it was deliberately published a day before the election. Respondent No. 1''s acts clearly project him as the sole saviour of Lord Ganesh and the incident was kept alive so that the voters may remember whenever there was any trouble as far as Lord Ganesh was concerned, the trouble was from the Janata Dal or Mrs. Mrinal Gore or perhaps her follower Sharad Rao and the savior was always respondent No. 1 In this sense, the publication of this report was a calculated publication of a statement of fact which was false. The idea was to rouse the sentiment of the Hindus as against the petitioner. The idea was to divide the voters on religious lines and to malign him in the eyes of a certain class of voters. The idea was again to show that respondent No. 1 had always defended the cause of Lord Ganesh. It was in that sense, a very sinister plot, published in conspiracy with a very obliging journalist, Mr. Ashok Padbidri.
Issue Nos. 14&15.
82. The charge is u/s 123(3) and 123(A) of the Act of 1951. The allegation is that respondent No. 1 appealed to vote on the basis of Hindu religion or community and to refrain from voting for the petitioner because they are either appeasing Muslims or opposed to Hindu religion or Hindu community. The other allegation is that respondent No. 1 has sought to promote or attempt to promote feeling of enmity or hatred between different classes of citizens of India on grounds of Hindu religion or community. There is no denial of the fact that Shiv-Sena B.J.P. alliance appealed to the voters of Hindutva. Respondent No. 1 admits that he had canvassed votes on the basis of Hindutva.
83. In the petition, the petitioner has alleged that V.H.P. and the R.S.S. in association with B.J.P. Shiv- Sena alliance propounded the cause of Hinduism. These four organisations used Hinduism and their plan or replacement of the three Masjids at Ayodhya, Mathura and Varansi by erection of Hindu temples of Shree Ram, Shree Krishna and Shree Shankar respectively, as their main issue in the Loksabha as also in the assembly elections. In this connection, the petitioner has relied on an appeal issued by the V.H.P. on February 26,1990, in Marathi Daily "Loksatta" and other newspapers, exhorting Hindus to vote only who would project Hindus and would protect their interests. It used the image of Shiv-linga in the said advertisement, The appeal also exhorted that the Ram-Mandir at Ayodhya shall be erected and the appeasement of the minorities shall not be tolerated. It has been further stated in the petition that V.H.P. has also published a folder in Marathi entitled "oh Hindus, wake-up and save the Nation." The said folder has also been annexed to the petition. There is a further allegation that B.J.P, the election ally of Shiv-Sena had exhibited on several boards in different localities in Goregaon between February 21,1990, and February 27,1990, appeals to the voters to vote for respondent No. 1 who had pledged to uphold the deeds of the cow protector and the deeds of the establisher of the Hinduvi Independence by Chhatrapati Shivaji Maharaj, and who has brought the massage of "Hindu Hridaya Samrat", i.e., Balasaheb Thackeray. It has been stated that Marathi Daily "Samna" is the mouth-piece of Shiv-Sena and it has propagated the election programmes of Shiv-Sena. Thereafter there is a reference to the incident that is alleged to have taken place at the festival of Ganesh organised by Sankalpa Siddhi Ganesh Mandir Trust which I have already referred to as above.
84. Thereafter in para 54 of the petition, the petitioner has set out various facts which have transpired in India over the last one decade until the impugned election. In that connection the petitioner refers to Jammu-Kashmir and Punjab problems and how the parties like B.J.P. and Shiv-Sena have tried to exploit the said problems to have political mileage and election gains. He has also referred to Ram Janambhoomi and Babri Masjid issue and how the parties like B.J.P. Shiv-Sena and the organisations like V.H.P. have exploited the said unfortunate dispute for their political gains. Coming to Maharashtra, the petitioner has referred to the election of Dr. Ramesh Prabhoo from Vile-Parle constituency by appealing to the voters in the name of Hindu religion. Thereafter the petitioner has stated as to how the election was set aside and that a notice was issued to Bal Thackeray for naming him as having committed the corrupt practices as provided for by section 99 of the said Act. Then, the petitioner refers to the Loksabha election in which the said alliance put up in all 34 candidates. In that connection Bal Thackeray as had addressed public-meeting on October 10,1989, at Shivaji Park and he had announced that the alliance would fight on the common election-plank of Hinduism /Hindutva/Hindu religion. The petitioner says that the concerned police department has tape-recorded the speeches and have taken down the same in shorthand. The speeches made by Bal Thackeray and other leaders were reported in Marathi Daily "Samna" on October 11,1989. The petitioner has also referred to an interview given by Bal Thackeray which had appeared in a fortnightly magazine "on looker" dated September 30,1989. The said also came to be published in "Samna" dated October 18, 1989. thereafter, the petitioner says, there was a meeting on November 5, 1989, at Girgaum Chowpaty wherein again the said alliance canvassed for votes in the name of Hindutva in the Parliamentary elections. The said speeches again have been tape-recorded and have been taken down in short-hand by the police department. Thereafter, the petitioner has referred to the incident relating to immersion of the idol of Lord Ganesh and as to how the said incident was covered into a Hindu-Muslim controversy by respondent No. 1 and the said alliance. In that connection, there was a meeting held on october 15,1989, at Goregaon, where respondent No.1 as also other leaders and Bal Thackeray had made speeches and they had purported to state that they would never tolerate the insult of Hindus. Proceedings of the said meeting were reported in "Samna" dated October 16, 1989. The petitioner has also stated that the said alliance tried to exploit the controversy regarding Ram Janambhoomi Babri Masjid issue by holding Shila Pujas (Brick Worship) ceremony. Thereafter in the Parliamentary election, four Shiv-Sena candidates won the election and ten of the B.J.P. candidates also won the election. There was a victory rally at shivaji Park on December 3, 1989. Portions of the speech given by Bal Thackeray were incorporated in the video-cassette called "Avhan Ani Awahan." The allegation is that whatever be the verdict of the courts, they would propagate Hinduism during the election period and that this country is of Hindus and it should remain of Hindus only. Others would live here only with honour. He had also used the slogan "Garva Se Kaho Hum Hindu Hai". He had also told the audience that the saffron flag of Hindus under any circumstances will fly on the Vidhan Bhavan (Assembly Hal Building).
85. Thereafter the petitioner has set out that as soon as the election dates were declared, the said alliance started campaigning for the election in question. There was a public-meeting at Girgaum Chowpaty on January 29,1900, in which Bal Thackeray and other leaders of Shiv-Sena addressed a meeting. All the contesting candidates of the alliance from Bombay were present in the said meeting. In that meeting Bal Thackeray declared that the alliance was fighting the election on the plank of Hindutva. The report of the meeting appeared in several newspapers on the next day. The speeches made therein have also been tape-recorded by the police and they have also been taken down in short-hand.
86. The petitioner sets out in para 59, the offending parts of the speeches made by Bal Thackeray and other leaders. Briefly, the facts alleged are that Hindutva is their breath and that they would not leave Hindutva; the Muslims have been pampered by the Central Government and that even the new Prime Minister would go to meet the Imam first but would not go to Shankaracharya or to a temple; day by day the demands of Muslims are increasing and that they would not allow the partition of the country once again. For the purpose of saving Kashmir and Punjab they were campaigning in the name of Hindutva.
87. Thereafter in the subsequent paragraphs, the petitioner has stated that Bal Thackeray and other leaders of the alliance have canvassed for votes in the name of Hindu religion (Hindutva). Bal Thackeray was himself referred to by other speakers as "Hindu Friday Samrat" (Emperor of Hindu hearts). Bal Thackeray had gone to the extent of provoking the voters at the said public meeting by asking as to with which colour they would celebrate the victory whether by orange colour (Bhagwa) or by green colour (being the colour of the flag put up by Muslims on the mosques and other religious places). All these speeches have been reported in the newspapers which have wide circulation in the city of Bombay and outside. The voters of the constituency read the said reports. The petitioner submits, all these statements amount to corrupt practice within the meaning of the Act. The press-cuttings of the meeting were also put on various boards by Shiv-Sena. The cassettes of the speeches were also played throughout the constituency. Thereafter there was a meeting on February 24, 1990, at Shivaji Park. At the said meeting the first respondent and all other activists of Shiv-Sena B.J.P. alliance were present. In that meeting Bal Thackeray again reiterated that the said alliance was contesting the election in the name of Hindu religion. The proceedings of the said meeting were widely reported in all the daily newspapers including "Samna" dated February 25, 1990, and February 26, 1990. These are the allegations in the petition.
88. In the written statement, respondent No. 1 has stated that since immemorial times this country was known as Hindustan and the inhabitants of this country were known as Hindus. The Shiv-Sena B.J.P. parties were never and/or are not against any religion as such. The said parties have always considered all people faithful to this country as Hindus irrespective of their religion. The said parties have always been against the anti-nationals whether they are Hindu or not. He denied that Shiv-Sena B.J.P. had any time propounded the cause of Hinduism as their goal for election. He has denied that Shiv-Sena or B.J.P. used Hinduism and/or the alleged plan of replacement of Masjid by erection of Hindu temple at Mathura, Ayodhya and Varanasi as their issues in the election as alleged. He has also denied that he has anything to do with the appeals alleged to have been issued by V.H.P. He says that he is not aware and, therefore, does not admit that that such appeals were issued. He also says that he is not aware and, therefore, does not admit they have published any folder as alleged in the petition. He has also denied that any statement was exhibited on any board in different localities of Bombay. He had never asked nor authorised anyone to put up any such board as alleged and if any board was found that was without his knowledge and/or consent of this respondent No. 1. He has also denied that Marathi Daily "Samna" is a mouth-piece of Shiv-Sena as alleged. He also denied that "Samna" propagated the Election Programme of Shiv-Sena party as alleged. He says that "Samna" is an independent newspaper though Bal Thackeray is the Editor and this respondent No. 1 is the printer and publisher. Thereafter he has denied all the allegations in respect of the incident relating to the Ganesh festival organised by Sankalpa Siddhi Ganesh Mandir Trust.
89. As regards the allegations contained in para 54, he says all those events are not relevant for the purpose of this election petition. However, he denies the allegation that Shiv-Sena B.J.P. have tried to exploit any of the problems as referred to in the petition. As regards the allegation relating to Ram Janambhoomi and Babri Masjid, he denies that Shiv-Sena and/or B.J.P. have at any time tried to exploit the said issue. He says that that issue is existing for the last four centuries. As regards the election of Dr. Ramesh Prabhoo, he denies that Shiv-Sena had at any time campaigned in the name of Hindu religion as alleged. As regards the judgment of this Court, he stated that the matter is pending in the Supreme Court and by an order dated May 18, 1989, the order passed by this Court has been stayed. As regards the campaign for the Loksabha elections, he has denied that the said alliance had at any time campaigned on the basis of Hinduism as alleged. As regards the various speeches made prior to the announcement of the present election, he submits that they are not relevant and cannot be the basis for any charge in the present petition. So also, with regard to the interview given by Bal Thackeray and published in the fortnightly "On looker" dated September 30, 1989, the respondent says that Bal Thackeray was not against Muslims in general but he was only against antinationals. In any event, the interview being much prior to the election, the same was not relevant. He denies that the said alliance had at any time canvassed for votes in the name of Hinduism/Hindutva/Hindu religion.
90. As regards the victory rally, the respondent admits that such a rally had taken place. But he says that he is not aware and, therefore, does not admit that the said meeting was video-recorded as alleged. Significantly, he has not denied the existence of the video-cassette "Avhan Ani Awahan". In para 87 he has categorically stated that Shiv-Sena B.J.P. referred to the word "Hindu" to every Indian who is loyal to this country and the words "Hindutva and/or Hinduism" therefore mean nationalism and this stand has been repeatedly mentioned by various leaders of Shiv-Sena B.J.P. during the election and also otherwise either prior to and/or subsequent to election as alleged.
91. He admits the meeting that took place on January 29, 1990, but he denies that he was present in the said meeting. He also denies the other allegations in respect of the said meeting. He denies all the other allegations made against him and the party. He also denies the various statements attributed to Bal Thackeray stating that Bal Thackeray had never made any such appeals in the name of religion as alleged. As regards the meeting held on February 24, 1990, though initially he denied that he was present, on amendment admitted that he was present in the said meeting. But he denies that Bal Thackeray stated that elections were being contested in the name of Hindu religion. In any event, he submits that there can be no charge either u/s 123(3) and 123(3-A) of the Act 1951.
92. Before I deal with the evidence, I must briefly set out the arguments and the law. The argument is that ours is not an irreligious State. Religion is a part of the Constitution. Articles 25 to 29 clearly raise religion to the level of fundamental rights. There is no contradiction between religion and secularism. Further no party can be prevented from propagating what it believes including religion. That is the only way to bring about social revolution. In any event, in the present case, Bal Thackeray was only appealing to the voters on the basis of his political thinking. Wherever he used the word Hindu Dharma, it did not necessarily mean Hindu religion. Mr. Hattangadi gave thirteen different connotations of dharma and submitted that it must be understood in the sense as canvassed by Bal Thackeray. Above all, there is nothing to suggest that either respondent No. 1 or Bal Thackeray canvassed on the basis of their being Hindu or their religion as such. They might have made allegations against Congress and janata Dal for appeasing Muslims. But still there is no appeal to voters on the basis of respondent No. 1''s religion or not to vote for the petitioner because of his religion.
93. Before we deal with the fact, let us consider the law. Number of authorities have been cited on either side. One of the earlier judgments cited by Mr. Hattangadi is the case of Moinuddin B. Harris v. B.P. Divgi, E.L.R. 248. This is a case decided by the Election Tribunal of Bombay. The allegation in this case was that respondent No. 1 in that case had made a systematic appeal to the voters to vote for respondent No. 1, and to refrain from voting for the petitioner, on the ground that the petitioner belonged to the Socialist party, which did not believe in religion and that the petitioner himself had opposed the teaching of Koran in the Municipal schools. The Tribunal construed the law (section 124(5) of the Act 1951 as it then stood) stays that the real intention of the section was to prevent attacks on a particular religion, or on a candidate only on the ground that he is a follower of a particular religion. Consequently, an attack on a candidate on the ground that in his attitude on the question of the teaching of the Koran in municipal schools, he took a view which was against the Koran, or against Islam, or against religion in general, would not fall within the purview of section 124(5). Mr. hattangadi then relied on the case of Md. Ibrahim Ansari v. M.R. Masani, 18 E.L.R. 160, being another case from Election Tribunal, Ranchi. This is a case where a person published a statement containing an advice of a Maulana who was the Vice-President of the Jamaiyat Ulema, to Muslims. The advice did not direct the Muslims to vote, or not to vote, for any particular candidate but contained numerous aspersions against the Congress Party in general and the harm it was doing to Muslims. The statement, however, left the choice to the voters to vote for the best candidate. It was held that this was a statement issued by Maulana in his personal capacity and he had come and given evidence in that behalf. The Tribunal held that no charge of corrupt practice as alleged stood proved. In the case of Amjad Ali v. Nazmul Haque, 21 E.L.R. 345, of Assam High Court, there was a criticism against the Congress Government in public meetings for its administrative policy in the matter of its enforcing or passing legal measures or adopting methods prejudicial to Muslims and it was held that does not by itself amount to an appeal to Muslims to vote or refrain from voting on the ground of caste, race, community or religion, within the meaning of section 123(3). It appears that there was also no evidence as to the actual statements that were made in such public meetings and it was not possible for the Court to find definitely whether only the policy of the Congress Government in the matter of passing or enforcing legislation prejudicial to Muslims was criticised, or an appeal was made to vote or refrain from voting on the ground of religion or community under the garb of discussing such measures. The Court also held that there was no sufficient material to establish communal propaganda.
94. One of the earliest cases of the Supreme Court, cited before me is the case of Shubnam v. Ram Narain AIR 1960 S.C. 1148. It was a case where a leaflet addressed to the electorate mainly consisting of Adivasis issued by the candidate''s party in the name of a "cock" which was the party''s symbol in the election, and which amongst the Adivasis formed a very important integral part of religious ceremonies, was used to invoke the wrath of the deities on the electorate in case they forgot the cock. The charge was u/s 123(2)(a)(ii) with which I am not concerned. But it is also said that where this kind of appeal was made systematically to a large section of the electors, as and when the leaflet was given a large circulation, it would come within section 123(3) of the Act. Perhaps, it was, as it stood then, as, prior to the amendment of this provision, what was required was a systematic appeal on the ground of religion. There are, however, one or two observations which are relevant, though, of course, mentioned by the dissenting Judge, Subba Rao, J. The relevant portion is as follows :
"These are direct appeals to religion as a ground of preference. But there may also be an appeal which indirectly but by necessary implication invites votes on grounds of religion. What is essential, therefore, is that the appeal should, expressly or by necessary implication, seek votes on grounds of religious affinity or religious conflict".
Of course, the learned Judge has also cautioned that this section is not obviously intended to prevent appeals in picturesque or metaphorical language drawing analogies from mythology, religion or folklore. He has stated that a distinction must, therefore, be drawn between canvassing on grounds of religion and seeking of votes in graphic or picturesque language with analogies from religious lore etc.
95. The next case is the case of
"It is true that a corrupt practice u/s 123(3) can be committed by a candidate by appealing to the voters to vote for him on the ground of his religion even though his rival candidate may belong to the same religion. If, for instance, a Sikh candidate were to appeal to the voters to vote for him, because he was a Sikh and add that his rival candidate, though a Sikh in name, was not true to the religious tenets of Sikhism or was a heretic and as such, outside the pale of the Sikh religion, that would amount to a corrupt practice u/s 123(3)".
The second relevant observation is as follows :
"...in considering the question as to whether a particular appeal made by a candidate falls within the mischief of section 123(3), courts should not be astute to read into the words used in the appeal anything more than can be attributed to them on its fair and reasonable construction".
The allegation in this case was that the appeal to the voters was to vote for "Panth". The Supreme Court held that the word ''Panth" did not mean Sikh religion and on that basis it was held that there can be no charge u/s 123(3).
96. The next case is the case of
97. In the case of
"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, has fasted for 73 days, would they (Sikhs) have voted for the Congress? In the same manner if there were Parsees 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 any one, the mandate of the Jagadguru is that let cows be slaughtered, let bullocks be slaughtered. In Gujarat State though there is bany, 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 had held that this passage constituted corrupt practice as it contained an appeal to the Hindu voters 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 Hindus. The Supreme Court did not agree with the finding given by the High Court. Apparently, the Supreme Court as also the High Court was considering whether the passage would fall within the scope of section 123(2), and while the High Court held that it was a corrupt practice within that provision, the Supreme Court negatived that finding. It was, in this context, the Supreme Court made the following observations :
"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 religious. What section 123(3) bars is that an appeal by a candidate or his agent or any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, i.e, the religion of the candidate."
Thus, it is clear that this case was not dealing with the ambit and scope of the charge u/s 123(3). This can be appreciated further when the one dissenting Judge, Hedge, J., considers this passage, as offending section 123(2) of the Act. In other words, this is not a case which really deals with section 123(3) of the Act of 1951 as such.
98. The next case is the case of
"Is it appeal to religion if voters are told that a candidate consumes unorthodox food ? That a brahim eats beef, that a Muslim eats pork, that a jain eats at night? Should the law lend itself, in a secular State, to the little susceptibilities of orthodox tenets?"
He further observes ........
"True, the vice is injection of religion into politics and playing up fanaticism to distract franchise. But the back-lash of this provision is a legal enquiry into what is the basis faith, not its frills and filigress."
He then observes........
"what is appeal to religion depends on time and circumstances, the ethos of a community, the bearing of the deviation on the cardinal tenets and other variables."
It was held that corrupt practice within the meaning of section 123(3), was committed.
99. In the case of
"It seems to us that section 123, sub-sections'' (2) and (3) and (3A) were enacted so as to eliminate, from the electoral process, appeals to those divisive factors which arouse irrational passions that run counter to the basic tenets of our Constitution, and, indeed, of any civilized political and social order. Due respect for the religious beliefs and practices, race, creed, culture, and language of other citizens is one of the basic postulates of our democratic system. Under the guise of protecting your own religion, culture, or creed you cannot embark on personal attacks on those of others or whip up low heart instincts and animosities or irrational fears between groups to secure electoral victories. The line has to be drawn by the courts, between what is permissible and what is prohibited, after taking into account the facts and circumstances of each case interpreted in the context in which the statement or acts complained of were made."
What happened in this case was that the appellant in the course of his speech stated that if the Congress Government brought certain amendments in the Muslim Personal Law, the battle would be fought in every streets as that would raise the question of religion. The High Court had held that the statement amounted to a violation of section 123(3-A) of the Act. The Supreme Court while confirming that finding also said that the language employed, viewed in the context of its purpose, could also fall within the purview of section 123(3) of the Act inasmuch as Chagla was represented as candidate advocating what was contrary to the appellant''s view of Muslim religion. The Supreme Court observed as follows :
"It appears to us that the High Court was right in construing the speech as highly inflammatory. It certainly amounted to the assertion that Muslim religion (or, what Bukhari thought it was) was in danger and could only be saved by man like Bukhari and not by Chagla. We think that it is a fair construction on the speech to hold that it amounted to at least a violation of section 123(3) of the Act. We think that it was also struck by section 123(3A) of the Act."
There are further speeches referred to in the judgment. In one of the speeches the appellant attacked the Congress candidate stating that he was playing with the appellant''s religious affairs and the Congress candidate considers the appellant and his community whose conscience is dead. In another speech, the appellant stated that he felt that the Government was working against them and that their rights are being crushed and their religious affairs were being interfered with and that they would rise like a wall cemented with lead against it. The earlier speech was held to be violative of section 123(3) while the latter was held to be violative of section 123(3A) of the Act. There was also an appeal against the personal beliefs and practices of the Congress candidate referring to which the Supreme Court observes as follows :
"We have to primarily examine the cloak which the appeal wears to parade in and not only what lies beneath it."
100. Mr. Hattangadi relied strongly on the case of
101. This takes me to the last of the case cited across the bar viz.,
"The paramount and basic purpose underlying section 123(3) of the Act is the concept of secular democracy. Section 123(3) was enacted so as to eliminate from the electoral process appeals to divisive factors such as religion, caste, etc., which give vent to irrational passions. It is essential that powerful emotions generated by religion should not be permitted to be exhibited during election and that decision and choice of the people are not coloured in any way. Condemnation of electoral campaigns on lines of religion, caste, etc., is necessarily implicit in the language of section 123(3) of the Act. Consequently., the section must be so construed as to suppress the mischief and advance the remedy. Legislative history of this section is important from this point of view. The Statement of Objects and Reasons of the Amending Act, 1961, clearly mentions the object of the amendment. It was for curbing communal and separatist tendencies in the country. It is proposed to widen the scope of the corrupt practice mentioned in Clause (3) of section 1234) of 1951 Act and to provide for a new corrupt practice. In order to determine whether certain activities come within the mischief of section 123(3), regard must be had to the substance of the matter rather than to the mere form or phraseology. The inhibition of section 123(3) should not be permitted to be circumvented indirectly or by circuitous or subtle devices. The Court should attach importance to the effect and impact of the acts complained of and always keep in mind the paramount purpose of section 123(3) namely to prevent religious influence from entering the electoral field. The nature and consequence of an act may not appear on its very face but the same can be implied having regard to the language, the context, the status and position of the person issuing the statement, the appearance and known religion of the candidate, the class or person to whom the statement or act is directed, etc."
The Supreme Court also noticed that as a result of the amendment, the expression "systematic" has been deleted and,
"Therefore even a single appeal by a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste or community etc., would be corrupt practice."
The allegations were that respondent No. 3, In that case, mainly appealed in the name of Sikh religion, to vote for him. The Supreme Court after considering all the materials produced before the Court observed as follows :
"These questions should be very broadly decided. It would not be an appeal to religion if a candidate is put up by saying ''vote for him'' because he is a good Sikh or he is a good Christian or he is a good Muslim, but it would be an appeal to religion if it is published that not to vote for him would be against Sikh religion or against Christian religion or against Hindu religion or to vote for the other candidate would be an act against a particular religion. It is the total effect of such an appeal that has to be borne in mind in deciding whether there was an appeal to religion as such or not. In each case, therefore, the substance of the matter has to be judged."
And the Supreme Court gave its finding as follows :
"Taking into account the totality of the evidence in the background of the fact that some communications from Akal Takht, call it Hukamnama or any other name, were issued and the issues of editorials of Akali Takht, which were mentioned by Shri Prakash Singh Badal as stated by the witness on behalf of the appellant and which is not denied by Shri Prakash Singh Badal, we are of the opinion that in this case appeal in the name of religion was made on behalf of respondent No. 3. Though some facts stated in the oral evidence about the meetings had not been stated in the petition, but when evidence was tendered and was not shaken in cross-examination and the version have a ring of truth in the background of other factors, we are of the opinion that the case of appeal to religion by the respondent No. 3 has been proved in this case. This conclusion becomes irresistible in view of absence of any express denial by Shri Prakash Singh Badal and in the absence of any explanation for not calling him as a witness on this point. Several decisions of this Court have laid down various tests to determine the standard of proof required to establish corrupt practice. While insisting on standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make it well nigh impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the act in maintaining purity of the electoral process. See the observations in the case of
102. While this could be the law in so far as it relates to section 123(3) of the Act, I will deal with the cases particularly falling u/s 123(3)(3A) separately though some of the observations in these cases would be relevant for determining the scope of section 123(3A). I may also mention that the facts mentioned in each case if understood in its context and in the circumstances of the case may as well fall u/s 123(3) of the Act as also u/s 123(3)(3A) of the Act.
103. In the present case since respondent No. 1 himself did not bring on record the actual words used by him in the election campaign and since Bal Thackeray, though cited as witness, was not examined, the only way to determine the same is on the basis of the material brought on record by the petitioner. The questions which are relevant are, in what way respondent No. 1 appealed to the voters? In what way respondent No. 1 carried on his election campaign? What are the words used by him in what context? To what audience and what is the nature of the appeal?
104. The petitioner relied on various items such as slogans posters, pamphlets, circulars, boards, newspaper publications, audio cassettes and in particular the video cassette known as "Avhan Ani Awahan", all made use of by respondent No. 1 or by his election agent for the purpose of his campaigning. Let me deal with each of these items.
105. As far as the slogans are concerned, in the petition there is hardly any mentioned of any slogans excepting the slogans "Garva Se Kaho Hum Hindu Hai. However, when one of the witnesses, Hamid Adam Haju (P.W. No. 9) was in the witness-box he came with certain slogans which were used by Shiv-Sena during the election. This witness was cross-examined and it was suggested that Shiv-Sena did not use any such slogans. In any case, even if they are eliminated we would still be left with the slogan which is on record as referred to above. Respondent No. 1 has also admitted in his evidence that he has used the said slogan in his speech. Perhaps, that by itself may not constitute any offences as such, but it must be understood in the context of various other things that have come on record. I may also mention that in the petition, filed by Mr. Prabhakar Kunte as against Dr. Ramesh prabhoo, (being Election Petition No. 1 of 1988) Bharucha, J., has held that this slogan along with others constitute a corrupt practice within the scope of section 123(3) of the Act of 1951.
106. Then we come to certain circulars and certain documents pertaining to V.H.P. One of the allegations of the petitioner is that V.H.P. has acted as an agent of Shiv-Sena B.J.P. alliance and they had in fact canvassed for respondent No. 1. In the petition, the petitioner has referred to the advertisements and the publications issued by V.H.P. as the document which could be impugned as offending u/s 123(3) of the Act. The respondent has categorically denied any such association. The petitioner examined one Mr. Sitaram Balkrishna Nagarkar (P.W. No. 7), who is the General Secretary of the V.H.P. in Bombay. He was asked about the advertisements that appeared in Marathi Daily "Samna" and "Loksatta" in the name of V.H.P. apparently supporting Shiv-Sena B.J.P. alliance. they openly appealed to the voters to vote for a candidate who would protect the interests of Hindus. Two such advertisements have come on record which are Ex. ZW and Ex. BL. But, unfortunately for the petitioner there is no evidence whatsoever to hold that B.J.P. Shiv-Sena alliance had given their consent and with the said consent these advertisements appeared in the newspapers. The witness himself says that these advertisements have appeared not from Bombay organisation. Hence, there is no evidence to hold that this has been done with the consent of respondent No. 1 and the petitioner cannot rely on these advertisements in support of his case. So also with regard to the circular issued by V.H.P. being Ex. ZX in this case. According to the witness these circular were issued about three years back and that this is a permanent appeal by the V.H.P. Yet, there is nothing to indicate that circular, Ex. ZX, has been issued with the consent of respondent No.1 or by the B.J.P Shiv-Sena alliance. Mr. Kotwal sought to submit that some of the office bearers of the B.J.P. and V.H.P. are common and, therefore, it could be said that this circular or pamphlet was issued in connivance with each other. In my opinion, just because certain persons are common to both the organisations it cannot be said that this pamphlet has been issued with the consent of B.J.P. Shiv-Sen or with the consent of respondent No. 1 or Bal Thackeray.
107. We now come to the other materials which are relevant in this case. Firstly, the petitioner has led evidence with regard to a board which was put up near Goregaon Railway Station. There is a photograph of the board which contains the following material. Firstly, it mentions at the top, the name of B.J.P. with its symbol by its side. It also mentions the name of the office bearers viz., Chairman Gurunath Gavaskar and General Secretary Arvind Nandapurkar. It alleges that certain Mandap (pedal) created by Hindu women devotees at the cost of Rs. 50,000/- was destroyed by shameless socialists. It also mentions that pedal was erected by women by paying fees and after obtaining legal permission, and it was opposed by Nevrekar at the instance of Mrinal Gore and one Sharma (having leucoderma). It also says that a minister of Congress party gave orders and in the presence of the police the said ''Upasana Mandap'' was demolished. The said board further says as follows :
"Show such traitors to Hindulism their place. Shri Subhash Desai has taken up the message of the ruler of Hindu heart Shri Balasaheb Thackeray who has taken up their religious observance of the founder of Hindu Swaraj and protection of cow and Brahmins Chhatrapati Shivaji Maharaj. In the interest of Hindus vote for him (Subhash Desai) by putting the rubber stamp (of vote) on the symbol of Bow and Arrow on 27th February and make him victorious."
At the bottom there is a name of Trimbak Gadekar and one Manohar Nevgi. This was referred to in the petition itself. The respondent had only denied that such a board was put up. The petitioner in his evidence referred to this board. There was no cross-examination of the petitioner on this point. Mr. Nevrekar again repeated this in his evidence and he also stated that he had seen this board which was displayed at Goregaon Railway Station on the Western Side. Since his name was mentioned in the board, his attention was drawn to it. He also stated that Trimbak Gadekar is a B.J.P. activist. Arvind Nandapurkar is a B.J.P. office bearer and Gurunath Gavaskar is also an office bearer of B.J.P. When Nevrekar was cross-examined it was only suggested that he could not have seen the board unless one purposely goes to see the board. It was not suggested that no such board was put at all. It was further alleged that one of Nevrekar''s worker had put up this board. All these suggestions were denied by Mr. Nevrekar. Now, what is significant here is that the board mentions the name of Nandapurkar. The list of witnesses given by respondent No. 1 also includes the name of Nandapurkar. But significantly respondent No. 1 did not choose to examine him. Respondent No. 1 in his evidence, admitted that he knows Gurunath Gavaskar and Arvind Nandapurkar and also Trimbak Gadekar. All these names were on the board. Respondent No. 1 could have examined any of these persons. It is not that no such board was ever put up in the constitutency at all. In fact B.J.P. had put up boards like these at different places. His only case is that he had not seen this board. would that be sufficient to say that he has nothing to do with the board.?
108. Firstly, I must necessarily hold, in view of the evidence, as stated above, that such a board was in fact put up and the same was put up by B.J.P. Secondly, it is an admitted fact that B.J.P. and Shiv-Sena had an alliance in this election. The writing mentions the names of their activists, and since they have not been examined, I must hold that the writing contained on the board was by these persons. Thirdly, respondent No. 1 does not deny the incident of demolition of Mandap (pedal) referred in the said writing on the board. Respondent No.1 had a duty to clarify these facts. I do not say that he should establish his innocence. But he certainly has a duty to clarify as to how the board was put up and who was responsible for the same, particularly so, when he had his witnesses known to him and supporting him. The failure of all these things would lead to the conclusion that such a board was put up and if the board was in fact put up the material found on the board is sufficient to indict respondent No. 1 that he has committed an offence mentioned u/s 123(3) of the Act of 1951.
109. The petitioner has alleged that a certain news item appearing in a press-cutting of a Marathi Daily "Marathwada Dainik" dated February 7, 1990 containing the speech made by one Vilas Bhanushali, when bal Thackeray was also present, was pasted on a board in Motilal Nagar and on M.G. Road and also in Pandurang Wadi on the way to Squatters Colony. The report contains some disparaging statements against Muslim women, the relevant portion of which is as follows :
"He said : Muslim women would come to cast their votes on 27th February. At that time, pull up their veils along with ''Antervastra'' (under-wears) and ascertain whether they are ''Chunga'' (male) or ''Chungi'' (female). These ''Saale'' do bogus voting. Well! this time our Hindu women cast votes for 15-15 times in our Bombay. I asked the ''Sainiks'' (Shivsena workers) from Sambhaji Nagar whether they are wearing bangles? this time you also do bogus voting. Do not be afraid!"
Since respondent No. 1 disputed the contents of the said news item, the petitioner examined Nishikant Anant Bhalerao (P.W. No. 6), a Chief Reporter of "Marathwada Dainik". He stated that he did attend the meeting at Aurangabad on February 6, 1990. The meeting was addressed by Vilas Bhanushali and Bal Thackeray and he prepared the report and further stated that it has been correctly reported. He is the Chief Reporter for "Marathwada Dainik" for about eleven years. He has a post-graduation in journalism from Indian Institute of Mass Communication, Delhi. He is not connected with the petitioner or Mr. Nevrekar in any manner. There is no challenge to his evidence to the effect that he did not attend such a meeting. It was also not even suggested to him that the report as appeared in the newspaper is false. Therefore, I must necessarily hold that Bhanushali made such a statement in the presence of Bal Thackeray and the same was reported in "Marathwada Dainik" correctly. The next question is as to whether this report was pasted on the board as stated by Nevrekar and the petitioner. To establish this, the petitioner examined Hamid Adam Haju (P.W. No. 9). He has stated in his evidence that on February 14, 1990, Shiv-Sena put up a board between the boundary of Squatters Colony, a Muslim locality, and pandurang Wadi, a caste Hindu locality. He also stated that similar board had been put up at Govind Nagar Chowk where three roads meet. On all these boards the title was written by Chalk as follows : "Vilas Bhanushali Yancha Muslim Matdarana Ishara". He also stated that the voting percentage in this part, which is a Muslim locality, was very much less. Then he was cross-examined on the voting pattern but it was nowhere suggested to him that such a board was not put up nor any such item was ever pasted on those boards. There is no reason, why I should not accept, in these circumstances, the evidence led by the petitioner to say that such a board was there and on such a board a news item (Ex. ZU) was pasted.
110. When respondent No. 1 entered the witness-box, in his examination-in-chief, he does not say a word about this board. Therefore, it is on the assumption that he does not deny the existence of the board. In the cross-examination, he only stated that he does not know whether any such board was put up or any news item was pasted on it. That is no answer to the evidence led by the petitioner. In my view, such a board was put up by Shiv-Sena and the news item was pasted on the board as stated by the petitioner. The news item being true, as the evidence of Bhalerao shows, the words referred to were really uttered. Since the newspaper was pasted and the words contained therein came to be published within the constitutency of respondent No. 1, I must necessarily hold that the words would fall within the scope of section 123(3A) of the Act of 1951 in any event. It was indirectly a threat to all the Muslim voters, particularly women voters, that they have to think twice before going to the polling station. Therefore, this is equally a sufficient evidence to bring home the charge as against respondent No. 1.
111. There is a poster which is at Ex. O in this proceeding. That is an admitted document. This poster was affixed at a number of places in the constitutency in question. This contains reference to the incident of immersion of the idol of Lord Ganesh. This makes an appeal to the voters to vote for respondent No. 1 who is fighting against, amongst other things, the humiliation to Lord Ganesh. This makes an appeal to the voters to vote for respondent No. 1 who is fighting against, amongst other things, the humiliation to Lord Ganesh. In my view, this directly an appeal on the ground of religion, the idol of Lord being an idol belonging to Hindu community and Hindu community alone. This must be read in the light of Ex. BE which is a pamphlet issued by respondent No. 1''s Mitra Mandal. This again, is an admitted document. This contains, amongst other things, an appeal to vote for respondent No. 1 who has successfully conducted an agitation against Sub-Inspector Iqbal Bargir and that he has shown leadership for the purpose of protection of Hindutva. This shows that he is always there wherever he found any injustice being done to Hindus. This, in my view, is directly an appeal on the basis of Hindu religion falling within the scope of section 123(3) of the Act of 1951. There is also a cutting of an advertisement appearing in "Samna" dated February 24, 1990, being Ex. BD, which also projects respondent No. 1 as a person who made arrangements for the immersion of the idol of Lord Ganesh. This incident was repeatedly referred to in all these things only for the purpose of reminding people of the earlier incident and consequently to bring into light all the tensions and feelings of hatred that were existing then and the same could be aroused again. Respondent No. 1 is projected as the sole saviour of section 123(3A) as also u/s 123(3) of the Act of 1951. With this, there is a news report appearing in "Samna" dated February 26, 1990, connecting with the said street play "Ganapati Ala Ani Thambun Rahila". I have already referred to this document earlier when I dealt with the allegation u/s 123(4) of the Act. In my view, all these four documents again would establish that the appeal to the voters was on the basis of the respondent being from Hindu community and the respondent is a person who would protect Hindu community as against the petitioner who has scant respect for Hindu religion and who denigrates the sanctity of Hindu festivals.
112. This takes me to one of the important contentions in this petition viz., the contention relating to the video-tape "Avhan Ani Awahan". The allegation of the petitioner is that such a video-tape was produced and the same contained excerpts of various speeches given by Bal Thackeray and that it was displayed in various constituencies including this particular constituency. This was referred to in the petition. Respondent No. 1 in the written statement did not deny the existence of such a cassette. Appareatly, he should have been fair enough to concede that such a cassette was produced by Shiv-Sena as I will presently show that it was, in fact, produced by Shiv-Sena itself, and it was to be shown everywhere in Bombay including this constituency. If, in fact, there was no such cassette produced and respondent No. 1 was not aware of such a cassette, he should have had the courage to say so in the written statement. However, as the trial proceeded a contentions attitude was taken up to say that no such cassette was produced by Shiv-Sena and that Shiv-Sena had nothing to do with such a cassette and in particular respondent No. 1 had nothing to do with this cassette. I was told that in a similar petition filed in other courts at Nagpur, Shiv-Sena admitted that such a cassette was produced and displayed. However, respondent No. 1 is determined to contend in this trial, that there was no such video-tape produced by Shiv-Sena.
113. In the result, the petitioner had to summon one Jayant Shankar Jadhav (P.W. No. 2) for the purpose of proving that such a cassette was in fact produced. But, he happened to be a friend of Bal Thackeray''s son. Naturally, his association would not permit him to come with a clean breast in respect of this video cassette. It is only after considerable questioning, he finally conceded that such a cassette was in fact produced. His evidence is interesting.
114. He is a person who is in video business since about 1986. He has his video business by name "Aditya Video". He stated that he some time works for money or some time as a hobby for anyone. When he was asked about this particular cassette, he says, he conceived this idea in September 1989 and by October-November 1989, he completed the production of this video cassette. I will presently point out how this statement is patently false. He stated that he has produced this cassette only for fun. When he was asked as to where the cassette is, he stated that he had only one copy which he gave to his friend Dilip Dixit. When he was asked whether this cassette was used by Shiv-Sena in their election campaign he pretended ignorance. He admitted that he had also made a cassette for Congress (I) for the Loksabha elections and that was on a basis of a contract of rupees eleven lacs. He admitted that the cassette contained the speeches of Bal Thackeray. According to him, he took permission of Bal Thackeray and recorded his speeches on the cassette wherever he spoke. He followed him wherever he went. He admitted that he knows Bal Thackeray, as his son is his class-mate. He goes to his house. He knows the two sons of Bal Thackeray, viz., Jaideo and Udhav. The commentary in this cassette is given by one Bal Kudtarkar. He stays in Bandra. He worked free for him. One Sweta Joglekar assisted him in producing this cassette. There is a song in this cassette which is sung by one Vinay Mandake. He also did not charge anything. There is also instrumental music played by Louis Banks. He says that he also did not charge anything, though, otherwise, he charges Rs. 1,500/- per thirty seconds. He says he himself wrote the script. According to him, he made only two copies of the cassette. One he gave to Dilip Dixit and he did not know what happened to the other copy. Dilip Dixit returned the copy to him, but, according to him, he erased the same because he was short of cassettes. His turn-over is to the tune of rupees thirty to forty thousand and even though the cassettes were freely available in the market, he could not think of buying a cassette. He had to erase this copy. This was the type of evidence he was giving on oath. Obviously, he had no regard for truth. After further questioning, he admitted that he had one more copy. He had given that copy to Udhav Thackeray. He then says that when he gave it to him it was an ordinary copy, without music. Udhav Thackeray did not return the copy to him and the same could be with him even now. He did not think of asking Udhav Thackeray to return it to him. He denied that the idea of producing the cassette was conceived by Udhav Thackeray. He further stated that though he is an admirer of Bal Thackeray and though it contained speeches of Bal Thackeray and though he gave one copy to Udhav Thackeray, he was not very proud of this cassette. He himself gave the title " Avhan Ani Awahan" after seeing the burning of the National Flag on August 15, 1989 in Kashmir. He was confronted with various reports appearing to the effect that this was being distributed by Shiv-Sena office for Shiv-Sena candidates and that it was being used for the purpose of election campaign, he denied the knowledge of all those things. When he earlier stated that he had followed Bal Thackeray wherever he went for the purpose of recording his speeches, he admitted that the last part of the cassette contains a speech by Bal Thackeray appealing for votes. This was recorded in a studio room. Bal Thackeray had gone to his studio room and he says he obliged him because he is a friend of his son Udhav Thackeray. He was asked to explain to the Courts as to what the cassette contains. He only stated that apart from the speeches of Bal Thackeray, the shots show certain activities of Shiv-Sena and he says that he took those shots at Dadar and Bandra and also at Santacruz. He would not mention a word about Goregaon. He knows respondent No. 1 since about three years. He says, he came to know respondent No. 1 on the birth-day of "Samna". He stated that there was a meeting on that day at Prabhadevi. He had gone there. Udhav Thackeray had invited him. He recorded a shot of that function on that day. This was in January 1990. But he says, he did not know respondent No. 1 personally previously. He knew him as the General Secretary of Shiv-Sena. Since, he was not coming with a straight-forward answer, but having admitted that he had produced such a cassette, he was shown the video cassette produced by the petitioner being Article No. 6 in the Court. The display took about 40 to 42 minutes. The witness saw the tape. He tried to say that this was not the tape that he had produced. He admitted that 15% of the tape was there. He stated on that day that the speeches of Bal Thackeray as shown in Article No. 6 were not there in his tape excepting the last speech. He also stated that the speech that Bal Thackeray gave in the public-meeting and is displayed in the tape, Article No. 6, was not there in his tape. He also stated that he did not know the voice of the person who was narrating in this video-tape Article No. 6. But he could identify the music of Louis Banks. He could identify the Rudrastuti and that the same was sung by Vinay Mandake. The matter was part-heard on January 25, 1991. The witness was told to get the copy of the tape if he had. On January 28, 1991. Mr. Hattangadi admitted that the speeches in Article No. 6 were made by Bal Thackeray and the figure appearing in the tape is that of Bal Thackeray. He did not admit that the video cassette was produced by respondent No. 1 or by his election agent or by Shiv-Sena. He also did not admit that Article No. 6 or its copies were displayed at any election meetings by respondent No. 1 or by Shiv-Sena or by any of their election agents. In view of this statement Mr. Kotwal tendered a transcription of the said video cassette, which is at Ex. ZA, and the portions containing the speeches of Bal Thackeray were all marked in the said exhibit.
115. On January 28, 1991, the witness brought his own cassette which is at Article No. 7, in this trial. He admitted that it is an extra copy he had in his studio. He found this tape and he admits that this is practically the same as Article No. 6. What he did was, he added a title in the beginning which title was not there in Article No. 6. There is also some background music in Article No. 7 which was not there in Article No. 6. In Article No. 6 the name of Jadhav is not shown whereas in Article No. 7 his name is shown. Apparently, this was all with a view to show that it was not Udhav Thackeray who had produced the said film. He then agreed that all other items including the music and the voices of the respective persons are the same as in Article No. 7.
116. Thus, it is clear that the video cassette was produced and that was shot and prepared by Jadhav. The only question is whether it was produced by him for fun, as he wants to suggest, or it was produced for the purpose of election campaign of Shiv-Sena. In this connection there are number of other documents which have come on record. Firstly, there is a news item (Ex. K) appearing in "Samna" dated February 11, 1990. This expressly mentions that there is a considerable change in the campaign technique in order to make the people know the object and policies programme of the parties. If further says that help has also been taken of celluloid screen, and for that purpose each and every party is producing its video cassettes and this medium is proving to be effective than the speeches. N.T.R. in Andhra Pradesh and Devilal in Haryana used this media on a very large scale. This report further says that for Maharashtra the Shiv-Sena very ably raised its own machinery for propaganda through video cassettes. The said news item further says ...
"In this connection the production-design of ''Shivsena'' Avhan and Awahan (i.e. challenge and appeal) has been done by Shri Udhav Thackeray and it appears that the said-film or documentary film shall win the game. After watching this documentary film one visualises as to what alchemy a youth who is possessed, can bring about when he advances in the name of religion and not as a profession or business. When one sees the ''Chayachitran'' (display) of the incidents of the period of Shiv a for just two three minutes along with the narration whenever the calamity befalls on the country, the power of Shiva takes birth at that time, it is a distinct experience and it is a captivating scene when Shiv-Sena Supreme appears on the screen on the background of birth of this Shiv-Sena. And in accordance thereto this documentary film goes forward with a fast pace and the (background) music is befitting the incidents. One need not require explanation when it is said that the music is composed by Louis Banks. Vinay Mandake has sung the songs with vigour and so much so that the same fascinates the viewers. It would be sufficient when it is said that the narrator is Bal Kudtarkar.
In the end, one cannot forget to give credit to the person who did the shooting of the film and editing because to please the eye is also an important factor. The words are insufficient to admire Shri Jaywant Jadhav and Shweta Joglekar of Aditya Video".
When respondent No. 1 was asked about this news item appearing in "Samna" dated February 11, 1990, and the reporter''s name being shown as Asha Patil, he categorically denied any knowledge about this. He says that he did not know who published this news item. He denied that the said video cassette was sold in the office of "Samna" or in Sena-Bhavan. He also tried to say that he had not seen the cassette at any time before he came to the Court. He admitted that he had read this news item Ex. K when it was published but he did not feel like seeing this cassette. When he was asked whether there was any particular reason, his answer was, he had no interest in the cassette. He admitted that Asha Patil was the Advertising Manager of "Samna" but she had left the job recently. He stated that she stays at Thane. His office has the address of Asha Patil. But he would not examine Asha Patil. His attention was drawn to the fact that Bal Kundtarkar had lent his voice to this cassette. He was happy that Bal Kudtarkar was the narrator of this cassette. Yet, he did not show any curiosity to see this cassette. He had heard Vinay Mandake as a well known Marathi singer. He had also heard of Shweta Joglekar, but these things did not induce him to see the cassette.
117. In the "Samna" dated February 13, 1990, an appeal was published. That appeal stated that video cassette of election campaign showing the burning thoughts of Shiv-Sena Supremo Bal Thackeray were available for sale. It further stated that Shiv-Sena candidates should make arrangement to sent their representative with the instructions in writing to Shiv-Sena Bhavan, Gadkari Chowk, Dadar, Bombay, between 11 a.m. to 9 p.m. and to take the said video cassettes. He was asked about it. He again pretended ignorance. He had read this appeal and he found nothing wrong in the appeal having been published in "Samna". He is the printer and publisher of "Samna". He is the General Secretary of Shiv-Sena. When he was asked as to whether such a cassette was sold in the office of Shiv-Sena, his answer was, he did not know about it. Apparently, he was not telling the truth. The matter does not rest here.
118. There is a report in "Samna" dated February 21, 1990, being Ex. V. The report is about the display of this very cassette. The relevant portion of this report is as follows :
"The Shiv-Sena has laid down a very nice example that effectual propaganda can be made by video cassettes in the elections. In the Video Cassettes manufactured and titled as "Challenge and appeal" and "invincible" as the name goes with the Shivsena fighting nature and struggling with injustice.
The ''Rudrastuthi'' (prayer invoking Lords Shiva) sung with the background music of Pakhawaj and the appearance of the personality of the Shiv Sena Chief Balasaheb Thackeray in multi appearances and his burning words not only prove exciting (thrilling) to the Shivsainiks but to the opponents of the Shiv-Sena as well. The intense ''Hindutva'' thoughts of the Shivsena Chief intermixed at various place in the video cassettes is the peculiarity of the Video Cassettes.
The thoughts of Shiv-Sena criticising bitterly corruption, unemployment price-rise and separatism under Congress regime have been video recorded in the sober voice of Bal Kudtarkar. The blunt thoughts of Shiv-Sena Chief over separatist tendencies in Punjab and Kashmir and offering of Namaz prayers on the roads in an undisciplined and uncontrolled manner, and the Status of State language given unjustly to the Urdu language in the Uttar Pradesh have been intermixed at places, in the cassettes .......
Hindutva is the Nationalism
In this video cassette the Sena Chief once again puts forth clearly that ''Hindutva'' is nationalism and Shiv-Sena is opposed to Anti-national Muslims only. All the video cassette is based on the scenes which have actually occurred. There is no acting and even the clapping are also original and hence they are spontaneous. The aforesaid video cassette are being shown to the people of Maharashtra all over with 24 video raths fitted with video equipments. Wherever the video cassettes are shown the citizens are watching the same in great numbers. At the end of the cassettes the Shiv-Sena Chief has made an appeal full of emotion to the people saying, "give only one opportunity to the Shiv-Sena to rule with the co-operation of B.J.P. and if the Government of the alliance of Shiv-Sena B.J.P. is proved to be unfit then I will never come for propagating again".
The respondent stated that he did not remember having read this because he was not getting time to read as he was busy in election campaign.
119. It has come on record that respondent No. 1 was in charge of the publicity in the Shiv-Sena central election office. The petitioners have produced two posters (Ex. BC & Ex. BC1) which prove this fact. It has been admitted by respondent No. 1 that as the General Secretary of Shiv-Sena he was in charge of the publicity of these posters. He has also admitted that Shiv-Sena carried on the election campaign by forming various committees. Sudhir Joshi was in charge of arranging public meetings, prepare manifestoes etc. He admitted that there was a co-ordination committee. He had rendered help to this committee. Though initially, he tried to suggest that he was not a member, but after seeing a report appearing in "Marmik" dated January 28, 1990, showing that he was a member of the co-ordination committee for some time, he later on admitted the fact. Later on he also admitted that he was also in charge of publicity. Thus it becomes difficult for me to believe that when Advertisements (Ex. K) and reports (Exs. U & V) about this cassette appear in "Samna" respondent did not know about these at all. The reasonable inference in these circumstances, would be that these cassettes were sold and distributed through the office of Shiv-Sena at Sena-Bhavan, and it was done for the purpose of election campaign.
120. In the evidence, Jadhav tried to suggest that this video cassette was produced in the month of October-November 1989. That was patently a false statement. Bal Kudtarkar (P.W.4) stated in his evidence that his voice was recorded some time in the month of November-December 1989. According to him, he had left Bombay on or about December 21, 1989, for U.S.A. and returned only on March 1/2, 1990. Therefore, his voice must have been recorded prior to his departure on December 21, 1989. This shows that the planning was involved in the production of this particular cassette. But it does not establish that this cassette was produced in October-November 1989. This cassette clearly shows that this was recorded and prepared some time after January 23, 1990. Respondent No. 1 had admitted in his evidence that on the birth-day of "Samna" which happens to be the birth day of Bal Thackeray, there was a function with Bappi Lahiri''s music etc. The cassettes, both Article No. 6 and Article No. 7, show this particular scene. Therefore, it must have been completed after January 23, 1990 only. In his cross-examination , Jadhav admitted that he had also attended the meeting addressed by Bal Thackeray on January 29, 1990, at Girgaum Chowpaty. He had taken some shots there. In other words, it is clear that this tape was produced separately for the purpose of the campaign during this election. If Jadhav has stated to say that this was produced in October-November 1989, that betrays his allegiance to his friend Udhav Thackeray and others, and not to tell the truth.
121. So also respondent No. 1. He pretended ignorance of having seen this cassette prior to the same being shown in Court. Jadhav was equally reluctant to say where the shots were taken. He would not go beyond Santacruz. But when the cassette was again shown to respondent No. 1 he had to admit that the cassette contains several shots from Goregaon. Though respondent No. 1 had seen the cassette in the Court he would not voluntarily say where these shots were taken. He had to be confronted with several things and it makes an interesting reading. He admitted that he has an office at Goregaon, which is the Shiv-Sena Karyalaya. He admitted that he known one Anna Deolkar, who has been coming to the Court with him; so also one Vadivkar and Ram Mhatre who also have been coming to the Court. So also Suhas Samant. The video cassette was shown to him. It had to be shown to him scene by scene. In the video cassette there is a scene where an Ambulance van is shown carrying someone who is ill, suggesting that Shiv-Sena was doing such service. The Number of the van is 6320. Respondent No. 1 admitted that the said ambulance belongs to the Goregaon Shakha. The tape was further shown. There is a banner fixed to a board of Teen Dongri Yeshwant Nagar, Road No. 2, and it mentions words "Shiv-Sena Ward No. 106". Suhas Samant is seen standing and he is distributing foodgrains. Are we to imagine that when these things were shot, respondent No. 1 was not aware of it ? The video cassette further shows a banner with the words "Hindu Abhimani Dalitancha Virat Melava-Shiv-Sena". He admitted that was the scene of a meeting held in January 1990. One Dr. Gopal was presiding in that meeting and respondent No. 1 was present in the meeting. Bal Thackeray was also present in this meeting. Yet, respondent No. 1 wants to suggest that he was not aware of this tape. A little later, in the video cassette, a scene where a stretcher is shown on which a person is kept by five persons. Respondent No. 1 was asked to verify. He admitted that that was Ram Mhatre, the same person who has been attending the Court. He could not identify others. His office can be seen in the video cassette. He identified the office as also the said ambulance van. There is another van belonging to the same office and even that was identified by him. In other words, it is clear that this video cassette was produced by Shiv-Sena and respondent No. 1, as the General Secretary of Shiv-Sena, had a major role to play in the production of this cassette. Respondent No. 1 was asked whether he would examine Bal Thackeray or Udhav Thackeray or Subhas Samant. He stated he would not examine them. The answer is simple. If he had examined them, their evidence on this point would have gone against him. It is difficult to believe that this video cassette was not produced by Shiv-Sena.
122. Ashok Padbidri (P.W. No. 3) was asked about Ex. K. He stated that since Asha Patil has published it, he presumed it to be correct. He also stated that if it was wrongly reported his attention would have been drawn to that effect. So also with regard to Ex. U. and Ex. V, he had seen the reports before they were published and he found nothing wrong in them. In other words, Exs. K., U and V speak for themselves. They clearly speak and say that the video tape was produced by Shiv-Sena for their election campaign on the model of the election campaign that was being relied on by persons like N.T.R. and Devilal. There is still a more clinching evidence. There is a speech given by Bal Thackeray on January 29, 1990 being Ex. M. That was the inaugural speech of the election campaign. Bal Thackeray has stated that in that speech that they have got a video cassette of the election campaign of the Congress. He stated that similar cassettes will be shown when Shiv-Sena Video-Raths are taken out for campaign. Therefore, it is clear that just as Congress Party had prepared their cassettes through Jadhav, Shiv-Sena also had prepared the cassette. Respondent No. 1 was asked about it as to whether it contained any objectionable part. He stated that there was nothing objectionable. If there was noting objectionable, and in fact, as the evidence clearly indicates that such a cassette was produced for the campaign, I do not understand the reluctance on the part of the respondent No. 1 to admit the same.
123. It is equally significant to note that after the speech given by Bal Thackeray on January 29, 1990, till February 24, 1990, Bal Thackeray was not available for any election campaign in the city of Bombay. He was the most important leader of Shiv-Sena. Therefore, it was necessary, for all Shiv-Sena candidates to project their leader and the most impressive means was through the video cassette. Thus, respondent No. 1''s contention, in this behalf, is per se dishonest to his own knowledge. I may further add that if one has regard for the entire production, the theme, the background, the scenes, the music, the narration, all would indicate that it was done for the purpose of appealing to the voters and not for any private circulation or to be shown only amongst friends.
124. The next question is whether there is evidence to hold that this cassette was in fact displayed in this constituency. Mr. Nerrear has given his evidence to say that he had seen this cassette being shown at Varsova. Of course, that was not within this constituency. But it is relevant for a limited purpose, to show that this cassette was being shown in the city of Bombay. It was not suggested to Mr. Nevrekar that no such cassette was ever shown anywhere. Arun Ghadi (P.W. No. 8) has stated in his evidence that the cassette was shown at about 8 p.m. on or about February 20th or 21st, 1990, at Yeshwant Nagar, a part of Goregaon, in a booth of Shiv-Sena. In his examination-in-chief he gave certain particulars of the cassette. He could recall whatever he had seen though he had seen the same for a short while. Later on, he was shown the cassette. What happened was, initially he was shown Article No. 7, which was the cassette produced by Jadhav, which contained certain portions in the beginning of the cassette which are not there in Article No. 6 produced by the petitioner in Court. The witness could recall and say that was not the cassette seen by him as it did not contain those words indicating that it was produced by Jadhav. Then he was shown Article No. 6 and he admitted that what he had seen was the display of such a cassette. Now, this is important, as he could clearly identify what he had seen. He was cross-examined by Mr. Hattangadi. Various suggestions were made to him, as to how he could not have seen this cassette sitting in his booth and across the street. But it is interesting to note that no suggestion was made to the witness that there was no booth in which Mr. Ghadi was sitting. There was no suggestion that the persons who were there in the Shiv-Sena booth were not there. The only suggestion is that he could not have seen the display from about a distance of about 20 feet. It is true that Ghadi is an active worker of the petitioner''s party. But that by itself does not mean that I can reject his evidence. Since the cassette was produced by Shiv-Sena, it is natural for me to presume that was used in every constituency including the constituency in question. In this context, if a party worker of the petitioner comes and deposes that he had seen such a cassette being shown, the evidence is reasonable and probable and can be accepted.
125. The other witness is Hamid Adam Haju (P.W. No. 9). He has stated in his evidence that he saw this cassette being shown at different places in Goregaon and he had seen some part of the cassette on two occasions at two places. On the first occasion it was on or about February 20, 1990, at Vit Bhatti, Goregaon (East). He stated that it was being shown in a tempo van. On the other occasion it was on or about February 24, 1990, at Pandurang Wadi locality. Again, it was being shown in a tempo van. He has also stated that in the tempo there was a table and the video was kept on the table. On the tempo there was a saffron flag and also a poster containing a photo of respondent No. 1. There is hardly any cross-examination of this witness on this part of his evidence. The suggestion was only to the effect that he had not taken any photograph of the tempo van, and that his evidence of display of the video cassette is not true. But why ? If such a cassette has been produced for the purpose of election campaign of Shiv-Sena, there was no reason why Shiv-Sena could not have displayed the cassette in their constituencies.
126. This takes me to the nature of the appeal made by Shiv-Sena B.J.P. alliance and in particular by Bal Thackeray. Respondent No. 1 has categorically stated that whatever Bal Thackeray has stated is binding on him. If that is so it is but proper that we should take into account what Bal Thackeray has stated not only in his speeches as we see in the video cassette, but also in various other documents that have come on record in this trial.
127. Till recently Shiv-Sena was not a political party. It came to be registered as a political party only in October, 1989. But still the leadership is the same, almost monolithic in character. The constitution of the Shiv-Sena (Ex. 6) shows Bal Thackeray as the founder of Shiv-Sena as the Sena Pramukh till he desires. He shall select members of Rashtriya Karyakarini (National working committee) and it is only for him to increase or decrease the number. It is for him to select, appoint or remove any office-bearer/s or member/s of the party. His decision shall be final. He has the authority to expel any member from the party. He is the one to guide members of the party in the implementation of programmes for furthering the organisational activities. The members of the working committee are called Shiv-Sena leaders. Respondent No. 1 is such leader. Shiv-Sena leaders have to perform various functions such as to survey, observe and report to the Sena Pramukh regarding the functioning of the party, to implement the party programmes, to spear-head the election campaign of the party, to channelise the party propaganda and publicity at various levels, to execute the decisions of Sena Pramukh, to exercise the authority as may be delegated from Sena Pramukh from time to time. In other words, it is a party which the entire control is with the Sena Pramukh. The party has its programmes and appeals, all as laid down by him. The entire political thinking is of one man i.e. Bal Thackeray. Initially, as he started it was on a plea that the sons of soil of Maharashtra come first-be it employment, be it language, be it land, everything. Later on, as he got foot hold in certain Municipal Corporations, and as his influence spread amongst considerable sections of a sectarian society, the goal being the power at Mantralaya, it was easy for him to broad-base the same theory in its nativity-sons of soil-but this time it is Hindustan. The slogan in "Garva Se Kaho Hum Hindu Hai".
128. To appreciate his political thinking, we have to briefly consider, what he has been saying since about two years. Certain things have come on record. Mr. Hattangadi objects to all those things that have come on record prior to February 3, 1990. He submits that what is relevant is all that was done during the election period. It was on this basis, respondent No. 1 had taken out the said Chamber Summons (being Chamber Summons No. 925 of 1990), earlier to strike down various part in the petition. I had dismissed the same and observed that all those material might be relevant to understand what respondent No. 1 and Shiv-Sena B.J.P. alliance have preached in this election. Respondent No. 1, having admitted that they canvassed on the basis of Hindutva, it became necessary to know what precisely they have been advocating. Bal Thackeray was to come and give evidence in this case. Perhaps he would have explained all this. But for reasons best known to respondent No. 1 he did not examine Bal Thackeray. Thus, we have the extracts from his earlier speeches as can be seen in the video cassette "Avhan Ani Awahan". I have already held that the video cassette has been displayed in this constituency during the election period. If there had been no video cassette and if there are no other materials to say that respondent No. 1 canvassed on the basis of Hindutva, during this period, then perhaps, it could have been validly contended that the earlier speeches could not have been looked into. If you are looking into the earlier speeches it is not because those speeches by themselves have become relevant but because the extracts from those speeches have been incorporated in the video cassette and it is in that sense the earlier speeches become relevant in the present case. If I am holding respondent No. 1 as guilty of the charge as contemplated u/s 123(3) of the Act, certainly it is not on the basis of his earlier speeches as such but it is on the basis of such, of the speeches as have come on record, in the video cassette which has been displayed in the constituency.
129. Some of the materials are from the editorials of "Marmik" and "Samna". Some of the speeches are in book-lets. Some have been recorded in audio cassettes and short-hand notes recorded by the police. The audio cassettes and the short-hand notes have been produced through the police before me. They have been exhibited. Mr. Hattangadi submitted those audio cassettes and short-hand notes cannot be looked into because they are not admissible in evidence. Mr. Hattangadi''s submission is that the police had no authority to record any such speeches given by Bal Thackeray or even by other leaders. It is as good as the Government keeping a surveillance on Shiv-Sena leaders. He also submitted that if this is allowed it would hamper all political activities. It may also affect the concept of democracy, where each party is free to canvass what it thinks proper. I find no merit in the objection raised by Mr. Hattangadi. Bal Thackeray and other leaders were giving public speeches at Girgaum Chowpaty and Shivaji Park. It was a meeting for the public consumption. If the public could hear what he was saying, I do not understand why the police cannot hear. If the press and the public can take down what Bal Thackeray and other leaders were saying I cannot understand why the police cannot take down such speeches. The question is whether there is any incorrect reporting or recording of the speeches made by Bal Thackeary. There is no such suggestion to any of the witnesses who have done the audio recording of the speeches, or who have taken down the short-hand notes of the speeches given by Bal Thackeray and other leaders. After all, it must be presumed that the police are concerned with the question of law and order. In a given situation where a large gathering collects, anything might happen and the police might be held responsible. If, therefore, the police have taken care to see that the speeches are taken down for whatever it is worth and if in an election petition those speeches become relevant and they are summoned to produce those audio cassettes and short-hand notes, it cannot be said that they are inadmissible or they are illegal in any manner. I have, therefore, overruled Mr. Hattangadi''s objections in this behalf. Even otherwise, by and large, even in a criminal trial, if any evidence is produced otherwise than by proper means, and such evidence is tendered, and if the evidence is relevant, it is for the Court to consider such evidence. It cannot be said that the Court would not look into such evidence.
130. In this connection one of the earliest editorials written by Bal Thackeray is in "Marmik" of December 13, 1987. This has been later on published in a book entitled "Hindutva, Sar and Dhar". The editorial has been produced in Court and is marked as Ex BI. This was the editorial which was written immediately after the victory of Dr. Ramesh Prabhoo, a Shiv-Sena candidate, from the Vile-Parle constituency. Bal Thackeray states that the victory was the victory of Hindutva. He invokes, in this editorial, all Gods, Stars and the elements of nature and all Saints of Maharashtra to bless the saffron flag of Hindu Dharma, which he says, will be hoisted atop the Red-Fort. He then says .....
"It was a straight fight between Hindus and non-Hindus. On one hand all Hindus and other Hindu-lovers having respect for Hindu religion had united under Shiv-Sena banner. And on the other hand were all the eunuchs who were serving their political interest by sacrificing Hindu religion for the sake of votes".
He says that there was no confusion whatsoever in the minds of the people. He then says .....
"This victory in Vile-Parle is not merely an acknowledgement of the Sena''s loyalty to Hindu given by the people, it is a licence granted to us to establish Hindu Rashtra. It is God''s Will that time should hand over that licence only to us. For that purpose we shall seek the co-operation not only of Hindus but all those other regionalists who have love for Hinduism. This historic task will begin from Maharashtra and in the near future the whole country will become Hinduised and will come to be known throughout the World as the India of Hindus. Only nationalist people will have shelter in such India. In such India, Nationals of all religions will live in peace and amity....."
There is a further passage in the same editorial which is relevant and the same is as follows :
"Finally, religion is not anybody''s ancestral property or a deposit in a bank. Religion is a noble sentiment and every citizen has a right to express that sentiment. Let somebody challenge that right in a Court, by all means so that this Dharmayuddha will be decided once and for all, because it is Hindus who are unfortunately opposing Hindus on this issue. Let it be decided in the Court as to which of them are true Hindus and who are false Hindus. Let the whole world hear from the mouth of the Court that Hindus have a right to be called Hindus. We do not see that any Court in this country will deprive us of the right to call ourselves a Hindu. We certainly exercised a right during the elections and appealed to other religionists respecting Hindu religion as well as Hindu religionlist. Like Hindus other religionist also responded to our appeal. But those voters who hate not only Hindu religion but even this country did not come anywhere near to the Shiv-Sena. We do not regret that we did not seek anybody''s votes by compromising nationalism, irrespective of whether or not our candidates won".
131. Then comes his first editorial of "Samna", which began its publication on January 23, 1989, birth-day of Bal Thackeray. It has, since then, its acclaimed policy as the only Marathi Daily promoting the burning Hindutva. This also has been published in the same book "Hindutva Sar and Dhar". In this editorial (Ex. BN) he apprehends that India might be divided once again and the relevant passage is as follows :
"Now that secretly pro-Pakistan Muslims are imposing their green designs on the country and when pro-Pakistan people are carrying on violence and massacre in Punjab, the very existence of Hindutva (Hindu identity) is gravely endangered in this country. If my Marathi soil does not take the lead in averting this danger, it is possible that it will fall to our lot to be helpless witnesses of a second partition of this country. It was due to this sincere yearning that we sat down to sharpen the edge of Hindutva. It is not as if we are tackling this question of Hindutva for the first time. Now, that is in the very blood of us-Marathi people".
He talks of Hindu, vote-bank because of the firry propaganda of Hindutva and then he says ......
"In the name of equal respect for all religions, the extirpation of Hindu religion-yes only Hindu religion, is going on. We cannot be (silent) witnesses to this".
132. This is followed by another editorial which was written on the Gudi Padva day on April 8, 1989, the first day after the judgment in Dr. Ramesh Prabhoo''s case came to be delivered by this Court. The title is interesting. It says "Yes, this is a Hindu Rashtra" and he laments on the fact that after 42 years of independence one is required to tell this all pervading truth. He then refers to the atmosphere in the country which is charged and he says that it is a matter of joy that leaders have mustered courage to say boldly "Yes, we are Hindus; when lakhs of people shout slogans loudly, ''Garva Se Kaho Hum Hindu hai'' (say with pride we are Hindus), my heart is filled with joy at that truth...". He refers to the birth-centenary of Dr. Hedgewar, (who is the founder of R.S.S.), held at Shiv-Tirtha, Dadar and he hopes that that would create new spirit. He then refers to the huge rally that had gathered there and that the soul of Dr. Hedgewar must be resting in peace because he had said during his last days that "today I see clearly that the ''Hindutva'' which I put forth and on the basis of which I founded the ''Rashtriya Swayamsevak Sangh'' will grow in this country and that will be a happy end of my life". Then there is an exportation of his idea that all Hindus should be collected and Hindu Dharma should be expanded which will be responsible for the new India and the relevant passage is follows:
"Hindu ''Vote Bank'' is a must:
May it be so, it means that without caring for the ''Collective muslims'' votes Hindu vote bank, should become effective. Now the Hindu Society should rise in revolution to destroy the ugly (evil, bad) practice of Muslim appeasement going on in this country for years together in the name of secularism. It is out firm stand that one who is faithful to the soil, is a Hindu and Hindustan and with this very idea we will churn Maharashtra and the country at least. It is a matter of pleasure that the Bharatiya Janata Party has shown the courage to move forward openly, fearlessly, and boldly with the flag of burning Hinduism on its shoulder. In this onward journey many other fellows will join and we will welcome them. Ultimately the idea is that all Hindus should be collected and Hindu religion should be expanded, which will be responsible for the new India."
133. Thereafter there is an interview given by Bal Thackeray in a fortnightly magazine "On looker" in its issue of September 30, 1989. Here he propounds his political theories. He says that the very partition of the country was based on communalism, that Muslims should get Pakistan and Hindus should get Hindustan. He say that people have come to him because...
"I have ventilated problems. Whether it is the son-of-the-soil problem or the Hindu problem, or the Hindutva problem, there was a lot of suffocation.... they have rallied round me."
Thereafter he says...
"We are first Hindus and then we are Maharashtrians. My policy is we are Maharashtrians in Maharashtra, we are Gujaratis in Gujarat, we are Bengalis in Bengal, but we are Hindus in Hindustan. That, one cannot afford to forget. If that sense is gone, we are doomed. People are willing to accept it, I do not know why. The question is Muslim (vote) banks".
He was asked about the Hindu Militancy and whether it was bad and he says...
"Muslims have their own design, in Hindustan, not in Pakistan. When Zia dies, Bhendi Bazar is closed. When there is a cricket match between Hindustan and Pakistan and Pakistan wins, they burst crackers. They are jubilant. Right from Jammu & Kashmir to the lowest end. I don''t like this trend. I don''t. It is an anti-national trend. Every man would say I am a Muslim, I am a Christian, I am this, I am that, then what we are? We are faqirs?"
He was asked as to what is his vision of India and he says...
"I would definitely declare this as a Hindu nation. And I need not have anybody''s certificate or sanction for that. This country belongs to Hindus".
He was asked about Muslim and other religious minorities. He stated that he would see to it that all religious people will have the freedom to perform their religious duties. There will be no restrictions even for the Muslims. He reiterated and said that he never said that all Muslims are traitors. But they do not join the mainstream, which is mostly their fault. He made it clear that Muslims would get no extra concessions on religious grounds. He says...
"...that is Shariat, no. You have it in Pakistan. Well, if you want it, please go there. They have to accept all the policies of the nation. They have to obey the Constitution and the rule of the land. If family planning is a must, they must do it. (Period). They would not be allowed to reject it on communal, religious grounds. What Islam says, we are not concerned because this is not an Islamic country".
He then refers to the fact that there used to be riots between Hindus and Muslims but there were no riots between Hindus and Christians, between Parsis and Hindus, between Sikhs and Hindus. But why only with Muslim? He then refers to Shahabuddin and says that when Shahabuddin goes to Pakistan he cries and shouts that the lives of Muslims in India are in danger. He objects to Shahabuddin giving a call to the Pakistan Muslims that our Indian Muslims, lives are in danger and then he says, if they felt their lives were in danger they should quit Hindustan. It appears that this interview has also been reported and published in "Samna" dated October 18, 1989, which is at Ex.H herein.
134. This is the sum and substance of his idea of Hindutva, and the thrust is against Muslims as a community. Did he say anything different, now, in the present election campaign? But, before that, let us see what he said in October 1989 when he addressed a rally at Shivaji Park on the Dashara (Vijay Dashmi) day. We have a transcription of the recorded speech. The said transcription is at Ex.AR. He addressed the gathering as "All my Hindu brothers, sisters and mothers gathered over here". In the said meeting he defines Hindutva as under:
"...some Hindus still ask: what is the definition of your Hindutva? I wish to tell them that, those who are seated before me is the definition, this is the glory of Hindutva".
The appeal is clear. It is Hindu brothers, sisters and mothers. Their being together, coming together-that is Hindutva to arouse in them the Hindu spirit. He then, amongst other things, deals with India being divided, might be divided once again because of pro-Pakistani elements. This has happened because the Congress has throughout pampered the Muslims for the sake of votes. He then speaks of "Urdu" being made a second language in Uttar Pradesh and he poses the question, how can there by any introduction of "Urdu" in Hindustan, its proper place being countries having Islam religion. He then says...
"These Mohammedans have raised their heads because due to the divisions of votes of Hindus. Today we have stood up strongly. We would not separate in any circumstances. On the contrary we would not keep quiet without exposing them (claps)."
Then again, he comes out with his pet-theme:
"Slowly and slowly the Mohammedans went on increasing. (They increased) from 2.5 crores to 15 crores. At that time Jinnha stood. Shahi Imam and Shahabuddin are now standing. It is said for the Imam that a meeting took place-between Rajiv Gandhi and he. The Imam gave him a list and stated that if you want the votes of the Mohammedans in bunch then you agree to this our demands. The important demand was that, there is one mischievous child of Imam and give him the ''Loksabha'' (Parliament, House of People) ticket. If he fails in that, then bring him elected on the ''Rajya Sabha''. I do not know as to whether this is agreed or not, but they will do prostration, they will, do prostration".
He refers to such Mohammedans like Kirmani, Azharuddin and Arshad Ayub who brought victory for India. He refers to Christians of Mizoram, who consider themselves as belonging to India. But his grievances is that the Congress and Janata Dal are offering to these minorities various things-such as Christian State in Mizoram-which "are making them separate". This has led them to increase their demands. To counter-act such demands which might further divide the country, it is necessary that all Hindus must unite to save this country. That is the meaning of Hindutva in all his speeches and utterances.
135. Thereafter we have his speech in a public meeting at Girgaum Chowpaty. It is delivered on the eve of the last Parliamentary election, on November 5, 1989, which is at Ex.AN 1. He says...
"Hindutva is the breath. If the same gets stopped then the nation cannot survive. Hindutva is our birth right and I shall acquire the same-positively".
He again repeated the same thing and said...
"To day right from Rajiv Gandhi upto V.P. Singh all are-kneeling before Imam for votes. They are constantly visiting him. They did not go to the doors of Deoras and Bal Thackeray. The reason is, there is Hindutva. The nation will be auctioned, will be disposed of".
Again, he reminded the audience that the population of Muslims had gone up from 2.5 crores to 15 crores. This is again on the assumption that Muslims do not observe family planning and they are not compelled to do so for fear of interference in their religion while Hindus have no such choice. He warns pro-Pakistani Muslims and in particular points out that Kashmir is indivisible. He tells all such persons that they may remain here "as our brothers, but do not dream about another partition of our nation".
136. Then the victory rally at Shivaji Park on December 3, 1989. This was immediately after the victory of the alliance in last parliamentary elections. We have a transcription of the audio cassette, which is at Ex.AS. He says...
"Nobody should dare to confront us by waving green flags in opposition to Hindutva. We shall not fail to burn that green flag to ashes".
What does the colour indicate? He talks of Vithalrao Gadgil''s (Congress) victory in Pune by a narrow margin, with the help of Muslim votes. He says...
"Whereas this time he won by only (8000) eight thousand votes. The only reason for this is unity, you were not elected by Hindu votes, you got elected on the strength of Muslim votes. If we sprinkle ''Gulal'' (red powder) to celebrate our victory, it goes into the nostrils of those Muslims. And they threw green coloured ''Gulal'' at Pune that day very well. But our packets of ''Gulal'' are not exhausted yet. Those are not packets, which get exhausted. We are going to open them on the day of (going to the) Legislative Assembly".
Again, the contrast is with the green colour which is the colour of the flag of Pakistan. He then refers to the question of Ram Janambhoomi. He says that issue would be alive in the next Legislative Assembly election. He further says...
"Ramjanmabhoomi must take place. Now, we will go there and build a temple. We will certainly build it. This should not be an election issue. Whatever has come is due to your misfortune. Build this Ramjanmabhoomi---these Hindus---. Thereafter, Shahabuddin was defeated. One snake was crushed. My countrymen, you will be surprised, whatever we say, is in the interest of the country. This is not a communal dispute---Imran Khan''s photo is put up in the election office of Shahabuddin. From where is he contesting the election---Pakistan? This news is from the Times of India viz., that he displayed a photo of Imran Khan in his office. What happened in the end? He was utterly routed. We will not allow the Pakistani worms to wriggle here and wherever you see them, they have to be crushed by us in this election to the Legislative Assembly".
Then again, he tells how Dom Moraes could not take his father-in-law to the Hospital, because Muslims were offering Namaz on the road and says...
"that the day when my Government will come to power in Maharashtra, we will not fail to stop Namaz prayers being offered in the road. Because religion should not be such as to obstruct the development of the nation".
He then adds...
"The loud speakers on the mosque will come down. Bandh, Bandh".
He refers to the fact that Arun Sathey (perhaps, a B.J.P. candidate) did not succeed while Sunil Dutt (Congress) succeeded, but in the final reckonning, he was supported by Muslims. He referred to certain hutment colonies. Then he tells the audience that the elections in this country ("In this Hindustan") are based on the votes of Muslims. The emphasis in all these passages is the same. In the land of Hindus, these things cannot be permitted. If they have been permitted so far, it is because the Congress and Janata Dal have yielded to Muslim demands and desires. He takes note of the fact that in the South there was not much of an awakening as in the North where "this awakening has been automatically caused by Ramjanmabhoomi. Because of this awakening a powerful wave of Hindutva has spread through-out Uttar Pradesh". He again tells the audience that Sharad Pawar got more votes in Muslims areas. But Bal Thackeray is not interested in Muslims votes. He says...
"Some time back I had said that we do not want Muslim votes. Those people, who live in this country and take pride in Pakistan, have their bodies here but their sentiments and hearts there. Such are these people-worthless, traitors, whom we do not want, never. I am say thing this clearly. We shall win the Legislative Assembly with the help and the votes of my Hindu Brothers".
A little later we have the following passage which is projected in the video cassette "Avhan Ani Awahan"...
"This is Maharashtra, which had disembowelled Afzalkhan and cut off the fingers of Shahisthenkhan; this is Maharashtra. Even though, he (Shivaji) is not with us today, his inspiration is forcing through our blood. You may lay siege, we shall break through it and escape. You may lay traps. We have cut its fingers and thrown them away. If you are going to appease Muslims and thereby foster antipathy towards Hindutva in our country, in our Hindustan then this public will not rest until it has disembowelled you. They should bear this is mind well".
137. What do these passages convey? It is a matter of history. But it must be understood in its context. It is highlighted immediately after the victory on the basis of Hindutva. Afzalkhan''s and Shahistekhan''s will be eliminated "in our Hindustan".
138. Then on the eve of the Assembly election on January 29, 1990, at Girgaum Chowpaty he again addresses "all my Hindu brothers, sisters and mothers". The same theme. He refers to Kashmir and Punjab. He says...
"Hindus are being killed in Kashmir and Punjab. What are pro-Hindutva people doing? Who is saying this? These Gandhites. Because of our Hindutva they are preaching the morals and morality to us".
He then tells the audience that it was Rajiv Gandhi''s grand-father who idolised and pampered Shaikh Abdullah and enforced Article 370 on the nation. He then refers to V.P. Singh who has been again appeasing minorities and he would not meet Shankaracharaya or go to a temple and ring the bell after coming to power. However, he would go to Imam before whom he bent his knees. He repeats again that he would never give up Hindutva. He says that they would not let the country to be partitioned once again and he challenges and he says that the demands of Muslims are increasing day by day. Then he refers to what the Pakistani Prime Minister was saying about the plight of Indian Muslims and he challenges: "wage a war if you dare". He then refers to the fact that Shiv-Sen organised a Bandh in Bombay because Hindus were massacred in Punjab and Kashmir. He then says that Hindutva is their breath of his mother-India, Hindmata and if it stops, then nothing survives.
139. Finally, on February 24, 1990 at Shivaji Park a pre-election rally was held. We have a report of the same at Ex.ARI. Here also the same ideas are repeated.
140. The video cassette "Avhan Ani Awahan", the transcription of which is at Ex.Z-A., contains commentary as also certain extracts of the speeches delivered by Bal Thackeray. These extracts have also been marked separately. At Ex.ZA 1, a part of his speech which he gave on December 3, 1989 (the transcription of which is at Ex.AS), is incorporated. Similarly, the passage marked at Ex.AR. Again, the passage marked at Ex.ZA 2, is from his speech delivered on October 10, 1989, the transcription of which is at Ex.AR. Again, the passage marked at Ex.ZA 4, contains certain extracts from certain extracts from his speech given on December 3, 1989 (Ex.AS) Ex. ZA 3 is also an extract from some of his earlier speeches. I have already set out some of the offending passages of his speech delivered on December 3, 1989 and incorporated in the video-cassette in para 136 above. So also the parts of his speech delivered in October 1989, in para 134 above. Passage, at Ex.ZA5 is a separate independent exortation to the voters to vote for the Shiv-Sena candidates.
141. In my view, the passage marked at Ex.ZA 1 wherein there is a reference to the historical fact how Afzalkhan was eliminated, would in any case come under 123(3A) of the Act. I will elaborate this a little later when I deal with this question separately.
142. Ex.ZA 5 is an independent appeal separately recorded for the election in question, in the studio of Jadhav. He refers to various problems. Then he comes to the problem of Hindutva. He refers to the fact that his opponents tell him not to speak about the word ''Hindu'' or ''Hindutva'' as if it is an offence. He asked the people whether they would agree, and he then says...
"In our Kashmir the Pakistan Flag is flying high and "Pakistan Zindabad" slogans are given, while our national tri-colours is burnt in our presence. If you are going to accept this, you may do it but I shall not tolerate this. Our Hindutva is our Nationalism it is not a caste or religion. Congressmen have produced a film. I am not aware whether you have seen it or not? Hand of Lord Ram, Hand of Lord Krishna, Hand of Guru-Nanak, Hand of Guru Govind Singh-all these hands are shown-they are not communal but if we use/exhibit "omm" they start shouting. I can not tolerate this. We shall propagate Hindutva in this country".
He then refers to various problems and he appeals to the voters to give Shiv-Sena B.J.P. alliance a chance.
143. In order to appreciate, what the tape conveys we have to take into account the entire production together with its visual impact on the audience. The commentary begins saying that our land of Hindustan is united. It is Ancient. It is eternal and so also our Hindutva. It says that this is our national religion. It is then said that whenever there is an attack on Dharma, a holy power takes birth in this country. On the screen a temple is shown with a rising sun behind. Then there is a scenes showing some horse riders (Muslims) invading the country, followed by a scene showing loot of foodgrains and also outraging the modesty of women. They are being dragged. The scene then shows a Muslim Sardar with a drawn out sword in his hand, and a gang of people following him and setting fire and then we see fire set to houses and the whole area. Then we see the idol of Shiv-linga. Thereafter we see Goddess Bhawani blessing Shivaji and the suggestion is that it was Shivaji who with the blessing of Goddess Bhawani and with the sword that was conferred on him eliminates Adharma. The commentary refers to how 350 years ago foreigners created terrorism in this part of country, (obviously the reference is to those who have come to Maharashtra) and were indulging in Adharma and various acts of looting, setting fire to houses and outraging modesty of women and disturbing normal life. The suggestion is, at that point of time, Shivaji came to be born and it was Shivaji who eliminated Afzalkhan and Shahistekhan. The suggestion is that the same situation has arisen in the country now, or perhaps in this part of the State, and to save them, a leader has come forth who is described as "Hindu Hriday Samrat" (the emperor of Hindu hearts). That is Bal Thackeray who would eliminate all such injustices that are being perpetrated on account of certain persons or certain community of persons who are again trying to indulge in the same irreligious activities or Adharma as they had done in the past. There is an invocation of a song and as the same is being sung, Tandava dance is shown and in between Bal Thackeray is interposed with various images of Sant Dnuaneshwar and Swatantraya Veer Savarkar. In between he is shown garlanding a brick with the word "Shri Ram" inscribed on it. There is also a paining of Shrikrishna giving advice to Arjuna, perhaps, the reference is to Geeta where we have a passage when Adharma visits this earth, someone will come to bring back Dharma. Perhaps, the idea is that it is that role, Bal Thackeray is playing today. It is in this background we see Bal Thackeray appealing to the voters and the various passages referred to above are interposed at several places, in the whole of the cassette. After the song sequence, Bal thackeray addresses, the crowd and when we come to the passage where he says that he would eliminate (them) in the same fashion as Afzalkhan was eliminated, we hear a loud clapping showing the impact on the audience. Mr. Kotwal has pointed out number of minute things in this cassette. There is a cartoon showing an inset of Rajiv Gandhi with a raised hand, asking for votes while a Muslim is shown holding a megaphone. At another scene there is a Urdu placard with the subtitle saying "Islam is our religion. Khomeini says to the youth, my expectations of you is to have Kuran in one hand and arms in the other". At this stage Bal Thackeray begins with a question as to how any question of Urdu could come up in India. (See para 134 above). Thereafter this is followed by bust of lord Ram with a proposed temple at Ayodhya, painted in the forefront, followed by a scene where we see flames engulfing the image of temple. Hereafter there is another scene in which we see a lone Hindu praying in the temple while a huge crowd of Muslims have their Namaz in the open. At this stage the commentary is "Hindus have no position in Hindustan and nobody cares for them while other regionalists are always shown considerations in this country". This is followed by a news item appearing in a newspaper with a head-line "Constructed more mosques and stop Namaz on the streets" while in the background Muslim prayer is heard. Thereafter V.P. Singh is shown being garlanded followed by a photograph of Imam with a commentary that the New Prime Minister goes first to meet Imam in Jumma Masjid, but not to Shankaracharya. Thereafter there is again a scene having a brick with the words "Shri Ram" written on it and the same being garlanded by Bal Thackeray. At that time we hear the commentary saying that Hindutva is our breath. This is followed by a scene where Bal Thackeray is worshipping a goddess and performing Puja. There is also a scene where we have a photograph of Sharad Pawar with a Muslim cap donned on him. Then we have a speech which is a part of Ex.ZA 4, where Bal Thackeray says that the day when his government comes into power they would prohibit the Namaz being offered on the streets. At this point there is a loud clapping and cheer. After a pause Bal Thackeray says that loud speakers will be pulled down from the Masjid and again there is a loud cheer and clapping and on the screen the audience is also shown, some of them with raised hands. The impact lingers on for some time. Finally, there is a categorical statement appealing to the voters that they should tell with confidence that they would defeat (these) and they shall make "our Hindus" victorious. He also appeals to them to say that this is what they want and the audience approves with a huge applause and the audience is also shown with raised hands.
144. What is important here is not only the speech, but the visual impact and the presentation of the same. The commentary, the scenes, the presentation of the scenes, the music, and Bal Thackeray''s speeches in between, all things together sway the audience, almost making them believe that Bal Thackeray is the serious and he would save Hindutva and the Hindus who are in danger.
145. Before I come to the final conclusion as to what those things really mean, let me also briefly consider as to what respondent No. 1 himself has said in his evidence on Hindutva. Though, he had addressed some meetings, we have no record of the same. But he admits that all Bal Thackeray''s speeches are binding on him. He also admits that in October 1989, he had said that those who are opposed to Hindus would not survive. This, in essence, is what Bal Thackeray has been advocating. This will lead to "Dharmayuddha". What is the meaning of the same? Mr. Hattangadi gave thirteen different meanings of "Dharma". But how would the Hindu brothers, sisters and mothers who have gathered there would understand that? It is a clear call to fight against those who are opposed to Hindus. In another meeting in June, 1989, he had stated that it was necessary to "Hinduism" politics.
"Witness adds. By this I meant that time has come that all nationalist minded people must come together. It is not true that my explanation which I give now is false. It is not true that by this I meant that all Hindus must come together. Our party believes that this is the Hindu Nation.
Question: What meaning, your party has attributed to the words ''Hindu Nation''?
(Mr. Hattangadi objects.
P.C. Objection overruled).
Answer: Our party has not defined ''Hindu Nation''. According to me all nationalist minded persons are Hindus and the people of all worship would be called Hindus".
146. Later on when Ashok Padbidri (R.W. 3) was in the witness-box, he was asked:
"Question: Who decides whether they are pro-Pakistani or anti-nationalist?
Answer: I decide according to the information I receive. If anybody tries to hoist a Pakistani flag on Indian soil, we will condemn that".
This is the theme. Hindutva is nationalism. All those who are opposed to Hindutva are anti-nationalists. It is on this basis, Mr. Padbidri, on the pretext that Mrinal Gore had said "Islam is in danger", says...
"This news item is a sensational item. We had published this news item to expose Mrinal Gore. According to me, Mrinal Gore and her party are supporting the cause of Islam. I do not remember whether any enquiry was made before this was published".
Therefore, according to him Mrinal Gore is anti-nationalist. In other words, whoever opposes Hindutva as advocated by Bal Thackeray or by respondent No. 1 or by Ashok Padbidri, would be anti-nationalists.
147. I asked Mr. Hattangadi who would decide who is a nationalist and who is an anti-nationalist. Where do we draw the line? Mr. Hattangadi said that the electorate would do that. Exactly, Mr. Padbidri says that if any any one tries to hoist a Pakistani flag on Indian soil, he is an anti-nationalist. But how many such incidents are there, so as to make it a part of mass campaign? Respondent No. 1 was asked about Bal Thackeray generally describing Muslims as "Lande, Musande, Yavan, Aurangya and Hirve". Respondent No. 1 says," he might have used those words for anti-nationalist Muslims". Therefore, again, the question is who is a nationalist Muslim and who is an anti-nationalist Muslim?
148. Therefore, in substance, it is an appeal to the voters that by and large every Muslim is a potential anti-nationalist. They are growing in number. Their demands are being met. Their language is being recognised and the Government has no courage to interfere with their freedom and practice of their religion. That is why the Government does nothing if they have their Namaz'' on the roads. All these things would ultimately endanger our Hindu nation. This land belongs to Hindus. Muslims came much later. They came to Maharashtra about 350 years ago. Their numbers increased so much that it resulted in one division of Hindustan. If the present state of affairs is not put down, there will be further division of this country which cannot be permitted. There is no such danger from other communities. Therefore, the appeals is that in order to contain Muslims, vote for Shiv-Sena B.J.P. alliance which believes in Hindutva, an authorities Hindu spirit. If a candidate appeals to voters to vote on the basis of particular community as opposed to another community and if he does not belong to that other community, it must necessarily mean that he is canvassing on the basis of his community. In any case, that is how the voters would understand. He need not expressly say so. But implicit in his appeal is that people should vote for him for he stands by that community. It is, in this sense, clearly a corrupt practice u/s 123(3) of the Act.
149. Mr. Hattangadi says that in Shiv-Sena, there was a Muslim candidate Mrs. Anjum Ahmed and therefore, it cannot be said that the appeal was on the basis of religion. Obviously, those who are opposed to the above nation of Hindutva could not have contested as a Shiv-Sena candidate. The appeal is to refrain from voting in favour of Muslims or those who have come to power with the help of Muslim votes.
150. In fact, if one analyses the speeches of Bal Thackeray, it is clear that he has not propagated any tenet of Hindu religion. He has not spoken about its myths, practices, beliefs, values, rituals or norms. But his appeal is to Hindu communalism in the name of Hindu tradition. The idea is to divide the society on the basis of communal politics, all Hindus uniting together to support the Shiv-Sena B.J.P. alliance, as against the others who might support the other parties. All those who support him are nationalists and all those who are opposed to his idea of Hindutva are anti-nationalists. Analysed this way, ''Hindutva'' of Bal Thackeray has very little cultural content or any cultural connotation. In none of his speeches, we find any exposition of Hindu culture or tradition, or Dharma in any sense of the term. What he had the likes of him, have done is that they have sought to legitimise communal politics through the bogey of Hindu transition or ''Hindutva''. As explained in S. Harcharan Singh (supra) section 123(3) was enacted to eliminate from the electoral process such divisive factors based on irrational communal appeals. Thus, the charge, in the present case, stands proved.
151. Mr. Kotwal wants me to consider the speeches given by one or two other leaders, not as and by way of an additional item of corruption, but to understand the meaning and context of Hindutva as canvased by respondent No. 1 and Bal Thackeray. According to me it is not necessary for me to consider those speeches. I may also mention, firstly, that the extracts of those speeches have not come on record in the video cassette "Avhan Ani Awahan". It is only such of the parts of the speeches that have come on record in the video cassette that can be taken into account for the purpose of holding that the charge as against respondent No. 1 is proved or not proved. Secondly, having regard to the hierarchical nature of the party no leader in Shiv-Sena can say anything other than what the Supreme leader has said. They can only amplify. That is neither here nor there.
152. This takes me to the question relating to the mischief falling u/s 123(3A) of the Act. In this connection Mr. Hattangadi relied on the case of
"...It is important to remember that; (1) u/s 153A it is not necessary to prove that as a result of the objectionable matter, enmity or hatred was in fact caused between the different classes. (2) Intention to promote enmity or hatred, apart from what appears from the writing itself, is not a necessary ingredient of the offence. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred for, a person must be presumed to intend the natural consequences of his act. (3) The matter charged as being within the mischief of section 153A must be read as a whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. (4) for Judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is primarily meant as also the state of feelings between the different classes or communities at the relevant time. (5) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge u/s 153A that the writing contains a truthful account of past events or is otherwise supported by good authority. If a writer is disloyal to history, it might be easier to prove that history was distorted in order to achieve a particular end as e.g. promote feelings of enmity or hatred between different classes or communities. But adherence to the strict path of history is not by itself a complete defence to a charge u/s 153-A. In fact, greater the truth, greater the impact of the writing on the minds of its readers, if the writing is otherwise calculated to produce mischief."
Therefore, what is required to consider is the theme, the language, the innuendoes, the similes it employees and the moral of its story, if any. The theme of the book in this case was that Gandhiji''s murder was not an act of a mad man, but it was a political assassination and that the genesis of the murder was the policy persistently pursued by Gandhiji that Muslims must be appeased at all cost. The book refers, in detail, to the partition of the country, various concessions given to the Muslims, how Pakistani tribesmen invaded Kashmir and how the Government of India decided to withhold the payment of cash balances to Pakistan on which issue how Gandhiji went on fast, which resulted in persuading the government partially to pay the amount and so on. The Court held that by and large, the book was an attempt to explain what is undisputably a historical fact, and though it is possible, that the theory might have over-shadowed the limits of history the Court was satisfied that he had not pervaded the history. The Court held that the book cannot be said to contain any matter which promotes feelings of enmity and hatred between Hindus and Muslims in India. The Advocate General had argued that the theme of the book was to depict that Muslims are essentially traitors. If that was the them of the book, perhaps, the result would have been different. The learned Advocate General had referred to several passages in the book which were capable of promoting feeling of enmity and hatred between Hindu and Muslim community in India. The Bench observed that a passage here or a passage there, sentence here or a sentence there or a word may, if strained and torn out of contest supply inflammatory material to willing mind, but such a process was impermissible. The book must be read as a whole. That is the test, here also. The test is what would be the reaction of the persons who had gathered to hear Bal Thackeray on these occasions. The test is, what would be the reaction of the voters who had seen the video cassette "Avhan Ani Awahan. "What is the theme of the cassette?
153. The other case is the case of
154. In the case of
155. In the case of
"Whether the electoral offence mentioned in section 125 of the Act should be read as requiring a similar ingredient does not arise for consideration in this case, in our opinion the provisions of section 125 are not relevant to ascertain the scope and application of section 123(3-A)."
The Supreme Court referred to Kiltar Singh (supra) and held...
"A speech, though its immediate target is a political party, may yet be such as to promote feeling of enmity or hatred between different classes of citizens. It is the likely effect of the speech on the voters that has to be considered. We also find no substance in another contention urged by Mr. Nariman that section 123(3-A) was inapplicable to this case because the appellant and the candidate of the Muslim League (Opposition) were both Muslims. This Court in
It also observed that truth is no answer to a charge of corrupt practice u/s 123(3-A).
156. Mr. Hattangadi submitted that every dislike is not hatred or enmity and every condemnation is not hatred or enmity. The word "hatred" has to be read ejusdem genesis with the word "enmity". It must be something more than dislike. He also submitted that the most important word in this provision is the word "feelings" of enmity or hatred between different classes of citizens of India. He submitted that Court has to consider "feelings" and that can be done on the basis of evidence which is lacking in the present case. Of course, he submitted that the evidence though subjective, is ultimately subjected to an objective test. In the present case he submitted that there is no evidence whatsoever to say that it has resulted in any feelings of enmity or hatred between classes of citizens of India on the ground of religion or community. I think the answer is clear in Harcharan Singh''s case (supra). The object of the Act itself mentions that these provisions are incorporated "for curbing communal and separatist tendencies in the country". If the offending acts promote or tend to promote an atmosphere of antipathy, I think the offence u/s 123(3-A) is committed. The tests are all, as laid down in Godse case (supra). It need not necessarily result in any incident as such. Mr. Kotwal wants to refer to an incident that took place immediately after he (Bal Thakeray) gave a speech February 24,1990 at Shivaji Park. There was a riot and some stones were thrown at Mahim. One does not know the exact details of that incident. One does not know the exist cause for the same. In any case, such an incident has not taken place within the constituency in question as such. Therefore, I am not prepared to accept that evidence. But, I think, it is not necessary. What is to be decided is whether the speeches and acts attributed to respondent No.1 are of a nature calculated to promote feeling of enmity or hatred. One has to understand all these things in their proper context and determine what are the natural and probable consequences of the same.
157. In the present case there are three or four items which would squarely fall u/s 123(3-A) of the Act. Firstly, the report published in "Samna" (Ex.R.), in respect of the alleged visit of the petitioner to Sankalpa Siddhi Ganesh Mandir festival and the report there of published in "Samna". In my view, that is a very damaging report inasmuch as it tends to show that the petitioner has brought Muslims to say "Allah Ho Akbar" in Ganesh Festival. I think, there can be no better instance than this false publication to promote felling of enmity or hatred between Hindus and Muslims.
158. Similarly, the report which is pasted on one of the boards, being Ex. Zu, also promotes feelings of antipathy amongst persons who have read such a report. In fact, there is some evidence in this behalf viz., the evidence of Haju (P.W. No. 9). He has stated in his evidence that the voting, percentage in his part, which is a Muslim locality, was very much less. For the voters, from this locality, the polling booths were in Pandurang Wadi which is mainly a Hindu locality and he stated that because of the anti-Muslim propaganda, the Muslims, particularly the Muslim ladies were afraid to go to the polling booth. Of course, he has been cross-examined to disprove that he could not have known the percentage of voting etc. But I think it indicates the reaction of the people in that area.
159. Similarly, such of the posters and pamphlets which have been used by respondent No.1 reminding the voters of the incident relating to immersion of the idol of Ganesh and the attempt to keep issue alive, would fall within the ambit of section 123(3-A) of the Act.
160. As far as the video cassette is concerned, the very manner of presentation of the same, is sufficient to hold that the cassette as a whole would fall within the scope of section 123(3-A) of the Act. Assuming I am wrong in this assessment of mine, the passages marked Ex. ZA1, passage marked Ex. ZA2, the passages pertaining to stopping of Namaz on the road, and pulling down the loud-speakers from the top of the Mosques, part of Ex. ZA4, all clearly fall within the scope of section 123(3-A) of the Act. Hence , on these issues, the petitioner must succeed.
161. In this connection, I must mention that Bharucha, J., in the said petition of Prabhakar K. Kunte v. Dr. R.Y. Prabhoo, dealt with the principal of Mr. Thackeray''s speeches (which them is the same as in the present case) and pin-pointed several identical passages as offending section 123(3-A). In particular, he observed as follows:
"To campaign on the ground that India belongs to the Hindus is to say that all those who are not Hindus are, or ought to be, second-class citizens who are not entitled to the same treatment as the Hindus. the statement would create enmity and hatred by fostering resentment among Hindus that Muslim citizens who should be getting treatment inferior to that which they were getting were, in fact, getting the same, if not better treatment."
Dealing with the slogan "Garva Se Kaho Hum Hindu Hai" the learned Judge observed:
"The slogan was addressed to Hindu voters. They were the one part of the ''we''. The other part of the ''we'' were those on the stage. Hindu voters were invited to proclaim their pride in being Hindus by voting for the 1st respondent. No voter could have mistaken the appeal of the slogan; it was to vote for the 1st respondent on the ground of his and their religion."
Well, that is Hindutva-politics of communal aggressiveness!
Issue Nos. 7 & 8:
162. Having held that the officers concerned had not exercised their powers within the provisions of the Act of 1950, and there by all those persons who have been mechanically added to the roll could not have exercised their right to vote and having held that those votes must be treated as void, the only limited question is as to whether the petitioner is entitled to recount on that ground and a declaration of the result in accordance with such recount. In the present case, the margin of vote being so limited, it is but proper that such a recount has to be ordered. It has been stated that about 2,300 voters from this newly added list have cast their votes. these votes will have to be eliminated. That can only be done by giving suitable directions as I intend to do at the end of this judgment. Similarly, it has been pointed out that about 40 to 45 votes have been cast by voters whose names had in fact been deleted. These votes will also have to be eliminated. I propose to give suitable directions at the end of this judgment. If after elimination of those votes and on a recount of the votes, if the petitioner gets majority of the votes, then of course, in addition to declaration, as he is entitled to have the said election of respondent No.1 set aside, he will then be entitled to a further declaration that he has received a majority of the valid votes.
Issue Nos. 16 & 17:
163. The argument of Mr. Kotwal is that now that I have come to the conclusion that respondent No.1 is guilty of corrupt practices, as mentioned above, there should be a further declaration that but for the votes obtained by the respondent No.1 by corrupt practices, the petitioner would have obtained a majority of the valid votes, particularly because the difference is very small. But I think, I cannot give such a declaration inasmuch as one does not know how and in what manner the votes have been cast, and it is not possible for me to weigh the contents of each ballot-paper as to how and to what extent the ballots were cast only on considerations of corrupt practices.
164. In the result, I answer the issue as follows:
Issue No. 1 : In the negative.
Issue No. 2 : In the negative.
Issue No. 3 : Bogus voters were enrolled but it is proved that that was at the instance of the first respondent or his associates. But in any event the enrolment of such bogus voters materially affected the result of the election.
Issue No. 4 : In the affirmative inasmuch the officers concerned acted without jurisdiction.
Issue No. 5 : In the affirmative as it is apart of Issue No. 3.
Issue No. 6 : In the negative.
Issue Nos. 7 & 8 : The petitioner is entitled to a recount of valid votes after elimination of invalid votes as found under Issue Nos. 3 & 5.
Issue No. 9 : In the affirmative.
Issue No. 10 : In the negative.
Issue No. 11: In the affirmative.
Issue No. 12 : Not proved and, therefore, in the negative.
Issue No. 13 : Does not arise.
Issue No. 14 : In the affirmative.
Issue No. 15 : In the affirmative.
Issue No. 16 : Does not arise and in the negative.
Issue No. 17 : In the negative.
Issue No. 18 : See below:
There will be a declaration in terms of prayer (a), i.e. the election of respondent No. 1 to the Maharashtra State Legislative Assembly from the Goregaon Constituency (No. 42) held on February 27, 1990, is declared to be null and void.
As regards prayers (b) & (d),I give the following direction:
I appoint Mr. Ajitlal Pranlal Yajnik, Ex. Prothonotary and Senior Master, as Commissioner to do the following:
He shall ascertain the names of the persons whose names appear in the addenda as on January 15, 1990.
He shall thereafter find out the persons who have voted from the list of the addenda, from the marked copy of the electoral roll.
He shall then ascertain the ballot-paper number and scrutinise those ballot-papers.
After eliminating all those votes in those ballot-papers, he shall recount the votes.
He shall also ascertain the number of votes cast by persons whose names have been deleted.
He shall thereafter scrutinise the above ballot-papers and thereafter make a report to the Court as to the votes received by the candidates from these voters.
Further declaration, if any, would be made on receipt of such a report from the Commissioner.
I give further the following direction:
I direct the Collector, Bombay Suburban Division, or any other officer who is incharge of the ballot-papers to give all facilities to the Commissioner to enable him to comply with the directions given above.
The Commissioner shall act on a true copy of the order certified by the petitioner''s advocate as true copy.
The commissioner shall first call a meeting of the two advocates within three days of the service of the true copy of the order on the Commissioner. On such meeting being fixed he shall further fix a meeting within three days thereafter, for the purpose of execution of the order. Thereafter the Commissioner shall continue to count the ballot-papers from day-to-day but however, subject to such hours as the Commissioner thinks reasonably proper.
Towards the costs of the Commissioner, I direct that initially the petitioner shall deposit Rs. 5,000/-.
Mr. Ramchandran objects to the appointment of the Commissioner and also to my giving directions as mentioned above inasmuch as according to him, it affects the secrecy of votes.
P.C.: I find no substance in this contention inasmuch as under Rule 93 of the Conduct of Election Rules, 1961, directions can be given by a competent Court with regard to production and inspection of ballot-papers. Even otherwise there is no question of interfering with the principles of secrecy of votes inasmuch as it is only the limited number of ballot papers which are to be counted for the purpose of eliminating those votes cast under those ballot-papers.
At this stage Mr. Kotwal applies that costs should be awarded and he submits that the costs should be at a higher rate than as provided under Rule 24 of rules framed by the High Court under this Act. Rule 24 provides advocates'' fees at the rate of Rs. 400/- per day if represented by more than one advocate and at the rate of Rs. 250/- per day if represented by one advocate, but the Court has a discretion to grant higher or lower fees as the Court thinks proper.
Mr. Hattangadi on the other hand submits that on some of the issues the petitioner has lost and it is not a proper case where any costs should be awarded and the parties should be made to bear their own costs.
I am not inclined to accept the submission made by Mr. Hattangadi. On all major charges such as u/s 123(4), 123(3-A), the petitioner has succeeded convincingly. Therefore, just because he has not been able to establish other charge u/s 123(1), it cannot be said that he is not entitled to any costs.
Mr. Kotwal points out that in all there were 58 working days which were devoted to this case. But of these three days will have to be eliminated as Mr. Hattangadi was not in a position to come to Court on account of his illness. But I think I should calculate the number of working days for this case, at 55 working days.
I may also mention that much of these costs and also the time of the Court could have been fairly avoided if respondent No. 1 had been fair in conceding to the Court that video cassette "Avhan ani Awahan" had in fact been produced by Shiv-Sena. It is only because at the time of the trial respondent No.1 took a stand that the video cassette was not produced by them and such a cassette was not displayed by them the evidence had to be led on the production of such a video cassette and also on the display of the same. I may also mention that respondent No.1 initially betrayed complete ignorance of this, only to be confronted, later on, as to how the very many scenes were taken from his own area and right in front of Shiv-Sena office. I have dealt with in detail as to how this cassette could not have been produced without his active co-operation. I have also given a categorical finding, that the video cassette was in fact produced by Shiv-Sena for the purpose of their election campaign and it was displayed in all the constituencies in Bombay including this constituency in question. Therefore, to a considerable extent the length of this trial was due to the attitude adopted by respondent No.1.
In these circumstances, I find no justification whatsoever not to award any costs.
Again, I may mention the rate prescribed under the rules at Rs. 400/- per day itself is wholly inadequate inasmuch as the rules were prepared as far back as some time in 1967. It is, therefore, necessary that there has to be a considerable revision in this behalf. In my view, the reasonable fees would be, in the present case, a sum of Rs. 1,000/- per day for the petitioner''s advocates inasmuch as the petitioner had engaged more than one advocate to represent him. Accordingly, I grant advocates fees at the rate of Rs. 1,000/- per day on the basis that the petitioner had engaged more than one advocate and the fees shall be counted for a total number of 55 days and shall be paid accordingly by respondent No.1 . As regards, the costs of the petition, I propose to give further directions, later on, when the Commissioner''s report is received.
The matter be placed on board, on the Commissioner making a report to this Court.
At this stage Mr. Hattangadi applies that the portion of this judgment and decision be stayed for some reasonable period including the appointment of the Commissioner and counting of the votes.
Mr. Kotwal objects. I find no justification whatsoever for the purpose of staying the order of appointment of the Commissioner and for recounting the votes which have been considered by me and held by me as void. As regards the prayer for stay of the part of my judgment, I direct respondent No.1 to make an independent application as contemplated u/s 116-B of Act, which application will be considered on its merits.
I further direct that the security for costs given by the petitioner at the time of the filing of this petition shall be refunded to the petitioner.
I direct that substance of this decision of mine forwarded to the Election Commission and the Speaker of the Maharashtra Legislative Assembly. I also direct that, thereafter an authenticated copy of my judgment and order be sent to the Election Commission.
