@JUDGMENTTAG-ORDER
A.K. Mathur, J.@mdashThis is an election petition u/s 81 of the Representation of People Act, 1951 filed against the Respondent-returned candidate Shri Sunderlal Patwa from Bhojpur Constituency No. 245 of the Madhya Pradesh. The Petitioner is a voter of this Constituency and his name has been recorded in Part No. 34 at Serial No. 676 of the Electoral Roll of Ward No. 7 of Obedullahganj. (He was not contesting candidate).
2. The elections of the State Legislative Assembly were announced in 1993. The election programme was notified by the Collector, Raisen on 23.10.1993. The nomination was to be filed before 30.10.93 and scrutiny was to take place in the office of the Returning Officer on 1.11.1993 at 11 a.m. The date of withdrawal of nomination was 3.11.1993 and the poll was scheduled on 24.11.1993 and the counting was fixed on 30.11.1993. The election took place on the scheduled date and the result was announced on 1.12.1993. In that, the Bhartiya Janta Party candidate-Shri Sunderlal Patwa, Respondent, was declared elected with the margin of 62,216 votes defeating his nearest rival Ajay Singh of Indan Nation Congress, who secured 33048 votes. In that election, Ramesh Chandra s/o Shri Ratanlal also filed four nomination papers which were received by the Returning Officer and they were registered at Serial Nos. 8, 9, 10 and 11 on 27.10.1993. All these four nomination papers were rejected by the Returning Officers on the ground that the name of the candidate Ramesh Chandra was not recorded at Serial No. 95 in Part No. 37. The name of Ramesh Chandra s/o Ratanlal was in fact recorded at Serial No. 485 instead of serial No. 95. Therefore, the Returning Officer who examined these four nomination papers, did not find them in order and rejected all these nomination papers of Ramesh Chandra. It is alleged that this was due to inadvertence of his Advocate-Shaligram Shrivastava who filled his nomination papers and wrongly described his serial number. It is alleged that Shaligram Shrivastava was duly instructed and authorised by Ramesh Chandra. Therefore, the rejection of nominations of Rameshchandra was improper and the election of Respondent is liable to be declared void u/s 100(1)(c) of the Representation of People Act, 1951 (hereinafterreferred to as the ''Act of 1951'').
3. The Anr. candidate-Sarfaraz Khan son of Sahab Khan filed two nomintion papers which were registered at Serial Nos. 30 and 31. Sarfaraz Khan was an elector of 239 Bhopal South Constituency. Along with his nominations, he filed certified copy of his entry in the electoral roll of 239 Bhopal South Constituency. But his nominations were rejected on the ground that his age was 24 years according to the copy of the voter list filed by him. The Petitioner submitted that as per his information, the age of Sarfaraz Khan was 25 years on the dale of filing nominations and his nominations were wrongly rejected by the Returning Officer; therefore, the election of the Respondent is liable to be declared void u/s 100(1)(c) of the Act of 1951.
4. The Petitioner has also challenged the election on the ground of corrupt practice that the Respondent-returned candidate has made a systematic appeal on the ground of religion and this amount to corrupt practice u/s 123(3) of the Act. It is alleged that the Respondent appealed to the voters to vote for construction of Ram Temple at the birth place of God Ram and to vote for Ram on lotus symbol. It is also alleged that the Respondent-returned candidate toured villages like Semrikalan, Majuskala, udadmau, Intkhedi & Sultanpur. In all these villages, a systematic appeal was made in the name of religion and he emphasised in his speeches relating to demolition of Babri Masjid at Ayodhya and construction of temple of God Ram there. It is alleged that he delivered speech at about 12 noon in village Semrikalan and at about 2 p.m. at Majuskala there also, he talked about demolition of Babri Masjid and construction of God Ram''s temple. The Respondent-Sunderlal Patwa also delivered speeches in village Udadmau at about 3 p.m. and in village-Intkhedi about 4 p.m. about demolition of Babri Masjid and construction of temple of God Ram. It is alleged that all these meetings were covered by the news paper. On 20.11.1993 at about 12 noon, the Returned candidate Shri Sunderlal Patwa was weighed in one rupee coins at Prem Talab and on that occasion, he said that the entire coins will be sent to Ayodhya for construction of temple of God Ram. It is also alleged that if they vote to Bhartiya Janta Party (in short ''B.J.P.''), it would add like a one brick in the construction of Ram Temple at Ayodhya. On 21.11.1993, a meeting was held in the P. W.D. Rest House in Sultanpur town and there also, it was addressed by the President of the B.J.P. Shri Lal Krishna Advani and in that meeting also, it was said that if B.J.P. is defeated it would be a defeat of God Ram and ultimately of all Hindus. Therefore, the election of the returned-candidate Shri Sunderlal Patwa is liable to be declared illegal u/s 100(1)(b) as also u/s 123(3) of the Act of 1951.
5. A written statement has been filed by the Respondent-returned candidate denying all the allegations made in the election petition. The Respondent-returned candidate raised preliminary objections that the election petition does not disclose the concise statement of material facts so as to constitute the cause of action for going to trial of the election petition. Therefore, the election petition should be dismissed under Order VII of Rule 11(a) of the Code of Civil Procedure. The Respondent-returned candidate submitted that the election petition which has been served on him, does not bear the signature of the Oath Commissioner or Notary; therefore, the election petition is not properly constituted as required u/s 83(1)(c) of the Act and, therefore, it should be dismissed. These preliminary objections were disposed of by me by a detailed order dated 19.9.1994 over ruling all these objections.
6. The Respondent-returned candidate in his written statement has denied all the allegations levelled against him and submitted that the rejection of nomination papers of Ramesh Chandra and Sarfaraz Khan was justified. It is submitted that Shaligram Shrivastava, Advocate, was not authorised by Ramesh Chandra, who filled nominations and he made certain allegations against Shaligram Shrivastava that he was earlier a candidate of B.J.P. and then joined Janta Dal and then Congress. The allegation regarding rejection of nomination paper of Sarfaraz Khan was also justified. The Returning Officer has rightly rejected the nomination paper of Sarfaraz Khan because he has not disclosed that he is more than 25 years of age as required under Article 173(b) of the Constitution of India. It is alleged that the nominations of Ramesh Chandra and Sarfaraz Khan were deliberately got filed so as to get an opportunity to file an election petition with a view to harass the returned candidate. The allegations regarding corrupt practice were also strongly denied and it is submitted that the votes were not sought on the name of God or on the name of religion; but votes were sought on the issues which were relevant at that time. It is alleged that Hinduism is not a religion and it is a way of life. It was seriously contested that the issue of construction of Ram Temple or demolition of Babri Masjid was not a religious issue. It was purely a political issue. It is submitted that the Respondent who was the Chief Minister of the State of Madhya Pradesh, duly elected and formed the Government; but his Government was illegally dismissed/dissolved on account of so called demolition of Babri Masjid at Ayodhya. This written statement was further amended modifying certain pleas in written statement.
7. On the basis of the pleadings of the parties, 8 issues were framed, which read as under:
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ISSUES FINDINGS
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1 (a) Whether nomination paper of No
Ramesh Chandra s/o Ratanlal
was rejected improperly ?
(b) Whether mistake in the nomina-
lion paper of Ramesh Chandra was
of substantial nature ?
2 (a) Whether nomination paper of Shri
Sarfaraz Khan was improperly No
rejected ?
(b) Whether age shown in voter list No
can be relied upon in rejecting the
nomination paper of Sarfaraz ?
3. Whether Respondent has made sys- No
tematie appeal on the ground of
religion?
4. Whether on 15th, 20th & 21st November 1993, No
Respondent-Sunderlal Patwa
toured Semrikalan, Majuskala,
Udamau and Inlkhedi and Prem
Talab and appealed for vote in
the name of Religion ?
5. Whether on 21.11.1993 a public meeting No
at Sultanpur Town of Shri
Lalkrishna Advani was arranged with
the consent of the Petitioner. The
Petitioner and Shri Advani demanded
vote in the name of God Ram ?
6. Whether Hinduism is a religion or it is Not
only a way of life of composite culture decided
and is only a territorial concept ?
7. Whether the election of Respondent is No
liable to be set aside u/s 100(1)(c) of
the Representation of People Act ?
8. Relief and costs ? Dismissed
with cost.
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Isuse No. 5 was amended on 1.12.1994 and the amended issue reads as under:
5. Whether on 21st November, 1993, at Sullanpur, Respondent No. 1 in his speech demanded votes in the name of Lord Rams ? No
8. The Petitioner in support of his election petition examined 17 witnesses and got large number of documents exhibited which will be referred to as and when necessary. The Respondent-returned candidate also examined 5 witnesses and also produced number of documents which will be referred wherever necessary.
9. ISSUE No. 1 (a) and (b) REGARDING REJECTION OF NOMINA TION PAPERS OF RAMESH CHANDRA:
It may be stated at the very outset that this petition has not been filed(sic) Ramesh Chandra. The Election Petition is filed by Narain Singh, who was not a candidate in the election. He is only a voter of 245 Bhojpur Constituency and so much so, Ramesh Chandra has also not been examined as one of the witness in this case. The whole controversy has been unfolded by the statements of Narayan Singh (PW 1) and Shaligram Shrivastava (PW 11). P.W. 1-Narayan Singh (the Petitioner) deposed that he is a voter of 245 Bhojpur constituency and his name appeared in the voter list at Part No. 34 Serial No. 676. He is an Advocate by profession and is practising at Obedullahganj. He further deposed that Ramesh Chandra approached him and said that he is filing the nomination paper for contesting the election from Bhojpur Constituency. Ramesh Chandra requested him to accompany to Raisen for the purpose of filing the nomination paper. Ramesh Chandra belongs to Bahujan Samaj Party. On 27.10.1993. Narayan Singh accompanied him along with some other persons and reached at Collectorate Raisen, at about 1 p.m. At the election office, he met one Shaligram Shrivastava and Ramesh Chandra requested Shaligram Shrivastava to fill his nomination forms. Shaligram Shrivastava is a senior of Narayan Singh (Petitioner). Then Shaligram Shrivastava told him that he has to deposit first a sum of Rs. 250/- and then he and Shaligram went to find out the number of Ramesh Chandra from the voter list from the master copy, there was a large crowed and Shaligram found out the serial number of Ramesh Chandra and he noted down the part number and serial number on his palm. Then he told Ramesh Chandra that he may find out the serial number and part number of his proposer. Thereafter Shaligram Shrivastava filled the nomination forms of Ramesh Chandra. Then he asked Ramesh Chandra to go and find out whether any symbol has been allotted to Bahujan Samaj Party or not. Ramesh Chandra informed him that Bahujan Samaj Party has not been allotted any symbol. Thereafter, he asked him to give any symbol and fill the same in the nomination forms. The Ramesh Chandra gave three symbols in his nomination forms. Thereafter, he alongwith Ramesh Chandra went to Returning Officer and deposited the nomination forms. Ramesh Chandra submitted his nomination forms and then obtained a receipt. Thereafter, Ramesh Chandra was administered an oath of allegiance to the Constitution. The Returning Officer accepted the forms and gave a receipt. P. W. 1-Narayan Singh deposed that Ramesh Chandra told him that he will not be available on the date of scrutiny; therefore, he may attend the scrutiny. Ramesh Chandra gave him a receipt as well as authorisation in favour of Shaligram Shrivastava.
9. P.W. 1-Narayan Singh (Petitioner) deposed that the scrutiny was held on 1.11.1993 in the office of the Returning Officer. Shaligram Shrivastava told Ramesh Chandra that he should also be present on the date of scrutiny. On the date of scrutiny, he attended along with Shaligram Shrivastava and gave authorisation in favour of Shaligram Shrivastava. It is deposed by Narayan Singh that the Returning Officer scrutinised the nomination papers of Bhojpur Constituency and no person raised any objection to nomination of Ramesh Chandra. Thereafter, the Returning Officer called the name of Ramesh Chandra and rejected his nomination papers. The Shaligram Shrivastava got up and told the Returning Officer that if there is any objection, he will do the necessary correction. The Returning Officer told him that he has mentioned the Serial No. 95 in Part No. 37, but the name of the candidate Ramesh Chandra does not appear at this serial number. Shaligram Shrivastava told the Returning Officer that he knew the whole family of Ramesh Chandra and there are hardly thousands names in the voter list and he will correct the serial number after going through the voter list; but the Returning Officer declined to his request. Shaligram Shrivastava protested that he has filled the nomination and he will make the necessary correction immediately. It is alleged that one Gulam Sarwar who was the election convener of Bahujan Samaj Party, told Shaligram Shrivastava that if the Returning Officer is not willing to give the voter list, we may go down and find out from the master copy the correct serial number. Then they went down in the election section but the concerned clerk was not available there and Gulam Sarwar went in search of the clerk. But after about 15 minutes, Gulam Sarwar came back and informed us that concerned clerk is not available and scrutiny is over. On the next day in news paper, it appeared that the nomination papers of Ramesh Chandra were rejected. The rejection orders were produced Annexures P/2, P/3, P/4 and P/5.
10. The nomination papers of Sarfaraz Khan were also rejected by the Returning Officer on account of below age. The rejection orders were produced as Annexure P/6 and P/7.
10-A. The Anr. witness-Gulam Sarwar has been examined as P.W. 6. He deposed that he filed nomination forms in two constituencies, i.e. Bareli and Bhojpur. He fought the election from Bareli constituency. He was election convener of Bahujan Samaj Party, Raisen. He deposed that the nomination forms of Ramesh Chandra were rejected and Shaligram Shrivastava objected about the rejection of nomination forms of Ramesh Chandra and he requested the Returning Officer to give him the voter list and he will point out the correct serial number and part number of Ramesh Chandra; but the Returning Officer declined to give the voter list. He deposed that he and Shaligram Shrivastava with Narain Singh went to election office to get the correct serial number of Ramesh Chandra. But there was nobody in the election office as it was lunch time. Gulam Sarwar (PW 6) further deposed that he went in search of the concerned clerk to Canteen but he was not available there, by that time, the scrutiny was over.
11. P.W. 11-Shaligram Shrivastava deposed that on the date of scrutiny, he along with Narain Singh (Petitioner) was present in the office of Returning Officer. The scrutiny was done constituency wise and the Returning Officer picked up the nomination one by one. He filed the nomination forms from this constituency and his nomination was found to be valid and the same was accepted. But the nominations of Ramesh Chandra were rejected and when he asked the reason, the Returning Officer told him that the serial number of Ramesh Chandra was incorrect. P.W. 11-Shaligram Shrivastava deposed that he told the Returning Officer that he has got the authority on behalf of Ramesh Chandra and he knows the whole family members of Ramesh Chandra and he will correct the same. He also deposed that he wanted to see the voter list but the Returning Officer declined to pass on the voter list because he has flagged the papers. Then he along with Narayan Singh and Gulam Sarwar went down to election office to take the correct number from the master copy of the voter list but nobody was available in the office and in the meanwhile, the scrutiny was over. He has stated above his political career that he was in BJP, then Congress and then Janta Dal. He was cross-examined at length and it was suggested that he was expelled from B.J.P. for which he has a grouse against the Respondent. It is not necessary to go in the allegation and counter allegation as nothing turns on that.
12. The Respondent examined Hari Narayan Saxena as RW 2. He was authorised representative of the Respondent-returned candidate. He has deposed that only two persons were present at the time of scrutiny, i.e. himself and one Shri Godha. He was representing the Respondent-returned candidated and filed his authorisation and one Shikherchand Godha was representing Shri Gulabchand Tamot. He has deposed that no authorisation letter was given to Returning Officer by any otherperson muchless PW11 Shaligram Shrivastava representing any candidate. He has deposed that neither candidate nor any proposer of other candidate was present at the lime of scrutiny. He has deposed that neither Shaligram Shrivastava nor Gulam Sarwar was present at the time of scrutiny.
13. The Respondent has also examined the Returning Officer-Anil Jain as RW 5. He has deposed that he was posted as Collector, Raisen. He was also the Returning Officer for whole District. He has deposed that he rejected the nominations of Ramesh Chandra as he did not find the name of Ramesh Chandra at serial No. 95 of Part No. 37 in the voter list of Bhojpur Constituency. He has also deposed that neither both the candidates were present nor the authorised representatives of Ramesh Chandra or Sarfaraz Khan were present at the time of scrutiny. He has deposed that he has stated this fact in his order in portion ''A to A'' in Ex. P/2-A and likewise in Ex. P/3-A, Ex. P/4-A and Ex. P/5-A. He also deposed that he used to take the authorisation letter before permitting the authorised representative to appear before him. Ex. D/3 is the authorisation letter in favour of Hari Narayan Saxena who appeared on behalf of the returned candidate. He further deposed that Ex. D/4 is a letter authorising Shikharchand Godha to appear on behalf of Gulabchand. Ex. P/24 the letter authorising Shaligram Shrivastava to appear on behalf of the Candidate-Ramesh Chandra, was not present before him on the date of scrutiny.
14. Shri S.S. Jha learned Counsel for the Petitioner, has submitted that the rejection of nomination papers of Ramesh Chandra is bad because no such mistake was pointed out by the Returning Officer as required u/s 33(4) of the Act, and secondly that unless there is a substantial mistake then such nomination paper should not be rejected. Learned Counsel submitted that u/s 36(4) of the Act, the Returning Officer is not required to reject the nomination paper on the ground of any defect which is not of a substantial nature. Learned Counsel also submitted that when Shaligram Shrivastava had requested the Returning Officer to give him the copy of the voter list to correct the serial number of Ramesh Chandra. The Returning Officer has committed illegality in refusing his request. He submitted that only 900 and odd voters are in that part and it would not have taken a minute for Shaligram Shrivastava to point out the correct serial number. As against this, Shri N.C. Jain learned Counsel for the Respondent submitted that there is no allegation in the petition that Gulam Sarwar or Narayan Singh (Petitioner) were present at the time of scrutiny; therefore, no such evidence can be led for which there is no foundation laid down in the petition. Learned Counsel for the Respondent also submitted that the scrutiny at the stage of presentation of nomination u/s 33(4) is a cursory scrutiny and he submitted that nobody on behalf of Ramesh Chandra was present at the time of scrutiny as per the statement of the Returning Officer as well as per the statement of the authorised representative of the Respondent-returned candidate, who was present. Therefore, the statement of Shaligram Shrivastava should be rejected. Learned Counsel staled that Shaligram Shrivastava and Narayan Singh (Petitioner) were in inimical towards the Respondent-Returned candidate. Learned Counsel submitted that Ramesh Chandra has not appeared in the witness box to substantiate the allegation. In support thereof, the learned Counsel has invited my attention to the case of
15. I have heard the learned Counsel for both the parties and perused the record.
16. After going through the statements of Shaligram Shrivastava, Narayan Singh and Gulam Saarwar, it appears that all the three witnesses are not reliable witnesses. In fact, if Narayan Singh and Shaligram Shrivastava were present at the time of scrutiny and there was authorisation in favour of Shaligram Shrivastava, then there was no reason why such authorisation would not have been on record. The so called authorisation has been produced before this Court; but that authorisation was not produced before the Returning Officer. The Returning Officer has come in witness box as R.W. 5 and he has deposed that whoever has filed the authorisation on behalf of the candidate, the same was placed on record and there were only two authorisation which arc on record - one filed by Hari Narayan Saxena on behalf of the returned Candidate-Sunderlal Patwa and Anr. filed by Shikherchand Godha on behalf of the candidate-Gulabchand Tamot. Both these authorisations were taken on record and they were duly proved by the Returning Officer. Therefore, there is a sufficient corroboration of the testimony of Harinarayan Saxena(RW 1) and the Returning Officer (RW 5) from the corresponding record of the election i.e. Ex. D/3 and Ex.D/4. If Shaligram Shrivastava has produced the authorisation on behalf of Ramesh Chandra then there is no reason why such authorisation would not have been taken on record. This fact gives a complete lie to the statements of all the above three witnesses that Shaligram Shrivastava or Narayan Singh (Petitioner) was present at the time of scrutiny and the story that they sought time from the Returning Officer to make a necessary correction in the nomination of Ramesh Chandra and then went down to the election office to collect the correct serial number of Ramesh Chandra. This is all nothing but appears to be a story cooked up to prepare a ground for filing the election petition.
17. So far as the scrutiny at the stage of filing of nomination papers u/s 33(4) of the Act is concerned, it is not a detailed scrutiny and it is only a scrutiny of peripheral nature simply because the candidate''s nomination form has been cleared at that stage does not necessarily follow that the nomination of the candidate was found to be complete in all respects. It is just a casual scrutiny. At the time of scrutiny, the candidate is permitted to appear by his authorised representatives or his proposer, i.e. with a view to correct any mistake in the nomination form, if there is any. If any candidate or his proposer or his authorised agent does not appear, it cannot be heard to say that there was a small error which could have been corrected by the Returning Officer. It is true that u/s 36(4) of the Act, the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. In given situation, it depends upon case to case. In the present case, the serial number of the candidate-Ramesh Chandra was not available. Therefore, it is not expected of the Returning Officer to make an enquiry after scrutinising the entire voter list that where does the correct serial number of the candidate lies in that voter list. If the candidate was seriously contesting the election then he could have appeard and pursued the matter in light earnest. From the facts as mentioned above, it appears that Ramesh Chandra was not a serious candidate. If he was a serious candidate, he could have appeared himself or his proposer or he could have authorised his representative to be there. But as mentioned above I find that the statements of all the three witnesses i.e. Narayan Singh (PW 1), Gulam Sarwar (PW 6) and Shaligram Shrivastava (PW 11), are not reliable. Therefore, it shows that nobody was present on behalf of Ramesh Chandra to point out the correct serial number in the nomination form. In the case of Brij Mohan (Supra), a part number of voter list was wrongly given by the candidate and nomination was rejected by the Returning Officer. The High Court of Punjab & Haryana set aside the election on this basis and the Hon. Supreme Court reversed the same and it was observed:
It is not possible to say generally and in the abstract that all errors in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls or nomination papers do not constitute defects of a substantial character. They would not be defects of a substantial character only if at the time of scrutiny the Returning Officer either by himself with the materials placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer by reference to the correct part number of the electoral roll. If that is not the case, he would be committing grave error by accepting the nomination paper without verifying whether the candidate is a voter in that or any other constituency of the State and whether the proposer is a voter in that constituency.
In the said case also, Hon. Supreme Court further observed:
The candidates and the proposer are always expected to go fully prepared to meet any objection that may be raised by any candidate or even by the Returning Officer himself sua motu at the time of the scrutiny and they cannot be expected to go anytheless prepared merely because the Returning Officer had received the nomination paper without raising any objection. It is at the lime of scrutiny which is done in the presence of all concerned that the nomination papers come up for more detailed consideration at the hands of the Returning Officer against whom there is no estoppel in regard to the statutory duty of scrutiny.
Their Lordships of the Supreme Court in that case after examining all the factual aspects, came to the conclusion that the Returning Officer did not commit any illegality in rejecting the nomination papers of that Petitioner because the part number was not correctly described, and the finding of the High Court was reversed and found that this error was of substantial character. Similarly, in the case of Lila Krishan (supra), the serial number of proposer mentioned in nomination paper did not tally with serial number mentioned in voter list. No assistance was provided to the Returning Officer to correlate and identify the proposer. The Lordships of the Supreme Court held that such rejection of nomination was not invalid and observed:
The contents of the Section 33(4) proviso and the provisions of Sub-section (4) of Section 36 when read together make it clear that the mistake with reference to the serial number of the proposer in nomination paper was an error which could be corrected. u/s 36(1) on the date fixed for scrutiny of nominations election agents, one proposer of each candidate and one other person duly authorised in writing by each candidate are entitled to appear before the Returning Officer, and such persons are entitled to reasonable facilities for examining the nomination papers. The purpose of making such provision is to facilitate scrutiny. The presence of candidate, his election agent and Anr. person acquainted with the Constituency would certainly facilitate the process of scrutiny. Defects covered by the proviso to Section 33(4) could easily be resolved if people authorised u/s 36(1) are present at the time of the scrutiny. If the correlation has not been made and the Returning Officer has no assistance to fix up the identification of the proposer it cannot be said to be a defect not of substantial character. It could not be a statutory obligation of the Returning Officer to scrutinise the electoral roll for finding out the identity of the proposer when the serial number turns out to be wrong. But if interested and competent persons point out to the Returning Officer that it is a mistake, it would certainly be his obligation to look into the matter to find out whether the mistake is inconsequential and has, therefore, either to be permitted to be corrected or to be over-looked.
In the case of Mathura Prasad (supra) the matter arising from this Court, neither the candidate nor his authorised representative was presentat the time of scrutiny and the candidate could not be identified as per electoral roll and the nomination was rejected. But the High Court of Madhya Pradesh set aside the election. Aggrieved against that, the matter was taken up before the Hon. Supreme Court and the Lordships of the Supreme Court observed:
Where the candidate was not identified as per electoral roll and neither the candidate nor any representative on his behalf were ready to assist the Returning Officer in curing the defect and in proving the correct identify of candidate and in fact they did not remain present when the nomination paper was taken up for scrutiny it cannot be said that the Returning Officer committed any error in rejecting the nomination paper of the candidate.
18. In view of the above legal position, it transpires that the candidate who is serious about contest in the election, is required to be present at the time of scrutiny of the nomination papers so as to make necessary correction, if there is any. It is not the intention to leave entire burden on the Returning Officer to make a fishing enquiry from the electoral roll that whether the candidate''s serial number, part number or his proposer''s serial number and part number has been correctly mentioned in the nomination form or not. It will be too much to cast this duty on the Returning Officer when the law has provided a facility to a contesting cadidate either to present himself or to present through his authorised representative to cure all possible defects which may appear in the nomination paper or if any objection is raised from any other candidate. If the candidate does not avail this facility provided under the law, it is wrong to say that the Returning Officer rejected the nomination improperly or otherwise. In the present case, as apparent that neither the candidate nor his proposer or his authorised representative was present at the time of scrutiny and the name of the candidate did not find mention at the serial number given by him in his nomination form; therefore, the Returning Officer is well justified in rejecting the nomination forms and rightly so. Therefore, there is no merit in this contention of the learned Counsel for Petitioner.
19. Shri N.C. Jain learned Counsel for the Respondent has pointed out that the presence of Narayan Singh (Petitioner) and Gulam Sarwar was not pleaded in the petition. Learned Counsel has submitted that it is a settled principle that what is not pleaded no evidence can be led on that matter. In support thereof, the learned Counsel has invited my attention to the case of Rajendra Singh (Supra). It is true that what is not pleaded cannot be proved as a settled preposition and there is no dispute on this preposition. The Lordships of the Supreme Court have observed:
It is well settled that allegation of corrupt practices have to be made and proved like a charge in a criminal case and that what is not pleaded cannot be allowed to be the subject matter of evidence, as also that the allegations must be proved beyond reasonable doubt and not merely by way of preponderance of probabilities.
It is true that it has not been mentioned in the petition that Narayan Singh and Gulam Sarwar were present at the time of scrutiny and, therefore, the Petitioner cannot be permitted to lead evidence to this effect. Hence, the issues No. 1 (a) and (b) is decided against the Petitioner.
20. ISSUE No. 2 (a) and (b) RELATES TO THE REJECTION OF NOMINATION FORMS OF SARFARAZ KHAN Sarfaraz Khan filled his age as 25 years in both the nomination forms (Ex. P/6 and Ex. P/7) which were rejected by the Returning Officer on the ground that according to the voter list (Ex. P/15), he was 24 years of age.
21. Sarfaraz Khan examined himself as P.W. 5-Sarfaraz Khan deposed that he filed his nomination forms for contesting the election from Bhojpur constituency though he was resident of Bhopal. He also deposed that his date of birth is 7.10.1964 and he exercised his right of franchise in 1984. He was first admitted in Jinsi Primary School by his father and his father got his date of birth entered in the register of the School. He admitted that he was not present at the time of scrutiny. Narayan Singh (Petitioner) has produced the certified copy of the voter list of Bhopal South where Sarfaraz Khan was registered as a voter in 1983, Vide Ex. P/13 and in that, the age of Sarfaraz Khan was recorded as 22 years on 1.1.1984 and in Ex. P/14, his age was recorded as 24 years on 1.1.1988 and in Ex. P/15, his age was recorded as 24 years on 9.3.1993. P.W.2-Abdul Masid Siddiqui, who is a Head Master of Government Tazipura Girls School, Bhopal, has come in a witness box and deposed that he has been directed by the Block Education Officer to produce the register of the Government Boys Primary School, Jinsi, Bhopal and in that at entry No. 2168, the name of Sarfaraz Khan son of Saheb Khan has been mentioned and his date of birth is mentioned as 7.10.1964. The original register has been marked as Article-1 and this register is from 1969 to 1971. He also produced Anr. register (Article-B) of the Govt. Boys'' School, Jinsi, for a period from 7.7.1971 to 14.7.1975 and in that, at serial No. 2649, the name of Manavar Khan son of Saheb Khan is mentioned and his date of birth is 6.4.1967 (he is the younger brother of Sarfaraz Khan).
22. Shri S.S. Jha learned Counsel for the Petitioner submitted that under Rule 3 of the Conduct of Elections Rules, 1961, the nomination form is prescribed which is Form 2-B and in that all that is required is that he has to say that he has completed 25 years of age and nowhere it requires that he should produce any proof of that nor there is it required that he should give his date of birth. Learned Counsel submitted that under Article 173 of the Constitution of India, the candidate should have attained the age of 25 years for contesting the election. Learned Counsel further submitted that even for registration of voters u/s 19 of the Act of 1950, the condition of registration for voter is that the candidate should not be less than eighteen years of age on the qualifying date and should be ordinarily resident in a constituency. Therefore, for registration of the voter, the date of birth is not required to be given and rules framed under the Registration of Electors Rules, 1960. Rules 5 of the Rules 1960 relates to preparation of electoral rolls in which nowhere requires recording of age. Learned Counsel for the Petitioner further submitted that u/s 36(7) of the Act of 1951, the voter list is a conclusive proof that elector is a resident for that constituency and unless he is subject to a disqualification mentioned in Section 16 of the Representation of People Act, 1950. from these facts, the learned Counsel for the Petitioner contended that the nomination forms of Sarfaraz Khan were illegally rejected by the Returning Officer on the basis of the so called entry in the electoral roll. Learned Counsel submitted that entries in the electoral roll are not conclusive with regard to the age, but it is only conclusive to the extent that the candidate is a resident of particular constituency. Therefore, the nominations of Sarfaraz Khan should not have been rejected on the basis of age mentioned in the electoral roll (Ex. P/15). Learned Counsel for the Petitioner further submitted that the evidence can be led before this Court to substantiate that the candidate was more than 25 years of age at the time of filing the nomination. In support thereof, the learned Counsel has invited my attention to the case of
23. As against this, Shri N.C. Jain learned Counsel for the Respondent submitted that firstly, this election petition is not filed by Sarfaraz Khan and he is nothing but a tool in the hands of the Petitioner. Sarfaraz Khan is not reliable witness because in examination-in-chief, he admitted that he was not present at the time of scrutiny whereas in cross-examination, he stated that he was present at the time of scrutiny. The documents pertaining to age of Sarfaraz Khan were filed by the Petitioner with the petition, but the copies of that documents was not served on Respondent. Learned Counsel submitted that Abdul Musid Siddiqui (PW 2) who is Head Master of Government Tazipura Girls School, Bhopal, produced the so called school register, it is not known that whether this register was properly maintained or not and secondly, the father of Sarfaraz Khan was not produced that whether he got the age of Sarfaraz Khan entered in admission form who was the Head Master at the time of admission of Sarfaraz Khan in the school. Learned Counsel for the Respondent has also relied on the decision given in the case of Birad Mal Singhvi (supra).
24. It is true that so far as proving the age of the Candidate-Sarfaraz Khan is concerned, the Petitioner can lead the evidence to prove his age in the Court because an enquiry at the time of scrutiny is a summary enquiry and the Lordships of the Supreme Court in the case of N.T. Veluswami (supra) observed:
The enquiry which a Returning Officer has to make u/s 36 is summary in character. He may make ''such summary enquiry, if any, as he thinks necessary''; he can act suo motu. Such being the nature of the enquiry, the right which is given to a party u/s 100(1)(c) and 100(1)(d)(i) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the Returning Officer.
Therefore, the Lordships of the Supreme Court held that the enquiry before the Tribunal cannot be restricted to particular ground put forward before the Returning Officer and the material can be placed before this Court and other evidence bearing on subject can be adduced before this Court. The same view has been reiterated in the case of Birad Mal Singhvi (supra) and the Lordships of the Supreme Court observed:
During the scrutiny, the Returning Officer is under a statutory duty to satisfy himself that the candidate who may have filed nomination paper possesses the necessary constitutional qualification for contesting the election. Enquiry during scrutiny is summary in nature as there is no scope for any elaborate enquiry at that stage. Therefore, it is open to a party to place fresh or additional material before the High Court to show that the Returning Officer''s order rejecting the nomination paper was improper. It should be borne in mind that the proceedings in an election petition are not in the nature of appeal against the order of the Returning Officer. It is an original proceeding.
From this, it is apparent that enquiry can be made by this Court regarding the age of Sarfaraz Khan. But what exactly is the age of Sarfaraz Khan is a question to be determined and as per the statement of Sarfaraz Khan, he was more than 25 years of age at the time of filing the nomination because he claims his date of birth to be 7.10.1964. Since he is not a matriculate or higher secondary, therefore the certificate to that effect is not available. However, only evidence which has been led, is a school register (Article A) and which has been produced by the Head Master Abdul Masid Siddiqui (PW 2). The question is that what is the evidentiary value of such register. In the case of Birad Mal (supra) while dealing with this aspect, the Lordships of the Supreme Court have said that the age recorded in such school register cannot be said to be a conclusive and something more is required to be done, i.e. the person who got the age of the incumbent entered in an admission form, should be produced to substantiate the same or the Head Master, who got that student enrolled in the school and made the entry to this effect, should be produced to substantiate the same. In Birad Mal (supra) their Lordships of the Supreme Court observed:
To render a document admissible u/s 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible u/s 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of mateiral on which the age was recorded. In
25. In the present case, the father of the candidate Sarfaraz Khan has not been examined because according to the statement of Sarfaraz Khan, his father got his age entered in the school and he has expired. Obviously his lather could not have been examined in evidence that he gave the age of Sarfaraz to the school and on that basis, it was entered. Therefore, the value of the school register (Article A) is very doubtful and no much probative value could be attached to this register that the date of birth of Sarfaraz Khan was 7.10.1964. (Nor the Headmaster was examined who enter the age of Sarfaraz Khan).
26. Anr. important thing which stand out is that Sarfaraz Khan was not voter of this constituency, but he was the voter of the South Bhopal constituency. He filed his nomination forms in this Constituency in which he was not voter and at the time of scrutiny, he did not appear to assist the Returning Officer. Though he filed the voter list to show that he is a voter of South Bhopal Constituency. But he did not appear to contest that age recorded in that voter list is not correct and he is 25 years of age. Therefore, in face of this inconsistency, the Returning Officer had no option but to reject the nominations of Sarfaraz Khan. If Sarfaraz Khan was present at the time of scrutiny perhaps he could have substantiated that he is 25 years of age. On account of his absence which he admits in examination-in-chief that he was not present at the time of scrutiny, no fault can be found with the Returning Officer, who has proceeded on the basis of the electoral roll (Ex. P/15) which was produced by Sarfaraz Khan to show that he is a voter and in that his age was mentioned as 24 years to conclude that Sarfaraz Khan is not a qualified to fight the election because he has not attained the age of 25 years as required under Article 173(b) of the Constitution of India. I think the approach of the Returning Officer is correct because on the basis of the material before him, he has drawn his inference that the candidate has not attained the age of 25 years. If Sarfaraz Khan was present there, he could have clarified it by producing the necessary evidence before R.O. to show that he has really attained the age of 25 years; but in his absence to expect the Returning Officer (R.O.) that he should stay the scrutiny of nomination and call upon him to clarify this discrepancy is not warranted under law. The law has provided a facility to the candidate or his authorised agent or his proposer to be present at the time of scrutiny and to clarify any objection which can be raised from Ors. ide or can be raised suo-motu by the Returning Officer. If the candidate is negligent in not appearing before the Returning Officer at the time of scrutiny of the nomination and files an election petition before this Court for setting aside the election, election cannot be set aside at the behest of such an irresponsible person who is hardly mindful of his responsibility. So much so, this petition is not filed by Sarfaraz Khan, but the petition has been filed by a third person i.e. Narayan Singh, who has approached Sarfaraz Khan and Sarfaraz Khan has obliged him to furnish necessary details about himself. It is true the learned Counsel for the Petitioner has pointed out that u/s 81 of the Act, an election petition can only be filed by any candidate at such election or any elector. Since Sarfaraz Khan is not an elector of this constituency, he could not have filed an election petition and learned Counsel has submitted that such election petition can be filed by Anr. person. That is true technically, but at the same time, it is still duty of the Court to see that bona-fides of the person who has filed the Election Petition and Court cannot remain in a mock spectator that the petition has been filed by a person on behalf of Anr. person who himself was absolutely irresponsible and did not even care to appear at the time of scrutiny of nomination papers. Therefore, the contention of the learned Counsel for the Petitioner does not appear to be well founded and accordingly, it is held that the rejection of the nominations of Sarfaraz Khan was valid and no fault can be found in the order passed by the Returning Officer. Learned Counsel for the Respondent submitted that the copies of the documents because of the part of the petition had to be given to other side. So far as this preposition is concerned, there is no two opinion in the matter. I need not to go into this procedural enquiry as I have already found the issue against the Petitioner. Therefore, no useful purpose would be served by prosecuting this enquiry any further. Hence, issues No. 2 (a) and (b) are decided against the Petitioner.
27. ISSUES No. 3 to 5 RELATE TO THE SYSTEMATIC APPEAL FOR VO TE ON THE GRO UND OF RELIGION.
All these issues deal with the corrupt practice. Issues relate to election speeches made by the Respondent-Sunderlal Patwa. The facts of the corrupt practice has been pleaded by the Petitioner in election petition in paragraph 7 to 10.
28. In brief, the gist of the allegation is about the election tour of the returned candidate on 15.11.1993 at various places like Semrikalan, Majuskala, Udad-mau, Intkhedi, Premtalab and Sultenpur Town. The allegation is that in all these villages, the Respondent-returned candidate has sought the vote in the name of religion which is a corrupt practice u/s 123(3) and 123(3-A) of the Act. The corrupt practice has been defined in Section 123 of the Act. Section 123 deals with the corrupt practice like bribery, or agreement to receive, any gratification, whether as a motive or a reward and likewise. We are concerned with religion or promoting hatred between the communities. Therefore, it is relevant to mention this provision in order to appreciate this controversy in this petition. Sub-section (3) of Section 123 and Sub-section (3-A) of Section 123 of the Act read as under:
Section 123. : Corrupt practices. - The following shall be deemed to be corrupt practices for the purposes of this Act:
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.
(3A): The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
29. In order to substantiate the allegation of corrupt practice, various news items has been produced as well as the journalist, who covered these speeches, have been produced in the witness box and the witnesses from these places have been examined, i.e. Ramesh Kumar (PW 7) from Udadmau, Ranvir Singh (PW8) from Intkhedi, Mathura Prasad (PW 9) from Semrikalan, Dhanraj Singh (PW 10) from Majuskala, Chain Singh (PW 14), Photographer, from Obedullahganj, Bhanwarlal (PW 15) from Prem Talab and P. Chaturanand (PW 16) from Sultanpur.
30. 1 shall deal with the news item (Ex. P/9) of Dainik Bhaskar news paper published from Bhopal dated 16.11.1993, which covered the election tour of the returned candidate with a heading that "Ram Nam'' Ki Lahar Paida Karane Ki Koshish Main Hai Patwa Bhojpur Main", and specially the following extract of his speech was emphasised for corrupt practice:
Anr. extract which was emphasised at Intkhedi, reads as under:
Prashant Kumar (PW 17) was a corRespondent of the said news paper. In Ex. P/10 news paper of Dainik Jagran dated 16.11.1993 published from Bhopal, my attention was invited to the following passage which reads as under:
My attention was further invited to the extract of speech of the returned candidate in the said news paper, which reads as under:
Ex. P/11 ''National Mail'' is an English News paper daily published from Bhopal dated 16.11.1993. My attention was invited to the heading ''Patwa makes brave efforts to revive Ram lahar''. It was recited in his speech that:
Patwa in his inimitable style asked the villagers to vote for the BJP if they wanted Mandir to be constructed at Ayodhya.
Neither BJP nor Sunderlal Patwa is lighting the election, it is Ram and Mandir....you have to decide on November, 24.
Now you have to choose between Mukhtar and Mandir.
The same speech of the returned Candidate-Sunderlal Patwa appeared in the daily news paper-Desh Bandit, published from Bhopal dated 21.11.1993, vide Ex. P/30. My attention was invited to a passage which reads as under:
My attention was further invited to a passage from the said news paper which reads as under:
The aforesaid news items were substantiated by producing the corRespondent of these papers who covered the speeches of the Respondent-returned candidate Sunderlal Patwa.
31. Desh Deep Saxena (PW 3), who is a Journalist, at the relevant time, was representing National Mail News Paper. He deposed that Ex. P/11 portion marked ABCD, a report submitted by him which is appeared at page 10 of the news paper dated 16.11.1993. He has said that this was the crux of the speech made by Sunderlal Patwa in that villages. He further deposed that the portion marked EFGH in the said news paper is also reported by him. He has said that whatever has been written by him in the portion marked was the speeches delivered by Sunderlal Patwa in various villages in his election tour, i.e. in village Damdongri and Sultanpur. He said that it is not possible to say how much time Sunderlal Patwa spoke. He admitted that it is not possible for him to say at this distance of time that what exactly Sunderlal Patwa spoke at Semrikalan. He also admitted that he did not note the entire speech delivered by Sunderlal Patwa at Semrikalan. He said that he took the notes of important things which Sunderlal Patwa spoke. He further admitted that he has written what was important politically at the relevant time. He admitted that Madhya Pradesh Government was dismissed on account of Ram Janam Temple at Ayodhya. Therefore, the issue at Ayodhya was important and relevant. He said that it was not a press conference but he covered the election of this constituency for this news paper. He said that he went to Majuskalan. He further said that he recorded the extract of speeches in his diary and submitted his report to the editor. He deposed that he does not know where the report would be at present. He said that on the basis of his report, a news item was published in Ex. P/11.
31-A. The next witness-Som Datt Shastri (PW 4) is a Journalist of Dainik Jagran News Paper. He deposed that he covered the election tours of the returned candidate. He accompanied Shri Sunderlal Patwa in five villages. He said that he noted down in his note speeches delivered by Sunderlal Patwa in these villages. He submitted that report (Ex. P/10) which appeared in Dainik Jagran news paper portion marked ABCD at page 1 and portion marked EFGH at page 12, was written by him. He said that in that tour, he was accompanied by some more corRespondents like Desh Saxena and Prashant. He deposed that Sunderlal Patwa talked in election tour about his achievements as Chief Minister of the State and he also touched the issues which were relevant for public at that time. P.W. 12-Shailendra Kumar Shail, Sub-Editor of Desh Bandhu news paper said that since 1990 he is the corRespondent of this news paper. He said that on the basis of the report from our corRespondent, he edited the news and then published it, keeping in view the policy of the paper. He has produced the original news paper (Ex. P/3) brought by him. He admitted that the news item at page 10 marked as ABCD was published after editing the same. He deposed that the original report which was received from his corRespondent on the basis of which the news item was published, was destroyed after 30 days. The next witness Mausin Beg (PW 13) is a Reporter of Deshbandhu news paper. He deposed that report (Ex. P/30) portion marked ABCD at page 10 of the said news paper was sent by him of the election meeting from Prem Talab near Obedullahganj. He said that this report was sent by him. He deposed that Sunderlal Patwa was weighed in coins. He also deposed that so far as this report was sent by him, was not edited. Prashant Kumar (PW 17) is a Reporter in Dainik Bhaskar News paper published from Bhopal. He said that he covered the election of Sunderlal Patwa during his election campaign. He said that whenever he used to go on covering such election tour, he handed over the report to the editor. He said that in Ex. P/9 daily news paper of Dainik Bhaskar dated 16.9.1993 portion marked ABCD, EFGH and IJLK, was news item written by him. He admitted that the names of all villages mentioned in that news items was not covered by him. He said that he covered the village-Intkhedi and the report from Intkhedi was written by him. He was at Udadmau also, but he does not remember the news item regarding Udadmau. He deposed that the diary which he takes note may be or may not be available with him. This is the total gist of the news items.
32. Apart from this, some of the villagers have been examined to show that Sunderlal Patwa has sought vote in the name of God Ram and for construction of Ram Temple at Ayodhya and unfair dismissal of his Government P.W.7-Ramesh Kumar is a resident of village-Udadmau. He deposed that Sunderlal Patwa came to his village and he gave a speech that since we have demolished the Babri Masjid, the Congress Government has dismissed our five Government. Then he posed a question that whether you want Masjid or Mandir. If you want temple, then put your seal on Kamal (lotus). Sunderlal Patwa in his speech said that on Dev Uthani Gyaras, Dev rises and demon (Danav) will sleep. P.W. 8-Ranvir Singh is a resident of Intkhedi. He deposed that Sunderlal Patwa came to his village and gave a slogan of ''Jai Jai Shree Ram'' and said that Ram Mandir is fighting the election. Sunderlal Patwa in his speech said that if you vote BJP then temple will be constructed and if you vote congrees then Masjid will be constructed. Your vote will decide that whether you want temple or Masjid. P.W. 9-Mathura Prasad belongs to Village-Semirkalan. He said that Sunderlal Patwa came to his village and said that Kar-Sevak demolished the Babri Masjid and congress Government dissolved our Government. Sunderlal Patwa in his speech said that your vote will finalise whether you want temple or masjid. P.W. 10-Dhanraj Singh is a resident of village Majuskalan. He deposed that the returned candidate Sunderlal Patwa came to his village and he said in his speech that it is Ram Mandir standing in the election and not he. PW 14 Chain Singh is a resident of Obedullahganj and he deposed that Dr. Ashok Nagar took him for photographing where Sunderlal Patwa was being weighed in the coins. He deposed that Sunderlal Patwa started with a slogan ''Jai Jai Shree Ram'' and said his defeat will not be his defeat but that of Ram. Sunderlal Patwa in his speech said that if you cannot go in Kar Sewa, put your seal on Kamal (Lotus) that will be your Kar Sewa, this amounts to putting a brick in construction of temple. Sunderlal Patwa said in his speech that he will send those coins to Ayodhya where Ram Temple is being constructed. P.W.15-Bhanwarlal is a resident of village Prem Talab and said that Sunderlal Patwa came to his village where Sunderlal Patwa said in his speech that he will not keep those coins and that will be sent for construction of Ram Temple at Ayodhya . Sunderlal Patwa in his speech stated that he is not contesting the election but the election is being contested by God Ram. If congress wins Masjid will be constructed. P.W. 16-P. Chaturanand is a resident of village-Sultanpur. He deposed that Sunderlal Patwa came to his village and said that B.J.P. under the leadership of Shri Lal Krishan Advani demolished the Babri Masjid and we have to construct the temple on that place. Sunderlal Patwa in his speech said that raise their hands who want to construct temple. He said that simply raising the hands will not construct the temple but on 24.11.1993, you should put your seal on Kamal that would construct the temple.
33. On the basis of the aforesaid news items as well as oral evidence, Shri S.S. Jha learned Counsel for the Petitioner contended that these speeches delivered by the returned candidate-Sunderlal Patwa during the course of election campaign, constitute a systematic appeal in the name of religion. As against this, R.W. 2-Sunderlal Patwa has come in witness box and denied all the allegations of securing the votes on the basis of so called systematic appeal on religion. He deposed that this is his third election from this constituency and first election, he fought in 1985 and second election fought in 1990. The last election, he won by margin of 29500 votes. He is a Jain by religion. He became the Chief Minister in Madhya Pradesh in 1980 and second time in 1990 to 1993. He admitted that he visited his constituency 3 to 4 times during election of 1993. He said that during the election campaign, he had chit-chatted with his voters and gist of his talk was that he was elected for a full tenure of five years, but the Congress Government in exercise of its illegal power, dismissed his government. He challenged the dismissal of his Government in the High Court and succeeded. He told the voters that this is a direct insult of your votes. So, I appealed to them that it is high time for you to lake revenge of insult of your vote. He deposed that a structure was demolished in Ayodhya; therefore, my Government was dismissed by the Congress. My Government had nothing to do with that. He deposed that he did not evoke the religious sentiment of people to seek their votes. I did not appeal to the voters to vote for construction of temple or to vote to Lotus is vote to Ram or temple. He denied that he said at Semrikalan, that B.J.P. workers had demolished the Babri Masjid at Ayodhya for construction of God Ram Temple on 6.12.1992. He denied that he has said that BJP demolished the Babri Masjid and in turn, congress demolished the BJP Government. He also denied the allegation that he said that if BJP voted back to power then temple will be constructed and if congress is voted to power then Masjid will be constructed. He has denied the allegation that vote for lotus will be vote for Ram or Temple. He denied his speech at Manjuskala. He denied that he said kill congress like Ram killed demon Marich. He deposed that he is Jain by religion and he considers the killing of an ant to be a sin. He denied his speeches at Udadmau or at any other places. He denied that on Dev Uthani Gyaras, casting their votes in his favour would amount to casting the votes for Ram. He never said that lotus symbol belongs to Ram. He denied the raising of slogan ''Jai Ram or Jaisiya Ram''. It is true that at Inlkhedi, some press people met me. They confronted me that he is creating a Ram Lahar, but he refuted this allegation. He said that there was no meeting at Intkhedi. It is only that few people collected there and they welcomed him. During the election campaign at Prem Talab, he was weighed in coins. He deposed that he donated that amount to the villagers for development of the village and for any other purposes. He denied that those coins will be sent for construction of Ram Temple. He also denied that allegation that if your vote for BJP then that will amount to Kar-Sewa and that will be for construction of Ram temple. He admitted that L.K. Advani, President of BJP, came to his constituency and a meeting was held at Sultanpur. He was there in that meeting for about 10 minutes and then invited Shri L.K. Advani for his speech. He denied about the talk of Ayodhya controversy in that meeting. He denied that he ever asked for vote in the name of his religion. He said that his voters and workers arc from all sections of society, i.e. Hindu, Muslims etc. during the course of cross-examination, document (Ex. P/33) was confronted an election appeal issued by him under his signature. An objection was raised by Shri N.C. Jain for production of this document (Ex. P/33), in which an appeal was issued by the returned-candidate. The objection was overruled. Shri S.S. Jha learned Counsel for the Petitioner, permitted to confront this document. RW-2 Sunderlal Patwa deposed that the signature in the appeal (Ex. P/33) appears to be like his signature, but he denied that he issued this appeal. Then he was confronted with the news item (Ex. P/10) portion marked IJKL of daily news paper Dainik Jagran wherein this document find mentioned that an appeal was made by him. This news item was denied by R.W. 2-Sunderlal Patwa. He denied that he had seen this news item. He denied all the news items which reported his election meeting in all the news papers. He did admit about his election meeting at various places like Intkhedi, Manjuskalan, Udadmau, Semrikalan. He said that his nationality is Hindu and his personal faith/religion is Jain. Then he went to improve regarding his appeal in Ex. P/33 and said that it is not original and it bears resembalance with his signatures. He admitted that this appeal resembles with his hand writing. It is personal letter written to his workers. He said that the letter should be read in proper context as this was addressed to his worker that all the four State Governments of B.J.P. were dissolved on account of Ayodhya incident. He stated that the High Court has held in his favour that the dismissal of his Government is bad. He has further stated that this was a referendum on the issues like construction of temple at the birth place of Lord Ram or Babri Masjid. That in politics, there should be a Dharam or there should be a corruption. He admitted that he talked about all the issues which he said in his appeal in the election campaign, admitted that he did talk about those issues. He denied suggestions that in the election campaign, he asked the votes for construction of temple at Ayodhya.
34. Mirja Babar Khan has been examined by the Respondent as R.W. 3. Mirja Babar Khan (RW 3) deposed that he accompanied Shri Sunderlal Patwa for his election campaign in all the villages like Semrikalan, Intkhedi. Majuskalan, etc and he said that Sunderlal Patwa never asked for voles on the basis of religion. He has denied the suggestion that an advertisement was issued under his name regarding any public meetings of B.J. P.''s President at Sultanpur. R.W. 4-Anwar Mohd. Khan is a worker of B.J.P. He denied that Sunderlal Patwa asked for votes in the name of religion in all his public meetings held in villages Intkhedi, Majuskalan, Sultanpur, etc.
35. Shri S.S. Jha learned Counsel for the Petitioner has submitted that the extract of speeches are duly supported by the statements of the Journalists, who covered the speeches of the returned-candidate-Sunderlal Patwa, and the statements of the villagers. The whole theme of the returned candidate-Sunderlal Patwa was that his Government is being dissolved on account of demolition of the Babri Masjid and he sought votes for construction of Ram Temple at Ayodhya. These speeches amounts to corrupt practices under Sections 123(3) and 123(3-A) of the Act and in support thereof, the learned Counsel for the Petitioner has invited my attention to the case of
A candidate appealing to voters in the name of his religion could be guilty of a corrupt practice struck by Section 123(3) if he accused a rival candidate, though of the same religious denomination, to be a renegade or a heretic. In the instant case, the Appellant had made a direct attack of a personal character upon the competence of rival candidate C to represent Muslims because C was not, according to him a Muslim of the kind who could represent Muslims. Nothing could be a clearer denunciation of a rival on the ground of religion. Such accusation, held, was contravention of section 123(3).
In that case, the election speeches delivered by the candidate were highly inflamatory and in that, the election of the returned candidate was set aside. The Hon. Supreme Court also observed:
Section 123, Sub-sections (2), (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 the 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 the democractic system. Under the guise of protecting your own religion, culture, or creed you cannot embark on personal attacks on those of Ors. or whip up low herd 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 statements or acts complained of were made.
In the case of
On a consideration of the entire pamphlet that it did not amount to a corrupt practice of appealing to voters on the ground of religion within the meaning of Section 123(3) of the Act. Though the word ''Panth'' by itself has come to indicate the ''Sikh Religion'' because it has been used by the Sikhs to denote their religion and their denomination as the followers of that Panth, in the contest of the language used by the poster the word did not mean ''Sikh Religion''. The word ''Panth'' used in six places in the poster could be properly interpreted to mean the Akali Dal Party.
However, in that case, the Lordships of the Supreme Court further observed that how the impugned posters or speeches should be construed. It was observed:
That takes up, to the question of construing the impugned poster. The principles which have to be applied in construing such a document are well settled. The document must be read as a whole and its purport and effect determined in a fair, objective and reasonable manner. In reading such documents, it would be unrealistic to ignore the fact that when election meetings, are held and appeals are made by candidates of opposing political parties, the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language, or the adoption of metaphors, and the extravagance of expression in attacking one Anr. , are all of a part of the game; and so, when the question about the effect of speeches delivered or pamphlets distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allowance must be made and the impugned speeches or pamphlets must be construed in that light. In doing so, however, it would be unreasonable to ignore the question as to what the effect of the said speech of pamphlet would be on the mind of the ordinary voter who attends such meetings and reads the pamphlets or hears the speeches. It is in the light of these well-established principles that we must now turn to the impugned pamphlet.
In
36. Learned Counsel for the Petitioner has invited my attention to the case of
With respect, we are unable to accept this contention. Reading Sub-sections (3) and (3-A) of Section 123 together, it is clear that appealing to any religion or seeking votes in the name of any religion is prohibited by the two provisions. To read otherwise is to subvert the intent and purpose of the said provisions.
Hon. Ramaswamy, J. also advert to this issue in his judgment para 196. The Lordship observed:
This Court laid the law though in the context of the contesting candidates, that interpretation lends no licence to a political parly to influence the electoral prospects on grounds of religion. In a secular democracy, like ours, mingling of religion with politics is unconstitutional in other words a flagrant breach of constitutional features of secular democracy It is, therefore, imperative that the religion and caste should not be introduced into politics by any political party, association or an individual and it is imperative to prevent religious and caste pollution of politics. Every political party, association of persons or individuals contesting election should abide by the Constitutional ideals, the Constitution and the laws thereof. I also agree with my learned Brethren Sawant and Jeevan Reddy, JJ, in this behalf.
37. Learned Counsel for the Petitioner next invited my attention to the case of
Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a news paper report is well settled. Newspaper, is at the best secondary evidence of its contents and is not admissible in evidence without proper proof of the contents under the Evidence Act. Where the speech alleged to be delivered by the returned candidate during election campaign was pulished in a newspaper but neither the reporter who heard the speech and sent the report was examined nor even his reports produced, the production of the newspaper by the Editor and Publisher by itself cannot amount to the contents of the newspaper reports. Though the advertisement or message published in a newspaper contained in appeal on ground of religion, when the original manuscript of the advertisements or the messages was not produced at the trial and no witness came forward to prove the receipt of the manuscript of any of the advertisements or the messages or the publication of the same in accordance with the manuscript, and there was no satisfactory and reliable evidence on the record to even establish that the same were actually issued by or at the instance of the returned candidate, the evidence of the election Petitioner himself or of the Editor and publisher of the News paper to prove the contents of the messages and advertisements in the newspaper could not be admitted and relied upon as evidence of the contents of the statement contained therein and could not be used against the returned candidate.
38. As against this, Shri N.C. Jain, learned Counsel for the Respondent, submitted that the corrupt practice which is alleged in petition, there is no reference of Ex. P33 and it cannot be taken into consideration and that has to be ignored. Learned Counsel further submitted that the allegations contained in para 7 to 10 regarding corrupt practice in the election petition were affirmed on oath by affidavit, but it does not show the source of information and who gave this information. It is submitted that there is no specific a negation in the petition that appeal was made to voters and the learned Counsel submitted that there is no reference that whether these informations which have been affirmed were received through news paper or through whom no name of the person who heard the speeches, was mentioned in the pleadings. So far as Ex. P/33 is concerned, it is true that there is no pleadings in the petition, but it was a document which was issued by the Respondent though an unsuccessful attempt was made by him to deny it. The cross-examination with reference to this document was permitted because it was a document of the Respondent in which he appealed to his workers under his own signature and such can be permitted in the cross-examination as required under Order 13 Rule 2 of CPC It says that when documentary evidence has not been produced at the relevant time, it can be produced at a subsequent stage of evidence if good cause is shown to the satisfaction of the Court for non-production of it then the same can be permitted by the Court for reasons to be recorded. It further qualifies that this will not prevent the cross-examination of the witnesses of the other party with refecnce to their own document. This document was introduced at the time of cross-examination of the witness though necessary plea was not raised in the pleadings regarding seeking of voles on the basis of this document. But this document which is produced at the time of cross-examination to confront the witness as same was under the signature of the Respondent-returned candidate, he initially denied, but in subsequent cross-examination, he could not deny the contents of that document that he did seek the vole on the basis of the issue mentioned in his document (Ex. P/33). Ex. /33 was an appeal made by the Respondent in his own hand and in his own letter-head started with ''Jai Shree Ram'', which reads as under:
This document was opposed initially by the Respondent-returned candidate; but subsequently admitted that he sought the votes on the basis of all the four issues mentioned in this document. R. W. 2-Respondent said in his statement that this letter should be read as a whole and it cannot be read out of context. He said this was a referendum on the issues like construction of temple on the birth place of Lord Ram or Babri Masjid; that in the politics, whether Dharam should remain or corruption. These issues were raised and it was not with a view to receive the votes from the public at large. He further said that it is true that he talked in his election campaign on all the issues. He deposed as under:
It was also not meant for any voter. It is wrong to say that it is an original. It is a photocopy and not prepared machenically.
Ques : In this letter also, you have mentioned that whether a Temple should be constructed of Lord Ram at Ayodhya, birth place of Ram, or Babri Masjid.?
Ans : This letter should be read as whole and it cannot be read out of context. The letters starts with the address that our four States Government have been dismissed on Ayodhya Incident. We have won in the High Court still this election has been foisted on us. This is a referendum on the issues like construction of temple on the birth place of Lord Ram or Babri Masjid; that in the politics whether Dharam should remain or corruption. This was only the issues which has been raised and it was not to the view to receive the votes from the public at large. These were only issues which were raised.
Ques : Did you talk in the election campaign on all the four issues mentioned in the aforesaid letter or not ?
Ans : It is true that I talked in my election campaign on all the issues.
Therefore, so far as this document is concerned, it can be admitted in evidence as it was issued by him and he was con fronted in his cross-examination and such is a permissible under Order 13 Rule 2 of CPC Therefore, the argument of the learned Counsel for the Respondent is over ruled.
39. Learned Counsel for the Respondent submitted that there is no proper pleadings and proof though allegation has been made in paras 7 to 10 but they do not cause the material facts to constitute the cause of action and in that connection, the learned Counsel has invited my attention to the case of
40. Shri N.C. Jain, learned Counsel for the Respondent next submitted that there is no proper affidavit to show the source of information. It is submitted that the name of person who heard the speeches, have not been referred to and in this connection, learned Counsel has invited my attention to the case of
From the text of the relevant provisions of the R.P. Act, Rule 49-A and Form 25 as well as Order 6, Rule 15 and Order 19 Rule 3 of the Code and the re ''sume'' of the case law discussed it clearly emerges (i) a defect in the verification, if any, can be cured, (ii) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true; (iii) if the Respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the Petitioner may be required to supply the same, and (iv) the defect in the affidavit in the prescribed form 25 can be cured unless the affidavit forms an integral part of the Petitioner, in which case the defect concerning material facts will have to be dealt with subject to limitation, u/s 81(3) as indicated earlier. Similarly the Court would have to decide in each individual case whether the schedule or annexure referred to in Section 83(2) constitutes an integral part of the election petition or not; different considerations will follow in the case of the former as compared to those in the case of the latter.
Therefore, simply because, the Petitioner has not mentioned that who gave the text of the speeches delivered by the Respondent-returned candidate at those places is not much of the consequence because he has given the time, date and places where speeches were delivered and he also made a reference of Dainik Bhaskar, Dainik Jagran, National Mail news paper etc. These facts have been verified by the Petitioner that the contents of paras 5 to 11 of the election petition are true according to the information received and believed to be true. It is not necessary for him to mention the names of witnesses who have informed him about these speeches though he has quoted one daily news paper i.e. Dainik Bhaskar in which these speeches have appeared. The Petitioner is required to plead the necessary facts of the corrupt practice in a concise manner as required u/s 83 of the Act and he has not to plead the evidence in the petition. Therefore, to this extent, the pleadings of the Petitioner cannot be said to be incomplete.
41. Shri N.C. Jain learned Counsel for the Respondent submitted that the paper reportings which has been relied on by the Petitioner is not admissible because the notes of the journalists to cover these speeches have not been produced and all these notes taken by those Jounlaists are not correctly reproduced the speeches delivered by the Respondent-returned candidate, as these notes were prepared by the Journalists and the same were sent to the Editor and the editor used to prepare the catchy head-note by publishing them in the news paper. These press cuttings are not evidence of corrupt practice admissible in law, in view of the recent decision of the Hon. Supreme Court given in the case of Vimal v. Bhaguji 1995 AIR (SC) 2865. In that case, the press cuttings were sought to be utilised for proving the corrupt practice and their Lordships observed that such press report should be used with care and caution while dealing with the evidence of the press and their report. It was observed:
There is also force in the contention of Mr. Poti that even if there was no publication of the speeches, the contents of such speeches could be proved by examining the persons who had attended the meeting and heard the speakers. Both PWs 14 and 24 have staled that they attended the respective meeting and noted the portions of the speech which according to their asessment appeared to be important and relevant. It is true that both PWs 14 & 24 are reporters and it is quite likely that they have some expertise in noting down the gist of speeches or statements made by Ors. for the purpose of effectively reporting the contents of such speeches or statements for publication in the news papers. Both the said witnesses have stated that the speeches were long and the speeches could not be recorded verbatim but gist of portions of speeches as appeared to them important and relevant were noted by them. Such nothings or tipans'' therefore become very relevant because admittedly on the basis of notings made at the spot, the reports were prepared by the said reporters and such reports were published in the newspapers. Unfortunately, such notings or tipans have not been produced for inexplicable reasons. Such tipans and notings being the basis of the reports published in the newspapers, requires to be considered for ascertaining whether reports and depositions were consistent with the notings made at the time of listening to the speeches by the authors of the report. In our view, the Court should draw adverse inference against the authenticity of the gist of speeches since published in the news papers for non-production of the said notings. It may be indicated here that the authors of the report did not take down the speeches or even parts of such speeches in the language in which they were expressed. Admittedly, the notes were prepared in the language of the authors of the notes and such portion of the speeches were highlighted in the notes in their own language as appeared to the authors of the reports important or relevant. In such circumstances even though the authors of the reports were reporters to newspapers by profession chances of misquoting or quoting some portions of speech out of their context cannot be ruled out. The said reporters deposed about the contents of the speech but such depositions were made at a later date when chance of not fully remembering the speeches in their proper context cannot be ruled out.
Therefore, their Lordships of the Supreme Court held that these news papers reportings cannot be made admissible so as to find the returned candidate guilty of corrupt practice under Sections 123(3) or 123(3-A) of the Act unless notings or tipan of journalists are produced in evidence and there is a chance of misquoting also.
42. Shri N.C. Jain learned Counsel for the Respondent next submitted that in view of the recent decision of the Hon. Supreme Court which clearly lays down the legal position with regard to the admissibility of the news papers reportings and the evidence of the journalists who heard the speeches and made the report, that such evidence is not reliable to act upon in absence of the notes, which were prepared by them, is produced before the Court. It is true that all the four corRespondents of the newspapers appeared to prove the news items in the news papers reported by them, have not produced their short notes on which they prepared their reports and submitted to the editor. It has been deposed by the witnesses i.e. P.W. 3-Desh Deep Saxena, P.W.4-Som Datta Shaslri, P.W. 13-Mausin Beg and P.W. 17-President Kumar that they covered the election campaign of the Respondent-Sunderlal Patwa and prepared their short notes and on that basis they prepard the detailed reports and sent the same to the Editor. It is also admitted by them that the Editor used to prepare the news item on the basis of their report. But none of them has produced their original notes prepared by them. They only deposed that the news items which appeared in the news papers of Dainik Bhaskar, Dainik Jagran and Daily National Mail, were sent by them to the Editor; but none of them has proved the original notes. Therefore, the possibility cannot be ruled out that they have emphasised some portion which according to them, was relevant from their reportings'' angles and it may also depend upon the angles of the Editor who prepared the report on that basis that which portion of the speech should be emphasised and which portion of the speech should not be emphasised. Therefore, there is every likelihood of personal bias or prejudices can operate in the matter of reportings. After all, it is hearsay evidence only. A care has to be taken to see while construing these news items to construe a corrupt practice because of hearsay nature of evidence. There is every likelihood of injustice being caused. Their Lordships of the Supreme Court in various decisions, have emphasised time and again that setting aside the election on the basis of corrupt practice involves grave consequences on the future political career of the candidate; therefore, such allegation should be as that of a criminal law and it should not be decided on the basis of preponderance of probabilities. Construing the evidence of these press cuttings of all the corRespondents, it will not be safe to find the Respondent-returned candidate guilty of the corrupt practice. Therefore, keeping in view of the decision laid down by the Supreme Court in the case of Vunal (supra), I hold that the news item and the statements of corRespondents arc not sufficient to hold Respondent-returned candidate guilt of the corrupt practice.
43. After disposing of these testimony, there still remains the testimony of the witnesses who have appeared in the witness box from those villages where the Respondent-returned candidate has sought votes on the basis of four issues talked by him i.e. whether the temple is to be constructed at Ayodhya, Dharam should remain or corruption; whether there should be a victory of honesty and purity in the public life. They should redeem disgrace of their votes because the duly elected Government of M.P. was dismissed by the Central Government. From the statements of witnesses, i.e. P.W. 7, P.W. 8, P.W. 9, P.W. 10, P.W. 14, P.W. 15 and P.W. 16, who attended the meetings of Sunderlal Patwa, they have deposed that Sunderlal Patwa did make the speeches and in those speeches, his emphasis was regarding the construction of temple at Ayodhya and he expressed his anguish for wrongfully dismissing his Government and a scant regard shown to the value of the voles cast in favour of his Government. He also said that the High Court of M.P. has found the dismissal of his Government to be bad. Subsequently the judgment was set aside by the Hon. Supreme Court in the case of Bommai (supra). Though the Respondent-returned candidate in his speeches, has denied that he has sought votes on the name of construction of Ram Temple at Ayodhya or that he has made these utterances. But despite of his denials, he could not deny the facts that he did appeal to the voters on the issues which were mentioned by him in his appeal (Ex. P/33). Therefore, it is established that the Respondent did make these speeches regarding construction of Ram Temple and dismissal of his Government.
44. Now the question is whether the issue which the Respondent-returned candidate has talked can be said to be religious issue so as to come within the scope of corrupt practice u/s 123(3) or 123(3-A) of the Act. However, an attempt was made by the Respondent to deny all these; but reading of his statement and specially of the fact that he has admitted the talk about these issues that it was a referendum that temple should be constructed at Ayodhya or there should be a honesty and purity in public life; whether there should be a Raj of Dharam and Adharam, whether voter should vote for him so as to restore their faith for wrongful dismissal of his Government. On the basis of statements of these four witnesses, it is established that Sunderlal Patwa did talk about these issues. But the larger question is whether all these issues said to be a religious issues and whether he has sought the votes in the name of religion or not. Section 123 of the Act lays down that the votes should be sought on ''his religion''. This question has come up before the Hon. Supreme Court earlier and their Lordships have interpreted u/s 123 to mean that vote should be sought in the name of ''his religion'' or on the religion of the opposite candidate. The word '' his'' appearing in Section 123 is very significant. In
One other ground given by the High Court is that ''there can be no doubt that in this passage (passage No. 3) Shambhu Maharaj had put forward an appeal to the electors not to vote for the Congress Party in the name of the religion''. In our opinion, there is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name of religion. What 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.
Therefore, the votes should be sought on the basis of the religion of the candidate. The word ''his religion'' is very significant appearing in Section 123 of the Act. In similar context in the case of
Before we part with this appeal, we may refer to a recent decision of this Court in Jagdev Singh Sidhanti v. Pratap Singh Daulta Civil Appeal No. 936 of 1963, D/-12-2-1964 (SC). In that case, the election of the successful candidate was challenged on the ground that he had committed a corrupt practice u/s 123(3) of the Act in that he had appealed to voters to vote for him on the ground of his language, and the High Court had upheld that contention. In reversing the conclusion of the High Court, this Court pointed out that the reference to the language on which the challenge to the successful candidate''s election was based, had to be considered in the context of the main controversy between the parties and that controversy was that the Hariana Lok Samiti which had sponsored the candidature of the successful candidate wanted to resist the imposition of Punjabi in the Hariana region and that was clearly a political issue. If in propagating its views on such a political issue, a candidate introduces an argument based on language, the context of the speech in which the consideration of language has been introduced must not be ignored, and that is how this Court held that the corrupt practice alleged against the successful candidate had not been established. Political issues which form the subject-matter of controversies atelection meetings may indirectly and incidentally introduce considerations of language or religion, but in deciding the question as to whether corrupt practice has been committed u/s 123(3), care must be taken to consider the impugned speech or appeal carefully and always in the light of the relevant political controversy. We are, therefore, satisfied that the High Court was in error in coming to the conclusion that the impugned poster Ex. P/10 attracted the provisions of Section 123(3) of the Act.
Therefore, one has to be take care while scrutinising such social issues which has a political, social, languagistic or religious overtones to see that whether they really fall in the definition of the corrupt practice or not.
45. Shri N.C. Jain learned Counsel for the Respondent has rightly contended that the word ''his religion'' is very significant in Section 123 of the Act. The Respondent-returned candidate has said in his statement that he is not a Hindu by religion but he is a Jain by religion and he has not sought vote on the basis of his religion, i.e. ''Jain Religion''. It is still a big question that whether Hinduism is a religion or way of life. Shri N.C. Jain, learned Counsel for the Respondent has seriously contested this issue that the returned candidate-Sunderlal Patwa is not a Hindu, but he is a ''Jain'' by religion and by faith. Whatever utterances he has made in his election speeches, but did not appeal in the name of ''Jainism''. He has raised all political and social controversy and all these controversy cannot be by any stretch of imagination, said to be a religious and specially ''his religion''. I think the submission of Mr. Jain is right. Since Section 123(3) of the Act talks about ''his religion'', and all the speeches which have been mentioned above, were not relating to seeking the votes on the basis of ''his religion'', therefore, all these speeches cannot fall in the definition of corrupt practice. It is a fact that while construing all the speeches of Sunderlal Patwa, the political scenrio of relevant time cannot be lost sight of. It is a fact that after 6.12.1992 in sequel to demolition of Babri Masjid, all over the country, an unseemly situation had been created and on account of that political situation, various B.J.P.''s Governments were dismissed and in that the Government of Sunderlal Patwa belonging to B.J.P. party was also dismissed. Therefore, the feelings were aroused that since his Government had no hand in demolition of Babri Mashjid, should not have been dismissed and more so at that time, the High Court of M.P. had set aside the dismissal of his Government though subsequently the decision of this Court was reversed by Hon. Supreme Court in the case of Bommai (supra). Be that as it may the returned candidate-Sunderlal Patwa made a grouse in all his speeches that his Government formed for five years, has been wrongly dismissed and he was appealing to the people that they must take revenge of disgrace of their vote and they can only redeem it by putting their seal on Lotus. In that connection, he has sought vote on a symbol ''Lotus'' which was duly assigned by to his political party and in that context, he made reference of demolition of Babri Masjid and construction of temple at-Ayodhya. Though he has made an attempt to deny all the said speeches, but ultimately in his statement he admitted that he did seek the vote on the basis of political issues and according to him, it was a referendum. All these utterances cannot be said to be seeking a vote in the name of religion. They were political issues and it may have a religious overtone but they were primarily political issues and not only Sunderlal Patwa but all over country this issue was debated and still it is a moot point. To characterise these utterances to be a religious utterance so as to fall under the definition of corrupt practice u/s 123(3) of the Act would amount to convert these political utterance to be a religious, is not warranted under the law. The 1993 election was fought on this political issue whether to construct a temple or Masjid at Ayodhya, though it has a religious overtone but it was converted into a issue and it cannot be stigmatized as a religious issue only. More so, what is to constitute the corrupt practice, the vole should be sought on ''his religion'' or on the basis of religion of opposite candidate and votes in these speeches were not sought on the basis of ''his religion'', i.e. ''Jainism''. The Respondent-returned candidate has said that he is not a Hindu but he is a ''Jain''. Therefore, I am of the opinion that even if the statements of the witnesses produced by the Petitioner relating to the utterances made by Sunderlal Patwa in his election campaign seeking vote on the basis of construction of Ram Temple at Ayodhya is accepted, they cannot be said to amount to asking vote in the name of ''his religion'' or in the name of religion of his opposite candidate as that was a big political issue at that lime though it may have overtone of religion. Recently, their Lordships of the Supreme Court in the case of Dr. Das Rao Deshmuch v. Kamal Kishore Nansaheb decided on 14.7.1995 in Civil Appeal No. 3169/91, has again sounded a warning.
We may however, indicate that speeches delivered in the election meeting by leaders of political parties should be appreciated dispassionately by keeping in mind the context in which such speeches were made. This Court has indicated a note of caution that in election speeches appeals are made by candidates of opposing political parties often in an atmosphere surcharged with partisan feelings and emotions. Use of hyperboles or exaggerated language or adoption of metaphors and extravagance of expression in attacking one party or a candidate are very common and Court should consider the real thrust of the speech without labouring to disect one or two sentences of the speech, to decide whether the speech was really intended to generate improper passions on the score of religion, caste, community etc. In deciding whether a party or his collaborators had indulged in corrupt practice regard must be had to the substance of the matter rather than mere form of phraseology. In Kultar Singh''s case (supra) this Court has recognised that there are several parties whose membership is either confined to or predominantly held by members of some communities or religion and that an appeal made by candidates of such parties for voles may in an indirect way concavely be influenced by considerations of religion, race, community or language, so long as the law recognises such parties for the purpose of election and parliamentary life, this situation cannot be avoided.
Therefore, in view of the above observations of the Hon. Supreme Court construing the various speeches made by the returned Candidate-Sunderlal Patwa does not paper to be purely religious or a systematic appeal so as to seek vote in the name of religion. As already mentioned above, the atmosphere at that time was surcharged with serious political controversy regarding construction of Ram Temple at Ayodhya or Masjid. Therefore, the returned candidate-Sunderlal Patwa in his speeches has used the metaphors or mythology so as to lend emphasis on the controversy, such speeches cannot be said to be speech Sailing in the definition of corrupt practice. As a matter of fact, Section 123 talks about ''his religion'' or religion of the opposite candidate. Vote should be sought on the basis of religion that I follow the particular religion therefore, vote for me or you should refrain from voting, in favour of opposite candidate as he belongs to other sect of religion. That a religious sentiments should be aroused so as to cause hatred with other religion.
46. But that is not the case here. Secondly, a regard has to be given to Respondent''s anguish that his duly elected Government was dismissed on account of this issue only. Therefore, after closely examined the statements of witnesses and statement of Respondent, I am of the opinion that they are not speeches in which he has aroused the religious sentiments of the people so as to be treated a corrupt practice.
47. Shri S.S. Jha learned Counsel for the Petitioner has tried to change his stand and submitted that even if it is not u/s 123(3) of the Act, but is a corrupt practice u/s 123(3-A) of the Act because vote has been sought in the symbol of Ram. That is not the case put up by the Petitioner in his entire petition and, the Ram cannot be said to be a symbol for that matter.
48. In view of my above discussions, Issues No. 3 to 5 are decided against the Petitioner that he has failed to establish the corrupt practice of Respondent-returned candidate.
49. Issue No. 6 relates to whether Hinduism is religion or way of life. This issue is a purely academic issue in view of my findings above. Shri N.C. Jain has referred to various decisions of the Hon. Supreme Court in support of his contention that Hinduism is a way of life and is not religion.
50. Issue No. 7 is decided against the Petitioner in view of my findings under Issues No. 3 to 5.
51. Issue No. 8 relates to relief and cost. In view of my findings above, the Petitioner is not entitled to any relief.
52. In the result, Election Petition is dismissed with costs of Rs. 10,000/-(Rs. Ten Thousand).
