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PETITIONER:

DR.DAS RAO DESHMUKH

Vs.

RESPONDENT:

KAMAL KISHORE NANASAHEBKADAM & ORS.

DATE OF JUDGMENT14/07/1995

BENCH:

RAY, G.N. (J)

BENCH:

RAY, G.N. (J)

FAIZAN UDDIN (J)

CITATION:

1996 AIR 391 1995 SCC (5) 123

JT 1995 (5) 313 1995 SCALE (4)424

ACT:

HEADNOTE:

JUDGMENT:

THE 14TH DAY OF JULY,1995

Present:

Hon'ble Mr.Justice G.N.Ray

Hon'ble Mr.Justice Faizan Uddin

Mr. Raju Ramachandran, Mr. Maknand Adkar, Mr.P.H.Parekh,

Mr.S.Uday Kumar Sagar, Mr. Amit Dhingra, Advs. for the

appellant

Mr.V.C.Kotwal, Sr. Adv. Mr. Girish Desai, Dr.R.B.Masodkar,

and Mr.K.L.Taneja, Advs. with him for the Respondents.

J U D G M E N T

The following Judgment of the Court was delivered:

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3169 OF 1991

Dr.Das Rao Deshmukh

versus

Kamal Kishore Nanasaheb

Kadam and others

J U D G E N T

G.N.Ray.J.

This appeal is directed against the judgment dated July

18, 1991 passed by the Bombay High Court (Aurangabad Bench)

in Election Petition No.8 of 1991 The respondent No.1 in

this appeal. Sri Kamal Kishore Nanasaheb Kadam preferred

Election Petition No.8 of 1991 before the Aurangabad Bench

of the Bombay High Court inter alia challenging the election

of the appellant Dr.Das Rao Deshmukh from Assembly

Constituency No.170 Nanded in the Maharashtra Legislative

Assembly held on February 27, 1990. having secured the

highest vote in the said election, the appellant was

declared elected to the Maharashtra State Legislative

Assembly in the said election from the Nanded Assembly

Constituency. By the impugned judgment, such election of the

appellant was declared null and void on the ground of

corrupt practice indulged by the appellant Dr.Das Rao

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Deshmukh under Section 123 (3) and 123 (3A) of the

Representation of People Act, 1951 (hereinafter referred to

as the Representation Act). The High Court, by the impugned

judgment, also awarded a cost of Rs.10,000/- against the

appellant and in favour of the election petitioner. It may

be indicated here that shortly after the hearing of this

appeal was concluded, the general election of the

Maharashtra State Legislative Assembly including the Nanded

Assembly Constituency was held in February, 1995. In view of

such election, the contest as to general election in 1990

would have lost, for all practical purposes, any importance

and this appeal would have become infructuous. But in view

of the finding of the High Court that the appellant had

indulged in corrupt practice under Section 123 (3) and 123

(3A) of the Representation Act which has serious consequence

concerning the appellant, a decision of this appeal on merit

is necessary.

In the election petition preferred by Sri Kamai Kishore

Nanasaheb Kadam, the election petitioner alleged that the

appellant Dr.Das Rao Deshmukh was a nominee of Shiv Sena

party in the said Nanded Constituency but he carried out his

election campaign on the basis of Hindu Religion and for

that purpose promoted and attempted to promote communal

hatred between two communities namely the Hindus and the

Muslims. The election petitioner gave detailed accounts as

to how such campaign on the ground of religion was carried

out by the appellant Dr.Das Rao Deshmukh with the active

support of his election agents and leaders of Shiv Sena and

Bharatiya Janta Party (hereinafter referred to as BJP). The

last Assembly election in the State of Maharashtra was held

on February 27, 1990. As per the schedule declared by the

Election Commission for the 9th General Election for the

Legislative Assembly for the State of Maharashtra, the

nomination papers were to be filed on February 3, 1990,

nominations were to be scrutinised on the very same day.

Last date for withdrawal of nomination papers was February

7, 1990 and the result of election was to be declared on

March 2, 1990. The election petitiner was the Congress (I)

nominee and the appellant Dr.Deshmukh was the nominee of

Shiv Sena party. The appellant secured 48465 votes and

election petitioner secured 33270 votes. Chandrakant Bagve

and Vinayak Partharkar respectively Shakha Pramukh of Shiv

Sena and Local President of the said Shakha were incharge of

the election campaign on behalf of Dr.Deshmukh. Shri Chander

Shekhar Sonavane was the election agent of Dr. Deshmukh. The

election petitioner alleged that the Shiv Sena Party

conducted election campaign by holding public meetings,

distributing banners and hand bills, pamphlets, playing

audio and video cassettes, depicting the election manifesto

as well as the election campaign of Shiv Sena. It was

alleged that Shiv Sena party had recorded two cassettes

namely Avhan and Awanan and 'Ajinkya'. It was alleged that

all such campaigns were with the consent of Dr.Deshmukh. The

election petitioner divided the allegations in Part II to

Part VII of the election petition. The allegations about the

campaign on the basis of religion were indicated in Part V

and Part VI. Part VI is the synopsis of the particulars of

the campaign which. according to the election petitioner.

Were offensive. The classification in those parts has been

made with reference to various types of document, cassettes,

both audio and video for facilitating the understanding of

the allegations of the election petitioner. The organisation

of the Shiv Sena Party was registered as political party on

October 29, 1988. According to the election petitioner, the

main idea of establishing the Shiv Sena party was to promote

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and espouse the cause of Hinduism. The election petitioner

alleged that the Shiv Sena came out with the message in a

daily newspaper called "Samna" and the thrust of the said

newspaper was that the Hindus and the Hindu religion were in

danger and that they needed awakening. The election

petitioner further alleged that in Nanded constituency the

said newspaper had wide circulation. The main allegation of

the said Shiv Sena party was that Hindu religion was in

peril in the hands of the ruling Congress (I) Party. It was

alleged that during the entire tenure of the rule by the

Congress I, the said party had esooused the cause of

Mohammadens and Christians and it was required to be checked

by constituting Hindu Vote Bank. The Supremo of Shiv Sena

Party Shri Balasaheb Thackrey had openly canvassed for

capturing political power by indicating that such power had

to be owned by 'Dharmayudh It was alleged that when the

election of Shiv Sena candidate Dr.Ramesh Prabhoo from the

Vile Parle Constituency on December 13, 1987 was set aside

on the ground that the campaign was found to be in breach of

Section 123 (3) and 123 (3A) of the Representation Act, Shri

Thackrey came out in the newspaper 'Samna' that Hindus must

unite, Hindu religion must grow and this concept should make

new Hindustan. Similar speeches were also delivered

thereafter. It was further alleged that on the eve of

election of four Shiv Sena candidates at the 9th Lok Sabha

Elections. the same message was delivered by Shri Thackrey

and he declared that he would desire to noist Saffron Flag

at Vidhan Bhavan at Bombay. The election petitioner

contended that the appellant Dr.Deshmukh joined Shiv Sena

and adopted the entire election campaign carried out by Shiv

Sena throughout the State of Maharashtra. The said Shri

Deshmukh also consented that persons named in para 3.02 of

the election petition would campaign for him. The said list

mentioned several names including the names of respondent

Nos.2 to 6 to the election petition. In Part IV, the

election petitioner gave the area of Nanded Constituency

No.170 and in para 5, the detailed corrupt practice was

indicated. It was alleged by the election petitioner that on

February 2, 1990, there was an announcement by the Nanded

Shakha of Shiv Sena party that the meeting would be

addressed by Shri Balasaheb Thackrey on February 4, 1990 at

about 1.30 P.M. and an advertisement was published in local

newspaper Godatir Samachar. It was indicated that the

meeting would be held at Indira Gandhi Maidan where

Dr.Deshmukh would remain present. At the said meeting,

Dr.Deshmukh was given a welcome by Shri Thackrey and Shri

Thackrey delivered a lengthy speech in the meeting. Shri

Ashok Deshmukh, Nandu Kulkarni and Chandrakant Bagve also

addressed the same meeting. The report of such meeting and

the speeches delivered therein were published in Godatir

Samachar on February 5, 1990. In the said meeting, Shri

Thackrey made a speech and he made no secret that he sought

votes on the plank of religion. The entire speech was tape

recorded and there were audio and video cassettes of such

speech. The synopsis of the said speech was that Nanded was

the city of Gurdwara and it should be kept in mind that Guru

of the Sikh religion had given kripan for protection of the

Sikh religion. He further stated that the Hindus were

leaving Kashmir and they were killed in Punjab. Shri

Thackrey further stated that the country was Hindustan and

the Hinduism needed protection. Referring to the political

leaders like Sharad Pawar and Shri V.P.Singh, Shri Thackrey

stated that they had only praised the Mohammadens and Shri

V.P.Singh visited Snani-Imam after the elections but he did

not care for Hindus votes. Shri Thackrey warned that Hindus

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could not be insubordinated and neglected and at the

Assembly elections they would fly the Saffron flag and rule

in the State of Maharashtra. He stated that he had the

blessings of Tulja Bhavani, Goddess of Tuljapur and Goodess

of Shivaji Maharaj. He also indicated that the history was

twisted and the facts which would not be liked by

Mohammadens had been altered. Shri Thackrey referred to a

book written by Dr.Babasaheb Ambedkar "Ridders in Hinduism"

published by the Government where Lord Rama and Lord Krishna

had been maligned. It was further stated by the election

petitioner that Dr.Deshmukh also addressed by saying that it

was a golden day at Nanded because the feet of Balasaheb

Thackrey had touched the soil of Nanded. The strength of

Shri Balasaheb Thackrey should be the strength of Shri

Balasaheb Thackrey should be the hoisted at Vidhan Bhavan.

With reference to Avhan and Awhan the video tapes, it

was contended by the election petitioner that in the said

video tapes powerful exhortation and inducement to the

voters to vote on the ground of religion had been made.

There was an appeal that if a Muslim would try to destroy

Hinduism in Hindustan public would not keep quiet but take

out the intestines like that of Afzulkhan. It was also

alleged that Muslims were loyal to Pakistan and Urdu could

not be the national language of Hindustan. An appeal was

also made to the fact that the Rulers would visit Muslims

and Mosques but not the Hindu temples and the Hindus should

therefore constitute a Vote Bank and should noist Saffron

Flag on the Assembly building. The election petitioner

alleged that the said tapes were circulated in Nanded and

other places.

The election petitioner also alleged that on February

9, 1990, the inauguration meeting for commencement of the

election campaign of Dr.Deshmukh was held at Shiwaji Maidan

Stadium at Nanded. Shri Chandrakant, Shri Kirtane, Shri

Nandu Kulkarni and others sooke. All of them championed the

cause of Hinduism. The detailes of their speeches would be

seen in the video cassettes. It was also alleged that there

had been publicity through posters and pamphlets showing

that the voters were asked to vote on the basis of religion.

On the car of election agent of Dr.Deshmukh, Shri Sonwane, a

poster was displayed which called upon the voters to vote in

the name of Hindu religion. Such posters were displayed at

various places at Nanded. The election petitioner alleged

that the materials used for election campaign including the

speeches delivered by the speakers of Shiv Sena and BJP for

and on behalf of Dr.Deshmukh clearly amounted to corrupt

practice under Section 123 (2) and Section 123 (3A) of the

Representation Act.

Dr.Deshmukh contested the election petition by filing a

written statement (Ex.7) inter alia denying the allegations

made in the election petition about the corrupt practice

alleged by the election petitioner. Dr.Deshmukh contended in

the written statement that he was a candidate of Shiv Sena

at the last Assembly Elections and that Shri Sonwane was his

election agent, but he denied that Shri Chandrakant Bagve or

Vinayak Partharkar were incharge of his election campaign.

He also stated that the details of the speeches and the

posters had not been furnished by the petitioner and for

want of specific particulars of such allegations, the

petition should be dismissed. Dr.Deshmukh contended that

Shiv Sena was a recognised political party having its own

constitution which was in keeping with orinciple of

socialism, secularism and democracy. It was stated that the

views expressed in Samna newspaper by Shri Thackrey were his

personal views. Dr.Deshmukh also stated that the views

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expressed in Samna could not be attributed to Dr.Deshmukh as

the views subscribed by him. Dr.Deshmukh also contended that

the elections of other candidates of Shiv Sena and BJP party

had not been challenged on the ground of election campaign

on the score of religion. Such fact according to

Dr.Deshmukh, would amply demonstrate that the campaign by

Shiv Sena and BJP Party had not been based on religion. He

also denied that the propaganda machinery of the Shiv Sena

was angaged on his behalf with his consent or with the

consent of his election agent. Dr.Deshmukh contended that

only the statement which were contained in election

manifesto of the party should be looked into and the

ideology of Shiv Sena or that of Shri Thackrey was not

relevant for deciding the election petition. Dr.Deshmukh

admitted that he was present at the meeting held at Nanded

on February 4, 1990 called by Shiv Sena and he had accorded

welcome to Shri Thackrey and touched his feet but such fact

would not mean that whatever Shri Thackrey would state as

his personal view would be that election campaign of

Dr.Deshmukh. Dr. Deshmukh did not admit the headlines

appearing in Godatir Samachar on February 5, 1990 and he had

denied the other party of speeches of Shri Thackrey as

published in the newspaper and contended that Shri Thackrey

did treat the Muslims as anti Hindus. Dr.Deshmukh pointed

out that on the other hand, Shri Antualay and Mohd.

Azanharuddin had been accepted as true Indians. He pointed

out that Shri Thackrey had criticised those mohammandens who

were anti-Indians of anti-nationals. Dr.Deshmukh also

contended that the cassettes of Avhan and Awahan did not

contain any insinuation asking the voters to vote on the

basis of religion and no part of the speeches did promote

religion and no part of the speeches did promote illwill or

hatred between the two communities.

Coming to the meeting held at Narsi, Dr. Deshmukh

stated that he was not present at the meeting and anything

stated in such meeting was not binding on the petitioner and

his election agent. As regards audio and video cassettes.

Dr.Deshmukh stated that report of such speeches did

therefore the same should not be looked into by the Court.

Coming to the alleged propaganda made by Dr. Deshmukh

and his election agent through posters. publication etc. Dr.

Deshmukh stated that such posters and publications had not

been displayed or published with the consent of Dr.Deshmukh

and there was no evidence to show that such posters or

publications were made at the instance of Dr. Deshmukh. With

reference to the Annexure A. Dr.Deshmukh stated that

although the said annexure was issued in the name of

Dr.Deshmukh but in fact the same did not bear his signature

and as such the same could not be treated as issued by

Dr.Deshmukh He also contended that the car in which

offensive posters were stated to have been displayed, did

not belong to his election agent and he was not responsible

for anything disolayed in such car. Dr. Deshmukh stated that

there were internal disputes of Congress I party and the

people did not vote for the Congress I party. It was also

stated that the election petitioner was the Chairman of the

University Centre at Nanded and he was prosecuted for

various offences under Sections 520, 506 and 467 of Indian

Penal Code. The people also did not like the petitioner's

seeking permission to start Engineering and Architectural

College at Nanded known as college of Engineering and

Architecture. It was contended that the voters belived that

the election petitioner was acting only for his personal

gains and he was not concerned with the welfare of the

voters. It was for such reasons that they did not vote for

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the election petitioner. It may be stated here that the

respondent Nos.2 to 5 in the election petition were served

with notice but they did not appear and contest the petition

and the election petitioner was therefore dicided ex parte

against them. Respondent Nos.6 although appeared through an

Advocate, did not file any written statement.

On the pleadings of the parties, 13 issues were framed

by the learned Judge. The learned Judge. however, answered

Issue No.4:- "Whether the petitioner proves that respondent

No.1 utilised the propaganda machinery of Shiv Sena party".

In the negative. The learned Judge, however, answered Issue

No.6 and Issue No.8 in the affirmative only to the extent

indicated in the Judgment. The learned Judge also answered

Issue No.10 to the effect "whether the petitioner proves

that respondent NO.1 his election agent and other person

named in the petition with the consent of respondent No.1

and his election agent, carried out election campaign on the

basis of religion and also with a view to promote religion

hatred between different class of citizens and thus

committed corrupt practices under Section 123 (2), (3), (3A)

of the Representation People Act? in the affirmative, The

learned Judge by the impugned judgment held that in view of

such corrupt practice, the election of Dr.Deshmukh was

liable to be set aside. As aforesaid, the learned Judge also

awarded a cost of Rs.10,000/- against Dr. Deshmukh and in

favour of the election petitioner.

Shri Ramachandran, learned Advocate appearing for

Dr.Deshmukh, has submitted that the expression "consent" in

relation to a corrupt practice as used in Section 123 (3)

and 123 (3A) of the Representation Act has been interpreted

by this Court as not mere knowledge of or connivance at a

corrupt practice. For such contention, the learned counsel

has referred to dicision of this Court in Samant N.

Balakrishna etc. Vs. Beorge Fernandez and others etc. (AIR

1969 SC 1201 at 1221-22). He also referred to another

decision of this Court in Haji C.H. Mohammad Koya Vs.

T.K.S.M.A. Muthukoya (1979 (2) SCC 8). Mr. Ramachandran has

contended that while consent may be proved not only by

direct but also by cricumstantial evidence, the same

standard is to be applied in assessing such circumstantial

evidence as it is applied in Criminal Law, namely, that the

circumstances must point unerringly to only one conclusion

and must not be consistent with any other explanation or

hypotheses. He has submitted that this Court in Balakrishna

Samant's case (supra) has indicated that although the trial

of an election petition is conducted in accordance with the

Civil Procedure Code, the corrupt practice must be proved in

the same way as a criminal charge is proved. Mr Ramachandran

has also submitted that in construing the provisions of

Section 123 (3) and 123 (3A) of the Representation Act, the

widest possible latitude ought to be given to the expression

of opinion in the context of democractic jiscourse so as not

to infringe on the freedom of speech and expression

guaranteed by Article 19 (1) (a) of the Constitution of

India. He has submitted that there is no doubt that freedom

of such speech is subject to reasonable restrictions as

envisaged by Article 19(2).Mr. Ramachandran has submitted

that the restriction ought to be strictly construed. He has

also submitted that the expression used in Section 123 (3)

of the Representation Act is "on the ground of religion,

race, caste, community or language". Mr. Ramachandran has

submitted that the said Section does not use the words with

reference to religion, race, caste etc. (emphasis added) but

the expression used, namely, on the ground of would require

that an appeal be made for votes by speeches or propaganda

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which tell a voter that he is not true or loyal to his

religion, caste etc. unless he votes for a particular

person. If mere references to religion, community, caste

etc. are construed as falling within the scope of Section

123 (3) of the Representation Act, it would result in

stifling debate on issues which have contemporary relevance

and do come up at the time of elections. In a plural society

such as ours, such issues pertain not only to religion and

secularism but also language policy, reservation policies

etc. Mr. Ramachandran has further submitted that in

construing a speech made or a poster published in the course

of an election, the widest latitude ought to be given.

Referring to the decision of this Court in Kulter Singh Vs.

Mukhtiar Singh (AIR 1965 SC 141), Mr. Ramachandran has

submitted that this Court has held that the principles which

have been applied in construing such a document as an

election poster 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 coposing political parties, the atmosphere is

usually surcharged with partisan feelings and emotions and

the use of hyperboles or exaggerated language or the

adoption of mataphors and the extravagance of expression in

attacking one another are all parts 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 the light. Mr. Ramachandran has further

submitted that this Court has indicated in the said decision

that there are several parties whose membership is either

confined to or predominantly held by members of particular

communities or religions and that an appeal made by such

candidates of such parties for votes may, if successful,

lead to their election and in an indirect way may be

influenced by consideration of religion, race, caste,

community or language. So long as the law recognizes such

parties for the purpose of election and parliamentry life,

this situation cannot be avoided. Mr Ramachandran has

submitted that the aforesaid view of this court has been

reiterated in the case of Ebrahim Suleiman Sait Vs. M.C.

Mohammed and another (1980 (1) SCC 398 at 402-403). In

Suleiman's decision, the speech to the effect that "he made

it very clear that the anti religious parties must not

entertain that the faint hope of securing the votes of any

Muslim. In whose head the Islam's blood was flowirg", was

not held to be offending under the provisions relating to

corrupt practice. Mr. Ramachandran has also submitted that

if a person is not a party to an election petition but is

liable to be guilty of a corrupt practice, a notice under

Section 99 of the Representation Act is to be issued to such

person and the Court has no discretion in the matter. For

the aforesaid contention, reference to the decision of this

Court in D.P.Mishra Vs. Kamal Narayan Sharma and another

(AIR 1970 SC 1477 at 1489) has been made by him.

Coming to the correctness of the factual finding of the

High Court relating to the commission of corrupt practice,

Mr. Ramachandran has submitted that the meeting of February

4, 1990 at Nanded was addressed by Shri Thackrey. Such a

meeting was admittedly organised by Shiv Sena candidate. The

last date for withdrawal of nomination papers was upto

February 7, 1990 and it was open to the party to revoke

applicant's nomination as party candidate upto that date.

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Mr. Ramachandran has submitted that in such a situation, it

would be wholly unrealistic to expect that the appellant

would be in a position to repudiate or dissociate himself

from particular portions of the speech of the leader of Shiv

Sena party even though he might not have agreed with all

that was said in the course of such a long speech or with

the choice of words in the speech. Mr. Ramachandran has

submitted that the presence of the appellant at the meeting

of February 4, 1990 should not be construed as amounting to

consent as interpreted by this Court in Balakrishna Samant's

case (supra) or decision in Mohammed Koya's case (supra).

Mr. Ramachandran has also submitted that in the written

statement, the appellant also contended that he was also not

present throughout the meeting. Mr. Ramachandran has further

submitted that even if it is assumed that he consented to

the speech delivered in the said meeting of February 4,

1990, the speech read as a whole does not satisfy the

requirements of Section 123 (3) and 123 (3A) of the

Representation Act despite the strong and rhetoriacal

language used in the said speech. The said speech does not

appeal on the ground of religion nor does it promote

feelings of enmirty or hatred on grounds of religion. He has

also submitted that even if the Court prima facie comes to

the finding that the said speech of Shri Thackrey amounts to

corrupt practice within the meaning of Section 123 (3) and

123 (3A) of the Representation Act and the appellant had

consented to such speech of Shri Thackrey, it was an

obligation of the Court to issue a notice under Section 99

of the Representation Act to Shri Thackrey and no finding of

corrupt practice could have been rendered against the

appellant in the absence of a notice under Section 99 of the

Representation Act.

Coming to the speech delivered in the meeting held on

February 9, 1990 at Nanded, Mr. Ramachandran has submitted

that the said meeting was "Shubharambh". ceremony when the

appellant inaugurated his campaign two days after the last

date for withdrawal of nominations. Admittedly, no

permission for a regular meeting was granted by the police

authorities. According to the person who took a video

recording of the meeting, there was slogan shouting but no

speeches were made and according to the appellant's withness

there was no speech delivered in the said meeting. Mr.

Ramachandran has suomitted that whatever had been spoken at

the said meeting were in reality long discussions with party

men and sympathisers and it did not assume the formal

character of the speech but was part of the inauguration of

the campaign for the election. The leaders of the Shiv Sena

and also representatives of the BJP which was a partner of

the Shiv Sena in the election contest were present and the

presence of the appellant cannot amount to consent as

interpreted by this Court in the decisions referred to

hereinbefore. Mr. Ramachandran has also submitted that even

if it is assumed that the appellant has consented to the

said statement attributed to the various speakers at the

said inauguration of election meeting, none of the so called

offending portions set out in para 5.04 at pages 212-216 of

Vol.I falls within the scobe and ambit of Section 123 (3)

and 123(3A) of the Representation Act. Mr. Ramachandran has

also submitted that the Godatir Samachar publication was

made on the basis of the report made by the reporter who

according to his understanding of the portion of the speech

recorded the same in his own language. He has further

submitted that the newspaper publication relied on by the

election petitioner for the purpose of offensive part of the

speeches delivered at the meeting should not be taken into

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consideration as being inadmissible or not proved. The

learned Judge unfortunately erred in relying on the

newspaper publication in basing impugned decision.

Coming to the allegation about publishing the material.

namely, advertisements, pamohlets, posters etc. as alleged

in the election petition amounting to corrupt practice under

Section 123 and 123 (3A) of the Representation Act. Mr

Ramachandran has submitted that only such material as can

be directly attributed to the appellant or his election

agent may be taken into account. He has also submitted that

there has been clear finding by the High Court in respect of

Issue No.4 that it was not proved that the appellant used

the machinery of Shiv Sena party. On an analysis of all the

material attributable to the appellant and his election

agent as summarised in the discussion under Issue No.6 Mr.

Ramachandran has submitted that none of them read as a whole

in the context of the tests laid down by this Court for

adjudging speeches, publicity material etc. can be said to

offend Section 123 (3) and 123 (3A) of the Representation

Act. An offending sentence namely teach the Muslims a

lesson" is to be found in posters of Ex. O series. With

regard to the said posters the evidence relied upon by the

High Court does not connect the appellant or his election

agent with the same. The evidence of P.W. 20 Ramesh Rasal

who in addition to being Executive Editor of Godatir

Samachar'is a partner of Ramesh Offset Press, does not

connect the appellant or his agent with these particular

posters. Evidence in the form of receipts from Ramesh Offset

Press is still not evdence in regard to these particular

posters and therefore the proof has not fulfilled the

standard of requirement of proof in a criminal case. Mr.

Ramachandran has submitted that the manifestation of popular

choice should not be easily interfered with unless there is

proof that a corrupt practice has been resprted to. Mr.

Ramachandran has also submitted that if strict standards

required to be established are applied corrupt practice has

not been established in the instant case. The impugned

judgment of the High Court is speculative and lies in the

reaim of conjectures. Accordingly, the same should be set

aside by allowing this appeal.

Mr.Kotwal, the learned Senior Counsel appearing for the

election petitioner Shri Kamal Kishore Nanasaheb Kadam has

seriously disputed the contentions made by Mr. Ramachandran.

He has submitted that the appellant Dr.Deshmukh filed

his nomination paper as a nominee of Shiv Sena-BJP alliance.

It is immaterial whether the date for withdrawal was not

over when the election meeting of Shiv Sena was held at

Nanded on February 4, 1990. According to Mr. Kotwal, it

cannot be reasonably contended that the appellant who filed

the nomination paper as a nominee of Shiv Sena would deny

that although he attended the meeting on February 4, 1990

and sought the blessings of Shiv Sena Supremo Shri Thackrey,

he did not subscribe to the appeal for voting in the

election by the said Supremo of Shiv Sena. Mr. Kotwal has

submitted that when election campaign meeting of the Shiv

Sena was held and the appellant as a nominee of Shiv Sena

attended the said meeting and publicity sought the blessings

of Shiv Sena Supremo and listened to the address made by

him, by his conduct, he made it quite clear before the

public that he had subcribed to the views expressed in the

said meeting by the Shiv Sena Chief. It is not the case of

the appellant that he had protested to any part of the

speech delivered by Shri Thackrey or even explained his own

viewpoints to the mambers of the public present thereby

indicating that he had subscribed only to the election

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manifesto of Shiv Sena and not to any other statement of the

speakers in the said meeting beyond such election manifesto.

Mr. Kotwal has also submitted that the meeting of February

9, 1990 was the meeting organised by the appellant himself

so as to formally start his election campaign. Such meeting

was termed as 'Shubharambh". Mr Kotwal has stated that

although police had not given permission to hold a formal

public meeting, such election campaign meeting had in fact

been held in a conspicuous public place at Nanded and it has

transpired from evidence that a large number of person had

attended the said meeting. In the said meeting, the local

Shiv Sena and BJP leaders addressed and they appealed to

vote for Dr. Deshmukh mainly on the score of religion. In

the written statement, the appellant stated that no meeting

was held on February 9, 1990. In the alternative, it was

contended in the written statement that the appellant had

not asked the speakers to speak. Mr.Kotwal has submitted

that such contention made in the written statement. has been

proved to be false by convincing and unimpeachable avidences

adduced in the case. The editor of 'Godatir

Samachar'(P.W.20) the Video Photographer, Shri Malwa

(P.W.30) and the Police sub-Inspector Moh. Abdullah Khan

(P.W.B) had proved beyond an idta of doubt that the

appellant himself was present in the election meeting of

February 9, 1990 when the speeches were delivered by Shri

Nandu Kulkarni, Shri Sunil Nerlakar, Shri Chandrakant

Mahski, Shri Ganesh Kiratane and others. In the

advertisement given for the meeting termed as 'Shubharambh'

to be held on February 9, 1990. it was specifically

mentioned that Shri Ganesh Kirtane, Shri Chandrakant

Sonwane, Shri Nandu Kulkarni and a number of other people

would remain present. Shri Chandrakant Mahski addressed the

said meeting by stating that the hindu flag would fly on the

Maharashtra Assembly. Shri Sunil Nerlekar also spoke in the

said meeting and said that nothing was done for Hindus but

hindus had been ridiculed. He gave a warning that those who

would insult hindus would not be tolerated by the hindus

because the nation was nation of hindus. He also stated that

on the basis of their own strength the hindus were

contesting the election. Mr. Kotwal has submitted that

although policies of the fuling Congress I party were

criticised but the speakers made it quite clear that hindus

should unite for the cause of the hindus and would vote for

the appellant Dr.Deshmukh so that the interest of hindus

should be protected. He has submitted that such statement

obviously refers to an appeal on the score of hindu religion

and the passion on the basis of religion was sought to be

roused amongst the hindus voters with an appeal to unite to

protect the interest of one community, namely, the hindus.

He has submitted that such speech, if considered in the

proper perspective, must be held to have offended the

sentiments of the followers of other religion and was

intended to rouse the communal passion on the score of

religion Mr. Kotwal has also referred to one of the specimen

of the posters, being Ext.o.20. In the said poster, it was

indicated that to protect hinduism and hindu religion the

valuable vote should be cast in favour of the Shiv Sena-BJP

alliance candidate Dr. Deshmukh and such vote should be cast

to "teach a lesson to Muslims" (emphasis added). Such

posters were exhibited in a number of places in the town of

Nanded. Convincing evidence has been led that such posters

were displayed at the residence of election agent and also

at the residence and chamber of Dr.Deshmukh. In the car used

by election agent of Dr.Deshmukh, such poster was also

displayed. Such poster was also displayed on the sign board

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of Shiv Sena Shakha and other public places. Mr. Kotwal has

contended that the partner of Ramesh Offset Press, Shri

Ramesh Rasal (P.W.20) has clearly stated that the appellant

and his election agent placed orders for the printing of

such posters. He has submitted that although Mr.

Ramachandran, the learned counsel for the appellant

contended that Shri Rasal did not specifically give evidence

that Dr. Deshmukh himself had placed orders for such posters

or paid price for printing of such posters. Such submission

should not be accepted. Mr Kotwal has submitted that if in

an election such posters are allowed to be displayed at

various public places and also at the residence of the

appellant and in the car where the election agent of the

appellant had been moving for canvassing the vote for the

appellant, the appellant should not be permitted to contend

that some indenpendent agency without has authority had

disolayed such posters and he should not be held responsible

for such posters and he should not be held responsible for

such publicity on account of the said posters. Mr. Kotwal

has submitted that the poster is offensive perse because

along with the appeal to vote for Dr. Deshmukh a statement

was made in the said poster that the muslims should be

taught a lession. Such poster, in any event, was intended to

bring disharmony between the two communities, namely, the

hindus and the muslims and was definitely intended to arouse

passion on a communal basis in the minds of the voters. The

said poster was intended to bring hatred between the two

communities, namely, the hindus and the muslims. He has,

therefore, submitted that on the score of displaying the

said poster without any other evidence about corrupt

practice, the finding of the High Court that the appellant

was quilty of corrupt practice under Section 123 (3) and 123

(3A) of the Representation Act should be upheld and no

interference is called for in this appeal. Mr. Kotwal has

also made elaborate submissions on the other offending

advertisements and also the wall paintings for the purpose

of contending that all such materials were solely intended

to bring disharmony between the two communities and to make

an appeal on the score of religion so that the hinous should

vote only in favour of the Shiv Sena-BJP candidate, Dr.

Deshmukh who would safeguard the interest of hindus.

Mr. Kotwal has submitted that Section 123 has undergone

a change after the amendment in 1961, Section 123 of the

Representation Act only prohibited systematic appeal by

candidate or any other person on behalf of the candidate to

vote or refrain from voting on the score of caste, religion,

race, community or the use of or appeal to religion, symbols

or the use of or appeal to national symbols such as the

national flag or the national emblem for the furtherance of

the prospects of that candidates election. In the objects

and reasons for the amendment to Section 123, it was

indicated that such amendment was necessary for curbing

communal and separatist tendencies in the country. It was

proposed to widen the scope of corrupt practice mentioned in

clause 3 of Section 123 of the Representation of people Act.

Mr. Kotwal has submitted that in various decisions dealing

with the scope and ambit of corrupt practice under the

Representation Act. this Court has observed that the

paramount and basic purpose underlying Section 123 (3) of

Act is the concept of secular democracy. Section 123 (3) was

enacted to aliminate from the electioral process appeals to

divisive factors such as religion, caste etc. which give

vent to irrational passions. it is essential that powerful

emotions generated by religion should not be permitted to be

exhibited during elections and the decision and choice of

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the people are not coloured in any way. In this connection,

Mr. Kotwal has referred to the decision of this Court in

S.Harcharan Singh Vs. S. Sajan Singh and others (AIR 1985 SC

236). Mr. Kotwal has submitted that in order to determine

whether certain activities come within the mischief of

section 123 (3), regard must be had to the substance of the

matter rather than to the mere from or phraseology. The

inhibition of the section should not be permitted to be

circumvented inoirectly of by circuitous or subtle devices.

The court should attach importance to the paramount purpose

of Section 123 (3) namely to prevent religious influence

from entering the electoral filed. The nature and

consequence of an act may not appear on its very face but

the same can be implied having regard to the language, the

context, the status and position of the person issuing the

statements, the appearance and Known religion of the

candidate, the class of persons to whom the statement or act

is directed, It has been submitted that it is the total

effect of such an appela that has to be borne in mind in

deciding whether there was an appeal to religion as such or

not. Mr. Kotwal has submitted that in the guise of

criticising political policies. one should not directly or

indirectly or by circuitous or subtle devices permit

religious influence to enter the electoral field.

Mr. Kotwal has submitted that to prevant corrupt

practice it is necessary to name all persons who have

indulged in corrupt practice in an election campaign. A duty

has been cast on the Court to name not only those who are

parties to the proceeding indulging in corrupt pratice but

also those who are not parties but have connived and

indulged in corrupt practice either with the consent by a

candidate or his election agent or have indulged in corrupt

practice on their own without such consent. According to Mr.

Kotwal an order under Section 99 of the Representation Act

need not be passed simultaneously with the order under

Section 98 and naming of collaborators to corrupt practice

who were not parties in the election case, may be made

subsequently by a sucplementary or complimentary order. Mr.

Kotwal has submitted that Section 123 should be construed

pragmatically by keeping in mind that the mischief for which

said Section has been incorporated in the Representation

Act, is not suporessed. According to Mr. Kotwal, the

proceeding against the

returned Candidate and all those who are parties to the

petition should be treated as separate and distinct from the

proceeding against collaborators. He has submitted that for

the purpose of naming the collaborators, the returned

candidate is not entitled to a nearing in the notice

proceedings. He has also submitted that for the purpose of

finding against the parties, the proceeding should not be

kept pending only for the purpose of naming the

collaborators, who were not on record, after following the

appropriate procedure. In this connection, Mr. Kotwal has

referred to the decisions of this Court in R.M.Seshadri Vs.

S.V.Pai one others (AIR 1969 SC 692). D.P. Mishra Vs. Kamal

Narayan Sharma and another (AIR 1970 SC 1477)D.P.Mishra Vs.

Kamalnarayan Sharma and others (AIR 1971 SC B56),Ranim Khan

Vs. Khurshid Ahmed and others (AIR 1975 SC 290). Mr. Kotwal

has submitted that for the purpose of naming the

collaborators, the High Court may be directed to follow

appropriate procedure for giving notice to the collaborators

so as to afford an opportunity to them to place their case

but the decision made against the appellant should not be

kept pending. He has contended that in the facts and

circumstances of the case, the corrupt practice pursued by

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the appellant having been fully established by cogent and

convincing evidence. the appeal preferred by Dr. Deshmukh

should be dismissed.

After giving our anxious consigeration to the facts and

circumstances of the case and contentions made by the

respective counsel for the partice, it appears to us that in

the instant case, it has been convincingly established that

the appellant has permitted to disoplay poster Ext.0.20 for

the purpose of his election campaign. In the said poster,

appeal to vote for the appellant was made for the purpose of

teaching a lession to muslims. Such appeal, to say the

least, was potentially offensive and was likely to rouse

passion in the minds of the voters on communal basis. Such

appeal to teach a lession was also likely to bring

disharmony between the two communities namely the hindus and

the muslims and offended the secular structure of the

country. In our view, use of such poster by itself is

sufficient to hold that the appellant had indulged in

corrupt practice under Section 123 (3) and 123 (3A) of the

Representation Act. 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 candidate 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

collaporators had indulged in corrupt practice regard must

be had to the substance of the matter rather than mere from

or 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 votes may in an

indirct 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. Such

view has also been reiterated in later decisions of this

Court. It has been very streneously contended by the learned

counsel for the appellant that appeal to vote for hindutwa

should not be confused with appeal to vote only for a member

of one community namely the hindus. Criticism of partisan

treatment meted out to the Hindus by the ruling congress

party or appeasement policy in favour of one community or

followers of a particular religion impairing national

integrity and appeal to oppose such improper and anti

national policy should not be held to be an appeal to vote

only on the basis of a particular religion. It has been

contended that the thrust of the speeches was that inequal

treatment meted out to hindus and deliberate hurting of

sentiments of hindus have encouraged divisive forces and

anti national elements in the country and hindus should be

aware of such divisive forces and try to unite against such

divisive and anti national forces in selecting proper

candidate who would safeguard the unity and integrity of the

country. In our view, it is not necessary to consider the

philosophy of hindu religion and its tenets of tolenance and

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respect for different religious faiths for the purpose of

appreciating whether appeal was really made for hindutwa

which is something different from outward practices and some

of the followings professed by followers of hindu religion.

In the instant case, we have already indicated that the

appellant had given publicity to the voters by exhibiting

the poster Ext.0.20 which was per se highly offensive and

potentially vulnerable and was likely to bring natred and

misunderstanding between the two communities, namely, the

hindus and the muslims. In our view, the poster containing

an appeal to vote for the appellant to teach the muslims a

lesson cannot be justified in any manner even by giving

reasonable latitudes in election speeches.

As the appeal can be disposed of by holding that the

appellant was guilty of corrupt practice for which his

election was liable to be set aside for displying the said

poster Ext.0.20, we refrain from considering the real impact

of the speeches delivered in the meetings of February 4,

1990 and February 9, 1990 by making an incepth analysis of

the same in the light of the guidelines indicated

hereinbefore.

In the special facts of the case, it also appears to us

that it may not be necessary to consider the disputed

contentions as to whether the general publicity of Shiv Sena

and BJP for the general election in Maharashtra and of

Nanded Assembly Constituency amounts to publicity by or with

the consent of the appellant and whether such publicity can

be construed as constituting corrupt practice under Section

123 (3) and 123 (3A) of the Representation Act. It may,

however, be indicated here that the High Court has answered

issue No.4 namely "whether the petitioner proves that

Respondent No.1 detilised the propaganda machinery of Shiv

Sena party" in the negative.

In that view of the matter, it is also not necessary to

remand the matter to the High Court for naming the

collaborators of corrupt practice by following the

appropriate procedure for the purpose. This appeal therefore

fails and is dismmissed with costs.