http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 24

CASE NO.:

Appeal (civil) 4211 of 1992

PETITIONER:

QUAMARUL ISLAM

RESPONDENT:

S.K. KANTA AND ORS.

DATE OF JUDGMENT: 21/01/1994

BENCH:

S. RATNAVEL PANDIAN & R,M. SAHAI & DR. A.S. ANAND

JUDGMENT:

JUDGMENT

1994(1)SCR 210

The Judgment of the Court was delivered by

1. DR. ANAND, J. On 25th of September 1992, the election of the

appellant, Mr. Quamarul Islam, from 10 Gulbarga Assembly Constituency was

set aside by the High Court of Karnataka by allowing an Election Petition

filed by the defeated candidate, respondent no. l, Shri S.K. Kanta. The

aggrieved, unseated candidate, (appellant) has filed this appeal under

Section 116A of the Representation of People Act, 1951 (hereinafter

referred to as 'Act').

2. On 24.11.1989, elections were held to the Karnataka Legislative

Assembly. The appellant contested the election as a candidate of Muslim

League from 10 Gulbarga Assembly Constituency. The election petitioner

respondent no. l herein contested the election as a candidate of Janta Dal

Party. While the appellant secured 55801 votes respondent no. l secured

51204 votes. There were other candidates also in the fray belonging to

different political parties besides six independent candidates. Respondent

No.2 contesting on the ticket of Congress (I) secured 12,675 votes while

all other candidates secured insignificant number of votes. Respondent No.

l questioned the election of the appellant through an Election Petition on

various grounds, alleging the commission of corrupt practices by him within

the meaning of Sections 123(2), 123(3), 123(3A), 123(4) and 124(7) of the

Act. Allegations regarding receipt of improper votes, rejection of valid

votes besides adoption of illegal procedure during the counting were also

made. The learned single Judge trying the Election Petition after recording

the evidence and taking into account documents etc., produced at the trial,

found that the appellant had committed the corrupt practices defined in

sub-sections (2), (3), (3A) and (4) of Section 123 of the Act and,

therefore, declared the election of the appellant void. The other

allegations were held not established. The Election Petition was allowed

with costs. The returned candidate, was, unseated.

3. According to the averments in the Election Petition, the appellant was

described as the General Secretary of the Karnataka Branch of the Indian

Union Muslim League (hereinafter referred to as 'IUML') who taking

advantage of his position appointed persons to various organisations in the

IUML. It is averred that Mohd. Moiuddin Pasha was appointed as a Convenor

of the Muslim Youth League (hereinafter referred to as 'MYL') and that the

said Mohd. Moiuddin Pasha acted as election agent of the appellant.

Reliance was placed on certain advertisements and mes-sages issued by IUML

seeking votes for the appellant. Reference was also made to the Bahmani

News, an Urdu Newspaper, published from Gulbarga and it was alleged that

the messages printed therein and the advertisements issued and published

therein by IUML and MYL were aimed at furthering the election prospects of

the appellant. Reliance was also placed on the alleged speeches delivered

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 24

by the appellant and his election agent and other agents with his consent,

seeking votes on grounds of religion, etc., as published in the said

newspaper. The following "messages" published in various issues of Bahmani

News were extracted in the petition, on the basis of which it was

maintained that the said publications amounted to commission of corrupt

practices as defined in Section 123(2) of the Act.

"Re-collect your memory before voting.

that you might have come across to hear this sentence :-

"I will not sign on your passport forms because, I have been elected only

on Hindu Votes, you go to him to whom you have voted.

Now your Election decision is definitely in favour of Muslim unity".

Issued by Indian Union Muslim League, Gulbarga.

The said newspaper again contained another message to the follow-ing

effect, in the publication of 2.11.1989;

"Can you Vote such party, its Chief Minister wanted to impose restrictions

on the Azan (call for the prayer) and he is also intending to do so.

Certainly your election decision will be in favour of Muslim Unity.

Issued by Indian Union Muslim League".

Reference was also made to the publication in the said newspaper dated

3.11.1989 containing the message to the following effect :

"Who is the person not willing to regularise his house...... who will vote

that party person, who had created obstacles to regularise the houses by

exhibiting communal feelings. Certainly this time your election decision is

in favour of Muslim Unity.

Issued by Indian Union Muslim League".

The newspaper of 5th November, 1989 contained a message to the following

effect :-

"Person must have links with the religion without that he is nothing as the

Waves in the river and out of river nothing. Your utmost power should be

used to strengthen the Muslim Unity".

The paper of 8th November, 1989 contained the message to the following

effect :-

"Do you like to partition the city in two parts for representing only one

community which is being represented since last six years by a particular

person; should he be elected again?

Certainly this time you will elect your own representative in Assembly.

Issued by Indian Union Muslim League'.

The message to the following effect was, allegedly published on 14,11.1989

in the same newspaper :

"It is the voice of every Muslaman, No Babari Masjid No Vote".

Issued by Muslim Youth League, Gulbarga.

The newspaper of the 15th November, 1989 contained the message to the

following effect :-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 24

"Muslim League's Victory is your victory. For Gulbarga Assembly

Constituency, vote and elect Indian Union Muslim League's strong, young

candidate-Tiger of Karnataka - (Sher-e- Karnataka) - Sri Quamarul Islam.

You Create a History of Muslim Unity with full support of your own and

establish yorr particular representative in Assembly.

Issued by Indian Union Muslim League".

The said paper also contained an advertisement issued by the Muslim Youth

League, Gulbarga, with the following message, dated 15.11.1989 :

Thus, said Paigamber-e-Islam.

Muslaman is just like a wall, His every part of Body is supporting with

each other. 24th November, 1989, it is the day for creating a History of

your Unity.

Issued by Muslim Youth League, Gulbarga".

It is then stated in the election petition that :

"Respondent has directly interfered with the electorate of Gulbarga

Assembly Constituency by publishing these publications in the Urdu Daily,

through his own organization viz. the Indian Union Muslim League, of which

he is the General Secretary of the Karnataka State and through the convenor

of the Muslim Youth League, Gulbarga. Sri Mohammed Moiuddin Pasha, who has

been appointed by respondent-I in his capacity as the General Secretary of

the Indian Union Muslim League. These publications have been published in

the Bahmani News, a Urdu Newspaper, which has got wide circulation in the

Gulbarga Assembly Constituency and the same has been distributed in the

localities wherein Muslim community people are thickly populated, which are

stated at the beginning of this paragraph".

It is further asserted in the election petition:

"......These publications have been made by respondent-I and with his

consent is the daily Urdu Newspaper referred to above. Many such

publications have been made throughout the period of election i.e. between

1.11.1989 to 24.11.1989 including the date of election. The appeals made by

the publications have been made by respondent-I and with his consent by the

Muslim Youth League and these appeals have been made to further the

prospects of the election of respondent-I prejudicially affecting the

election of this petitioner. The said appeals are made on the ground of

religion and caste viz. the Muslim Com-munity. Respondent-I belongs to the

Mohammedan com-munity. Respondent-I belongs to the Mohammedan electorate in

particular and the said appeals amount to religious appeal as referred to

in Section 123(3) of the Representation of the People Act, 1951".

4. An allegation was also made in the Election Petition to the effect that

the publication dated 15.1.1989 in the Bahmani News not only con-veyed a

message but also contained a sacred religious symbol written in urdu which

when translated means "Ershad-e- Nabhi" (voice of prophet), and on that

basis, it was asserted that the appellant had made use of religious symbol

and thereby committed the corrupt practice covered by Section 123(3).

5. .Respondent no. I also alleged that the appellant had by the said

publications attempted to promote feelings of enmity and hatred between

different classes of citizens of India on grounds of religion, race, caste

and community. These publications were alleged to have been made with the

consent of the appellant by the convenor of MYL for the furtherance of the

prospects of election of the appellant and which action amounted to

commission of corrupt practices within the meaning of Section 123(3A) of

the Act.

6. The appellant is also alleged to have committed the corrupt practices

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 24

within the meaning of Section 123(4) of the Act. The grounds contained in

the Election Petition in respect of the said allegation read as follows:

"That apart from the publication of these messages in these papers, a

statement of fact, which is a false statement has been made by the

respondent-I and with his consent in the paper dated 1.11.1989 which is to

the following effect: -

"Re-collect your memory before voting.

that you might have come across to hear this sentence :-

"I will not sign on your passport forms because, I have been elected only

on Hindu Votes, you go to him to whom you have voted.

The said publication made on 1.11.1989 in the Urdu daily Newspaper is a

statement of fact, which is false and it relates to the personal character

and conduct of this petitioner. And this statement is made by respondent-1

reasonably calculated to prejudice the election prospects of this

petitioner. This amounts to corrupt practice within the mean-ing of section

123(4) of the said Act".

According to respondent no. l, the appellant not only got the messages

published in the newspapers as noticed above but also in his speeches to

the electorate of the constituency made such offensive appeals which

strictly fall within the mischief of Sections 123(3) and 123(3A) of the

Act. The precise allegations in that behalf are contained in sub-para (11)

of election petition which reads as follows:

"That apart, apart from publishing the message in the newspapers,

respondent no. l has spoken to the electorate of the 10 Gulbarga Assembly

Constituency in various. places offencing the religious feelings of the

communities and thereby bringing a rift between the other communities and

Muslims, amounting a corrupt practice as stated in Section 123(3) and (3A)

of the Act. In fact at Roza Market area, about 8 days prior to the date of

poll at about 9.30 p.m. respondent at an election meeting, among other

things, uttered the following speech in Urdu, which clearly indicates that

there has been interference in the free exercise of the electoral right by

the Electorate on the basis of the religion and community feelings. The

extract of the speech reads thus: -

"Muslim Youth League ke convenor Mister Mohiuddin Pasha. Gujeesta

Numaindane Main Passport form per dasthakat nahin karoonga, Kahakar Firkha

prasthi Ka Ainae Lagaya. Sabekha MIA Nay Muslim Illakhaun main BoreweU Key

liye sifarish tak nahee ki. Prakash Akash Kore nay chay saath rnuslim Makan

today hain. Musal-manaun Kaa Imaani Josh Tha jo unhonney Muslim league to

har bear jeeyade vote diye. Aap ko sabz parcham ki Izzad Rakhana hai. Apnay

Ittebad ko Mazhooth Karna hooga. Hindustan Mein Jab Tah Ek bhi Musalman

Kal-maa Haquee bolnay walaa hai Muslim league ki Naheen Meetta sakta. Jab

toom Apnay mohailey main javogey the athraaf dekho kaheen umnaafikhary

Islam (Islaam kay Gaddar) Meer Jafar, Mir Sadiq, jaisay com may Millath Kay

khilaaf Muslim League Kay kheelaaf kaheen sazecsh tho nahee kar rahey

hain".

The utterances of the respondent-I excerpted above amounts to corrupt

practice or undue influence and religious appeal on the ground of caste and

religion".

The appellant is also alleged to have procured the assistance of the

returning officer, a gazetted officer of the rank of special Deputy

Commissioner for the furtherance of the prospects of his election thereby

commit-ting a corrupt practice under Section 123(7) of the Act.

7. According to respondent no. l, the appellant committed the "corrupt

practices referred to above by himself and with his consent by the said

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 24

Mohd. Moiuddin Pasha, who has acted as his election agent".

8. Though in the election petition, allegations were also made by

respondent no. l against the appellant, alleging irregularities during

count-ing, incorrect publication of the electoral rolls, and improper de-

limitation of constituencies and malpractices committed at various polling-

booths and polling-stations, but since neither before the learned Trial

Judge nor before this Court, any arguments were addressed in respect of

those allegations, we do not feel called upon to deal with those

allegations much less extract the same in this judgment.

9. In the affidavit filed in support of the allegations of corrupt

practice in the Election Petition, the petitioner deposed as follows: -

"3. The averment pertaining to the corrupt practices under Section 123(2)

of the Representation of People Act, made by 1st Respondent and his

election Agent Mohammed Mohiuddin Pasha referred to in paragraphs IV(4),

5(1) to (viii) are based on personal knowledge and information which I

believe to be true.

4. The averment pertaining to the corrupt practices under Section 123(3) of

the Representation of People Act, made by 1st Respondent and his election

Agent Mohammed Mohiuddin Pasha referred to in paragraphs IV(5)(i) to (ix)

and (x) are based on personal knowledge and information which I believe to

be true.

5. The averment pertaining to the corrupt practices under Section 123(3A)

of the Representation of People Act, made by 1st Respondent and his

election Agent Mohammed Mohiuddin Pasha referred to in paragraphs IV(5)(ix)

to (xi) and (x) are based on personal knowledge and information which I

believe to be true.

6. The averment pertaining to the corrupt practices under Section 123(4) of

the Representation of People Act, made by 1st Respondent and his election

Agent Mohammed Mohiuddin Pasha referred to in paragraphs IV(5)(x) are based

on personal knowledge and information which I believe to be true.

7. The averment pertaining to the corrupt practices under Section 123(7) of

the Representation of People Act, made by 1st Respondent and the Returning

Officer respondent no.13 referred to in paragraph IV 95(xiii) are based on

personal knowledge and information which I believe to be true.

10. In the written-statement filed by the respondent-appellant, all the

allegations levelled against him about the commission of the corrupt

practices were denied. It was asserted that the appellant had filed his

nomination paper on 31.10.1989 as a candidate of Muslim League and that the

allegation to the effect that the appellant was the General Secretary of

the Karnataka branch of IUML and in that capacity he had enlisted the

support of the MYL was false. It was categorically asserted that "this

respondent has not appointed Mohd. Moiuddin Pasha as the election agent at

any time. One Kesar Mohd. was the election agent of the respondent". The

appellant-respondent stated that the publications (messages and ad-

vertiesments) extracted in the election petition allegedly issued by the

IUML or by MYL had nothing to do with him as he was not a member of the

IUML much less, its General Secretary. That the appellant-respondent was

also not a member of MYL either and had nothing to do with the messages and

advertisements allegedly published in "Bahmani News" and that the same were

not originated or sponsored by the respondent nor were the same published

either at the instance of this respondent or his election agent. The

appellant-respondent also denied that he had delivered speeches as alleged

in the election petition or that he had made any appeal on the ground of

religion etc. The respondent also stated that :

"It is not possible to understand the grievance of the petitioner set out

in para 6 of the petition. It is not his case the voters included in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 24

Assembly Constituency had not been permitted to cast their votes at the

election. Once again, the allegation set out in para 7 of the petition

suffers from vagueness and uncertainty".

11. On the basis of the pleadings of the parties, the following issues were

framed by the learned trial Judge :

(1) "Whether the petitioner proves that Respondent No. l has committed acts

as alleged in the petition of undue influence on voters interfering with

free exercise of votes attracting Section 123(2) of the Representation of

the People Act, 1951?

(2) Whether the petitioner proves that Respondent No. l has committed acts

as alleged in the petition that he appealed to the religion, caste,

community or used religious symbols to further his prospects of election

and/or for prejudicially affecting the election of the petitioner

attracting Section 123(3) of the Representation of the People Act, 1951?

(3) Whether the petitioner proves that Respondent No. l has committed acts

as alleged in the petition to promote or attempt to promote feelings of

enmity or hatred between different classes of voters on grounds of

religion, caste, community for furtherance of the prospects of election of

Respondent No. l or for prejudicially affecting the election of the

petitioner attracting Section 123(3A) of the Representation of the People

Act, 1951?

(4) Whether the petitioner proves that Respondent No. l has committed acts

alleged in the petition of publishing any pamphlet or statement which is

false or believed to be false in relation to the personal character, con-

duct of the petitioner calculated to prejudice the prop-sects of the

petitioner attracting Section 123(4) of the Representation of the People

Act, 1951?

(5) Whether the petitioner proves that Respondent No. l has committed acts

alleged in the petition to procure or obtain the assistance of persons in

service of the Government as enumerated therein to further the prospects of

Respondent No. 1's election attracting Section 123(7) of the Representation

of the People Act, 1951?

(6) Whether the petitioner proves that Mohd. Moiuddin Pasha acted as the

election agent of Respondent no. l or with his consent committed the

aforesaid corrupt practices in issue Nos. l to 5?

(7) Whether the petitioner proves that the election of Respondent No. l is

vitiated on account of illegal or improper.

(i) exclusion of voters from exercising their votes and/or

(ii) Acceptance of votes which are invalid and/or

(iii) rejection or refusal of votes, which are valid

(8) Whether the petitioner proves that the election of Respondent No. l is

vitiated on account of improper or illegal procedure adopted or

irregularities in the conduct of election?

(9) Whether the recrimination petition is bad for want of compliance of any

of the provisions of the Representation of the People Act, 1951?

(10) Whether Respondent No. l proves that the petitioner or any person

acting as his agent or any other person with his knowledge and consent

committed acts at-tracting Section 123(3) and 123(3A) of the Representation

of the People Act, 1951 as alleged in the recrimination petition?

(11) Whether Respondent No. l proves that petitioner or any person acting

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 24

as his agent or any other person with his knowledge and consent restrained

voters from ex-ercising their franchise as alleged in para-9 of the

recrimination petition?

(12) To what reliefs, if any, the parties are entitled?

12. The High Court dealt with issues 1-4 attracting Section 123(2),

123(3), 123(3A) and 123(4) of the Act together. After considering the

direct, circumstantial and documentary evidence, all the above four issues

were decided in the affirmative and it was held that the appellant-respon-

dent had committed the corrupt practices attracting Section 123(2), 123(3),

123(3A) and 123(4) of the Act. Issue No.5 was decided in the negative with

the result that the appellant was not found to have committed the corrupt

practice attracting Section 123(7) of the Act. Issue Nos.7 and 8 were dealt

with together and were answered in the negative and against the election

petitioner. Issues Nos.9-11 had been framed due to the filing of the

recrimination petition by the appellant-respondent and since the appellant-

respondent did not press the recrimination petition, therefore, these three

issues were not considered by the learned trial Judge.

13. The learned Judge also considered the question of issuing a notice to

Sh. Mohd. Moiuddin Pasha under Section 99 of the Act on the basis of the

allegations made against him in the election petition while dealing with

issue No.6, but after the appellant filed his written statement and the

recrimination petition and denied Mr. Pasha's participation in the election

campaign in any capacity whatsoever to further the prospects of his

elections, the Court came to the conclusion that the evidence and material

on the record was totally inadequate to warrant the issuance of a notice

under Section 99 of the Act and the issue was decided accordingly. Finally,

the appellant-respondent was held directly responsible for commit-ting the

corrupt practices under Section 123(2), (3), (3A), (4) of the Act and

consequently, the learned trial judge held the election of the appellant to

the Karnataka Legislative Assembly from 10 Gulbarga Assembly con-stitutency

as null and void.

14. Since, the learned trial judge has reproduced the evidence both oral

and documentary in extenso, we do not find it necessary to reproduce the

same and shall content ourselves by referring only to the relevant evidence

during the course of discussion. It is only the findings on issues 1-4 and

12 which have been decided against the appellant-herein on which arguments

have been addressed before us by learned counsel for the parties. We,

therefore, refrain from dealing with the remaining issues, including issues

9-11, which arose out of the recrimination petition which was not pressed

before the trial court.

15. Mr. Kapil Sibal, the learned senior advocate appearing for the

appellant, the returned candidate whose election was set aside by the High

Court, in the first place submitted .that the pleadings of the election

petitioner in his petition were so vague, general in nature, lacking in

material facts and particulars, besides being frivolous and vexatious, that

the learned trial court should have stuck down and deleted all the

pleadings and dismissed the election petition as the averments in the

election petition did not give rise to any triable issue at the threshold.

Learned counsel argued that the pleadings in an election petition are

required to be absolutely precise and clear, containing all necessary facts

and particulars, as required by law which discloses a complete cause of

action and in the absence of the same, the returned candidate cannot be

called upon to meet the charge set out in a defective election petition.

Learned counsel for the respondent did not dispute the proposition of law

as canvassed by Mr. Sibal but submitted that having failed to raise any

objection about the alleged defects at the initial stage and having faced

the trial and led evidence, it was not open to the appellant now to argue

that the defect in the pleadings alone should result in the dismissal of

the election petition at this belated stage.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 24

16. In Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors., [1990] 2 S.C.C.

173, after dealing with a catena of authorities, regarding the nature of

pleadings and evidence to be led in support thereof in an election

petition, a Division Bench of this Court to which one of us, namely Pandian

J., was a party, formulated some essential tests with regard to the nature

of pleadings and evidence in an election petition. It is useful to extract

the principles laid down therein. They are as follows:

(1)" The pleadings of the election petitioner in his petition should be

absolutely precise and clear containing all necessary details and

particulars as required by law vide Dhartipakar Madan lal Agarwal v. Rajiv

Gandhi, and Kona Prabhakara Rao v. M. Seshagiri Rao.

(2) The allegations in the election petition should not be vague, general

in nature or lacking of materials or frivolous or vexatious because the

court is empowered at any stage of the proceedings to strike down or delete

pleadings which are suffering from such vices as not raising any triable

issue vide Manphul Singh v. Srinder Singh, and Kona Prabhakara Rao v. M.

Seshagri Rao and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi.

(3) The evidence adduced in support of the pleadings should be of such

nature leading to an irresistible conclusion or unimpeachable result that

the allegations made, have been committed rendering the election void under

Section 100 vide Jumuna Prasad Mukhariya v. Lachhi Ram, and Rahim Khan v.

Khurshid Ahmed.

(4) The evidence produced before the court in suport of the pleadings must

be clear, congent satisfactory, credible and positive and also should stand

the test of strict and scrupulous scrutiny vide Ram Sharan Yadav v. Thakur

Muneshwar Nath Singh.

(5) It is unsafe in an election case to accept oral evidence at its face

value without looking for assurances for some surer circumstances or

unimpeachable documents vide Rahim Khan v. Khurshid Admed, M.Narayana

Rao v. Venkata Roddy, Lakshmi Raman Acharya v. Chandan Singh, and Ramji

Prasad Singh v. Ram Bilas Jha.

(6) The onus of proof of the allegations made in the election petition is

undoubtedly on the person who assails an election which has been concluded

vide Rahim Khan v. Khurshid Ahmed, Mohan Singh v. Bhanwarial, and Ramji

Prasad Singh v. Ram Bilas Jha".

17. We are in respectful agreement with the above principles and that saves

us the botheration or" referring to the various judgments, which were

considered and noticed by the Division Bench while dealing with the

subject. We shall, therefore, only consider such of the judgments, as in

our opinion, have a direct bearing on the controversy before us.

18. In Samant N. Balkrishna and anr. v. George Fernandez and Ors., [1969] 3

S.C.C. 238, after dealing with the substantive law on the subject of

election petition, this Court dealt with the procedural provisions

contained in Sections 81,83 and 84 of the Act. It was noticed that Section

81 provides that the election petition must contain a concise statement of

the material facts on which the petitioner relies and further that he must

also set forth full particulars of any corrupt practice that he alleges

including as full a statement as possible of all the names of parties

alleged to have committed such corrupt practice and the date and place of

the commission of each such practice. Section 83 which requires the fullest

possible particulars to be provided in an election petition was held to be

mandatory. This Court then went on to point out the difference between

material facts and particulars and observed :

"......What is the difference between material facts and particulars? The

word 'material' shows that the facts necessary to formulate a complete

cause of action must be stated. Omission of a single material fact leads to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 24

an incomplete cause of action and the statement of claim becomes bad. The

function of particulars is to present as full a picture of the cause of

action with such further information in detail as to make the opposite

party under-stand the case he will have to meet. There may be some

overlapping between material facts and particulars but the two are quite

distinct. Thus material facts will mention that a statement of fact (which

must be set out) was made and it must be alleged that it refers to the

character and conduct of the candidate that it is false or which the

returned candidate believes to be false or does not believe to be true and

that it is calculated to prejudice the chances of the petitioner. In the

particulars the name of the person making the statement, with the date,

time and place will be mentioned. The material facts thus will show the

grounds of corrupt practice and the complete cause of action and the

particulars will give the necessary information to present a full picture

of the cause of action. In stating the material facts it will not do merely

to quote the words of the section because then the efficiency of the words

'material facts' will be lost. The fact which con-stitutes the corrupt

practice must be stated and the fact must be co-related to one of the heads

of corrupt practice. Just as a plaint without disclosing a proper cause of

action cannot be said to be a good plaint, so also an election petition

without the material facts relating to a corrupt practice is no election

petition at all. A petition which merely cites the sections cannot be said

to disclose a cause of action where the allegation is the making of a false

statement. That statement must appear and the particulars must be full as

to the person making the statement and the necessary information. Formerly

the petition used to be in two parts. The material facts had to be included

in the petition and the particulars in a schedule. It is inconceivable that

a petition could be filed without the material facts and the schedule by

merely citing the corrupt practice from the statute. Indeed the penalty of

dismissal summarily was enjoined for petitions which did not com-ply with

the requirement. Today the particulars need not be separately included in a

schedule but the distinction remains. The entire and complete cause of

action must be in the petition in the shape of material facts, the par-

ticulars being the further information to complete the picture......"

19, The Court then went on to consider the power of the trial court to

allow amendment of an election petition found deficient in its pleadings

and laid down that the said power can be exercised only to allow

particulars to be amplified but that there is a complete prohibition

against an amend-ment "which will have the effect of introducing

particulars of corrupt practice not previously alleged in the petition".

The allegation of corrupt practice in the election petition must show a

complete cause of action by disclosing all material facts and if the

election petitioner has omitted to allge a corrupt practice. He cannot be

permitted to give even the par-ticulars of that corrupt practice, by way of

an amendment.

20. In Virendra Kumar Saklecha v. Jagjiwan and Ors., [1972] 3 S.C.R. 955,

this Court emphasized the importance of an affidavit filed in support of an

election petition, whereby the election of the returned candidate has been

questioned on allegations of corrupt practice. It was held that the

allegations of corrupt practice are by law required to be supported by an

affidavit and the deponent of the affidavit must set out in the affidavit

clearly as to which statements relating to the corrupt practice are true to

the knowledge of the deponent and which of the statements are true to his

information, in which event the deponent is required to furnish the source

of information also. The court dealing with the importance of furnishing

the source of information at the earliest opportunity observed :

The non-disclosure of grounds or sources of information in an election

petition which is to be filed within 45 days from the date of election of

the returned candidate, will have to be scrutinised from two points of

view. The non- disclosure of the grounds will indicate that the election

petitioner did not come forward with the sources of information at the

first opportunity. The real importance of setting out the sources of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 24

information at the time of the presentation of the petition is to give the

other side notice of the contemporaneous evidence on which the election

petition is based. That will give an opportunity to the other side to test

the genuineness and veracity of the sources of information. The other point

of view is that the election petitioner will not be able to make any

departure from the sources or grounds. If there is any embellishment of the

case it will be discovered".

21. It is in the light of the above settled principles, that we shall first

examine the pleadings, including the affidavit filed by the election

petitioner in support of the allegations of corrupt practice to find out

whether they satisfy the tests laid down by this Court in various

judgments.

22. According to the election petitioner, the appellant was the general

secretary for Karnataka State of the Indian Union Muslim League and had

appointed Mohd. Moiuddin Pasha as convener of the Muslim Youth League, who

also acted as the agent of the appellant in the entire election. We have

already extracted the offending messages which were published in "The

Bahmani News" allegedly by IUML and MYL in the earlier part of this

judgment. The petitioner went on to say :

"......These publications have been made by respondent-1 and with his

consent in the daily Urdu News paper referred to above. Many such

publications have been made throughout the period of election i.e. between

1.11.1989 to 24.11.1989 including the date of election. The appeals made by

the publications have been made by respondent-I and with his consent by the

Muslim Youth League and these appeals have been made to further the

prospects of the election of respondent-I prejudicially affecting the

election of this petitioners. The said appeals are made on the ground of

religion and caste viz. the Muslim Community. Respondent-I belongs to the

Mohammedan community. Respondent-I belongs to the Mohammedan electorate in

particular and the said appeals amount to religious appeal as referred to

in Section 123(3) of the Representation of the People Act, 1951".

23. The election petitioner, thereafter, referred to the message and

advertisement in "The Bahmani News" dated 15.11.1989 in the following terms

:

"In fact the appeal in the publication dated 15.11.1989 in the above

mentioned Urdu Newspaper, has not only got a message, but also contains a

sacred religious symbol written in Urdu, which reads Ershade Nabhavi when

translated would convey the following meaning. Voice of paigamber-e-lslam

i.e. Voice of Prophet of Islam. Seeking votes under a religious symbol

amounts to corrupt practice under Section 123(3). Besides the use of the

said symbol and the publication also amounts to promotion of feelings of

enmity and hatred between different class of citizen of Indian on the

ground of religion, race, caste and com-munity. This also amounts to an

attempt by the respon-dent-I and with has consent, by the Convenor of

Muslim Youth League for the furtherance of the prospects of the election of

respondent-I and have prejudicially affected the election of this

petitioner, and amounts to corrupt practice under section 123(3A) of the

aforesaid Act."

The election petitioner then stated that apart from the messages published

in the newspaper which come within the mischief of Sections 123(2), (3) and

3A of the Act, a statement of fact, which is a false statement, was also

made by the appellant and with his consent by others, as published in the

newspaper dated 1.11.1989, to the following effect :

"Recollect your memory before voting, that you might have come across to

hear this sentences :-

"I Will not sign on your passport forms because I have been elected only on

Hindu Votes you go to him to whom you have voted,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 24

The said publication made on 1.11.1989 in the Urdu daily newspaper is a

statement of fact, which is false and it relates to the personal character

and conduct of this petitioner. And this statement is made by respondent-I

reasonably calculated to prejudice the election prospects of this

petitioner. This amounts to corrupt practice within the meaning of section

123(4) of the said Act".

The election petitioner has been alleged that the returned candidate also

delivered speeches which amount to the commission of various corrupt

practices. In paragraph 11 of the election petition, the election

petitioner asserted :

"That apart, apart from publishing the message in the newspaper, respondent

no. l has spoken to the electorate of the 10 Gulbarga Assembly Constituency

in various places offencing the religious feelings of the communities and

thereby bringing a rift between the other communities and Muslims,

amounting a corrupt practice as stated in Section 123(3) and (3A) of the

Act. In fact at Roza Market area, about 8 days prior to the date of poll at

about 9.30 p.m. respondent-11 at an election meeting, among other things

uttered the following speech in Urdu, which clearly indicates that there

has been interference in the free exercise of the electoral right by the

Electorate on the basis of the religion and community feelings. The extract

of the speech reads thus :-

"Muslim Youth League ke convenor Mister Mohiuddin Pasha. Gujeesta

Numaindane Main passport form per dasthakat nahin karoonga, Kahakar Fiikha

prasthi Ka Ainae Lagaya. Sabekha MIA Nay Muslim Ilakhaun main Borewell kay

liye sifarish tak nahee ki. Prakash Akash Kore nay chay saath muslim Makan

today hain. Musal-manaun kaa Imaani Josh Tha jo unhonney Muslim league to

bar bear jeeyade vote diye. Aap ko sabz parcham ki Izzad Rakhana hai. Apnay

Ittehad ko Mazhooth Kama hooga. Hindustan Meb Jab Tab Ek hi Musalman Kahnaa

Haquee bolnay walaa hai Muslim league ko Naheen Meet-ta sakta. Jab loom

Apnay mohalley main javogey the athraaf dekho kaheen umnaafikhay Islam

(Islaam kay Gaddar) Meer Jafar, Mir Sadiq, jaisay cominay Millath Kay

khilaaf Muslim League kay kheelaff kaheen sazeesh tho nahee kar rahey

hain".

The utterances of the respondent-I excerpted above amounts to corrupt

practice or undue influence and religious appeal on the ground of caste and

religion".

24. In para (xiv), the election petition stated thus :

"The respondent-I committed the corrupt practices narrated above in the No.

10 Gulbarga Assembly Con-stituency, by the various publications, utterances

and by procuring the assistance of the Returning Officer, throughout the

period of election i.e. from 1.11.1989 to 24.11.1989".

In the affidavit filed in support of the allegations of the corrupt

practice in the petition (as already extracted) the election petitioner did

not disclose the source of information, which the election petitioner,

believed to be true in support of the allegations of corrupt practice as

detailed in the election petition. Besides, Shri Moiuddin Pasha was

specifically described as the election agent of the appellant-respondent

who had also committed the corrupt practices alleged in the petition.

25. In the written statement (styled as objection statement) the appellant

herein categorically asserted that he had not appointed Mohd. Moiuddin

Pasha as an election agent at any time and that Kaiser Mohammed was his

election agent. In para 5, the appellant stated as follows :

The allegations that this respondent had committed corrupt practices within

the meaning of Section 123(2), (3), (3A) and (4) of the Peoples

Representation Act, are all false. The publications if any, issued by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 24

Indian Union Muslim League or by Muslim Youth League have anything to do

with this respondent, as he was not a Member of the Indian-Union Muslim

League, much less Us Secretary. This respondent was not a member of Muslim

Youth League either. This respondent had nothing to do with the

publications alleged to have been published in Bahamani News. It is

submitted that the publications in Bahamani News were not originated nor

sponsored by this respondent. Hence, the publications in Bahamani News

regarding Ershed-na-bhavi have anything to do with this respondent nor they

were published either at the instance of this respondent or that of his

election agent".

The respondent denied making speeches as alleged in para 5 of the petition

and stated that the allegations were false and a figment of the imagination

of the petitioner. The appellant supported his assertion that he was a

candidate of the Muslim League Party and not of the IUML by annexing with

his written statement, Form A and Form B, as prescribed by para 13(b) of

the Election Symbols (Reservation and Allotment Order 1968).

26. It transpires from the record that after evidence was led by the

parties, the election petitioner filed yet another affidavit on 4.9.1992.

In the said affidavit, which was filed after the arguments were over, Mr.

Moiuddin Pasha, who had been described as an election agent in the first

affidavit filed in support of the allegations of corrupt practices along

with the election petition, was now described "only as an agent". The

averments made in the second affidavit dated 4.9.1992 were stated to be

based on "personal knowledge" and not on the basis of 'belief or

"information" unlike in the first affidavit. We are at a loss to understand

as to how the learned trial judge permitted the filing of an affidavit on

4.9.1992, in support of the election petition after the arguments were

over. It was a novel procedure, unknown to civil law or the election law,

and was in direct breach of the statutory provisions contained in the R.P.

Act and the rules framed there-under. (See [1972] 3 S.C.R. 955 supra). Such

an affidavit, could not have been permitted to be brought on record and we

are constrained to say that the learned trial judge did not apply his mind

to the case in a proper and judicial sense and took into consideration the

second affidavit dated 4.9.1992 while deciding the election petition.

27. It also appears form the record that the returned candidate (appellant

herein) filed an application, being IA III on 3.4.1992, stating therein

that the election petition was liable to be dismissed for lack of

furnishing material facts and material particulars in the election

petition. In the application, specific objection was raised with regard to

the lack of material facts and material particulars in the election

petition and it was asserted that the election petition did not disclose a

full cause of action. That application, however, was decided alongwith the

main election petition and rejected on the ground that it was "too late in

the day to set the clock back". We also find that when the returned

candidate raised objections during the course of recording of evidence to

certain "material" being brought on record on the ground that it had not

been pleaded in the election petition or that it was not supported by the

affidavit filed in support the allegations of corrupt practice filed

alongwith the election petition, the learned trial judge over-ruled the

objections. It is interesting to note the court-ruling in this behalf :

"Courts Ruling: This tribunal has proceeded to record the evidence of this

witness so far given on the basis of issues 2, 3 and 4 which are the

corrupt practices covered under 123(2), (3), (3A) and 123(4). These issues

though a burden on the petitioner to prove that the respondent No.l has

committed that he appealed to the religion, caste com-munity or religious

symbols to further his prospects and it promote or attempt feelings

religion caste, community etc.

Since the evidence of this witness is in accordance with the issues framed

in this Election Petition the objections of the learned counsel for the

respondent is over-ruled".

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 24

28. The newspapers referred to and relied upon in the election petition had

not been filed along with the election petition. The copies of newspapers

and some other documents were filed subsequently and in the accompanying

application it was stated by the election petitioner that the same were not

available with him earlier. Those documents were filed after the evidence

had commenced. The returned candidate (appellant) raised objections to the

production of those documents at that late stage. In the affidavit filed in

support of the objections, the appellant stated :

"3. In the entire Election Petition there is no reference to any of these

documents now sought to be produced.

4. On the pleadings, this Hon'ble Court has framed issues which are mainly

referable to Section 123 of the Representation of Peoples' Act. Section 123

of the Act refers to corrupt practice. The statement that the petitioner

could not produce the copies of the newspaper as they were not available,

is false. In an Election Petition wherein the allegations relate to corrupt

practice the law is clear, in that, Section 83 of the Act provides that the

Election Petition should contain a concise statement of facts on which the

petitioner relies, and, further that he must also set-forth full

particulars of corrupt practice that the petitioner alleges, including as

full a statement as possible of the names of the parties alleged to have

committed such corrupt practice and the date and place of each such corrupt

practice. The Section is mandatory.

The application cannot be entertained at all at this late stage. Even now,

no facts or circumstances have been mentioned to give even the haziest

picture for the basis that the publications were effected for and on behalf

of this respondent and with the connivance of this respon-dent. It is

submitted that nothing can be rather than truth the copies of the

newspapers were not available for a period of nearly two years. That apart,

that is not a ground for accepting documents without pleadings in the

Election Petition at this late stage.

For the reasons stated above, this respondent prays that this Hon'ble Court

may be pleased to reject the application, in the interest of justice".

Amongst the documents which the election petitioner sought to produce at

that late stage were some advertisements allegedly issued by the IUML and

MYL in the newspapers between 1.11.1989 and 24.11.1989 as also reports of

speeches allegedly made by the appellant during the election campaign. The

Court dealt with the application and the objections vide its order dated

11th of October 1991. The learned trial judge allowing the application of

the election petitioner, observed :

23. "The petitioner has made a reference to these newspapers and this

Court also issued summons to the Editor to bring the newspapers maintained

in his office in accordance with the Indian Press Act and to give evidence

about those newspapers. Due to non-availability of those newspapers, the

petitioner has shown the excerpts of those newspapers which were in his

possession at the time of filing of this petition and those excerpts were

brought to the notice of the witness P.W.4, the Editor of those newspaper

and those portions were marked as petitioner's exhibits. The contention of

the petition or that these newspapers are produced at this stage due to

non-production by the editor of the said newspaper allowing of these

newspapers as documents relied by the petitioner at this stage is

justified. The question of proof contained in the newspaper is the subject

matter evidence and at this stage, such contingency does not require a

debate. Since PW4 has failed to produce these documents, the petitioner can

lead a secondary evidence under Section of the Indian Evidence Act, if law

provides such contingency.

24. What we are concerned at this stage is condoning the late production of

documents by the petitioner and appreciating the reason assigned for such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 24

late production as contemplate under Order 13 Rule 2 of the Code of Civil

Procedure. The Judgments of the Supreme Court averted by Sri Mohandas Hegde

are not relevant at this stage of the case. Since the petitioner has shown

sufficient cause for non-production of these documents, I.A. I is liable to

be allowed......"

29. In our opinion, the approach of the trial judge was not correct and it

seems that he was treating the trial of the election petition in a rather

casual manner, unmindful of the provisions of the Act and the Rules framed

thereunder as also the law laid down by this Court from time to time on the

relevant aspect.

30. The election petitioner filed the first list of witnesses on 21.9.1990.

At serial No3, the election petitioner summoned "Circle Inspector of Police

Gulbarga" :

l."to produce all the original documents pertaining to Muslim League

candidate permission granted to Sri Mahamad Ahmed, IUML, Gulbarga bearing

permission No.35-89, 54-89 and 70-89 and to give evidence in the matter.

2. to produce the oral complaint registered by the on 24.11.1989 at Roza

Police Station".

Again, at serial No.(i) in the further prayer in the same application, the

petitioner summoned Shri Prakash Kore Ex. C.I.T.B. Gnlbarga H.No.5-589,

Chote Roza, near Police Station, Gulbarga, "to produce the original tape

recorded speech of Sh. Qamarul Islam". It was in an additional list of

witnesses filed on 22.10.1990, that the election petitioner summoned, at

serial No.l, Mr. Azizullah, Editor, Publisher & Printer of Bahamani News'

with the documents mentioned against his name. At serial No.6 of the

additional list dated 22.10.1990, the petitioner also summoned "Basavaraj

Ingini C.P.I. Harnabad, Distt. Bidar to produce all the original documents

pertaining to Muslim League candidate - permission granted to public

meetings and loud-speaker permission throughout the election period and

produce the recorded speech of Sri Quamarut Islam in public meeting held at

various places and give the evidence". The learned trial judge allowed the

summoning of witnesses as contained in the lists dated 21.9.1990 and

22.10.1990 in a totally mechanical manner. The election petitioner was not

called upon to explain as to why the name of the editor Shri Azizullah did

not figure in the first list of witnesses or why a departure was made in

the second list by summoning Shri Basavaraj Ingini with the tape recorded

speech of the appellant, when he was not asked to produce any such tape

recorded speech in the first list where he had been summoned at serial no.3

and instead it was Mr. Kore, summoned at s.no. (i) in the further prayer in

the first list of witnesses who had been directed to produce the tape

recorded speech of the appellant. In an election petition the filing of the

list of witnesses, with a brief of the relevance of their evidence is not

only intended to put the opposite party on notice about the evidence sought

to be summoned but also to bind the party to the production of the relevant

evidence as detailed in the list. The list of witnesses has a lot of

sanctity and importance but in this case, no consideration appears to have

been given by the learned trial judge to this aspect and without examining

the two lists, orders came to be made to summon the witnesses in a

mechanical manner. The procedure adopted by the learned trial judge was not

the proper procedure to be followed while trying an election petition. The

list of witnesses are required to be carefully scrutinised before issuance

of summons. That apparently was not done in the present case.

31. The allegations of corrupt practice in the election petition, in our

opinion, are rather vague. The allegations as noticed in the earlier part

of this judgment, are not specific, precise ad clear. Both material facts

and particulars have not been supplied with sufficient clarity. The

original affidavit filed in support of the election petition and the

affidavit filed at the stage of arguments, with an attempt to bring it in

tune with the evidence led in the case, are also not clear and expose the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 24

shifting stand of the election petitioner. We have already commented upon

the manner in which the list of witnesses were filed and two different

witnesses in the different lists were asked to produce the same material

object i.e. the tape recorded speech of the appellant. It is, after

keeping, in view all these factors that we have to analyse the evidence led

in the case and appreciate the arguments raised at the bar. Indeed, the

returned candidate, appellant herein, also did not in the written statement

point out the defects in the pleadings or the lack of material facts and

material particulars at the earliest stage and both the parties went on to

trial despite these defective pleadings.

32. A Constitution Bench of this Court in Balwan Singh v. Lakshmi Narain,

A.I.R. (1960) S.C. 770, observed :

"......Insistence upon full particulars of corrupt practices is undoubtedly

of paramount importance in the trial of an election petition, but if the

parties go to trial despite the absence of full particulars of the corrupt

practice alleged, and evidence of the contesting parties is led on the plea

raised by the petition, the petition cannot thereafter be dismissed for

want of particulars, because the defect is one of procedure and not one of

jurisdiction of the Tribunal to adjudicate upon the plea in the absence of

particulars. The appellate court may be justified in setting aside the

judgment of the Tribunal if it is satisfied that by reason of the absence

of full particulars, material prejudice has resulted......"

33. Even if the application of the appellant, IA III, seeking dismissal of

the election petition may be held to have been rightly rejected on the

ground that after the parties had gone to trial, despite the absence of

full facts and particulars of the alleged corrupt practice and had led

evidence, an election petition is not liable to be thereafter dismissed for

those defects only but in such cases, the evidence that is required to

prove the allegations of corrupt practices in an election petition has to

be more strictly scrutinised, lest the evidence, which in a way travels

beyond the pleadings, is accepted without proper analysis.

34. Before we proceed to consider, whether any connection has been

established between the Muslim League and IUML or whether the returned

candidate can be fastened with the liability for the publication of the

advertisements and messages in the newspapers, allegedly got publish-ed by

the IUML or MYL, we consider it appropriate to deal with the proof of

allegations relating to the commission to various corrupt practice, as

alleged in the petition.

35. We shall first deal with the allegations with regard to the com-

mission of corrupt practice under Section 123(4) of the Act which are

contained in ground no. 10 of the petition and extracted in an earlier part

of this judgment. A careful perusal of the allegation shows that it is not

even asserted by the election petitioner, that the statement alleged to

have been made by the returned candidate on 1.11.1989 about the non-signing

of the passport forms was false to the knowledge of the returned candidate

or that he made it without believing that statement to be true. There was,

thus, no allegation whatsoever which satisfied the basic requirements of

Section 123(4) of the Act. It was not even alleged by the election

petitioner that the returned candidate made a statement of fact which was

false to his knowledge or which he did not believe to be true and in the

absence of any such averment in the election petition and the affidavit

filed in support thereof, the trial court should not even have framed an

issue relating to the said corrupt practice. Even in the evidence, it was

not deposed by the election petitioner that the statement allegedly made by

the returned candidate as contained in the said paragraph was false to the

knowledge of the returned candidate or/and was made by him without

believing it to be true. The learned trial judge, therefore, fell in error

in holding that the returned candidate was guilty of committing the corrupt

practice as envisaged by Section 123(4} of the Act and in fairness to

learned counsel for the election petitioner (Respondent-I) we must record

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 24

that he also did not support the finding of the High Court as regards the

commission of corrupt practice under Section 123(4) of the Act and we

accordingly set aside that finding. The evidence of Shri Subhash Chandra

Khutiya, PW2, who was the Deputy Commissioner of Gulbarga District on

27.10.1989 or of Shri Ramarao Patil, PW3, who took charge of the

Corporation Commissioner of Gulbarga on 6th of June 1988 and handed over

the said charge on 15.6.1990 and was the returning officer in the election

held during 1989 relates to other issues which have been found against the

election petitioner and with which we are strictly speaking not concerned,

as their correctness has not been assailed before us.

36. Coming now to the allegations regarding commission of corrupt practices

under Section 123(2)(3) and (3A) of the Act. Though reading of the full

text of the reports and messages/advertisements as published in Bahmani

Newspapers of different dates, which were produced at a rather late stage

during the trial, do give rise to an inference that they contain an appeal

on the ground of religion and have the tendency to promote or attempt to

promote feelings of enmity and hatred between different classes of citizens

of India on grounds of religion, community etc. for the fur-therance of

prospects of the election of the returned candidate or prejudicially

affecting the election of any other candidate and amount to a virulent type

of objectionable communal propaganda, not permitted by law and amounts to

the commission of corrupt practices as envisaged by Sections 123(2) (3) and

(3A) of the Act, but the basic question to which we have to first address

ourselves is whether the said publications have been proved by any

admissible evidence and if so whether they can be connected with the

returned candidate or can be said to have been issued by the returned

candidate or his election agent or by any other person with the consent of

the election agent or the returned candidate himself.

37. The allegations regarding the commission of these corrupt practices are

sought to be proved firstly by the production of copies of "Bahamani News",

to prove which the election petitioner examined Shrt Azizullah Sharmast

PW4, the editor and publisher of the Bahmani Newspaper.

38. We shall first advert to and deal with the reports relating to the

speeches allegedly made by the appellant and his election agent, at Roza

Market, Jalanabad and Muslim Chowk on different dates as alleged in the

petition. Admittedly, on his own showing, the said witness Shri Azizullah,

PW4 was not present at the time when the speeches were delivered by the

returned candidate at different meetings and the publications in the

newspaper were made on the basis of the reports sent by reporter. It is in

the evidence of PW4, Azizulla Sharmast, that the reports about the meet-

ings were sent to him by the reporter, Mr. Mohd. Feroz who had covered

those meetings. Mr. Feroz, however, was not examined by the election

petitioner as a witness. Mr. Azizullah, PW4, also did not produce the

original reports as sent to him by Mr, Feroz as according to the witness,

those reports were not preserved. No manuscript of the reports was

produced. Can the mere production of the copy of the newspaper be treated

as proof of the report of the speech (news item) contained therein? In our

opinion the answer has to be in the negative.

39. 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 newspaper report is well settled. Since, in

this case, 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, PW4 by itself cannot amount to proving the

contents of the newspaper reports. Newspaper, is at the best secondary

evidence of its contents and is not admissible in evidence without proper

proof of the contents under the Indian Evidence Act. The learned trial

judge could not treat the newspaper reports as duly 'proved' only by the

production of the copies of the newspaper. The election petitioner also

examined Abrar Razi, PW5, who was the polling agent of the election

petitioner and resident of the locality in support of the correctness of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 24

the reports including advertisements and messages as published in the said

newspaper. We have carefully perused his testimony and find that his

evidence also falls short of proving the contents of the reports of the

alleged speeches or the messages and the advertisements, which appeared in

different issues of the newspaper. Since, the maker of the report which

formed basis of the publications, did not appear in the court to depose

.about the facts as perceived by him, the facts contained in the published

reports were clearly inadmissible. No evidence was led by the election

petitioner to prove the contents of the messages and the advertisements as

the original manuscript of the advertisements or the messages was not

produced at the trial. No witness came forward to prove the receipt of the

manuscript of any of the advertisements or the messages or the publication

of the came in accordance with the manuscript. There is no satisfactory and

reliable evidence on the record to even establish that the same were

actually issued by IUML or MYL, ignoring for the time being, whether or not

the appellant had any connection with IUML or MYL or that the same were

published by him or with his consent by any other person or published by

his election agent or by any other person with the consent of his election

agent. The evidence of the election petitioner himself or of PW4 and PW5 to

prove the contents of the messages and advertisements in the newspaper in

our opinion was wrongly admitted and relied upon as evidence of the

contents of the statement contained therein.

40. This Court in Laxmi Raj Shetty v. State of Tamil Nadu, (1988] 3 S.C.C.

319 at 346, considered the question of admissibility of the news items

appearing in a press report in the Newspaper and opined :

"We cannot take judicial notice of the facts stated in a news item being in

the nature of hearsay secondary evidence, unless proved by evidence

aliunde. A report in a newspaper is only hearsay evidence. A newspaper is

not one of the documents referred to in Section 78(2) of the Evidence Act,

1872 which an allegation of fact can be proved. The presumption of

genuineness attached under Section 81 of the Evidence Act to a newspaper

report cannot be treated as proved of the facts reported therein. It is now

well settled that a statement of fact contained in a newspaper is nerely

hearsay and, therefore, inadmissible in evidence in the absence of the

maker of the statement appearing in court and deposing to have perceived

the fact reported."

In the present case, we find that no legally admissible evidence has been

led by the respondent-election petitioner, in proof of the facts contained

in the newspaper reports (news items), messages and advertisements. The

appellant, returned candidate, denied the making of the offending state-

ments. The various newspaper reports, ..advertisements and messages, as

published in Bahmani Newspaper cannot be treated as proof of the facts

stated therein and cannot be used against the appellant in the absence of

any evidence aliunde.

41, The election petitioner also sought to prove the allegations regarding

the making of speeches as alleged in the petition and reported in the

newspaper, at Roza Market and Jalanabad, by the appellant, by production of

a cassette, Ex.P7, allegedly recorded by FW1 Basavaraj Ingmi, Circle

Inspector of Police, containing the tape recording of the speeches of the

appellant, as detailed in para (xi) of the election petition (supra).

42. In the said paragraph, reference is made to the speech at Roza market

allegedly made by the appellant 8 days prior to the date of poll at about

9.30 p.m. The returned candidate denied to have made any such speech. PWI,

Basavaraj Ingmi, was working as the Circle Inspector of Police at Gulbarga-

City Police Station Gulbarga from 8.8.1988 to 28.5.1990. The cassette was

produced by him in the High Court on 12.11.1990 and kept in safe custody by

the court. In his deposition at the trial given on 13.11.1990 apart from

stating that he had given licence for use of loud-speakers etc. to various

candidates including the appellant, he deposed :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 24

".............In some places I have recorded the speech made by R-l in a

cassette. The places where the speech made by R- 1 was recorded in Roza

market and Jilanabad. I have recorded the speeches as routine of police

work. I have produced the cassette, where I recorded the speech in

obedience to the summons issued from this court

............................................I had the custody of this Tape

after recording the same. Nobody has any access to the Tape............."

43 The witness thereafter, went on Co say that the voice in the tape was

that of the appellant and added :

"I was keeping Ex P-7 in my personal safe custody. Ex P-7 was not used by

anybody as it was in my custody. (Witness volunteers that he has also not

made attempt to listen to the cassette) I do not have the transcript of the

speech recorded in Ex P-7.)

During the cross examination, the witness admitted :

"I did not inform anybody about the recording of speeches in this Election

Campaign. I have not informed the petitioner about informed the petitioner

about record-ing the speech made by R-l. I do not know how the petitioner

came to know about my possessing the cassette at Ex. P-7.1 have recorded

the speeches of various persons in this Election in 5 to 6 cassettes. After

recording I did not play these cassettes in my house. I have kept these

cassettes in a cupboard (Almirah owned by me).

I carried the cassettes along with me when I was transferred from Humnabad.

The Almirah I referred above had only one key. My wife had no access to the

said Almirah.

In Ex P-7 two pieces of speeches are recorded at Rozar and Jilanabad. It

was not contained full speech but a part of the speech of each place and

the Tape was completely used.

I recorded the speech from a distance of 100 yards from the place where the

Dias kept. I did not find any objectionable statements in the speech of R-l

according to me......."

44. Since, neither the general diary of the police station nor any other

material had been produced by the witness we found it necessary, after

perusing his evidence, to summon Shri Ingini, as a court witness alongwith

some record which we considered necessary to do justice between the

parties.

45. Appearing as a court witness in this court, Shri Basavaraj Ingini, PWI,

stated that he was maintaining the general diary of the circle (police)

station and that he also attended meetings conducted during the last

elections of various candidates since maintenance of law and order was a

part of his duty. He went on to add that on 15.11.1989, he attended the

meeting at about 8 a.m. at Jalanabad, addressed by the appellant while on

16.11.1989, he attended the meeting of the returned candidate held at Roza

market, where the appellant and some others addressed the meetings and that

he tape recorded the speech. of the appellant and other speakers. The

witness was then confronted with the general diary (which had been summoned

by us) dated 16.11.1989 and 17.11.1989 pertaining to the meet-ings held on

15.11.1989 and 16.11.1989 at Roza Market and Jalanabad and he admitted that

he did not make any entry in the general diary regarding the tape recording

of the speeches of the appellant and others on either of these dates. He

deposed that he had made the tape recordings under oral instructions given

to him by the Superintendent of Police, Gulbarga, but conceded that there

was no entry in the daily diary with regard to any such oral instructions

having been given to him. He went on to add that he had, after tape

recording the speeches, informed the Superintendent of Police orally that

he had tape recorded the speeches. When asked as to why he had kept the

tape recorded cassettes with him and not deposited the same in the police

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 24

station, since in his earlier deposition at the trial, he had deposed that

he had tape recorded the speeches as "routine police work", the witness

answered that since "they were not required for official purpose" he kept

the same with himself. He was then asked that if they were not required for

official purpose "why did you keep the recorded speech with you"? The

witness answered that "it was done casually". The following questions and

answers of the witness, as recorded in this Court, are of significance, to

appreciate the credibility of the ace evidence led by the election

petitioner regarding the cassette, Ex.P7.

"Question: Did you meet Mr. S.K. Kanta at any point of time after the

election?

Answer: Yes.

Question: When and in what connection?

Answer: Once or twice in law and order problem.

Question: After you were transferred from Gulbarga Police

Station...............

Answer: I did not meet Mr. Kanta after I was transferred from Gulbarga

constituency.

Question: Have you made any entry in your General Diary that you tape

recorded the speeches of candidates on the instructions of Superintendent

of Police and that you are having the tape recorded speeches in your

possession?

Answer: No.

Question: Did you inform Mr. Kanta that you had tape-recorded the speech of

Mr. Quamarul Islam and you are in possession of the recorded speech?

Asnwer: At no point of tune I informed Mr. Kanta that I am in possession of

the recorded speech.

Question: Did he ask you at any point of time that you are in possession of

his tape recorded speech?

Answer: No.

Question: When did you hand over the recorded speech to the Court and on

which date?

Answer: I do not remember; it may be 12th or 13th.

Question: Did you inform Mr. Kanta that you were in possession of the tape

recorded speech?

Answer: No."

46. The witness, when further questioned, stated that he was ap-pointed as

a direct recruit sub-inspector and was promoted to the rank of Inspector of

Police in 1981 and that he had known Mr. Kanta intimately for about 10-12

years prior to the said election as they hail from the same village. He

asserted that he had not informed Mr. Kanta at any point of time that he

had even attended the meeting of the appellant. The witness added that both

the tape recorded and the tapes (cassettes) were his personal property and

that "I have not informed anyone that I have recorded (the tape recorded)

speech of Quamarul Islam or that I was keeping the same with me". To a

specific questions by the Court:

"Therefore we take it that you have not informed anyone that you recorded

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 24

the tape recorded speech under the instructions of S.P.

Answer : Yes."

The witness was then asked by the Court:

"Question: Did you inform the Court when you were examined as a witness in

the election petition that you have not made any entry in your general

diary about the recording of the speech or that was on the oral

instructions of the S.P.".

"Answer: No. For the first time before the Supreme Court I am coming with

an explanation that the speech was recorded under the oral instructions of

Superintendent of Police because I was not asked earlier any such question

as to under whose instructions I tape recorded the speech".

The Court then asked him whether he had at the trial stated before the

trial court that he had recorded the speeches as a "routine police work?"

and he replied in the affirmative. He was then questioned :

"Question: Therefore this question was asked to why the (speeches) was

recorded?

Answer: Yes, I was asked.

Question: Even then you did not come forward with an explanation that you

tape-recorded the speech under the oral instructions of Superintendent of

Police.

Answer: No."

During his cross examination on behalf of the appellant by Mr. Sibal, the

witness admitted that when the Superintendent of Police gave him oral

instructions to record the speeches of candidate whether the S.P. had

enquired if the appellant was in need of a tape recorded for the purpose

and the witness replied in the affirmative. He was then asked :

"Question; Therefore you believed that the instructions were official

instructions?

Answer: Yes".

The witness was then asked whether he had made any entry about attend-ing

the meeting of the appellant at Roza Market in the daily diary and after

referring to the daily diary relating to 16.11.1989, written on 17.11.1989,

the witness admitted that "I have not mentioned Roza Market speech of

Quamarul Islam" in the daily diary report for the relevant date.

The witness when further questioned deposed that after his transfer from

Gulbarga police station, he had carried the tape recorded cassettes along

with the tape recorder with him and had kept the cassettes in the almirah

at his residence alongwith his other cassettes and contrary to what he had

stated before the trial judge, admitted that "my wife and children had

access to the almirah only in which the cassettes were kept but they were

to use only music cassettes".

47. We have carefully perused the relevant pleadings, the deposition of

Shri Ingini at the trial, the testimony of the election petitioner and the

deposition of Shri Ingini as a court witness. It appears rather strange to

us that on oral orders of the Superintendent of Police, Shri Basavaraj

Ingini, PW1, Circle Inspector should have used his own tape recorder and

tape recorded the speeches at various meetings of different candidates on

his personal cassettes and thereafter on his transfer from Gulbarga police

station taken all those cassettes with him and kept then in his own safe

custody in an almirah, though the same were not required for any "official

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 24

purpose". Sh. Ingini has been unable to explain either before the trial

judge or before us as to why he was 'preserving' all those cassettes and

for whose benefit. There are not only many loose ends in his evidence but

certain glairing features which cast serious doubts on the credibility of

this witness and the election petitioner regarding the recording of the

speeches of the appellant in cassette, Ex.P7, In his statement made at the

trial, Sh. Ingini categorically stated that the recorded tape were kept by

him in his "personal custody" and that nobody else including his wife had

any access to the same, but appearing as a court witness, he conceded that

his wife and children also had access to those cassettes but went on to add

that they were to listen only to the music cassettes. According to Shri

Ingini, he knew Shri Kanta, the election petitioner intimately for the past

more than 10/12 years, as they belong to the same village and that they had

been visiting each other. The election petitioner, appearing as PW6 at the

trial, however, categorically stated "/ do not know PWI Basavaraj Ingini at

all". According to Shri Ingini, he did not inform Shri Kanta or anyone

else, except the S.P. orally that he had tape-recorded the speeches and

that he did not inform anyone that he was having the recorded cassettes in

his possession and that after recording the cassette, he had not replayed

it even to hear it. The election petitioner - respondent No.l, at the trial

when questioned as to how he came to know about the tape-recorded cassette

which had been summoned by him from the witness, answered:

"......I do not know PWI Basavaraj Ingini. As per the information that

police will generally make Tape record-ing of the speeches, I came to know

the recording.

Question: Who gave the information regarding the Tape recording?

Answer: I came to know by general information.

I cannot say which person on which date and at what time informed me about

this tape recording. I was aware about the general information of recording

the speeches of Tape recording at the time of my filing of Election

Petition. I did not take any efforts to get at that cassette. I did not

make any mention in my Election Petition in respect of this tape recording.

It is not correct to suggest that even though I was aware of the existence

of a tape, I did not mention in my Petition" deliberately.

The election petitioner - respondent no.l then stated that "I did not hear

the said cassette completely before filing the petition" implying thereby

that he had 'partially1 heard the cassette before the same was played in

the High Court. From the evidence of Basavaraj Ingini, PWI, and the

election petitioner, we find that the story regarding the recording of the

cassette Ex.P7 by Shri Ingini is shrouded in mystery and the cassette.

Ex.P7 appears to be a piece of evidence on which reliance cannot be placed

since the very basis as to how it came to be recorded and why it was

preserved or how the election petitioner came to know about it, has not

been explained by the election petitioner and has been further confused by

Basavaraj Ingini, appearing as a court witness. The appellant has denied

his voice in the recorded cassette. In this connection, it is also

pertinent to remember that whereas in the list of witnesses initially filed

by the election petitioner, he had cited Mr. Kore as the witness from whom

the cassette containing the speech of the appellant was sought to be

produced even though in the same list the Circle Inspector of Gulbarga

police station (Sh. Ingini) had also been summoned alongwith the record but

not the tape recorded cassette. It was only in the second list of

witnesses, that the election petitioner sought the production of the

cassette from Shri Basavaraj Ingini, who he again cited as a witness

notwithstanding the fact that he had already summoned the said witness in

the first list of witnesses. Is it that Mr. Kore had refused to oblige the

election petitioner and therefore Mr. Ingini, who knew the election

petitioner intimately for 10-12 years and hailed from his village, was

thought of as a convenient witness to produce the recorded cassette? We are

only left to guess, because the election petitioner has not advanced any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 24

explanation for the meaningful departure between the two lists of

witnesses. Since, cassette Ex.P7 was only a piece of evidence, the non

mention of the same in the pleadings may not be of much consequence in so

far as the petition is concerned because evidence is not required to be

pleaded, but then it was an obligation on the part of the election

petitioner to explain as to how in the first list of witnesses, the

cassette which was summoned from Mr. Kore was later on summoned from Shri

Ingini and what made the election petitioner to think that the cassette had

been preserved and even taken away by Shri Ingini from Gulbarga, after his

transfer and retained in his safe custody at his new place of posting. No

explanation has been offered at all by the witnesses or their learned

counsel. According to Basavaraj Ingini, PW1, after he had recorded the

cassette, he did not play it at all till he appeared in the court as a

witness during the trial. He categorically asserted that nobody had heard

the cassette before the filing of the petition nor had he disclosed about

recording of the same to anyone, except orally to the Superintendent of

Police, yet, the election petitioner admitted during his cross examination

that he had heard the cassette before the filing of the petition but when

of the police, there is no mention of the appellant having delivered any

speech at Roza Market on the relevant date and it was admitted by Sh.

Ingini that the diary contained no entry of the relevant date evidencing

the holding of any meeting by the appellant at Roza Market. Thus, we find

that no reliable evidence has at all been led by the election petitioner to

prove the holding of the meeting at Roza Market, as alleged in the

petition, by the returned candidate or about the contents of the alleged

speech made by him. No witness of the locality was examined to substantiate

the charge levelled in the election petition. The evidence on the record is

not reliable or trustworthy to hold that the appellant delivered the

offending speech as alleged in Roza Market which may come within the

mischief of Sections 123(2), (3), (3A) of the Act or to hold the appellant

guilty of committing the alleged corrupt practices.

50. According to the election petitioner, the returned candidate also

delivered an offensive speech at Jalanabad, the substratum whereof has

already been extracted by us from the petition. In the election petition,

apart from specifically mentioning that a speech was made by the appellant

at Roza Market, there is no specific mention of any speech having been

delivered by the appellant at Jalanabad. The use of the expression at

"several places" besides Roza Market, in the petition where the meetings

were allegedly held appears to have been designedly made by the election

petitioner to lead evidence in respect of such other places for which

evidence could be subsequently procured. In the pleadings specific refer-

ence to the speech by the appellant was made only of Roza Market and not

either of Jalanabad or Muslim Chowk. The learned trial judge should not

have permitted any evidence to be led in respect of the meetings allegedly

held at Jalanabad or Muslim Chowk. A novel procedure appears to have been

adopted by the learned trial judge in over-ruling the objection raised on

behalf of the returned candidate during the cross examination in this

respect by holding that since the evidence was in accordance with the

issues", the objections had no merit. In the face of vague pleadings and

the absence of specific mention of Jalanabad as a place where the appellant

spoke at a meeting, the doubtful nature of cassette, Ex.P7, containing the

tape recorded speech allegedly delivered at Jalanabad and the absence of

any other evidence to support the plea, we hold that the election

petitioner has miserably failed to discharge the burden which lay on him to

prove that the returned candidate had committed the corrupt practice as

alleged in the petition of delivering the offending speech at Jallanabad or

at Roza Market. The averments of the election petitioner were so vague that

it left a wide scope to the election petitioner to adduce evidence in

respect of a meeting at any place, on any date, that he found convenient or

for which he could procure evidence later on. In view of the vague

pleadings and defective affidavits, the court would require much better

type of evidence, absolutely reliable in character, in proof of the alleged

meeting where offending speeches were delivered by the appellant, than the

evidence as has been produced by the election petitioner in this case.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 24

There is, no reliable, trustworthy or satisfactory evidence on the record

to hold that the appellant delivered the speeches as alleged by the

election petitioner either at Roza Market or at Jalanabad.

51. As already noticed, even if, it be assumed for the sake of argument

that some of the advertisements and messages published in the newspapers,

the contents whereof have not been proved for the reasons already given, do

bring home the charge of committing the corrupt practices as envisaged by

Sections 123(2), (3), (3A) of the Act, the election petitioner has failed

on facts, to connect the returned candidate with the commission of the

alleged corrupt practices either by himself or through his election agent

or by any other agent or person with his consent or with the consent of his

election agent through any admissible and reliable evidence. The learned

trial judge was, therefore, not justified to set aside the election of the

appellant on the basis of inadmissible and unreliable evidence. We are

unable to accept the reasoning or the conclusions reached by the High

Court.

52. We are conscious of the fact that there is an increase of electoral

malpractices of which making an appeal on the ground of religion or

attempting to create or promote feelings of enmity or hatred between

different classes of citizens of India on grounds of religion, caste, com-

munity etc. or of exercising undue influence, directly or indirectly with

the free exercise of the electoral rights of the citizens, are examples and

that the purity of election which is an essence of democracy is under a

threat of erosion on account of such malpractices and while acting within

the bounds of law, the courts owe a duty to the nation to see that such

objectionable assaults wounding the purity of elections during the election

propaganda are not allowed to go unpunished, but the courts can only act on

the evidence led in the case and not on what ought to have been led.

53. A Constitution Bench of this Court in Ziyauddin Burhanuddin Bukhari v.

Brijmohan Ramdass Mehra, [1975] Supp. S.C.R. 281, cautioned:

"......Our political history made it particularly necessary that the basis

of religion, race, caste, community, culture, creed and language which

could generate powerful emotions depriving people of their powers of

rational action should not be permitted to be exploited lest the imperative

conditions for preservation of democratic freedoms were disturbed. Section

123(2), and (3) and (3A) was enacted to eliminate from the electoral

process appeals to those divisive factors which arouse irrational passions

that run counter to the basic tenets of our Constitution. Due respect for

the religious beliefs and practices, race, creed culture and language of

other citizens is one of the basic postulates of our democratic

system......"

and we respectfully reiterate the caution.

54. The reading of the newspaper 'Bahamani News' as produced in this case

alongwith the advertisements and messages published therein on behalf of

IUML and MYL if established, by trustworthy and reliable evidence to have

been made by the returned candidate or by his election agent or by his

agent or any other person with the consent of the returned candidate or his

election agent, would have in all probabilities brought his case within the

net of the commission of the corrupt practices, as alleged in the petition,

but in this case the pleadings are so vague and the evidence so scanty,

unsatisfactory and unreliable, besides being partly inadmissible, that it

is not possible to connect the appellant, the returned candidate or his

election agent with any of the corrupt practices alleged in the petition.

We are constrained to observe that the High Court before invalidating the

election and upsetting the verdict of the electorate, in its zeal to

maintain purity of elections, ignored not only the defects in the pleadings

in the election petition but also failed to analyse the evidence in its

proper perspective and even relied upon such evidence as is not admissible

in law.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 24

55. The maintenance of purity of elections is indeed essential but the

court must be clear in its approach and appreciate that the proof of

commission of corrupt practices must be dear, cogent, specific and reliable

as the charge of a corrupt practice is almost like a criminal charge and

the one who brings forth that charge has the obligation to discharge the

onus of proof by leading reliable, trustworthy and satisfactory evidence.

The learned trial judge appears to have lost sight of the above salutary

principles of election law.

56. Though a number of judgments were cited at the bar, both on the

question of defective pleadings and the requirements of proving allegations

of making an appeal on the grounds of religion or exercising or attempting

to exercise undue influence on the free exercise of the electoral right by

the voters, we do not think it necessary to deal with any of those

judgments as we have, found on facts, that the election petitioner has

failed to prove the allegations made by him against the returned candidate.

May be, the appellant in this case did make appeals as alleged in the

petition, but his election cannot be set aside on mere probabilities but

only if the allegations of the corrupt practice, as alleged in the

petition, are satisfactorily proved by trustworthy, reliable and admissible

evidence, which in the instant case is found hopelessly wanting. Since, we

have decided this appeal on analysis of the evidence on facts, we have not

thought it necessary to deal with the submissions as regards the connection

of the appellant, if any, with IUML or MYL or whether cassette Ex.P7 could

be admitted in evidence.

57. Before parting with the judgment, we would also like to observe that

the procedure followed by the trial judge during the trial of the election

petition has left much to be desired. The provisions of the Act and the

rules framed thereunder as also the provisions of the Code of Civil

Procedure for production of documents and filing of the list of witnesses

etc. were not kept in view and the trial was conducted in a very causal

manner. We were informed during the course of the arguments, by learned

counsel for both sides that the High Court has not framed any Rule for

trial of the election petitions. We are surprised. If that be so, we

request the Chief Justice of the High Court to look into it and frame Rules

for proper trial of election petitions.

58. The result of our above discussion is that the judgment of the High

Court declaring the election of the appellant from Gulbarga Assembly

Constituency to be void cannot be sustained. This appeal, therefore,

succeeds and is allowed and as a consequence the election petition filed by

Respondent No.l in the High Court is dismissed. The appellant shall be

entitled to costs which are assessed at Rs.10,000 payable by the election

petitioner-Respondent No.l.