IN THE HIGH COURT OF GUJARAT AT AHMEDABAD ELECTION PETITION No. 2 of 2009 With ELECTION APPLICATION No. 4 of 2009 In ELECTION PETITION No. 2 of 2009 With ELECTION APPLICATION No. 5 of 2009 In ELECTION PETITION No. 2 of 2009 With ELECTION APPLICATION No. 2 of 2010 In ELECTION PETITION No. 2 of 2009 For Approval and Signature:
HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================== =============== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================== =============== SHANKARSINH LAXMANSINH VAGHELA - Petitioner(s) Versus PRABHATSINH PRATAPSINH CHAUHAN & 3 - Respondent(s) ========================================== =============== Appearance :
MRHARSHITSTOLIA for Petitioner(s) : 1, MR MILAN S BHATT for Respondent(s) : 1, MR CB UPADHYAY for Respondent(s) : 1, MR RJ GOSWAMI for Respondent(s) : 2, MR NP CHAUDHARY for Respondent(s) : 3, NOTICE SERVED BY DS for Respondent(s) : 4, ========================================== =============== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 12/10/2012 CAV JUDGMENT
1. The instant petition is filed by the petitioner u/s.80(A) and 81 r/w.Section 100 of the Representation of the People Act, 1951 ('the Act', for short). In the petition, the petitioner in parcagraph 8 has prayed as under:-
“8. Prayer:
The petitioner therefore humbly prays that this Hon'ble Court may be pleased to
(a) Declare that election of the respondent No.1, the returned candidate, Shri Prabhatsinh Pratapsinh Chauhan, as a Member of Parliament in 15th Lok Sabha from 18 Panchmahal Parliamentary Constituency is void.
(b) Further declare that the petitioner has been duly elected as a Member of Parliament in 15th Lok Sabha from 18 Panchmahal Parliamentary Constituency.
(c) Grant any other and further relief/s as may be deemed fit in the interest of justice.”
2. The brief facts leading to this petition are as under:- On completion of the tenure of 14th Lok Sabha, the Election Commission of India announced the general elections for constituting 15th Lok Sabha by issuing notification in official gazette on 2.4.2009 of 18 Panchamahal Parliamentary Constituency. The polling was scheduled to be held on 30.4.2009 and counting of votes was scheduled to take place on 16.5.2009. The petitioner was one of the contesting candidates and he had contested the election as a candidate sponsored by Indian National Congress (INC). The respondent No.1 is the returned candidate and he was contesting as BJP candidate on BJP symbol “lotus”. The respondent No.2 was contesting the election as a candidate sponsored by BSP, respondent No.3 was contesting the election as a candidate sponsored by Akhil Bhariya Manav Seva Dal and respondent No.4 was contesting the election as a candidate sponsored by Lok Janshakti Party. On 16.5.2009, the counting of votes for 18 Panchmahal Parliamentary Constituency took place wherein respondent No.1 was declared as returned candidate (elected) and he secured 282058 votes. The petitioner secured 279989 votes. The respondent No.2 secured 10637 votes, the respondent No.3 secured 10328 votes and the respondent No.4 secured 23615 votes. Thus, the difference of number of votes secured by the petitioner and the returned candidate, the respondent No.1 is 2069 votes. It has been pleaded in the petition that the election of the respondent No.1 is vitiated on three counts, namely, (1) improper acceptance of his nomination, (2) corrupt practice of appeal made by respondent No.1 to vote for him on the ground of his religion, race, caste and community and (3) corrupt practice of booth capturing and casting bogus vote as if genuine votes have voted at various booths by the agents of the returnedcandidate with consent of returned candidate.
3. It is pertinent to note that during the pendency of this petition, the petitioner did not press ground No.1, namely, improper acceptance of the nomination of the returned candidate and ground No.3 regarding corrupt practice of booth capturing and casting bogus votes etc. The petitioner, therefore, confined his election petition qua the ground No.2 regarding corrupt practice of appeal made by the returned candidate – respondent No.1 to vote for him on the ground of his religion, race, caste and community. In above view of the matter, the ground No.2 pleaded in paragraph 4 in the petition, is only required to be considered.
4. As per the case of the petitioner, on 6.4.2009, the respondent No.1 while addressing public meeting at Village Naada and Sureli between 12.30 and 16.30 hours, in order to refrain the members of Baxipanch from voting in favour of the petitioner, had stated for himself that “the present election is not being fought by Prabhatsinh but by Baxipanch community”. It is pleaded that he further stated that “if I lose the election, it is the Baxipanch who will be losing”.
4.1. On 12.4.2009, the respondent No.1 while addressing a public meeting at Sanpa and Chanchopa addressed a public meeting in the manner prejudicing the voters religiously by stating that “pardon me. We are Hinduvadi. Save Hinduism. To save Hindu sanskruti-Bhajap. Bhajap is Hindu and Congress is Muslim. This is the correct fact that I am telling that is required to be kept in mind. Today a decision is required to be taken by you as to whether Bhajap, i.e. Hindu or Muslim means Congress. We are born from the Baxipanch community and therefore voting is to be done in favour of community brother.”
4.2. On 20.4.2009, the respondent No.1 during his campaigning for Sansoli, Ambala, Mokan, Kanod, Bhadroli in Kalol – 20 while addressing a public meeting had appealed the public to vote for him stating that “this is a war between Hindu and Muslim. There are about 25000 votes in the area. I am having many friends. Therefore no votes from the Muslims are required. The present vote box shall not be damaged. When Shankarsinh arranged meeting with Muslims, he had served meat of cow.”
4.3. On 23.4.2009, in the public meeting held in Villages Godali, Khadod and Vadkundali, respondent No.1 used such aggressive sentence in order to create religious hatred in the mind of Hindus by saying “because of non-voting of Hindus, Hindu brother usually loses election. “He has further stated that if he gets elected then all the government officers will be scared of him and will work immediately for his people.” He further stated that “in order to get the work done, the government officers are required to be kept under my control”. On the same day, even at meeting held for Villages Jorapura and Richvani Bor, in order to get the voting of Baraiya community in this favour and prejudice the election of the petitioner, the returned candidate respondent No.1 has stated that “we all are of Baraiya community. If a survey of area is carried out of Kalol-Godhra city, Lunavada, Khanpur, Kadana, Modva, Hadap, Santrampur and on the other side of Dahod, Balasinor, Virpur, Thasra, Kapadvanj, Kathlal are 15 talukas in which there are 1422000 voters. After doing survey it is found that Baxipanch community is having 750000 voters. Tribes, Baxipanch, Patel, our SC, ST, all these are added, we are 1200000 voters. We are 1200000 and those Bapu are considered super Kshatriya in these 15 talukas. They are 7000 in number. This one of the 7000 is willing to rule us. Shall it be permitted? Our farmer has never been elected from this seat. If someone is elected they are Pilu Modi, who came from Mumbai, Hitendra Desai, who came from Surat, King of Baraiya, who came at our place and won. Baniya Maneklal Gandhi also won from our place. Kantilal Patel won and for two consecutive time Bhupendrasinh Solanki and now Shankarsinh Vaghela. Who is our leader? Our community is of 1200000 and no farmer from our community ever won.”
4.4. The Election Commission of India issued instruction dated 15.2.1996 being No.447/96/PLN-IV for videography to record critical events including meeting, booth capturing, intimidation of voters etc. of the nominated candidates. Upon such instruction, a videography has been done by the returning officer of all the public meetings of the returned candidate. The petitioner made an application for having all the CDs of the video recording done for the meeting of the returned candidate by the returning officer. However, the petitioner was not provided with the CDs. The petitioner was, therefore, required to approach the Chief Election Commissioner of India by way of representation dated 9.6.2009. The Election Commission of India, vide order dated 15.6.2009 directed to the Chief Electoral Officer, Gujarat, to provide all the CDs available on payment and in case the CDs are not available, the returning officer should give a certificate to that effect. It is only after the order from the Election Commission of India, the returning officer supplied around 200 CDs out of total 1000 CDs on receipt of the payment. The petitioner after carefully going through each CD, found the appeals of the returned candidate on the ground of religion, race, caste and community.
4.5. It is further pleaded in the petition that the petitioner states that the result of the election insofar as it concerns, a returned candidate has been materially affected by corrupt practice by the appeal of returned candidate, respondent No.1 herein, to vote for him on the ground of religion, race, caste and community and not to vote for the petitioner on the ground of religion, race, caste and community.
4.6. It is further pleaded in the petition that the returned candidate was declared elected on 16.5.2009 and, therefore, the present petition has been filed within time prescribed period u/s.81 of the Act.
5. Again for the sake of clarification, it is hereby stated that during the pendency of this petition, the petitioner did not press above-referred two grounds, but only pressed ground No.2 regarding corrupt practice of appeal made by respondent No.1 to vote for him on the ground of his religion, race, caste and community and, therefore, the relevant pleadings qua said ground is highlighted above.
6. The returned candidate, namely, the respondent No.1 resisted the petition by filing written statement in this matter inter-alia denying the averments made by the petitioner in the petition submitted that in the election in question, the respondent No.1 was declared as returned candidate. It has been contended by respondent No.1 in his written statement that in the Act itself, the entire procedure is prescribed for filing the election petition and for presentation of the election petition. It is submitted that the petitioner has not followed the correct procedure envisaged as per Sections 83, 84, 86 and as per Section 123 etc. of the Act. It is stated that as per Section 83 of the Act, the petitioner must supply true and correct copies of the petition to the respondent. The respondent No.1 has produced a copy of the petition and a copy of injunction application, which were supplied by the petitioner to the respondents with separate list and it is submitted that the respondents have not been supplied with the true copy of the petition because the copy is not signed by the petitioner and the verification is also not signed by the petitioner. Thus, there are breaches of provisions contained u/ss.83 and 86 of the Act. It is further contended that this respondent had filed Election Application No.4 of 2009 under Order 7 Rule 11 of the CPC r/w. certain provisions of the Act. The said application was dismissed by this Court on 13.8.2009. During pendency of the hearing of said application, the petitioner filed another petition signed by the petitioner on 27.6.2009, which is served to only the respondent No.1's advocate on 22.1.2010. The respondent, therefore, submitted that the contentions, which were taken by this respondent in the Election Application being No.4 of 2009 may be treated as reply of the main petition of the petitioner.
6.1. In the written statement, it was contended that the verification of the petition is totally vague and is not as per Section 83(C) of the Act. That the petitioner has not given a concise statement of the material fact on which the petitioner was relying and the concise statement of the material facts is also not stated in the verification. It was contended that the petition was barred by the law of limitation. In paragraph 8 in the written statement, it has been stated that by filing purshis, Exh.34 in the main petition, the petitioner has declared that the petitioner was not pressing two grounds, namely, improper acceptance of his nomination and of corrupt practice of booth capturing and casting bogus votes. As per said purshis, Exh.34, the petitioner pressed his petition only qua ground No.2 regarding corrupt practice of the appeal made by the respondent No.1 to vote for him on the ground of religious, race, caste and community, the written statement was filed only confining said ground. It is further contended in the written statement that the affidavit filed by the petitioner along with his petition is not in proper form as per provisions of the Act and as per the CPC. Regarding the speeches, in paragraph 10, in the written statement, it has been contended that the contents stated in paragraph 4 of the petition are not true and were denied. It was not admitted that on 6.4.2009, 12.4.2009, 20.4.2009 and 23.4.2009, the respondent No.1 has given speeches on the basis of religion, caste and community as stated by the petitioner in paragraphs No.4.1 to 4.4 in the petition. It was submitted that the contents of the CDs, which were produced before this Court by the petitioner are not admitted and the petitioner should be put to strict proof thereof. In paragraph 12 in the written statement, the respondent No.4 contended that the petitioner has not stated anywhere in the petition that how his election was materially affected because of the so-called alleged speeches stated by the petitioner in paragraph 4 in the petition. That the CDs, which were produced before this Court are not true copies. In paragraph 15 in the written statement, it was contended that it was not true that the result of the election of the returned candidate has been materially affected by the corrupt practice by the appeal of the respondent to vote for him on the ground of religion, race, caste and community and not to vote for the petitioner on the ground of religion, race, caste and community. Ultimately, it was submitted that the petition may be dismissed with costs.
7. The respondents No.2,3 and 4 did not file any written statement.
8. Vide order dated 13.4.2011, this Court framed 7 issues, which are as under:-
“:ISSUES:
(1) Whether the petitioner proves that respondent No.1, at a public meeting on 06.04.2009, stated that the election is being fought not by respondent No.1 but by BAXI Panch community, as alleged?
(2) Whether the petitioner proves that respondent No.1, at public meetings on 12.04.2009 and 20.03.2009, made appeals to vote on the ground of religion/ community/ caste, as alleged?
(3) Whether the petitioner proves that respondent No.1, at public meetings held at various places on 23.04.2009, used language to make appeals on grounds of religion/ community/ caste and to create religious hatred, as alleged?
(4) Whether the petitioner proves that the result of the election, insofar as the petitioner is concerned, has been materially affected by the appeals made by respondent No.1 at various public meetings to vote for respondent No.1 on the grounds of religion/ community/ caste and not to vote for the petitioner on the grounds of religion/ community/ caste?
(5) Whether the petition is barred by limitation?
(6) Whether the petition is not maintainable in the present form?
(7) Whether the petitioner is entitled to the reliefs claimed?”
9. So far as the oral evidence is concerned, the petitioner filed his affidavit for his examination-in- chief at Exh.61 and he was further examined-in-chief by senior counsel Mr.SV Raju and was cross-examined by learned advocate Mr.MS Bhatt for respondent No.1. No witness was examined by the petitioner. The respondent No.1 was not examined in this matter nor other respondents stepped into the witness box. The relevant documentary evidence came to be produced along with the video cassettes and relevant CDs. It is further pertinent to note that during the pendency of this petition, on behalf of the petitioner, at Exh.25(A), an application for interrogatories under Order 11 Rule 4 of the CPC came to be filed. Same was first replied by the respondent No.1 at Exh.29 and, thereafter, vide reply, Exh.35. The application filed by the petitioner regarding the interrogatories and the two replies filed by respondent No.1 shall be discussed in this judgment at appropriate time.
10. Mr.HS Tolia, learned advocate for the petitioner, at the outset, submitted that considering the oral and documentary evidence adduced by the petitioner and considering the fact that the respondent No.1 did not step into the witness box and was not examined in this matter and considering the admissions made by the respondent No.1, the petitioner has proved above-referred issues No.1 to 4 beyond any doubt. Mr.Tolia, learned advocate submitted that five different speeches, admittedly made by the respondent No.1 at different places, the hard copies in Gujarati translation, which came to be produced at Exhs.43,45,47,49 and 51 (English versions at Exhs.44,46,48,50 and 52) clearly attract the ingredients of Section 123(3) and Section 123(3A) of the Act. It is submitted that the Gujarati version as well as the English version of the five disputed speeches produced on record, in no uncertain terms proves the case of the petitioner on merits. It is submitted that in the instant matter, the petitioner filed an application at Exh.25(A) under Order 11 Rule 4 of the CPC and along with the relevant extracts of the speeches, 53 questions were formed for appropriate interrogatories and my attention was drawn to the replies filed by the respondent No.1 at Exhs.29 and 35 to the interrogatories and it is submitted that the respondent No.1 clearly admitted the fact that it was he, who made the speeches and clearly admittedly the contents of the speeches. Mr.Tolia, learned advocate, therefore, submitted that on the basis of such clear admissions on oath, by the respondent No.1 in the replies, Exhs.29 and 35, on merits, nothing more is now required to be seen. Mr.Tolia submitted that the petitioner did not rest here, but stepped into the witness box to adduce his oral evidence and even through his oral evidence, apart from the above-mentioned admissions made by the respondent No.1, proved his case.
10.1. During the course of arguments, Mr.Tolia, learned advocate read-over the relevant part of the five disputed speeches and submitted that all the required ingredients of Sections 123(3) and 123(3A) of the Act have been duly complied with and proved. About these speeches, Mr.Tolia drew my attention to two purshises, annexed at pages 239 and 240 of the paper-book and submitted that on the basis of such purshis filed by respondent No.1, the Gujarati version as well as the English version of the five speeches came to be taken on record and were exhibited.
10.2. Mr.Tolia, learned advocate for the petitioner asserted that facing such clear admission on the part of the respondent No.1 himself regarding the delivery of speeches by him, so also the contents of the speeches, the respondent No.1 with an ulterior motive, adopted the shortcut by filing Election Application No.8 of 2009 under Order 7 Rule 11 of the CPC alleging that the petition did not disclosed the cause of action and may be dismissed. Mr.Tolia drew my attention to the order dated 11.8.2010 passed in aforementioned E.A.No.8 of 2009 filed in this petition and more particularly drew my attention to paragraph 35 in said order and submitted that as many as 17 different technical objections were raised citing Sections 81,83,84,86 etc. of the Act and Rule 94(A) of the Conduct of Election Rules, 1961. It is submitted that this Court, at length, took into consideration the technical defence raised by the respondent No.1 and, ultimately, in paragraph 42 in said order, this Court observed that the objections raised by the respondent No.1 were only cosmetic in nature. This Court also took into consideration the fact that during the pendency of said application, under Order 7 Rule 11 of the CPC, the defects pointed out by the respondent No.1, came to be cured by the petitioner by serving relevant copies of affidavit etc. to the respondent No.1 and thereby cured the defects. Mr.Tolia, learned advocate submitted tha in the result, E.A.No.8 of 2009 filed by the respondent No.1 under Order 7 Rule 11 of the CPC came to be dismissed by this Court. The respondent No.1 challenged the said order before the Hon'ble Apex Court by filing Special Leave to Appeal (Civil) No.26613 of 2010 and Hon'ble the Apex Court by an order dated 9.11.2010 dismissed said SLP. Mr.Tolia, learned advocate for the petitioner, therefore, submitted that the order passed by this Court in E.A.No.8 of 2009 dated 11.8.2010 attained finality and, therefore, now again the respondent No.1 cannot be heard to say that the petition filed by the petitioner is technically defective in nature. Mr.Tolia submitted that even in the pending matter, the concept of res judicata squarely applies and over and above that even legally, the respondent No.1 is estopped from raising the same plea. Mr.Tolia, learned advocate for the petitioner submitted that even if this Court comes to the conclusion that the technical defence raised by the respondent No.1 should be again considered, then alternatively, Mr.Tolia submitted that the objections raised by the respondent No.1 regarding the alleged defective verification, alleged defect in affidavit, alleged defects that the true copies of the petition and the annexures signed by the petitioner were not served upon the respondent No.1, the alleged defence that there is no separate paragraph regarding the cause of action in the petition, the alleged defence that the petitioner has not disclosed the source of information etc. are not such, which go to the root of the matter and results into dismissal of the petition. Mr.Tolia submitted that despite this, the petitioner, to avoid any controversy, filed his affidavit as well as copy of corrected version of the petition and the annexures signed by him and served upon the respondent No.1. Therefore, it is submitted that even if this Court comes to the conclusion that though the technical objections raised by the respondent No.1 are not such, which go to the root of the matter, but atleast should be cured, then, appropriate steps have already been taken by the petitioner to cure such alleged defects. Mr.Tolia, learned advocate relied upon certain decisions on this count, which shall be discussed in this judgment at appropriate time. Mr.Tolia, learned advocate for the petitioner further submitted that though the respondent No.1 in clear terms admitted the fact that it was he himself, who delivered the offending speeches and also admitted the entire contents of the speeches, yet, the petitioner stepped into the witness box and his evidence was recorded. He was cross-examined on behalf of respondent No.1 and nothing emerges in his cross-examination, which may help the respondent No.1. The petitioner produced through the concerned officer of the Election Commission relevant video cassettes and CDs in this matter. The petitioner also produced and proved relevant documentary evidence, including the receipts showing that he had applied for those video cassettes and CDs to the Election Commission and pursuant to that, said material was supplied to him on payment basis and came to be produced in this matter. Mr.Tolia, learned advocate, therefore, submitted that by oral and documentary evidence, even on merits, the petitioner proved his case. As against that, the respondent No.1 did not step into the witness box at all nor he examined any witness. It is submitted that thus, the oral and documentary evidence adduced by the petitioner go unchallenged and unrebutted.
10.3. Mr.Tolia, learned advocate for the petitioner submitted that basically the petition is u/s.100 of the Act and considering Section 100(1)(b) of the Act, the petitioner is required to prove the corrupt practice committed by the respondent No.1 during the process of election. It is submitted that there is also no dispute that the petitioner is required to prove its case in such matter with utmost care and caution and the usual standard of proof to prove civil dispute on the basis of preponderance of probabilities may not apply, but in the instant case, in above view of the matter, not only the petitioner based his case upon the clear admission made by the respondent No.1, but independently also, by adducing foolproof evidence. Mr.Tolia submitted that considering the relevant provisions of Section 100 of the Act, the petitioner has only to prove his case regarding the corrupt practice adopted by the returned candidate and it is not necessary for him to prove that the result of the election qua the returned candidate was adversely affected because of the corrupt practice adopted by him, which ultimately resulted into defeat of the petitioner with a small margin of 2069 votes. Alternatively, Mr.Tolia submitted that even if considering Sections 123(3) and 123(3A) of the Act, if this Hon'ble Court comes to the conclusion that it is for the petitioner to prove that the corrupt practice adopted by the respondent No.1 was in furtherance of his election prospect or to prejudicially affect the election of the petitioner, then also, the petitioner successfully discharged said burden.
10.4. Mr.Tolia, learned advocate for the petitioner asserted that considering the objectionable speeches delivered by the respondent No.1, it can clearly be stated that he made direct appeal to the persons gathered in the meeting to vote for him on the ground of his caste and community and appealed to the gathering to refrain from voting for the petitioner on the ground of his religion, caste, race and community. He, therefore, submitted that the two types of appeals, commonly known as positive appeal and negative appeal were made by the respondent No.1. It is submitted that on behalf of the respondent No.1, during the course of cross-examination of the petitioner, it was tried to be agitated that the petitioner has not stated his religion as well as the caste and religion of the respondent No.1 in the petition, but as a matter of fact, in the petition, the same has been stated. Even such objections raised by the respondent No.1 was considered to be a cosmetic objection by this Court in the order under Order 7 Rule 11 of the CPC. He submitted that considering the narrow margin in the votes secured by the petitioner and the votes secured by the respondent No.1, it can safely be said that on account of the objectionable speeches made by the respondent No.1, he secured the victory. It has come in evidence that at the time of the public meetings, large number of persons had gathered and for that. There is no dispute on the side of the respondent No.1. Mr.Tolia submitted that the respondent No.1 failed to satisfy that on account of any so-called defects, his defence was prejudiced. In other words, it is submitted that respondent No.1 failed to establish any major defects, though as a matter of fact, the alleged cosmetic defects are already cured.
10.5. Mr.Tolia, learned advocate for the petitioner asserted that only because out of the three grounds raised in the petition to challenge the election of respondent No.1, two grounds were given up, it does not mean that it reflects casual approach of the petitioner. He submitted that as a matter of fact considering Section 100 of the Act, the election petition can be filed on any one of the grounds.
10.6. Mr.Tolia, learned advocate heavily relied upon Section 58 of the Evidence Act and submitted that the petitioner is not supposed to prove that fact, which has been clearly admitted by his opponent. It is submitted that in the instant matter, when in the replies to the interrogatories, the respondent No.1 not only admitted the fact that it was he who himself delivered the objectionable five speeches and also admitted their contents, then Sec.58 of the Evidence Act come into play and the petitioner is not supposed to prove the facts, which are admitted. Mr.Tolia, learned advocate further submitted that it is true that the petitioner did not file any application for amendment of the petition, but in the order dated 11.8.2010 passed by this Court in application under Order 7 Rule 11 of the CPC, this Court clearly observed that the petitioner had subsequently served the copy to the respondent No.1, curing the defects pointed out by the petitioner. In above view of the matter, it was not necessary for the petitioner to file any application for amendment. He submitted that by not amending the petition, it cannot be said that the defence of the respondent No.1 is adversely affected, as on the contrary, in the replies to the interrogatories, he admitted the speeches. Certain typographical error like date being 20.4.2009 or 20.3.2009 in the date of one of the speeches mentioned in the petition, pales into insignificance in view of the clear admission on the part of the respondent No.1 about his speeches. Mr.Tolia submitted that though the respondent No.1 filed his candidature on 8.4.2009 and, therefore, he was officially declared as one of the candidates on 8.4.2009, but considering the two speeches, which are prior to that time i.e. one on 20.3.2009 and another on 6.4.2009, in both the speeches, he claimed that he was duly nominated and, therefore, considering Section 79(b) of the Act, both the speeches, even prior to his official nomination can be considered. Mr.Tolia submitted that it cannot be understood that if any illegal act has been done by the candidate prior to his filing of nomination, which is not within the legal discharge of duty, he would not be responsible for corrupt practice. Mr.Tolia submitted that now at the fag end of the trial, any interpretation of speeches suggested by the respondent No.1 may not be considered, as the respondent No.1 not only admitted the delivery of his speeches by him, but even the contents of the speeches. Mr.Tolia, learned advocate submitted that it is true that in the petition, some of the parts of the objectionable speeches are referred in paragraphs 4.1 to 4.4, but they are only examples and once the entire speeches are admitted, this Hon'ble Court should consider the whole speeches.
10.7. Mr.Tolia, learned advocate for the petitioner, therefore, submitted that the petition may be allowed as prayed.
11. Heard Mr.Milan Bhatt, learned advocate for the respondent No.1 and he had concluded major part of his argument, but, thereafter, Mr.CB Upadhyay, learned advocate appeared and stated that the respondent No.1 has engaged him in this matter and, therefore, the remaining argument on behalf of respondent No.1 came to be concluded by Mr.CB Upadhyay, learned advocate for the respondent No.1. On behalf of respondent No.1, at the outset, it was submitted that the bare perusal of the petition itself as well as the subsequent conduct of the petitioner to not to press two grounds out of the three grounds alleged in the petition, clearly reveals the casual approach of the petitioner for his petition. It has been submitted that the petition itself was defective in light of the relevant provisions contained in the Act, namely, Sections 81, 83, 86 etc. and there is no dispute that the respondent No.1 filed E.A.No.8 of 2009 in this petition under Order 7 Rule 11 of the CPC and clearly pointed out as many as 17 defects in the petition, including the verification affidavit etc. and despite the fact that at the time of dismissing said application filed by the respondent No.1, this Court granted time to the petitioner to cure certain material defects, yet, those defects still continue. It is submitted that there is no dispute that the respondent No.1 challenged the order of this Court before Hon'ble the Apex Court and his appeal came to be dismissed, but despite that in the order dated 11.8.2010, this Court granted time of two weeks to remove the defects pointed out by respondent No.1, no steps were taken by the petitioner to comply with said direction. It is submitted that any defect or any error in plaint or petition can be cured under the provisions of the CPC either by filing appropriate application for amendment or by filing fresh plaint or petition after obtaining appropriate order to that effect of the competent Court. It is submitted that except this, there is no other mode to cure the defect in the pleadings. It is submitted that during pendency of said E.A. No.8 of 2009 and without obtaining any order to that effect of this Hon'ble Court, the move of the petitioner to file affidavit and to file copy of fresh petition with certain annexures can never be encouraged and the said cannot be considered, as the defects pointed out cannot be said to have been legally cured. It is submitted that in the original petition, all those defects still continue, namely, defective verification, other mistakes pointed out by the respondent No.1 in the petition, defective affidavit, non-disclosure of cause of action in the petition etc.
11.1. On behalf of the respondent No.1 it was contended that neither in the petition nor in the evidence adduced by the petitioner, any reference was made about the caste and religion of either the petitioner or the respondent No.1. It is submitted that considering the petition as well as the questions framed by the petitioner in the interrogatories, Exh.25(A), the only grievance of the petitioner is that since the respondent No.1 belongs to Baxipanch, he appealed to the voters to cast their votes as he belongs to Baxipanch. It has been submitted that as a matter of fact, Baxipanch/OBC is not a religion, race, caste or community. It is submitted that in Baxipanch/OBC, all the castes or communities, the members of which are living below the poverty line or otherwise backward are included. Therefore, it cannot be said that the respondent No.1 made appeal for all those castes included in Baxipanch/OBC.
11.2. On behalf of the respondent No.1, it was submitted that in the petition, from paragraphs 4.1 to 4.4, only the part of the speeches, which allegedly found objectionable to the petitioner has been pleaded and even the respondent No.1 filed written statement on the basis of the pleadings made in petition in paragraphs 4.1 to 4.4 and, therefore, the petitioner now cannot be heard to say that the entire five speeches are objectionable. It is submitted that, it would prejudice the defence of the respondent No.1 raised in the written statement. However, it has been submitted that if at all the petitioner felt that the entire five speeches were objectionable, then the petitioner could have amended the petition accordingly and in that case, the respondent No.1 could have filed the additional written statement. It has been submitted that the petitioner only relies upon his application for interrogatories filed Under Order 11 and Rule 4 of the CPC, Exh.25(A), as well as the two replies to the interrogatories filed by respondent No.1 at Exhs.29 and 35. It has been submitted that being the responsible elected member of the constituency, the respondent No.1 did not raise any common defence of denial, but since not only relevant part of his speeches mentioned in paragraphs 4.1 to 4.4, but his entire speeches do not fall within the mischief of Section 123(3) or Section 123 (3A) of the Act, he honestly stated that he delivered those speeches. His good gesture came to be construed as his admission to the whole petition itself. It has been submitted that in the replies, Exhs.29 or 35, it has been specifically stated on oath by the respondent No.1 that in his speeches he did not appeal to the voters to vote for him on the ground of his belonging to Baxipanch. It is, therefore, submitted that the replies filed by the respondent No.1 should be construed in the above line.
11.3. It has been asserted on behalf of the respondent No.1 that the interrogatories under Order 7 Rule 11 of the CPC cannot take place of pleadings. The purpose behind the interrogatories is to some extent, curtail the scope of evidence to be led in particular matter. If any particular fact is admitted, the party, who filed such interrogatories may not be required to lead evidence, but to the part, which is not admitted, the evidence shall have to be adduced. In the instant matter, in the replies, the respondent No.1 outright stated that he did not appeal to vote for him on the ground of Baxipanch and for that purpose, heavy onus lies upon the petitioner to prove it, but the petitioner failed to establish this aspect of the matter.
11.4. It is stated on behalf of the respondent No.1 that considering paragraph 40 in the order dated 11.8.2010, passed in EA No.8 of 2009, this Hon'ble Court specifically observed that this Court at this stage of deciding of preliminary objection cannot reject the petition holding that it did not state material facts and, thus, did not disclose the cause of action. That would mean to appreciating the evidence and entering into the merits of the case, which would be permissible only at the stage of trial of the election petition and not at the stage of considering whether the election petition was maintainable or not and should be dismissed in limine or at the threshold or not. It is, therefore, submitted that considering the aforementioned order dated 11.8.2010 passed by this Court in the application filed by respondent No.1 under Order 7 Rule 11 of the CPC, it cannot be said that the principle of res judicata now applies or that the respondent No.1 is now estopped from setting up his defence. It is submitted that even the aforementioned order has not been duly complied with by the petitioner, though time of two week was granted to him. It has been further submitted that the provisions contained u/s.100(1)(b), in the instant matter, shall have to be read with the provisions contained u/s.123(3) and Section 123(3A) of the Act and one of the essential ingredients is that the petitioner shall prove that the appeal made by the respondent No.1 was in furtherance of his election prospect or to prejudicially and adversely affect the election of the petitioner. It is submitted that on this line, neither there is any specific pleadings in the petition nor there is specific evidence in the deposition of the petitioner. The petitioner in the deposition stated that because of alleged appeal made by the respondent No.1 to vote for him on account of he being member of Baxipanch, he sustained loss of 10000 votes. It is submitted that this fact is not pleaded in the petition nor it can be said to have been duly established. Thus, the effect of the alleged appeal, as contemplated u/s.123(3) and 123(3A) has not at all been proved.
11.5. On behalf of the respondent No.1 it has been strenuously urged that in the entire petition, the petitioner is totally silent about the source of his information. It is submitted that according to the petitioner, since he obtained copies of video cassettes and CDs, 200 in numbers, and after watching those CDs, he came to know about the so- called objectionable speeches, but in fact considering the deposition of the petitioner, and more particularly paragraph 5 in the examination-in-chief, the petitioner deposed on oath that he came to know that respondent No.1 had made an appeal on the ground of religion, race, caste and community and, therefore, he made an application to Election Commission of India and in pursuance there to, he was supplied 200 CDs on the payment of necessary fees. It is submitted that, therefore, the source of information can never be the delivery of CDs and watching of the CDs, but as per his own admission, the petitioner came to know about such speeches and, thereafter, applied for the CDs. It is, therefore, submitted that the petitioner has neither in his petition nor in his evidence stated as to from whom he received such information and the name of that person. It is further submitted that neither in the petition nor in the evidence, the petitioner gave the names of the persons, who were present in the public meetings or atleast approximate number of the persons present in those meetings. It has been submitted that about the alleged speeches, which, according to the petitioner falls within the purview of Section 123(3A) of the Act, then it amounts to offence, as creating hatred in two communities is an offence and for that no FIR came to be lodged. It has been further submitted that since the material defects still continue, the entire evidence adduced by the petitioner shall have to be appreciated in that background. On behalf of the respondent No.1 certain decisions were relied upon, which shall be discussed in this judgment at appropriate time. It is, therefore, submitted that the petition may be dismissed.
12. On behalf of the other co-respondents, none advanced any arguments.
13. Considering the petition filed by the petitioner, there is no dispute that at the time when the petition was filed, three grounds were pleaded in the petition for setting-aside the election of respondent No.1, namely, (1) improper acceptance of his nomination,
(2) corrupt practice of appeal made by respondent No.1 to vote for him on the ground of his religion, race, caste and community and (3) corrupt practice of booth capturing and casting bogus vote etc. There is no dispute that during the pendency of the petition, the petitioner did not press two grounds, namely, ground No.1 – improper acceptance of nomination of respondent No.1 and ground No.3 – corrupt practice of booth capturing and casting bogus etc. Only the ground No.2, namely, corrupt practice of appeal made by respondent No.1 to vote for him on the ground of his religion, race, caste and community was pressed. Even the petitioner in his oral evidence pressed the ground No.2.
14. Section 100 of the Act provides grounds for declaring an election to be void. On behalf of the petitioner it is submitted that the petition is filed pressing into service ground mentioned u/s.100(1)(b) and under Section 100(1)(d)(ii). As per the sub-section (1)(b) of Section 100, if the High Court is of the opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of or a returned candidate or his election agent, the High Court shall declare the election of the returned candidate to be void. In sub-section (1)(d)(ii) of Section 100, if the High Court is of the opinion that the result of the election, insofar as it concerns a returned has been materially affected by any corrupt practice committed in the interests of the returned candidate, the High Court shall declare the election of the returned candidate to be void. Now, in the instant matter, these provisions are required to be read with sub-section 3 and sub-section 3(A) of Section 123 of the Act. Section 123 of the Act defines corrupt practices. Sub-section 3 and sub-section (3A) of Section 123 runs as under:-
“123. Corrupt practices. The following shall be deemed to be corrupt practices for the purposes of this Act:
xxxxxx
(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”
15. Thus, considering Sec.123(3) as well as Sec.123(3A) r/w.Sec.100 of the Act, in the instant matter, the petitioner is supposed to prove that it was the respondent No.1, who made the appeal to vote or to refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. Moreover, to bring home the case put up by the petitioner about the violation of Section 123(3A), the petitioner has to prove that the respondent No.1 promoted or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, for the furtherance of the prospects of his election or for prejudicially affecting the election of the petitioner.
16. In the petition, as stated above, in paragraph 4, namely, paragraphs 4.1 to paragraph 4.4, the petitioner challenged relevant part of the different five speeches of respondent No.1, which according to the petitioner falls within the purview of Sections 123(3) and 123(3A) of the Act. Considering paragraphs 4.1 to 4.4, it transpires that according to the petitioner, on 6.4.2009, between 12.30 to 16.30 at Village Naada and Village Sureli, the respondent No.1 addressed public meeting and the particular part of his speech came to be found by the petitioner to be objectionable described above in this judgment.
Similarly, as per paragraph 4.2, the respondent No.1 addressed a public gathering at Village Sanpa, Chanchopa on 12.4.2009 and he delivered a speech in which the relevant part pleaded in paragraph 4.2 is found to be objectionable. In paragraph 4.3, it is stated that on 20.4.2009, the respondent No.1 addressed a public meeting at Village Sansoli, Ambala etc. and in his speech the part, which came to be found to be objectionable, came to be incorporated in said paragraph 4.3. However, at the time of arguments on behalf of the petitioner it was submitted that in fact the said speech, as narrated in paragraph 4.3 was delivered by the respondent No.1 on 20.3.2009 and not on 20.4.2009. In paragraph 4.4, the relevant part of the two speeches delivered by respondent No.1 on dated 23.4.2009 at two different places are mentioned and the relevant parts of the two speeches, which according to the petitioner was objectionable and violative to the relevant provisions of Section 123 of the Act, was pleaded in bold letters. According to the petition, on 30.4.2009, voting was done and on 16.5.2009 the result was declared. There is no dispute that the petitioner secured 279989 votes and the returned candidate, namely, respondent No.1 secured 282058 votes and, thus, according to the petitioner, the difference was very marginal, namely, 2069 votes. As pleaded in paragraph 4.5 in the petition, as per the prior instructions issued by the Election Commission of India, videography of the speeches came to be made and pursuant to the application made by the petitioner for getting the relevant CDs, vide order dated 15.6.2009, the Election Commission of India directed the Chief Electoral Officer, Gujarat to provide all the CDs available on payment by the petitioner. And pursuant to that, according to the petitioner, he was supplied more than 200 CDs out of the total 1000 CDs on receipt of the payment. As pleaded by the petitioner in paragraph 4.5, the petitioner after carefully going through each CD, found the appeal of the returned candidate on the ground of religion, race, caste and community and as pleaded in paragraph 4.6 in the petition, on account of this, the result of the election insofar as it concerns a returned candidate has been materially affected by the corrupt practice of the appeal of the respondent No.1 to vote for him on the ground of religion, race, caste and community and not to vote for the petitioner on the ground of his religion, race, caste and community.
17. There is no dispute that in the instant matter, so far as the oral evidence is concerned, it consists only of the petitioner and neither the petitioner examined any witness nor the respondent No.1 or any of the respondents stepped into the witness box to adduce oral evidence. It is further pertinent to note that in the instant matter, except the respondent No.1, no other respondents filed written statement. In the written statement, the respondent No.1 raised several technical issues, which shall be dealt with in this judgment at appropriate time. Regarding the contents of paragraph 4 of the petition, the respondent No.1 denied the allegation that in his speeches dated 6.4.2009, 12.4.2009, 20.4.2009 and 23.4.2009, he has given speeches on the basis of religion, race, caste and community as stated by the petitioner in paragraphs No.4.1, 4.2, 4.3 and 4.4. It further transpires that during the pendency of this petition, on behalf of the petitioner, the application was filed under Order 11 Rule 4 of the CPC in form of interrogatories seeking direction of this Court to order the respondent No.1 to answer those interrogatories. The said application was filed at Exh.25(A) and in all 53 interrogatories (questions) were referred in the said application. The respondent No.1 filed his replies at Exhs.29 and 35. Considering these two replies collectively, the respondent No.1 admitted that he is Hindu by religion and he belongs to Bariya caste, which is a part of Baxipanch/OBC. It further transpires that the respondent No.1 admitted that it was he who himself delivered those speeches on different dates, relevant part of which are pleaded in paragraphs 4.1 to 4.4 in the petition. It is pertinent to note that in the application, Exhs.25(A) vide interrogatories (questions) No.9, 18, 27, 36 and 45 a common question was put by the petitioner qua the speeches that the respondent No.1 had appealed to vote for him on the ground of he belonging to Baxipanch community. Considering Exh.35 reply, vide paragraphs 17, 26, 35 and 44, the respondent No.1 admitted that he held the public meetings on those dates at those villages. He specifically stated that from the speech he had given, he did not appeal to vote for him on the ground of he belonging to the Baxipanch community. It is further pertinent to note that in the interrogatories, Exh.25(A) and more particularly considering the interrogatory (question) No.53 the question was to the effect that the respondent No.1 had appealed on the ground of his community to refrain from voting in favour of the petitioner and in the reply, Exh.35 vide paragraph 52, the respondent No.1 outright denied said allegation and stated that he had not made appeal on the ground of his community to refrain from voting in favour of the petitioner.
18. Now, on behalf of the petitioner, in light of the replies filed by the respondent No.1 at Exhs.29 and 35, it was submitted that in all these replies, the respondent No.1 not only admitted his speeches on different dates and at different villages mentioned in paragraphs 4.1 to 4.4 in the petition, but also admitted the contents of the speeches. The said aspect is required to be considered in the background of certain developments, which took place pending the petition, namely, filing of an application by the respondent No.1 being EA No.8 of 2009 in this petition under Order 7 Rule 11 of the CPC. There is no dispute that the said application was heard at length and by detailed order dated 11.8.2010, the said application, ultimately, came to be dismissed. On behalf of the petitioner, it is submitted that in the application under Order 7 Rule 11 of the CPC, and more particularly considering paragraph 35 in the order dated 11.8.2010, as many as 17 defects came to be pointed out by the respondent No.1. Considering the paragraph 35 in the aforementioned order, it transpires that certain technical defences emerged from different provisions of the Act came to be raised, namely, Sections 81, 83, 86 etc. of the Act. On behalf of the respondent No.1, the verification by the petitioner in his petition as well as the affidavit filed by him came to be challenged. It was also pointed out by the respondent No.1 that the petitioner failed to disclosed the source of information qua the paragraphs 4.1 to 4.4. Even certain typographical mistakes in the petition also came to be pointed out. It was further pointed out that the petitioner did not supply true copy of the petition as the copy was not signed by the petitioner. Considering the above-referred order dated 11.8.2010 passed in EA No.8 of 2009, it transpires that this Court took into consideration various decisions of Hon'ble the Apex Court referred in paragraph 22 in said order. Ultimately, considering paragraphs 40, 41, 42 and 43 in said order, the following observations were made:-
“40. Now, taking up the last contention recorded above first, as regards stating material facts, as held by the Apex Court in the case of Harkirat Singh VS. Amrinder Singh (2005) 13 SCC 511, this Court at this stage of deciding preliminary objection cannot reject the petition holding that it did not state material facts and thus did not disclose a cause of action. That would be, as held by the Apex Court appreciating the evidence and by entering into merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable. Even otherwise, in the case of SARDAR HARCHARAN SINGH BRAR vs. SUKH DARSHAN SINGH & ORS reported in (2004) 11 SCC 196 the Apex Court held that if particulars as given in the petition are deficient in any manner, the petitioner can be directed to supply the particulars and make the deficiency good. In any case, deficiency in particulars could not have been a ground for dismissing the petition at the threshold. It is only the non-supply of particulars though ordered by the Court which could have led to either striking off of the pleadings or refusal to try the related instances of alleged corrupt practice.
41. As regards the defects in the affidavit, the defect is of very minor nature. It is not such a defect which could entail dismissal of the election petition. The Apex Court in UMESH CHALLIYIL vs. KP RAJENDRAN – (2008) 11 SCC 740 has held that in order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and incase of failure to remove/cure the defects, it could result into dismissal on account of Order 6 Rule 17 or Order 7 Rule 11 CPC.
Only when despite opportunities granted such defects are not cured, the election petition can be dismissed [Ram Prasad Sarma etc. v. Mani Kumar Subba.] In the case of H.D. REVANNA vs. PUTTASSWAMY GOWDA – (1999) 2 SCC 188, the Apex Court has held that Section 86 does not refer to Section 83 and non-
compliance of Section 83 does not lead to dismissal under Section 86. The Apex Court further held that non- compliance of Section 83 may lead to dismissal of the petition only if the matter falls within the scope of O. 6, R. 16 or O. 7, R. 11, CPC. Defect in verification of the election petition or the affidavit accompanying election petition has been held to be curable and not fatal. That apart, in CHANDRAKANT UTTAM CHAODANKAR VS. DAYANAND RAYU MANDRAKAR – 2005 (2) SCC 188, SBSINHA, J the Apex Court held that it is now well settled that the statutory requirements of Sections 81 and 83 would be met if substantial compliance thereof is made. Having gone through the amended copy supplied by the learned advocate, this Court is of the view that substantial compliance of sections 81 and 83 is made. Even with regard to non- signing of copy of the election petition by the election petitioner under his own signature to be a true copy of the petition, the Apex Court has held that such defects cannot be said to be of vital nature. Further, the Constitution Bench in T.M. Jacob's case held (SCC p.292, para 40) has held that it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is now well settled law that defect in verification ofaffidavit is curable and does not merit dismissal of an election petition in limine under Section 86 (1) of the Act. As held by the Apex Court in the case of DR. VIJAY LAXMI SADHO vs. JAGDISH reported in (2001) 2 SCC 247, an election petition is liable to be dismissed in limine under Section 86(1) of the Act only if the election petition does not comply with either the provisions of Section 81 or Section 82 or Section 107 of the Act. For the requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non- compliance with provisions of Section 83(1) of the Act or of its proviso. What other consequences, if any, may follow from the an allegedly 'defective' affidavit, is to be judged at the trial of an election petition but Section 86(1) of the Ac in terms cannot be attracted to such a case. The full bench decision of the Apex Court in the case of F.A. SAPA vs. SINGORA, which holds the field even today, has dealt with almost all the preliminary objections raised in the present application, and this Court has quoted the relevant portions thereof in paragraphs 33, 33.1, 33.2 and 33.3 hereinabove and do not reproduce the same for the sake of brevity.
As regards the contention that the copy supplied is not a true copy, in the case of T.M. JACOB vs C.
POULOSE AND OTHERS reported in (1999) 4 SCC274, the Apex Court held that the test to determine whether a copy was a true one or not was to find out whether any variation from the original was calculated to mislead a reasonable person. The Apex Court ultimately held in paragraph 38 that defects in the supply of true copy under section 81 of the Act may be considered to be fatal, where the party has been misled by the copy on account of variation of a material nature in the original and the copy supplied to the respondent. Applying the said ratio to the facts of the present case, this Court is of the opinion that that the alleged defect in the true copy of theaffidavit in the present case cannot attract the provisions of Section 86 (1) of the Act or Order VII Rule 14 because, as held by the Apex Court, there is substantial compliance with the requirements of Section 81(3) of the Act in supplying true copy of the affidavit to the present applicant by the election petitioner. As regards the contention that the copy served does not bear who is the Notary and on which date the affidavit is sworn etc. the Apex Court has held in the case of T. PHUNGZATHANG vs.HANGKHANLIAN AND OTHERS reported in (2001) 8 SCC 358 that the said omission would not entail dismissal of the election petition under Section 86(1) of the Act because such omissions are only curable irregularities.
As regards non stating of the source of information and knowledge, as held by the Apex Court in the case of KRISHAN CHANDER v/s. RAMLAL reported in (1973) 2 SCC 759, the provision for setting out the sources of information is not a requisite prescribed under Rule 94-A of the Conduct of Election Rules, 1961, which are applicable to the filing of an election petition. In the affidavit in support of the petition the petitioner is required to say which of the allegations made in various paragraphs of the petition are true to his knowledge and which of them are true to his information. If the petition and the affidavit conform to the provisions of the Act and the Rules made thereunder, it cannot be said that because the sources of information have not been given, the allegations made in the petition have to be ignored. Hence this Court is not inclined to hold that because the source of information is not stated, the election petition is liable to dismissed at the threshold.
As regards the cause of action, a bare perusal of the petition clearly shows that the cause of action has been clearly brought out in the petition, although a separate paragraph for the same may not have been dedicated in the election petition.
42. This Court, in view of a catena of judgments of the Apex Court, has to view whether the objections go to the root of the matter or they are only cosmetic in nature. It is true that the election petition has to be seriously construed. But that apart, the election petition should not be summarily dismissed on such small breaches of procedure. Having gone through the objections raised in the present application, and considering the various judgments cited by both the sides, this Court is of the view that the objections pointed out are only cosmetic in nature and does not go to the root of the matter. This Court is informed that the election petitioner has subsequently served a copy on the present applicant curing the defects pointed out in the application. Be that as it may, if there is any defect left out, the election petitioner, respondent No.1 herein, is granted time of two weeks from today to remove the defects pointed out by the present applicant and serve a complete and true copy thereof to the present applicant. If any such copy is served, the present applicant, original respondent No.1 is granted two weeks time thereafter to file written statement. Thereafter the Election Petition shall be listed for final hearing in the week commencing on 13th September 2010. However, if the above directions are complied with earlier than the aforesaid date, the parties may jointly file a note to take up the election petition even on an earlier date.
43. In the result, this application is dismissed. No order as to costs.”
19. Now to appreciate the above order, it is necessary to consider necessary provisions made in the Act. Section 81 pertains to presentation of petition and it is stated that the election petition calling in question an election may be presented on one or more grounds specified in sub-sections of Section 100 and Section 101. Such petition is required to be presented within 45 days from the declaration of the result. In sub-section 3 of Section 81, it is provided that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner in his own signature to be true copy of the petition. Section 83 of the Act pertains to the contents of such petition and it runs as under:-
“83. Contents of petition.
(1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any 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 the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908 .) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.”
20. Section 86 pertains to trial of election petition and as per sub-section 1 of Section 86, the High Court shall dismiss election petition, which does not comply with the provisions of Section 81 or Section 82 or Section 117. So far as the breach of Section 82 and Section 117 of the Act is concerned, the same has not been pressed into service and, therefore, the perusal of Section 82 or Section 117 may not be required for the purpose of this petition.
21. Replying upon the order dated 11.8.2010 passed in EA No.8 of 2009, on behalf of the petitioner, it was emphatically submitted that the said order has attained finality as the respondent No.1 challenged the said order before the Hon'ble Apex Court by filing Special Leave to Appeal (Civil) No.26613 of 2010 and vide order dated 9.11.2010, the Hon'ble Apex Court dismissed said SLP and confirmed the order of this Court. It was submitted that, therefore, now again the respondent No.1 cannot be permitted to raise said defence. However, as stated above, on behalf of the respondent No.1 it was contended that the said order was confirmed by Hon'ble the Apex Court, but despite the fact that this Court granted time of two weeks to cure the defects, no steps were taken by the petitioner. Considering paragraph 40 in said order as narrated above, it can safely be said that after considering the technical defects pointed out by the respondent No.1 and considering various decisions referred in said order, this Court observed that at the stage of deciding the preliminary objection, cannot reject the petition holding that it did not state material facts and thus did not disclose the cause of action. It was specifically observed that, that would be, as held by Hon'ble the Apex Court means to appreciate the evidence and further amounts to entering into merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable or nor. It was further observed that if particulars as given in the petition are deficient in any manner, the petitioner can be directed to supply the particulars and make the deficiency good. In above view of the matter, therefore, it was specifically observed that in case of deficiency in particulars could not have been a ground for dismissing the petition at the threshold and it is only the non-supply of particulars though ordered by the Court, which could have led to either striking off of the pleadings or refusal to try the related instances of alleged corrupt practice. On the basis of such specific observations made in paragraph 40, on behalf of the respondent No.1, it was submitted that the said order cannot be said to be a final order, which precludes the respondent No.1 from raising those technical defences. Mr.Tolia, learned advocate for the petitioner in support of his submission that the order has attained finality and it amounts to res judicata and further it amounts to estoppel for respondent No.1 to re-agitate said defences, relied upon the case of Bhanu Kumar Jain Vs.Archana Kumar and Anr. Reported in (2005)1 SCC 787. Considering the facts of said case, it transpires that the ex-parte decree came to be passed and the Hon'ble Apex Court observed that the aggrieved party can file an application under Order 9 Rule 13 to said ex-parte decree and also can file appeal u/s.96 of the CPC. The Hon'ble the Apex Court observed that if such appeal against the ex-parte decree is dismissed, subsequently an application under Order 9 Rule 13 of the CPC would not be maintainable and the principles of res judicata applies. In paragraph 18 in said decision, it was observed that the principles of res judicata apply in different stages of the same proceedings. Reliance was also placed on the case of Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Another reported in (1999)5 SCC 590. Considering the facts of said case, at the appropriate time and before appropriate authority, the appellant never claimed statutory exemption. Subsequently, in subsequnt proceedings, he was precluded from raising said dispute and in paragraph 26 in said decision, the Hon'ble Apex Court observed that the principles of estoppel and res judicata prevents the parties to a judicial determination from litigating the same question over again. Hon'ble the Apex Court elaborately discussed the two aspects, namely, 'cause of action estoppel' and 'issue estoppel'. Now, considering the above-referred decisions and examining the facts and circumstances of our case and more particularly the application under Order 7 Rule 11 of the CPC filed by respondent No.1 and specific observations made in paragraph 40 in the above-referred order passed by this Court, it can safely be said that the facts in the instant case are totally different. In the case of Ponnala Lakshmaiah Vs.Kommuri Pratap Reddy and Ors. reported in (2012)7 SCC 788 in a matter arising under this Act, almost under identical situation, in paragraph 16 Hon'ble the Apex Court observed that initially the burden lies upon the petitioner to prove the allegations made by him in the election petition and there is no dilution of that obligation when the Court refuses to dismiss a petition at the threshold. It is further observed in paragraph 16 that, all that the refusal to dismiss the petition implies is that the appellant has made out a case for the matter to be put to trial . Whether or not the petitioner will succeed at the trial remains to be seen till the trial is concluded.
22. Now, considering the peculiar facts and circumstances of the case and the order passed by this Court in application under Order 7 Rule 11 of the CPC, it is true that though the application came to be dismissed, but it appeared to this Court that though the technical defences were not such, which go to the root of the matter and are curable defects and, therefore, on that count the petition was not required to be dismissed at the threshold and in limine. It is that reason that in paragraph 42 in said order, this Court granted time of two weeks to the petitioner for removal of the defects pointed out by the respondent No.1.
23. In above view of the matter, the contentions raised on behalf of the petitioner that once this Court passed detailed order in the application of respondent No.1 under Order 7 Rule 11 of the CPC, and once the said order was confirmed by Hon'ble the Apex Court, this Court should not permit the respondent No.1 to agitate the same defence again, cannot be accepted. There is one more angle to which this aspect is required to be viewed. As stated above, and as observed in paragraph 42 in the above-referred order dated 11.8.2010 passed by this Court in connection with the application under Order 7 Rule 11 of the CPC, this Court granted time of two weeks to the petitioner to cure the defects. It has been emphatically submitted on behalf of the respondent No.1 that subsequently no steps were taken by the petitioner to comply with said direction and to cure the defects. It is further submitted that the defects though considered by this Court in the aforementioned order is curable, but still no steps were taken and the defects continue even today. In this respect, considering the case of Regu Mahesh Alias Regu Maheshwar Rao Vs.Rajendra Pratap Bhanj Dev and Anr. reported in (2004)1 SCC 46, almost identical was the situation wherein certain defects in verification/affidavit came to be pointed out to the petitioner of the election petition and those defects were pressed into service seeking dismissal of the election petition. Despite the fact that the petitioner stated that he was filing a separate application with leave of the Court for amending the verification, that was not done and the appellant – petitioner continued to stick to his stand that no amendment was required. In the said decision, Hon'ble the Apex Court critisized such approach of the appellant – petitioner as casual approach. On behalf of the respondent No.1, it was rightly pointed out that any defect in the petition, including that of verification or any other defect can be cured by the petitioner or the plaintiff in a suit by filing an application seeking permission to amend the petition or the plaint as the case may be. It has been further submitted that the second alternative is to withdraw such petition or suit with the permission of the Court to file a fresh petition or suit on the same cause of action. It has been rightly submitted on behalf of the respondent No.1 that except above, there is no third mode available to cure the defects in the pleadings. However, in the instant matter, it transpires that during the pendency of the EA No.8 of 2009, filed by respondent No.1 in this petition under Order 7 Rule 11 of the CPC, the petitioner filed an affidavit with copy of fresh petition with relevant copies of fresh annexures and as transpires from the order dated 11.8.2010, passed by this Court while disposing of the application under Order 7 Rule 11 of the CPC, even during the course of argument, it was submitted that the amended copies have been supplied by the petitioner to the respondent No.1. However, it clearly transpires that even during the pendency of this proceeding, no application was filed by the petitioner for amendment of the petition and no permission was obtained in that respect. The situation, which, therefore, emerges is that in the original petition, admittedly, there is no amendment. Under such circumstances, despite the fact that in the order dated 11.8.2010, this Court observed that the objections raised by respondent No.1 were cosmetic in nature, but at the same time, though this Court granted two weeks' time to cure the defects, no steps were taken by the petitioner.
24. In above background, it is required to consider the submissions made on behalf of the respondent No.1 about such defects and which according to the petitioner still continue. It is further pertinent to note that and as seen above in this judgment, certain defects are such which according to the respondent No.1 amount to non-compliance of Sections 81 and 83 of the Act. As per Section 81(3) of the Act, the petitioner is required to supply necessary copies to the respondents, which shall be attested by the petitioner in his own signature to be a true copy of the petition. It has been vehemently submitted on behalf of the respondent No.1 that at the time when the petition was admitted and notices were issued to the respondents, the respondents were not supplied the relevant copies signed by the petitioner. Such defence is not only taken in the application filed by respondent No.1 under Order 7 Rule 11 of the CPC, but also in the written statement. It has been submitted on behalf of the petitioner that, subsequently, necessary copies were supplied to the respondents signed by the petitioner. However, as stated above, for said purpose nothing transpires that any permission of this Court was taken. Furthermore, even if it is believed that such solitary defect may not be so serious, which results into dismissal of the petition, but at any rate, even such small defect is not cured in the manner prescribed under the statute.
In other words, it has been rightly pointed out on behalf of the respondent No.1 that the defects cannot be said to have been legally cured.
25. On behalf of the respondent No.1, it was pointed out that even the verification in the petition is defective. Considering the petition, it transpires that in the verification part, the petitioner verified paragraphs 1, 2 and 6 of the petition as true to the best of his knowledge and paragraph 3 including paragraphs 3.1 to 3.4 and 4 including paragraphs 4.1 to 4.5 and paragraph 5 including paragraphs 5.1 to 5.10 are true to the best of his information and his belief. It is submitted that one important paragraph 4.6 wherein it is pleaded that because of the alleged corrupt practice, the election of the respondent No.1 was materially affect on the ground of his appeal to the voters to vote for him on the ground of religion, race, caste and community and not to vote for the petitioner, said important paragraph 4.6 has not been stated in the verification part as to whether the said paragraph 4.6 is true to the knowledge of the petitioner or true to the information of the petitioner. Moreover, as per the verification part, paragraph 2 in the petition is stated to be true to the knowledge of the petitioner. Now paragraph 2 in the petition pertains only to the title, namely, 'the facts of the case of the petitioner are as under'. Then certain averments are made from paragraphs 2.1 to 2.4.
Under such circumstances, it can be said that what the petitioner wants to convey that the averments in paragraph 2 are true to his knowledge, means contents of paragraphs 2.1 to 2.4. Now, as stated above, paragraph 2.4 pertains to 3 grounds for which the election of the respondent No.1 is requested to be set-aside. Ground No.2 pertains to the alleged corrupt practice regarding the appeal made by the respondent No.1 to vote for him on the ground of his religion, race, caste and community. Under such circumstances, as per the verification, such alleged corrupt practices committed by the respondent No.1 was within the personal knowledge of the petitioner and not as per his information he came to know about it. Almost identical was the situation in the case of Azambhai Fakhirbhai Pansare Vs.Gajanan Dharamshi Babar reported in 2000- BCR-3-778 decided by Bombay High Court. Considering paragraph 9 in said decision, the Bombay High Court criticized the verification part and observed that the verification was done in a slipshod manner. It was observed that the verification of paragraphs 1 to 4 of the petitioner were to the personal knowledge of the petitioner whereas other paragraphs were verified on information. In paragraph 4, the petitioner had pleaded that the respondent No.1 had committed corrupt practice within the meaning of Section 123(3) r/w.Section 100(1)(b) of the Act. This is stated to be the 'personal knowledge' of the petitioner. The material facts stated in paragraphs 5 to 10 are said to be based on information. The Bombay High Court, therefore, observed that clearly what is stated in paragraph 4 could not be to the personal knowledge of the petitioner. Thus, in the instant matter, as stated above, paragraph 2 which also contains paragraph 2.4 has been verified to be true to the knowledge of the petitioner and the corrupt practice allegedly indulged by the respondent No.1 has been described from paragraphs 4.1 to 4.4 and the said paragraphs 4.1 to 4.5 are verified to be true to the information of the petitioner. Thus, it can safely be said that the verification is in slipshod manner. Over and above this, as stated above, the material paragraph 4.6 is specifically excluded and not verified either true to the knowledge or true to the information of the petitioner. In the original petition, these defects are not cured.
26. On behalf of the respondent No.1 it was emphatically submitted that the petitioner was required to disclose the source of his information. It was submitted that since the petition is based upon alleged corrupt practice committed by the respondent No.1, the petitioner was required to disclose his source of information regarding such corrupt practice. It is submitted that in the petition nowhere such source of information has been disclosed. However, on behalf of the petitioner it was submitted that the source is clearly disclosed in the petition, as the petitioner obtained necessary CDs regarding the speeches of the respondent No.1 from the Election Commission and after carefully going through such CDs, the petitioner found the appeals of the respondent No.1 on the ground of religion, race, caste and community. It is submitted that the said facts are pleaded in paragraph 4.5.
27. Now, in this connection, if the oral evidence of the petitioner is considered then in paragraph 5 in his examination-in-chief (affidavit, Exh.31), it has been deposed that after the election was completed, the petitioner came to know that the respondent No.1 had made an appeal on the ground of religion, race, caste and community and, therefore, he made an application to Election Commission of India and in pursuance thereto, he was supplied 200 CDs. So according to paragraph 5 of the evidence of the petitioner, he initially received such information and, thereafter, he applied for such CDs and the CDs were delivered to him. Under such circumstances, it cannot be said that the source of information regarding the corrupt practice was in first point of time those CDs, which came to be watched by the petitioner. Neither in the petition nor in his evidence, the petitioner stated as to how, when and from whom he came to know that the respondent No.1 had made an appeal on the ground of religion, race, caste and community and, thereafter, to verify such information, he was required to obtain CDs from the Election Commission. Thus, the source of information in above view of the matter can never be said to be watching of those CDs, but prior to that from some source, the petitioner had received the information. How far such non-disclosure of source of information is relevant or not shall be considered later on in this judgment, but on factual aspect, it can safely be said that neither in the petition nor in the evidence adduced by the petitioner, the petitioner disclosed the source of his information. On behalf of the respondent No.1, it was submitted that even the affidavit, allegedly said to be filed u/s.83 of the Act cannot be said to be proper one. Section 83 as stated above pertains to contents of the petition and considering the proviso attached to sub-section 1 of Section 83, it is specifically stated that when the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. There is no dispute that considering Rule 94-A of the Conduct of Election Rules, 1961, the affidavit shall be in form No.25. My attention was drawn to the affidavit, which is at page 20 in the paper-book. It transpires that the said affidavit also runs in the same line like the verification and, therefore, whatever above discussion is made pertaining to the defects in verification shall equally apply to the affidavit. The important fact is that the purpose of this affidavit is to disclose the source of information and in this affidavit, no such source of information has been disclosed. Considering the case of P.A. Mohammad Riyas Vs.M.K.Raghavan & Ors. reported in AIR 2012 SC 2784, in said case the matter pertained under the Act wherein election was challenged on the ground of corrupt practice. It transpires that one of the contentions raised was about such affidavit, filing of which is mandatory under the proviso attached to Section 83(1) of the Act. The question was whether a single affidavit is required or two affidavits are required. Discussing the relevant provisions of in the Act as well as considering the earlier decisions, in paragraph 25 in the said decision, the Hon'ble Apex Court observed as under:
“In this context, we are unable to accept Mr. Venugopal’s submission that despite the fact that the proviso to Section 83(1) of the 1951 Act provides that where corrupt practices are alleged, the Election Petition shall also be accompanied by an affidavit in the prescribed form, it could not have been the intention of the legislature that two affidavits would be required, one under Order VI Rule 15(4) CPC and the other in Form 25. We are also unable to accept Mr.Venugopal’s submission that even in a case where the proviso to Section 83(1) was attracted, a single affidavit would be sufficient to satisfy the requirements of both the provisions. Mr.Venugopal’s submission that, in any event, since the Election Petition was based entirely on allegations of corrupt practices, filing of two affidavits in respect of the self- same matter, would render one of them redundant, is also not acceptable.”
28. On behalf of the petitioner, it has been submitted that not only the entire petition is silent about the caste and religion of the petitioner and the caste and religion of the respondent No.1, but even during the course of evidence, even in the evidence affidavit, the petitioner is silent. As stated above, the election of the respondent No.1 is challenged u/ss.123(3) and 123(3A) of the Act wherein the word used is “his” religion, race, caste and community. So far as Section 123(3) is concerned, it is alleged by the petition that the respondent No.1 appealed to the public gathering to cast the vote in his favour on the ground of his religion, race, caste and community. In that context, not only his religion and caste should have been pleaded by the petitioner in his petition, but even should have stated in his evidence.
29. It has been submitted on behalf of the respondent No.1 that even as per the case of the petitioner, he obtained 200 CDs, but according to the respondent No.1, along with the petition, relevant CDs produced, did not contain any mark or seal of the Election Commission. It is further submitted that as a matter of fact the Officers of the Election Commission made videography and the original was the video cassettes and not the CDs. Thus, the original video cassettes came to be produced later on during the course of trial in this petition on 6.12.2010 through the returning officer. It is submitted that as a matter of fact, those original video cassettes should have been produced by the petitioner along with the petition itself. It was further contended that there is no evidence whatsoever as to who prepared those CDs from the video cassettes. On behalf of the respondent No.1, it was further submitted that according to the case of the petitioner, he obtained 200 CDs, but out of which only the five CDs are relied upon. Neither in the petition, nor during the course of evidence it has been specifically clarified as to why only five CDs are relied upon. In paragraph 4.5 in the petition, the petitioner pleaded that he obtained 200 CDs and after carefully going through each CD, found the appeals of the respondent No.1 on the ground of religion, race, caste and community. It has been submitted that thus even the pleading is ambiguous. Considering the case of Sardar Harcharan Singh Brar Vs.Sukh Darshan Singh & Ors. reported in (2004)11 SCC 196 relied upon on behalf of the petitioner, it has been observed by Hon'ble the Apex Court that if there is any defect in the particulars in such event, dismissal of the election petition at the threshold was not proper, but the petitioner should have been directed to supply the particulars and make the deficiency good. It was further observed that only in case of non-compliance therewith could the Court strike off the pleadings or refuse to try the related instances of the alleged corrupt practice.
Hon'ble the Apex Court observed that even if there is any defect in the affidavit as contemplated u/s.83(1) of the Act those are curable defects. There cannot be any dispute regarding the ratio laid down by Hon'ble the Apex Court in this decision, but as stated above, despite the fact that the respondent No.1 pointed out the defects in his application under Order 7 Rule 11 of the CPC and despite the fact that this Court granted time of two weeks to cure the defects, no steps were taken to legally cure such defects. On behalf of the petitioner reliance was placed upon the case of Shri Udhav Singh Vs.Madhav Rao Scindia reported in (1977)1 SCC 511. In the said decision, however, examining the merits of the election petition, as well as the pleadings, in paragraph 49, the Hon'ble the Apex Court observed that the case of the petitioner regarding the corrupt practice adopted by the returned candidate u/s.123(2) was established. It was further observed that in the pleading, required particulars regarding the date, time etc. of administering the threat were pleaded, but only the place was not stated. The Hon'ble the Apex Court observed that the same was defect in furnishing material particulars and not material fact and the occasion for furnishing such particular would have arisen only if the respondents had asked for that. On the basis of this decision, on behalf of the petitioner it was submitted that in the instant matter, the respondent No.1 did not asked for any further and better particulars. However, this Court is of the opinion that it was not at all necessary for the respondent No.1 to file any separate application seeking better and further particulars from the petitioner once the petitioner pointed out as many as 17 defects in his EA No.8 of 2009 filed under Order 7 Rule 11 of the CPC.
30. In the case of Borgaram Deuri Vs.Premodhar Bora and Anr. reported in (2004)2 SCC 227, the matter pertained to election petition wherein corrupt practice allegedly adopted by the returned candidate as contemplated u/ss.123(3) and 123(3A) of the Act was pleaded. In paragraph 9 in said decision, Hon'ble the Apex Court observed that not only the allegations of corrupt practices must conform to the provisions contained in Sections 123(3) and 123(3A) of the Act, but the mandatory requirements laid down u/s.83 shall have to be complied with. It was observed that it is imperative that the election petitioner must disclose the source of his information in the election petition fully. In paragraph 10 in said decision, Hon'ble the Apex Court discussed about the standard of proof, which is required to prove such election petition. It was observed that such election petitions are quasi criminal in nature and the standard of proof required for proving corrupt practices for any intent or purport is equated with the standard expected in a criminal trial. Considering the allegation regarding the corrupt practice as contemplated u/s.123(3A) of the Act, in paragraph 12, Hon'ble the Apex Court observed that spreading of hatred on communal basis is an offence, but the appellant – petitioner did not lodge any first information report. In the instant case also, as stated above, no source of information is disclosed by the petitioner either in his petition or in his affidavit or even in his evidence. Nothing emerges that the petitioner ever filed any FIR in police as contemplated in the above-referred decision.
31. Moreover, the instant petition, is required to be viewed from one more angle. Considering the petition as it stands, and more particularly considering the paragraphs 4.1 to 4.4 in the petition, the petitioner alleged that on the dates shown in those sub- paragraphs, the respondent No.1 conducted public meetings at the villages named in these sub- paragraphs and then specifically pleaded certain parts of the speeches delivered by the respondent No.1 to be objectionable and which according to the petitioner falls within the purview of Section 123(3) and 123(3A) of the Act. Then the petitioner filed application under Order 11 Rule 4 of the CPC, at Exh.25(A) regarding interrogatories. In those interrogatories again the petitioner referred certain more paragraphs of different speeches made by the respondent No.1. However, at the time of arguments, almost the entire five speeches came to be criticized on behalf of the petitioner. As stated above, the full text of speeches in vernacular Gujarati language are produced at Exhs.43, 45, 47, 49 and 51 and the English translation is at Exhs.44, 46, 48, 50 and 52. In above background, it is pertinent to note that if the pleading is considered, more particularly, the averments made from paragraphs 4.1 to 4.4 in the petition, only the relevant parts of the speeches, more particularly described in the earlier paragraphs of this judgment are pleaded and which according to the petitioner were violative of the provisions contained u/ss.123(3) and 123(3A). It is pertinent to note that even the respondent No.1 filed the written statement keeping in view only the averments made in paragraphs 4.1 to 4.4 in the petition. Under such circumstances, a question may arise as to whether once the petitioner restricted his case qua certain parts of the speeches, narrated in paragraphs 4.1 to 4.4, then, without first carrying out any amendment in the petition, can the petitioner be heard to say that the whole speeches, are objectionable and attract the provisions of Sections 123(3) and 123(3A) of the Act? It is pertinent to note that the respondent No.1 filed written statement only relying upon the averments made by the petitioner in the petition. Under such circumstances, if at all the petitioner intended to import even other parts of the speeches of the respondent No.1, labelling them to be objectionable, attracting the provisions contained u/ss.123(3) and 123(3A), then the first and the foremost duty of the petitioner was to file appropriate application for amendment of the petition and after the same is allowed, to specifically incorporate those parts in paragraphs 4.1 to 4.4. However, nothing whatsoever was done. Under such circumstances, in absence of any amendment in the petition, if the other parts of the speeches are taken into consideration, which are not specifically pleaded in the petition, it can safely be said that the defence of the respondent No.1 can surely be prejudicially affected. It is pertinent to note that in the entire petition, it has not been specifically pleaded by the petitioner that he challenged the entire five speeches. Mere fact that some more parts are incorporated in the application, Exh.25(A) filed by the petitioner under Order 11 Rule 1 r/w.Rule 4 of the CPC, it cannot be said that thereby no amendment was needed in the original petition itself. Needless to say the interrogatories and their replies did not take place of pleadings. It has been rightly submitted on behalf of the respondent No.1 that the purpose of interrogatories is not to substitute the pleadings, but to curtail certain part of the evidence i.e. if certain fact is admitted, that part of the evidence can be curtailed. In the replies, Exhs.29 and 35, the respondent No.1 did not dispute the speeches. What he disputed was that he did not make any appeal on the ground of his religion, race, caste and community.
Under such circumstances, this Court is of the opinion that the instant petition is required to be decided strictly on the basis of the averments made in paragraphs 4.1 to 4.4 and the speeches are required to be evaluated only in that context. In the same line, it is further necessary to consider as to whether the petition contains only the positive appeal, namely the appeal allegedly made by respondent No.1 to vote for him on account of his religion, race, caste and community or it also contain specific allegations regarding the negative appeal allegedly made by respondent No.1 to not to vote for the petitioner on the ground of his/petitioner's religion, race, caste and community. As stated above, in paragraph 2.4, so far as the ground No.2 is concerned, regarding the corrupt practice as pleaded, is only positive appeal. However, in paragraph 4, there is allegation regarding positive as well as negative appeals. Then in paragraph 4.5 in the last part what is referred is only positive appeal. Thus, it can be said that even the petitioner is not certain on this aspect. In this connection, considering the evidence (affidavit, Exh.61) of the petitioner, it is pertinent to note that mainly the petitioner alleges the alleged positive appeal made by respondent No.1. Considering paragraph 13 in the affidavit, it has been specifically stated on oath that the petitioner viewed those five CDs and they contained appeal made by the respondent No.1 on the ground of caste, religion, race and community and the relevant parts of the speeches are stated by him in the petition. Thus, again considering the evidence of the petitioner, what he prays is the positive appeal allegedly made by respondent No.1 as contemplated u/ss.123(3) and specifically pleaded by him in paragraphs 4.1 to 4.4. Thus, even as per the evidence of the petitioner, it can safely be said that he confines his case qua the relevant part of the speeches specifically pleaded in the petition in the form of positive appeal.
32. This Court is of the opinion that in the above background, the relevant parts of the speeches are required to be evaluated in light of the provisions contained u/ss.123(3) and 123(3A) of the Act and broadly speaking the main allegation levelled by the petitioner is that the respondent No.1 appealed for vote on the ground of he being the member of Baxipanch. On behalf of the respondent No.1 it has been rightly submitted that the Baxipanch/OBC can never be termed as religion, race or caste and even according to the respondent No.1, the Baxipanch can never fall within the category of community as referred u/ss.123(3) and 123(3A). However, on behalf of the petitioner, it has been submitted that Baxipanch/OBC squarely falls within the meaning of community referred u/ss.123(3) and 123(3A). In support thereof, on behalf of the petitioner reliance was placed upon the case of Indra Sawhney etc.
Vs.Union of India & Ors. reported in AIR 1993 SC 477 and more particularly paragraph 80(C) wherein it was observed that throughout his speech in the Constituent Assembly, Dr.Ambedkar was using the word “communities” (and not 'castes') which expression includes not only the castes among the Hindus but several other groups. For example, Muslims as a whole were treated as a backward community in the princely State of Travancore besides several sections/denominations among the Christians. The word 'community' is clearly wider than 'caste' and 'backward' communities' meant not only the castes wherever they may be found but also other groups, classes and sections among the populace. It is pertinent to note that in Indra Sawhney's case, the issue was regarding a claim in public employment by scheduled caste and scheduled tribe people. The word 'community' used u/ss.123(3) and 123(3A) is to be considered in light of the object and reason of the Act and particularly the word 'community' is required to be considered in light of the religion, race and caste referred in those two sub-sections. Under such circumstances, it is very difficult to accept the contention raised on behalf of the petitioner that the Baxipanch/OBC should be included in the word 'community' referred in Sections 123(3) and 123(3A). However, considering paragraph 4.1, according to the petitioner on 6.4.2009, the respondent No.1 addressed a public meeting. He stated that the present election is not being fought by Prabhatsinh, but by Baxipanch community and if lost the election, it is the Baxipanch who will be losing. In this connection considering Exh.47 (Gujarati version of the relevant speech) it transpires that respondent No.1 in his speech stated that if the ticket is given keeping in view Baxipanch then who is contesting the election?, Baxipanch. If the candidate wins the election? He stated that if such candidate loses the election then since oncoming 100 years, no party would allot ticket to Baxipanch candidate. Considering the speech, Exh.47, as a matter of fact, he stated that earlier four candidates of Baxipanch contested the elections, but none succeeded or declared elected. Thus, in the speech, it was the respondent No.1 addressed the gathering that in past four candidates of Baxipanch were not declared elected. It is pertinent to note that in his speech, he nowhere appealed to vote for him on the ground of religion or race or caste. Under such circumstances, if for the sake of argument, it is believed that Baxipanch is included within the meaning of community referred in those two sub-sections, yet, considering the speech, Exh.47, it does not appear that the respondent No.1 asked for vote on the ground of he being member of Baxipanch. In paragraph 4.2 in the petition, relevant part of the speech made by the respondent No.1 on 12.4.2009 is pleaded, wherein he stated that we are Hinduwadi and every Hindus and to save Hinduism and to save Hindu sanskruti-Bhajap. The entire Gujarati version of said speech is at Exh.45. In his speech, Exh.45, he made analysis about different types of voters, the relevant part of the speech referred in paragraphs 4.2 is at page 121 and page 122 in the paper-book. The respondent No.1 stated that they are Hindus and to save Hinduism and to save Hindu sanskruti-Bhajap and Bhajap is Hindu and Congress is Muslim. However, he further stated that ultimately it is for the voters to take appropriate decision. Considering the speech, Exh.45, it transpires that mainly the respondent No.1 emphasizes the importance of local candidate. This part of the speech referred in paragraph 4.2 in the petition shall be further discussed while considering certain decisions relied upon on behalf of both the parties. In paragraph 4.3, relevant part of the speech stated to be delivered on dated 20.4.2009 are referred. In fact, considering Exh.43, the speech is dated 20.3.2009. It is pertinent to note that even such typographical error was not cured by the petitioner in the original petition. In paragraph 4.3 it is stated that the respondent No.1 addressed the gathering by stating that this is war between Hindus and Muslims and there are about 25000 votes in the area. He stated that he does not require any vote from Muslims. In a public meeting held by Shankar Sinh, cow meat was served. However, considering Exh.43 and this part of the speech at page No.80 in the paper-book, it transpires that in paragraph 4.3, the different parts of the speech dated 20.3.2009 are lifted and pleaded commonly in paragraph 4.3. After saying that the war between Hindus and Muslims, other facts are stated in the speech. About the cow meat, he stated that on 4th day, a meeting was arranged of Muslims by the petitioner. He stated that cow meat was served. However, in his entire speech, Exh.43, he nowhere alleged that the same was either served by the petitioner or that the petitioner himself consumed cow meat. Then in paragraph 4.4, the relevant parts of two speeches delivered by respondent No.1 on same day i.e. dated 23.4.2009 are pleaded. They are at Exhs.49 and 51. Considering the relevant part of the speech in Exh.49, the said part is at page 158 as well at page 159 in the paper-book. Considering page 158 of Exh.49 in the paper-book, the respondent No.1 stated that since Hindus do not vote and, therefore, their brother loses the election. Considering the part of the speech at page 159 in the paper-book, he stated that if he gets elected, then all the Government officers would be scared of him and will work immediately for his people and he stated that if the work is required to be got done, the Government officers are required to be kept under his control. Considering Sections 123(3) and 123(3A), this part of the speech cannot be stated to be positive appeal or negative appea,l on the basis of his religion, race, caste and community or promoting enmity or hatred amongst two communities. Then third part of the speech made on the same day at different villages is incorporated in paragraph 4.4 and for said purpose, it is required to conisder the Gujarati version of the speech, Exh.51. The relevant page is at page 171 in the paper-book. Considering the part of the said speech it only contains certain statistical datas about the voters. Then the respondent No.1 stated that the a farmer has never been elected from this seat. The statistical datas in his speech are at page 171 in the paper-book. It is pertinent to note that considering the part of the speech at page 171, ultimately, the respondent No.1 left to the voters by saying that it is for the voters to decide. Then considering page 171 of the paper-book, the respondent No.1 gave names of different persons, who were, though not local but outsider were declared elected on the seat of said constituency. Then page 172 of the paper-book, if considered, respondent No.1 stated that no farmer was elected on this seat and even the four candidates of their caste though contested, they lost their election. The respondent No.1, ultimately, stated that since there was no unity and reluctance to cast vote, the outsiders won the seat.
33. On behalf of the petitioner Mr.Tolia, learned advocate relied upon the case of Ziyauddin Burhanuddin Bukhari Vs.Brijmohan Ramdass Mehra & Ors.
reported in (1976)2 SCC 17. Considering the facts and circumstances of said case, the appellant, who was returned candidate delivered speeches in approximately 16 public meetings. It further transpires that the particulars of all the speeches were incorporated in great detail in the statements annexed to the petition with the necessary affidavit. Thus, virtually the entire speeches were under dispute. Hon'ble the Apex Court, about the speeches, noted that the appellant told the audience that Muslim personal law was a matter of a religious faith for muslims and that it extended to the mode of disposing off bodies of their dead. He further told the audience that if they vote for Chagla (unsuccessful candidate), they would have to cremate the bodies of their dead instead of burying them because Chagla had cremated the dead body of his sister. The appellant further told the audience that not to vote for those, who stood against their religion. In second speech, as observed by Hon'ble the Apex Court, the appellant stated that if the Congress Government brought in 'amendments in our religious law', the 'battle would be fought in every street' as 'the question of religion has arisen'. The appellant had threatened the ruling Congress party with open rebellion if attempts were made to change Muslim personal law. In third speech, as observed by Hon'ble the Apex Court, the appellant challenged Chagla's faithfulness to Muslim religion on the ground that he had advocated inter-communal or inter-caste marriages and that he wanted a Hindu to be a member of the Haj Committee. It was further observed that the appellant had spoken that the Muslim religion was in danger and could only be saved by men like Bukhari (he himself, the returned candidate) and not by Chagla. He further told the audience that Chagla was playing with their religious affairs. He attacks Chagla and his family on the ground that Chagla had advocated the inclusion of Hindus in Haj Committee and his family members used to attend mosque as well as the temple. He told the audience that Muslims should unite against such person if they wanted their religion to survive, as Chagla was neither a good Hindu nor a true Muslim. In the above background, Hon'ble the Apex Court observed that the appellant had made a direct attack of a personal character upon Chagla. It was observed that u/s.123(3) of the Act, a candidate appealing to voters in the name of his religion, could be guilty of a corrupt practice, if he accused a rival candidate, though of the same religious denomination, to be a renegade or a heretic. In the above background, it was, therefore, obsered that the whole outlook revealed by the speeches of Bukhari is that of a medeival crusuder who had embarked on a Jehad for a religion. In view of such clear positive appeal to vote for him and negative appeal to refrain from voting for Chagla, on the count of religious appeal, in that background, the Hon'ble the Apex Court observed that what is relevant in such a case is what is professed by a candidate as a ground for preferring him over another and not the motive or reality behind the profession. Now in the instant matter, as stated above, in paragraphs 4.1 to 4.4, out of the five speeches, the petitioner only pleaded those parts of the speeches, which according to him were objectionable. Moreover, there is no dispute that each case is required to be decided on its own merits and evidence. In the instant matter, there does not appear that in the name of Baxipanch, the respondent No.1 claimed for any vote or refrained the voters from casting votes in favour of the petitioner.
34. On behalf of the petitioner, reliance was placed upon a case of Kalamata Mohan Rao Vs. Narayana Rao Dharmana & Ors. reported in (1995)6 SCC 728. In the said case, the election was challenged on the ground of religious appeal. Certain posters came to be pasted by the returned candidate and by his authorised agent to the effect that N.T.Rama Rao is an incarnation of God, worshipped by Hindus who is seeking votes for his candidate., the appellant, who is a Hindu. In the poster, appeal was made that the votes were needed to conquer the evil in the form of the Congress party and for the sake of Hindu religion. In the above background, the election of the returned candidate was set-aside. In the said case, the appellant did not enter the witness box and there was no evidence in rebuttal. Now, in the instant case, the facts are different. What is found objectionable to the petitioner is certain parts of five speeches narrated in paragraphs 4.1 to 4.4 in the petition. There is no disputee that the respondent No.1 did not enter the witness box, but that itself may not be sufficient to come to the conclusion that the petitioner proved his case. As stated above, heavy burden lies upon the petitioner to prove his case and the burden is almost like proving a criminal case or a quasi criminal case and not merely on the basis of preponderance of probabilities.
35. In the case of S.Harcharan Singh Vs.S.Sajjan Singh & Ors. reported in (1985)1 SCC 370 relied upon on behalf of the petitioner, again the appeal on the basis of religion was made. In the said matter, religious appeal on the basis of Sikh religion was made and as per the evidence on record, the returned candidate was sponsored by Akal Takht, which is supreme religious authority of Sikhs. A Hukumnama was issued of the Akal Takht in the matter of assembly election. It was observed that Hukumnama for a Sikh is of great consequence and disobedience of Hukumnama entails great misfortune. Certain speeches were also found to be objectionable wherein it was said that Sikhs, who defied the propriety of Akal Takht, would be punished.
Certain articles were also published to the effect that it was a religious commitment for every Sikh to cast his vote for Akali Dal or to the candidates supported by Akali Dal and Indira Congress was a anti sikh organisation and a Sikh cannot be a supporter of Indira Congress. The Hon'ble the Apex Court examining the above evidence observed that in order to determine whether certain activities come within the mischief of Section 123(3), regard must be had to the substance of the matter rather than to the mere form. It was further observed that the Court should attach importance to the effect and impact of the acts complained of. The nature and consequence an act may not appear on its very face, but the same could be implied having regard to the language, the context, the status and position of the person issuing the statement, the appearance and known religion of the candidate, the class of persons to whom the statement or act is directed. In paragraph 43 in said decision, the Hon'ble the Apex Court observed as under:-
“43. These questions should be very broadly decided. It would not be an appeal to religion if a candidate is put up by saying 'vote for him' because he is a good Sikh or he is a good Christian or he is a good Muslim, but it would be an appeal to religion if it is publicised that not to vote for him would be against Sikh religion or against Christian religion or against Hindu religion or to vote for the other candidate would be an act against a particular religion. It is the total effect of such an appeal that has to be borne in mind in deciding whether there was an appeal to religion as such or not. In each case, therefore, the substance of the matter has to be judged.”
36. Thus, in the above background, the Hon'ble Apex Court found that there was clear appeal on the ground of religion to the effect that not to vote for him would be against the Sikh religion. In the said decision, it was further observed that it would be an appeal on the ground of religion if the act in question has the effect of giving the impression that it would be irreligious not to vote for a particular party or person. Now in the instant matter, needless to say, the facts are totally otherwise. Neither in the petition not in the evidence of the petitioner, it has been pleaded that there was any negative appeal made by respondent No.1 to not to vote for the petitioner. Moreover, considering the peculiar facts and circumstances of said matter, and more particularly about the evidence regarding Hukumnama, articles and speeches and the nature thereof, ultimately, the Apex Court came to the conclusion that there was a clear breach of provisions contained u/s.123(3) of the Act. However, it was observed that even single appeal is sufficient and after the amendment in Section 123(3), there is no need of systematic appeals. In the above view of the matter and analysing the overall evidence on record, it was observed that some fact stated in the oral evidence about the meetings had not been stated in the petition, was not of much significance. However, in the instant case, it cannot be said that only some minor or insignificant facts are not pleaded and the evidence is adduced. Needless to say that as discussed in this judgment above, neither the religion and caste of either the petitioner or of the respondent No.1 is pleaded. Only certain parts of the speeches came to be found to be objectionable to the petitioner, but at the time of arguments, whole of the speeches are said to have violated the provisions contained u/ss.123(3) and 123(3A) of the Act. It has not been specifically pleaded in the petition that any negative appeal was made to refrain to vote for the petitioner. Thus, the facts and circumstances and evidence in the said case are totally different than the facts and circumstances in the instant case.
37. Reliance was placed upon the case of Ram Swarup Verma Vs.Onkar Nath & Ors. reported in (1970)3 SCC 783. Considering the facts of said case, the returned candidate himself formed a communal organisation called Arajak Sangh. As per the evidence on record, after forming such communal organisation, the speeches were delivered, slogans were made and pamphlets were distributed. The very object of said communal organisation was the unity of lower caste people against particular class of people and more particularly Brahmins. Clear negative appeals were made to not to vote for the Brahmin candidate. For such act, security proceedings had been initiated against the supporters of of Arjak Sangha during the time of the election campaign. It is pertinent to note that as observed by Hon'ble Apex Court, even the appellant during the course of his oral evidence before the High Court, did not hesitate to admit that he is against Brahminism and he wants to finish Brahminism. Thus, even in his deposition on oath, he admitted such position. One Mr.Maurya was also canvassing votes for the appellant on the ground of Arjak Sangha and not to caste vote in favour of Brahmin community and said Maurya was not examined as witness of the appellant. The defence put up by the appellant before the High Court was of complete denial. Suffice it to say that in the facts and circumstances of said case, ultimately, the order of High Court setting-aside the election was upheld. Suffice it to say that again the facts of our case are totally different.
38. On behalf of the petitioner, reliance was placed upon the case of Ambika Sharan Singh Vs.Mahant Mahadeva and Giri & Ors. reported in (1969)3 SCC 492. In the said matter, the appeal was made on the basis of the caste of the appellant, namely, Rajput. In public gathering, it was stated that the people should caste their votes since the appellant was Rajput and if he was elected, he would become a minster and one another Rajput, namely, Satyendra Narain Singh would become the Chief Minister and that with the two of them in the cabinet, they would establish Rajput Raj in the State and advance the interests of Rajputs. In the above background, it was observed that the appeal was in the name of caste. Since the canvassing was so widespread and at every place and, therefore, the Hon'ble the Apex Court observed that it would be impracticable to call upon the election petitioner to give the names of the persons gathered in those numerous meetings. The facts of our case are totally different. In the instant case, no such appeal on the basis of caste is made by the respondent No.1. The facts and circumstances and evidence on record in the said matter is totally different. In the said case before the Apex Court, the contention was raised that no FIR was filed and no complaint was made against the returned candidate. Although the Apex Court in paragraph 17 observed that at the time of election, the petitioner in fact lodged such complaint and did all he could in the circumstances. As stated above, in the case on hand, the facts are otherwise.
39. In the case of Virender Nath Gautam Vs.Satpal Singh & Ors. reported in (2007)3 SCC 617, the Hon'ble the Apex Court elaborately discussed as to what can be said to be material fact and what can be said to be material particulars as considered in Section 83 of the Act. The Hon'ble the Apex Court observed that the basic primary facts must be pleaded and non-furnishing of material fact would be sufficient enough to dismiss the petition. However, it was observed that what particulars are material facts depends upon each case. It was further observed that such particulars, which are necessary to support material fact shall have to be pleaded, but if full particulars are lacking, the petition can be amended. In the instant case, as stated above, despite the fact that time was granted to the petitioner to rectify the defects, no amendment application as provided under the CPC or as provided u/s.86(5) of the Act came to be filed. On behalf of the respondent No.1 it has been submitted that all those mistakes and defects still continue. Considering Section 86(5) of the Act, the High Court may allow the particular of any corrupt practice alleged in the petition to be amended or amplified. It may be noted that even during the pendency of this petition, no amendment or any amplification was requested so far paragraphs 4.1 to 4.4 in the petition are concerned.
40. In the case of Baburao Bagaji Karemore Vs.Govind & Ors. reported in (1974)3 SCC 719, positive appeals and negative appeals were made in the name of caste and community in various speeches as well as by distribution of pamphlets. In the said decision, Hon'ble the Apex Court in paragraph 2.5 reproduced the contents of the two objectionable pamphlets. In those pamphlets, there was a positive appeal to kunbi voters to be united and defeat congress candidate Shri Tirpude and that the community leader Shri Govind be elected by overwhelming majority. It is pertinent to note that the High Court while replying the issue No.21(c) observed that the pamphlets amount to appeal to the voters on the basis of caste and it was meant to create hatred between the caste and community. The reply to issue No.21(c) was outright in the affirmative, but while replying issue No.21(d), the High Court replied in the negative to the effect that this does not amount to corrupt practice within the meaning of Section 123 of the Act. Ultimately, Hon'ble the Apex Court dismissed said appeal. Thus, in the facts and circumstances and evidence on record in said case, the decision of the High Court came to be confirmed by the Apex Court.
41. However, considering the case of Manohar Joshi Vs.Nitin Bhaurao Patil reported in (1996)1 SCC 169, certain speeches allegedly made by the returned candidate were in dispute and regarding the speeches, reliance was placed upon video cassettes and the transcripts of their contents. It was alleged that the votes were sought in the name of 'Hindutva'
i.e. Hindu religion. It was spoken that Hindus are and Hindu religion is in danger. That the Congress and Janta Dal have failed to protect and will not protect the Hindus and Hindu religion and their candidates are unfit to be elected. The relevant part of the speeches have been incorporated by the Hon'ble the Apex Court, in said decision. It was contended by the other side that if the full particulars of alleged corrupt practice are not stated in the petition, then in such case, the petition does not disclose any cause of action and consequently the same is liable to be dismissed. Considering paragraph 33 in said decision, it appears that there was admission of the returned candidate in his written statement about the existence and use of the video cassette during the election campaign in the constituency and even of its contents. The only dispute being related to the meaning of the contents, Section 123(3) and Section 123(3A) were pressed into service. Hon'ble the Apex Court in paragraph 42 in said decision observed that it cannot be held that in the abstract the mere word Hindutva by itself invariably must mean Hindu religion. The so-called plank may at best be relevant only for appreciation of the context in which a speech was made by a leader of the political party during the election campaign, but no more for the purpose of pleading corrupt practice in one of the speeches in election meeting on 24.2.1990, it was spoken that a Hindu State will be established in Maharashtra. Hon'ble the Apex Court in paragraph 60 observed that mere statement that the first Hindu state will be established in Maharashtra is by itself not an appeal for votes on the ground of his religion, but the expression at best of such a hope. It was further observed that we cannot hold that it constitutes the corrupt practice either under sub-section 3 or sub- section 3A of Section 123. It was observed that the question is whether the corrupt practice as defined under the Act to permit negation of the electoral verdict has been made out. To this our answer is clearly in the negative. In paragraph 65 in said decision, Hon'ble the Apex Court further observed that the High Court misdirected itself by starting on a wrong premise in trying an allegation not in the pleading and then in admitting and relying on material which is not legal evidence for the proof of a corrupt practice. Considering said decision, and as stated above, the context in which the alleged objectionable speech in the instant case came to be made and examining such speech as a whole, it cannot be said that in the instant matter, any positive appeal was made by the respondent No.1 to vote for him on the ground that he belonged to Baxipanch/OBC. As stated above, at the time when such speech was delivered, he himself stated to the audience that in past, Baxipanch/OBC candidates came to be defeated. Moreover, in the instant matter also, in the petition, paragraphs 4.1 to 4.4 only some of the relevant extracts of the five speeches are pleaded, which according to the petitioner were objectionable. The respondent No.1 accordingly filed his written statement. Subsequently, at the time of arguments, on behalf of the petitioner it was tried to be conveyed that as a matter of fact, the entire five speeches were objectionable. In this view of the matter, considering paragraph 65 in the aforementioned decision, the Hon'ble Apex Court criticized the approach of the High Court by stating that the High Court misdirected itself on a wrong premise in trying an allegation not in the pleading.
42. In the case of Harmohinder Singh Pradhan Vs.Ranjeet Singh Talwandi & Ors. reported in (2005)5 SCC 46, the allegation was that the returned candidate appealed for vote on religious grounds in the name of supreme body of Sikhs. There were oral speeches as well as pamphlets came to be distributed and such oral speeches and the pamphlets came to be published in newspaper. In paragraph 10 in the said decision, Hon'ble the Apex Court observed that the word 'his' as it occurs in Section 123(3) of the Act in case of positive appeal is required to be interpreted in the context of the religion of the candidate making such appeal or in case of negative appeal, the word 'his' used is required to be considered in the context of any other candidates qua whom such negative appeal is made. In paragraph 12 in said decision, the Hon'ble Apex Court clearly observed that in the said case, the election petition nowhere mentions the religion of respondent No.1. Similar is the situation in the instant case, namely, in the instant case, in the petition, not only the religion, caste, or community of the respondent No.1 is not pleaded, but even the religion and caste of the petitioner is also not pleaded.
43. Considering the case of R.P. Moidutty Vs. P.T.Kunju Mohammad & Anr. reported in (2000)1 SCC 481, there was an allegation regarding the appeal on the ground of or promotion of enmity or hatred on the ground of religion, caste or community. It was alleged that the respondent – returned candidate had prepared the script, directed and produced a video cassette (Vicharana) depicting demolition of Babri Mosque and riots which broke out thereafter and extreme miseries of Muslim population affected by the riots. The names of atleast a few persons, who viewed the film and/or in whose presence it was exhibited were not set out. Considering paragraph 13 in said decision, even the returned candidate admitted during his deposition that he had worked as a Coordinator for the making of the film and he was involved in the making of the cassette. Hon'ble the Apex Court in paragraph 13 observed that though there was an intention to convey to the viewers the impression that the rulers of the day were conniving with the Hindu community and were not taking steps to protect the interests of the Muslim community, but it could not be said that the cassette contained a direct communal appeal or a seeking of votes on the ground of religion, caste or community. In the said decision, it was further observed that the standard of proof required in such case is like the criminal case. In paragraph 14 in said decision, Hon'ble the Apex Court considering the earlier decisions, discussed about nature and form of affidavit, which is required under Rule 94 of the Conduct of Election Rules, 1961. It was further observed that defective verification or a defective affidavit may not be fatal, but the High Court should ensure its compliance before the parties go to trial so that the party required to meet the charge is not taken by surprise at the actual trial. It must also be realised that delay in complying with the requirements of Section 83 read with the provisions of the C.P.C. or the omission to disclose the grounds or sources of information, though not fatal would weaken the probative value of the evidence ultimately lead at the actual trial.
44. In the case of Haji C.H.Mohammad Koya Vs.T.K.S.M.A. Muthukoya reported in (1979)2 SCC 8 certain corrupt practice under Section 123(3) and Section 123(3A) were alleged against the returned candidate in respect of matters published in the newspaper of which he was the Chief Editor. It was alleged that the returned candidate delivered objectionable speeches. Considering paragraph 5 in said decision, as regard the speech it was admitted that such speech was delivered, but denied that he made any communal allegations against the Janasangh. However, in said case, it was not established that the returned candidate was Chief Editor of the newspaper. Regarding his speeches, considering paragraph 44 in said decision, Hon'ble the Apex Court observed that there does not appear to be any intention on the part of the speaker to preach hatred or enmity between two classes of citizens, namely, Janasangh, RSS and the Muslim League. It was contended that political parties having a particular ideology could not be treated as a class of citizens as contemplated by section 123(3A) of the Act. The Hon'ble Apex Court observed that, we feel ourselves in complete agreement with the interpretation given by the appellant regarding the speech made by him. Applying the ratio laid down by the Hon'ble Apex Court in our case, it can safely be said that the speeches in question cannot be said to have been made for any positive appeal or for any negative appeal. As a matter of fact, considering the speeches, there does not clearly appear that the respondent No.1 appealed to the voters to refrain from voting in favour of the petitioner on the ground that the petitioner belonged to Kshatirya community. Morever, as stated above, in the case on hand, considering paragraphs 4.1 to 4.4 in the petition, only some of the parts of the speeches are pleaded. In the petition, nowhere it is stated that the whole of the speeches pleaded in paragraphs 4.1 to 4.4 are objectionable. As stated above, even the caste and religion of the petitioner and of the respondent No.1 are not pleaded. Hon'ble the Apex Court in the said decision observed that departing from the pleading has frail prospects of acceptance. The failure to plead is a blow to the credibility of after-thought testimony.
45. In above view of the matter and considering the ration laid down by the Hon'ble Apex Court in above- referred decisions, even on merits and considering the pleadings set forth in paragraphs 4.1 to 4.4, it cannot be said that any positive or negative appeal was made by the petitioner as contemplated u/s.123(3) of the Act or the speeches amount to promotion or attempt to promote feelings of enmity or hatred between different classes of the citizens on the ground of religion, race, caste or community as pleaded u/s.123(3A) of the Act. As stated above, in the instant case, there is nothing that at the time when the alleged speeches were made, alteast what was the approximate number of persons remained present during those meetings, much less the names of such persons.
46. Even in the case of Dr.Ramesh Yeshwant Prabhoo Vs.Shri Prabhakar Kashinath Kunte & Ors. reported in (1996)1 SCC 130, Hon'ble the Apex Court observed that reference to religion in speech made during election campaign with a secular stance in conformity with fundamental right to freedom by itself not prohibited under sub-section 3 of Section 123.
47. In the case of Suryakant Venkatrao Mahadik Vs.Saroj Sandesh Naik (Bhosale) (Smt.) reported in (1996)1 SCC 384, it was alleged that the corrupt practice by the returned candidate was an appeal on the ground of religion. Hon'ble the Apex Court observed that meaning of Hindutva would depend upon the context use and manner in which it is meant to be understood by the audience.
48. The relevant parts of the deposition of the petitioner has been discussed above in this judgment. However, considering his cross-examination, the petitioner admitted that before 16.5.2009, he did not have any knowledge of the speeches given by the respondent No.1. He admitted that he did not have any personal knowledge about the nature of speeches as mentioned in the affidavit in examination-in-chief. He came to know about them after the result. It is pertinent to note that in his cross-examination, he referred two petitions, namely, the instant petition, which came to be instituted on 27.6.2009 and one more petition dated 20.1.2010. it is further stated that the reason for preferring the election petition dated 20.1.2010 was legal advise as there may have been certain omissions in the earlier one. As stated above, as a matter of fact, there is only one petition being the Election Petition No.2 of 2009 filed on 27.6.2009. There is no separate election petition dated 20.1.2010 as deposed by the petitioner. It is further pertinent to note that the petitioner admitted that there may be certain defects and omissions in the petition dated 27.6.2009 and, therefore, the second petition was filed. However, Mr.Tolia, learned advocate for the petitioner submitted that as a matter of fact the petition dated 20.1.2010 referred as second petition, as such, is not a second petition, but only the amended and corrected version of the main petition, after curing certain so-called defects in verification as well as in the affidavit, came to be filed. However, the most important question is that by filing necessary copies on 20.1.2010, on behalf of the petitioner, it has been submitted that thereby all the alleged defects have been cured, but the fact remains that the original petition remains unamended. There cannot be any dispute that the amended copy of any plaint or petition can be filed, provided if the original plaint or petition is amended by due process of law, namely, by seeking amendment and obtaining the permission of the concerned Court. Needless to say that the limitation period for filing such petition is 45 days and it is also well settled that so far as the material facts left out in the petition can be incorporated in the petition within the period of limitation. There is also no dispute that so far as the particulars are concerned, which are in support of any material fact, by way of amendment, the same can be incorporated. In the instant case, as stated above, no request was made either for amendment or for amplification in the petition as contemplated u/s.86(5) of the Act. On behalf of the respondent No.1 it was also submitted that even the papers presented on 20.1.2010 did not form the record of the petition and even they are not admitted in evidence or exhibited. It is in that background that the petitioner in his cross-examination also admitted that he did not know whether permission was taken from the High Court for filing the second petition dated 20.1.2010. He further stated that affidavit of examination-in-chief has been filed by placing reliance upon the contents of the two petitions dated 27.6.2009 and 20.1.2010. Lastly, the petitioner stated that it is true that he filed the petition as margin of vote of respondent No.1 was very narrow. He stated that had the respondent No.1 not made the appeal in the name of caste, religion and community, he would have won by more than 10000 votes. On behalf of the respondent No.1, it has been rightly submitted that in the petition it has not been specifically pleaded about the effect of the alleged speeches made by the respondent No.1 and more particularly it has not been pleaded that because of such speeches, the petitioner sustained loss of 10000 votes.
49. On behalf of the petitioner, relying upon Section 100(1)(b) it was submitted that in the instant case, the petitioner was required only to prove the corrupt practice and nothing more that because of such corrupt practice, the election of the returned candidate was adversely affected. In this respect, considering the case of Samant N.Balkrishna Vs.George Fernandes reported in (1969)3 SCC 238, Hon'ble the Apex Court in paragraph 24 elaborately discussed the provisions contained u/s.100(1) of the Act. It was observed that Section 100(1) laid down two separate parts. The first part is dealing the situations in which the election must be declared void on proof of certain facts and the second in which the election can only be declared void if the result of the election insofar as it concerns the returned candidate, can be held to be materially affected on the proof of some other facts. In the first part, the allegations may be that the candidate lacked the necessary qualification or had incurred disqualification etc. The second part is conditional. In paragraph 25 in said decision, it was observed that there are many kinds of corrupt practices and they are defined in Section 123 of the Act. It was observed that so far the corrupt practice stated in Section 123 of the Act are concerned, the additional fact has to be proved that the result of the election was materially affected. In the instant case, as stated above, the corrupt practice alleged by the petitioner against the respondent No.1 pertains to the provisions contained u/ss.123(3) and 123(3A) of the Act and in both the provisions, one of the important ingredients is that the object of any positive or negative appeal or the object for promotion or attempt to promote the feeling of enmity or hatred between the two classes of citizens must be for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. Under such circumstances, the submission made on behalf of the petitioner that in the instant matter, the petitioner is not required to further prove that on account of the corrupt practice committed by the respondent No.1, the same was in furtherance of the prospects of the election of respondent No.1 or for prejudicially affecting the election of the petitioner, cannot be accepted.
50. Since the respondent No.1 filed his nomination on dated 8.4.2009 and considering paragraphs 4.1 to 4.4, the two speeches are prior to said date, namely, 6.4.2009 and 20.3.2009 (pleaded as the speech dated 20.4.2009, but in fact on behalf of the petitioner it was admitted that the same was dated 20.3.2009) and those two speeches should be taken into consideration or not. In this respect, considering the case of Suryakant Venkatrao Mahadik (supra) and more particularly considering paragraph 8 in said decision, on behalf of the respondent, it was submitted that the respondent confined his case only to the speech of the appellant on 11.2.1990 as the speeches made in the meeting held on 29.1.1990 are irrelevant as they relate the period prior to the date on which the appellant became a candidate. Hon'ble the Apex Court in this connection observed that it is surprising that this obvious position in law was overlooked by the High Court and reliance was placed even on the speeches made in the meeting on 29.1.1990 to support the finding of corrupt practices. However, in the case of Govind Singh Vs.Harchand Kaur reported in (2011)2 SCC 621, Hon'ble the Apex Court took into consideration the definition of a candidate in Section 79(b) of the Act and observed that any act performed by a candidate prior to his becoming a candidate would not amount to indulgence in corrupt practice. However, we do not wish to be understood so as to endorse that even if any illegal act has been done by a candidate prior to his filing of nomination which is not within the legal discharge of duty, would not amount to corrupt practice so as to protect himself from the charge of corrupt practice. There cannot be any dispute regarding the interpretation made by Hon'ble the Apex Court pertaining to this proposition and any illegal act or any offence committed prior to the nomination, still amounts to corrupt practice, but in the instant matter, as stated above, the principal allegation of the petitioner is that the respondent No.1 appealed to the voters to vote for him on the ground of he being the member of Baxipanch and that itself cannot be said to be any offence or any illegal act so that even if it is stated prior to the date of filing of the nomination, can be taken into consideration in the context of Section 123(3) of the Act. However, relying upon the aforesaid two speeches, dated 20.3.2009 and 6.4.2009 and considering Section 79(b), on behalf of the petitioner, it was submitted that in those two speeches, he claimed to have been duly nominated and, therefore, those speeches can be considered. Considering Section 79(b), the term 'candidate' is defined and it is provided that the candidate means a person, who has been or claims to have been duly nominated as the candidate at any election. In the instant case, considering the speeches prior to the date of nomination, there does not appear that the respondent No.1 claimed to have been duly nominated because the date of his being duly or regularly nominated is 8.4.2009 and not prior to that. Under such circumstances, even on technical ground, the speeches dated 20.3.2009 and 6.4.2009 cannot be considered. On behalf of the petitioner, it was emphatically submitted that in the instant matter since the respondent No.1 did not step into the witness box, the evidence adduced by the petitioner goes unchallenged and unrebutted. In support of said submission, reliance was placed upon the case of Kalamata Mohan Rao (supra) reported in (1995)6 SCC 728, case of S.Harcharan Singh (supra) reported in (1985)1 SCC 370, case of Ram Swarup Verma (supra) reported in (1970)3 SCC 783 and Suryakant Venkatrao Mahadik (supra) reported in (1996)1 SCC 384. However, in the facts and circumstances of the cases, and considering the nature of evidence adduced by the petitioner before the High Court in said cases, the observations came to be made that no rebuttal evidence was adduced by the respondent before the High Court, which came to be viewed adversely in the facts of said case. In the instant case, as stated above, considering the material defects pointed out on behalf of the respondent No.1 and other statutory defects in the petition, which despite the fact that in the order dated 11.8.2010, this Court granted time of two weeks to cure such defects and, subsequently, no steps were taken by the petitioner in that respect, are required to be taken into consideration and moreover considering the standard of proof required to prove such petition and the nature of evidence adduced by the petitioner, there does not appear that in the instant case, any adverse inference is required to be raised against the respondent No.1. As stated above, so far as the instant petition is concerned, the petitioner mainly relied upon two replies Exhs.29 and 35 filed by the respondent No.1 regarding the interrogatories and such replies were considered by the petitioner that the respondent No.1 admitted the petition of the petitioner. This aspect of the matter has been elaborately dealt with above in this judgment, but suffice it to say that the respondent No.1 nowhere admitted that he appealed to the voters to vote for him on the ground that he belongs to Baxipanch/OBC. In his replies, as stated above, he expressly denied said contentions. He further expressly denied the contention that he appealed to the voters to refrain to vote for the petitioner on the ground of his religion, race, caste or community. Moreover, as stated above, considering Section 123(3) and Section 123(3A), along with other ingredients, the relevant ingredient is such appeal having been made for the furtherance of the prospect of the election or for prejudicially affecting the election of any candidate and like other ingredients, this ingredient is required to be proved by adducing evidence like that of a criminal case. As stated above, except orally deposing by the petitioner in his deposition that because of such corrupt practice indulged by the respondent No.1, he sustained loss of 10000 votes, except such bare statement, no evidence is adduced to substantiate this fact. Moreover, as stated above in the petition in paragraph 4.6 though it is pleaded that the result of the election insofar as it concerned the returned candidate has been materially affected, but as stated above, the said paragraph 4.6 has not been verified to be true either to the knowledge of the petitioner or to his information and belief of the petitioner. Since this aspect of the matter regarding the verification has been elaborately dealt with above in this judgment, no further discussion is required. Similarly, in the affidavit, no source of information is discussed. As observed above in this judgment, after the result of the election was declared, the petitioner initially came to know about the alleged corrupt practice and the speeches of the respondent No.1 and, therefore, he applied for video cassettes and CDs to the Election Commission. It has been seen in this judgment that, therefore, the receipt of such video cassette and CDs as well as watching the same cannot be considered to be in fact the source of information, but as per the deposition of the petitioner, he was informed by somebody about this prior to the date of applying for such video cassettes and CDs. On the contrary, it can be said that only because such prior information having been received by the petitioner, he made application to the Election Commission for video cassette and CDs. Therefore, collectively considering all the above facts, there does not appear any valid ground to raise any adverse inference against the respondent No.1 on the ground that he did not step into the witness box.
51. However, on behalf of the respondent No.1, it was also submitted that the documents, namely, the Gujarati version of the speeches as well as the English version of the speeches, Exhs.43 to 52 may be de-exhibited, as the same cannot be said to have been duly proved. It was contended on behalf of the respondent No.1 that considering Rule 3 r/w.Rule 7 of Order 13 of the CPC, those documents may be de- exhibited. However, Mr.Tolia, learned advocate for the petitioner vehemently opposed this submission and submitted that not only all these documents are proved by the petitioner, but my attention was also drawn to two purshises at pages 239 and 240 in the paper-book and submitted that the same came to be exhibited with the consent in writing on behalf of the respondent No.1. It was further submitted that at the relevant time, no objection was raised. Thus, the documents were exhibited. Considering the facts and circumstances of the case and considering the submissions made on behalf of both the sides regarding this issue, this Court is of the opinion that the request made at this stage regarding de- exhibiting those documents is not required to be considered on merits in view of the entire above discussions made in this judgment. In above view of the matter and in light of the discussions made in this judgment, this Court is of the opinion that the affidavit as contemplated u/s.83 proviso filed by the petitioner is defective. In this connection, considering the earlier discussions in this judgment, it can safely be said that despite the fact that in the order dated 11.8.2010 passed in EA No.8 of 2009, sufficient time was granted to the petitioner, the defect has not been legally cured. As stated above, no source of information, allegedly received by the petitioner, has been disclosed, not only in the affidavit, but even in the evidence. Furthermore, as discussed above, the petitioner in the petition pleaded certain corrupt practice allegedly indulged by the respondent No.1 on different dates and different places mentioned in paragraphs 4.1 to 4.4. In the petition, it is nowhere pleaded that the entire five speeches are violative of Section 123(3) or Section 123(3A). As discussed above, the respondent No.1 filed written statement, keeping in view the averments made in the petition, and more particularly in paragraphs 4.1 to 4.4. Furthermore, while considering the replies, Exhs.29 and 35 filed by the respondent No.1 to the interrogatories, it has been considered that the respondent No.1 specifically stated on oath in the replies that by virtue of his speech, he did not make any appeal on the ground of his community to vote for him or to refrain from voting in favour of the petitioner. Issue No.1 as framed by this Court pertains to the speech delivered in meeting on 6.4.2009 and as per the issued No.1, the petitioner was supposed to prove that the respondent No.1 stated that the election is being fought not by respondent No.1, but by Baxipanch, as alleged. It has been discussed at length that this can never be said to be an appeal on the ground of religion, caste or race, because as such, the Baxipanch/OBC itself is not a single caste or single community. It is further pertinent to note that considering paragraphs 4.1 to 4.4 in the petition, an impression can be gathered that out of the five different speeches of the respondent No.1, the petitioner picked-up certain words and sentences and projected in the petition that thereby the respondent No.1 indulged in corrupt practice as contemplated u/s.123(3) and Sec.123(3A). It has been considered above while relying upon certain decisions of the Apex Court that what is required to be considered is substance of the speech and not the form or phraseology. It has also been considered that the speech is required to be viewed and interpreted in light of the context in which it is made and the speech in fact amounts to violation of the provisions contained u/s.123(3) and Sec.123(3A) or not, as well as an important ingredient is also required to be proved by the petitioner that the speech was intended for the furtherance of the prospect of the election of the respondent No.1 or to prejudicially affect the election of the petitioner. If particular word or sentence or line or lines are picked-up from the entire speech and then the same are projected, that would not give the true picture of the speech. As stated above, even if the disputed five speeches as a whole are considered, the overall impression which can be gathered would be that the respondent No.1 was a local candidate. The gist of his speeches leads us to believe that what he emphasized was that the citizens should exercise their right of voting. In one of his speeches, mere fact that he gave statistical datas pertaining to the voters, does not amount to appeal on the ground of religion, race, caste or community. In one of his speeches dated 6.4.2009, he referred Baxipanch, but in his speech, he clearly stated that whenever in past, tickets were allocated to a candidate of Baxipanch, he lost election. Under such circumstances, even according to his speech, he admits that the caste or community factor does not work. In his speech, he also left to the good discretion of the voters by saying that, ultimately, it is for the voters to decide. Under such circumstances, so far as issue No.1 is concerned, even if it is believed that the respondent No.1 stated that the election is being fought by Baxipanch and not by the respondent No.1, thereby it cannot be said that any appeal is made by the respondent No.1 to vote for him on the ground of his religion, race, caste or community. Even considering the overall fact of the petition, no specific pleading or any specific instance is given regarding any negative appeal having been made by the respondent No.1 to the effect that not to vote for the petitioner on the ground of his religion, race, caste and community or on the ground of he being Kshatriya by caste. As a matter of fact, in the entire petition, or even during the course of evidence, nothing is stated as to what is the caste and religion of the petitioner, so also of the respondent No.1. Under such circumstances, even if the issue No.1 is replied in the affirmative, in light of the entire above discussions and the various decisions discussed in this judgment, according to this Court, mere reference to Baxipanch in the speech cannot be said to be the proof regarding all the required ingredients contained u/s.123(3) and Sec.123(3A).
52. Issue No.2 pertains to the speeches dated 12.4.2009 and 20.3.2009, the relevant parts are pleaded at paragraphs 4.2 and 4.3. The entire text of the speech dated 12.4.2009 is at Exh.45, the relevant part from it is pleaded in paragraph 4.2. Even as stated above and as pleaded in paragraph 4.2 itself, ultimately the respondent No.1 mainly relied upon the discretion, which may be taken by the voters. However, in paragraph 4.3 in the petition, the speech is shown to be of dated 20.4.2009, but in fact, it is dated 20.3.2009. As stated above, even such minor mistake is not corrected by any amendment in the petition. The speech dated 20.3.2009 is at Exh.43. Considering the paragraph 4.3, it appears that the objectionable part according to the petitioner is that the petitioner held a meeting with Muslims and cow meat was served. As discussed above in this judgment, nothing specifically emerges from his speech, Exh.43 that the same was served either by the petitioner or at the instance of the petitioner or that the same was consumed by the petitioner. Over and above this, it has been considered at length in this judgment that the respondent No.1 filed his nomination on dated 8.4.2009 and, therefore, considering the decisions referred in this judgment on this point, since on 6.4.2009 as well as on 20.3.2009, the respondent No.1 was not the candidate as defined u/s.79(b) of the Act and, therefore, he cannot be said to have indulged in corrupt practice as contemplated u/ss.123(3) or 123(3A), for any alleged act done prior to he becoming the candidate. As stated above in Suryakant Venkatrao Mahadik's case (supra), Hon'ble the Apex Court criticized the High Court when the speeches prior to the date of becoming a candidate were considered and it has been observed that thus, the speeches were irrelevant for consideration. In above view of the matter, and considering the totality of the situation and the discussion, the reply to the issue No.2 shall be in the negative.
53. So far as issue No.3 is concerned, the same pertains to a speech of the respondent No.1 made by him on dated 23.4.2009, more particularly pleaded in paragraph 4.4 in the petition. It is alleged by the petitioner that in the two different speeches delivered by respondent No.1 on 23.4.2009, on different occasions and at different villages and the language used by him was to make appeals on the ground of religion, community and caste. The Gujarati text of his speeche at Villages Godali, Khadod and Vadkundali is at Exh.49 and his speeche delivered at Villages Jorapura and Richvani Bor is at Exh.51. Considering paragraph 4.4 regarding his speech at Villages Godali, Khadod and Vadkundali, it has been alleged that considering the relevant portion pleaded in paragraph 4.4 of the said speech of the respondent No.1, thereby he created religious hatred in the mind of Hindus. The part, which is found to be objectionable in paragraph 4.4 is that the respondent No.1 addressed the gathering that because of non- voting of Hindu community brothers, he will lose the election. Thereby it cannot be said that the respondent No.1 either promoted or attempt to promote feeling of enmity or hatred between the two communities. In his speech, as pleaded in paragraph 4.4, he stated that if he gets elected, then all the government officers will be scared of him and will work immediately for his people. This cannot be said to be an appeal as contemplated either u/s.123(3) or Section 123(3A). In his second speech dated 23.4.2009 at Villages Jorapura and Richvani Bor, it has been pleaded in paragraph 4.4 that the respondent No.1 stated some statistical datas about different types of voters and then he stated that farmer was never elected from said seat. The entire text of said speech in Gujarati version is at Exh.51 and English version is at Exh.52. In the said speech, he stated that persons coming from outside and were not local persons, contested the earlier elections and they were elected, like, Pilu Modi from Bombay, Hitendra Desai from Surat, King of Bariya from Dahod and even in past, the petitioner once. In above view of the matter, the said speech, according to this Court, does not amount to any appeal made by the respondent No.1 on the ground of religion, race, caste or community. I need not discuss here again various decisions of Hon'ble the Apex Court discussed at length above, but suffice it to say that considering the totality of the circumstances, the overall evidence on record and in light of the entire above discussions, so far as issue No.3 is concerned, the relevant reply shall be in the negative. The the petitioner failed to prove that the respondent No.1, at public meeting, on 23.4.2009, used language to make the appeals on the grounds of religion, community or caste and to create religious hatred as contemplated u/s.123(3) and Section 123(3A) of the Act.
54. Considering all the seven issues framed, issue No.4 is of prime importance. As per issue No.4, the petitioner was required to prove that the result of the election, insofar as the petitioner is concerned, has been materially affected by the appeals made by the respondent No.1 at various public meetings to vote for respondent No.1 on the ground of religion, community, caste and not to vote for the petitioner on the ground of religion, community, caste. As stated above, on behalf of the petitioner, it was tried to be submitted that in this petition, the effect or impact on the election is not required to be considered in light of Section 100(1)(b). However, this point has been discussed at length in this judgment and, therefore, the same is not again required to be repeated here. Suffice it to say that in the instant case, along with Section 100, Section 123(3) as well as Section 123(3A) are also required to be considered and at the cost of repetition, it has been observed that along with other required ingredients of said provisions, the ingredient regarding the effect and impact of such positive appeal and/or negative appeal is also an important ingredient, which the petitioner is supposed to prove. About the standard of proof, needless to say that in such matters, the standard of proof is not like the one required to prove in ordinary civil case, but the standard of proof required is like that of criminal case or atleast quasi criminal case. So the petitioner is required to prove that the alleged positive appeal made by the respondent No.1 to vote for him on the ground of his religion, race, caste and community was for the furtherance of the prospect of his election or that the so-called negative appeal made by the respondent No.1 on the ground of religion, race, caste and community of the petitioner was for prejudicially affecting the election of the petitioner. Though this aspect of the matter has been discussed at length above, but, suffice it to say that in paragraph 4.6 in the petition, what is pleaded is only the above- referred ingredient contained u/s.123(3) and Section 123(3A). The petitioner is also supposed to prove that the respondent No.1 delivered the speeches for the promotion or attempted to promote the feelings of enmity or hatred between different class on the ground of religion, race, caste or community and that too for the furtherance of the prospect of his election or for prejudicially affecting the election of the petitioner as provided u/s.123(3A). Considering Section 125 of the Act, the same amounts to an offence punishable with imprisonment for a term, which may extend to three years or with fine or with both. In this judgment, it has also been discussed that no FIR or any complaint was filed against the respondent No.1 for the same. Apart from this, so far as paragraph 4.6 in the petition is concerned, except extracting required ingredients from Section 123(3) and Section 123(3A), no particulars are furnished and even considering the verification, such important paragraph 4.6 is neither verified to be true to the knowledge of the petitioner or true to the information of the petitioner. Simultaneously, it is also required to be considered about the source of the information of the petitioner. Though this aspect has been elaborately discussed above. The petitioner allegedly received information from somebody about these speeches and, thereafter, he applied for relevant video cassettes and CDs containing the speeches from the Election Commission. Therefore, the delivery of video cassettes and CDs and watching those cassettes and CDs cannot be considered to be in real sense the source of information as contemplated under the Act. Under such circumstances, neither in the petition, nor in the entire evidence, the source is disclosed, namely, the person or persons, who informed the petitioner about the speeches. The petitioner in his evidence and more particularly in his cross-examination stated that had the respondent No.1 not made an appeal in the name of caste, religion and community, he would have won by more than 10000 votes. Neither in the petition such important aspect is pleaded nor any evidence is adduced by the petitioner to substantiate his say in the cross-examination. There is no dispute that the margin of votes between the petitioner and the respondent No.1 is 2069 votes. As a matter of fact as stated above, he admitted that he filed this election petition as the margin of victory of respondent No.1 was very narrow. However, as per the issued No.4, the petitioner was supposed to prove that said narrow margin was on account of the alleged corrupt practice indulged by the respondent No.1. In absence of any clear pleading in terms of the facts stated in issue No.4 and on account of lack of required evidence in support of said fact, and more particularly to substantiate the allegation made in paragraph 4.6 in the petition, no evidence in terms of the standard of proof required to prove such cases has been adduced by the petitioner. Thus, in light of the entire discussions made in this judgment, the reply to issue No.4 shall be in the negative.
55. The issue No.5 pertains to to the limitation. As per Section 81 of the Act, such petition is required to be filed within 45 days from the date of declaration of the result of such election. So far as this petition is concerned, as averred in paragraph 7, the returned candidate was declared elected on 16.5.2009 and, therefore, the petition as such cannot be said to be time barred. Therefore, the reply to issue No.5 shall be that the petition is not barred by limitation. However, for the purpose of issued No.5, thought it may not at all be relevant, but considering the evidence of the petitioner, he referred two petitions, namely, the instant petition as well as the 2nd petition dated 20.1.2010. As discussed above at length in this judgment, there is no question of any 2nd petition dated 20.1.2010 having been instituted by the petitioner and even during the course of argument, on behalf of the petitioner, it has been stated that no second petition on 20.1.2010 is filed. However, on 20.1.2010, according to the submission made on behalf of the petitioner, corrected copy of the original petition as well as required corrected copies were served upon the respondents. However, it is not necessary to reproduce the above discussion made in this judgment here regarding this aspect of the matter, but suffice it to say that the original petition still remains unamended or in the same form in which it was presented, despite the fact that in the order passed by this Court in the application under Order 7 Rule 11 of the CPC, sufficient time was granted to the petitioner to legally cure the defects. No application for amendment as contemplated under the CPC or as contemplated u/s.86(5) of the Act came to be filed for amendment or for amplification. The petitioner in his cross-examination admits that the so-called second petition on 20.1.2010 was filed as there may have been certain omissions in the earlier one. Thus, the omissions, which are violation of certain mandatory provisions of the Act, have not been cured. This aspect of the matter has been discussed at length above and, therefore, suffice it to say that certain statutory requirements as laid down under the Act and certain other material omissions have not been taken care of by the petitioner by carrying out necessary amendments in the petition as well as in the verification, so also in the mandatorily required affidavit of affidavits.
56. The above discussion shall also take care of the issue No.6, which is pertaining to the fact as to whether the petition is not maintainable in the present form? This aspect has been dealt with at length in this judgment and various decisions rendered by Hon'ble the Apex Court and even by Bombay High Court have been discussed. Section 81(3) is a mandatory requirement and at the time of filing of the petition, petition shall be accompanied by required copies to be supplied to the respondents, and further such copy shall be attested by the petitioner in his own signature to be a true copy of the petition and a grievance was ventilated on behalf of the respondent No.1 that they were not supplied with the copies as contemplated u/s.81(3) of the Act and even in the written statement, the same was pointed out. As per Section 86 of the Act, such non-compliance goes to the root of the maintainability of such petition. The so-called 2nd petition dated 20.1.2010 and the supply of necessary copies without there being any appropriate application for said purpose and there being any order to that effect by this Court, shall be of little consequence. Likewise, considering Section 83 proviso regarding the affidavit and the number of affidavits, one under Order VI Rule 15(4) of the CPC and the second one as contemplated u/s.83(1) of the Act and non-disclosure of source of information in the affidavit have been considered to be vital defects. Even if it is believed that they are curable defects, but as stated above, despite the fact that sufficient time was given to the petitioner to cure such defects, the same were not appropriately and legally cured.
Certain defects such as defective verification, non- disclosure of caste of the petitioner and that of the respondent No.1 in the petition etc. still continue and no application for amendment or for amplification came to be filed by the petitioner. As stated above, even certain typographical errors in the petition were not cured by amendment in the original petition. Moreover, as discussed above, in paragraphs 4.1 to 4.4 in the petition, certain parts of the five different speeches which came to be found by the petitioner being objectionable in the speeches of the respondent No.1 are pleaded. On the same basis, the respondent No.1 filed written statement, and at the end of the trial, without there being any amendment in the pleading, or any amplification in the pleading, as contemplated u/s.86(5) of the Act, on behalf of the petitioner, a submission was made that even other parts of the speeches not pleaded in paragraphs 4.1 to 4.4 are also objectionable. Under such circumstances, it can safely be said that by amendment in the petition, other material particulars could have been incorporated and then could have been pressed into service. But in this case, without filing any appropriate application and obtaining any appropriate order of this Court, and without carrying out any requisite amendment by adding further material particulars in the petition, on behalf of the petitioner, it was tried to be projected that even other parts of the speeches made by the respondent No.1, are objectionable. Merely because in the replies Exhs.29 and 35, pertaining to the interrogatories, the respondent No.1 admitted his speeches, thereby it cannot be said that the petitioner was not at all required to amend the petition by adding further more particulars. As a matter of fact, in those replies, the respondent No.1 stated on oath that he did not make any appeal to vote for him on the ground of his religion, race, caste or community and he did not make any appeal to the voters to refrain from voting in favour of the petitioner on the ground of his religion, race, caste and community. As discussed above in this judgment, the replies, Exhs.29 and 35 filed by the respondent No.1 is treated by the petitioner as if the whole petition of the petitioner is admitted by the respondent No.1. Thus, in above view of the matter, it can safely be said that so far as the petition as it stands, the verification as it stands and the statutory affidavit as it stands, they remain unamended and the defects as pointed out by the respondent No.1 and as discussed at length in this judgment shall continue. In that background and in light of the entire above discussions, the reply to issue No.6 shall be in the affirmative that the petition is not maintainable in the present form.
57. In light of the entire above discussions, so far as the issue No.7 is concerned, the petitioner cannot be said to be entitled to the reliefs claimed, and the reply, therefore, shall be in the negative.
58. In the result, in light of the entire above discussions and the findings arrived at by this Court regarding the issues framed, the net result is that the instant petition deserves dismissal with costs.
59. For the foregoing reasons, the petition, therefore, stands dismissed with costs.
60. Since the election petition has been dismissed, the election applications lose their survival value and also stand disposed of (binoy) (J.C.UPADHYAYA, J.)