9911796707
TMI Blog1995 (12) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the allegation, and its erroneous assumption that there are admissions that appeals were made in the name of Hindu religion which is the religion of the appellant. This is wholly untenable. There is also no legal evidence to prove the allegation of corrupt practice. The argument of learned counsel for the appellant and notice that the High Court’s judgment is based on certain notions and impressions instead of the material on record, cannot be treated as baseless. It is surprising how the election was set aside on such scanty material. Consequently, the appeal of the returned candidate as well as the appeals of the notices are allowed. Appellant Prof. Ramchandra G. Kapse and the notice Pramod Mahajan will get their costs throughout from the respondent (election petitioner). The other notice Sadhvi Reethambara will bear her own costs since she did not appear as a witness to personally rebut the allegation made against her. - C.A. 4334 OF 1994 - - - Dated:- 11-12-1995 - JAGDISH SARAN VERMA, N.P. SINGH AND K. VENKATASWAMI, JJ. JUDGMENT These are appeals under Section 116A of the Representation of the People Act, 1951 (for short "the R.P.Act") by the returned candid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicating his personal absence in the meeting held on 21.5.1991 wherein the alleged speech of Sadhvi Reethambara was made, were disallowed by the court taking the view that there was no specific denial of his presence in that meeting in his written statement. This led to an application for amendment of written statement to expressly deny the presence of Prof. Kapse in that meeting and to plead his presence at some distant place at that time. That application was dismissed on 10.8.1992. A special leave petition in this court against that order was dismissed on 27.8.1992 obviously for the reason that no interference was considered appropriate at an interlocutory stage in the trial. The deposition of Prof. Kapse was then concluded and his evidence was closed on 7.9.1992. Thereafter on 24.9.1992, notices under Section 99 of the R.P. Act were given to Sadhvi Reethambara and Pramod Mahajan. In March 1993, Sadhvi Reethambara filed her reply denying the commission of any corrupt practice in making her speech and she also denied the presence of Prof. Kapse in her meeting on 21.5.1991. The noticee Sadhvi Reethambara also made on application for calling some evidence to prove the absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for protecting the Hindu religion. The section of public including the respondent got up." (emphasis supplied) The earlier reference in para 10 of the election petition is to another speech of Sadhvi Reethambara at Nagpur which is irrelevant for the purpose of this is as under:- "25. ................ ...... In any event the said Ritambara Devi is in no way concerned with the present respondent and her acts and deeds are in no way relevant for the decision of the present petition on merits of the case. 26. With reference to paragraph 11 of the petition, this respondent denies that he had invited the said Ritambara Devi at Thane or that he had chalked out her programme or that she was invited to come and canvass for the respondent in his constituency or that in such circumstances she came to Thane on 21.5.1991. All the said allegations are wholly baseless and false. The petitioner is put to the strict proof of the alleged meeting held at Thane on 21.5.1991 and that and announcement of that meeting was made in the town with the aid of auto-rickshaw allegedly engaged by the respondent or his workers with his consent. It is not true that the respondent had done anything as alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity to the noticee is itself sufficient to vitiate the inquiry made under Section 99. Since denial of this opportunity to the noticee Sadhvi Reethambara is for the same reason for which it was denied to the returned candidate Prof. Kapse, namely, the view taken that there was no specific denial in the written statement of Prof. Kapse of his personal presence at that meeting, this question with reference to its effect on the case of the noticee may first be examined. Bare perusal of Section 99 leaves no doubt that the noticee has an independent right to show cause why he should not be named thereunder as a person guilty of any corrupt practice, apart from the right which the candidate has to defend himself as a respondent in the election petition. This right of the noticee is the same as that of a person who is a party to the petition and resort to Section 99 becomes necessary only when the noticee thereunder is not already a party to the petition and there is a likelihood of he being named as a person guilty of any corrupt practice. Section 99 of the R.P. Act is as under :- 99. Other orders to be made by the High Court. - (1) at the time of making and order under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticee cannot be shut out at the threshold by refusing him this opportunity, even if the candidate has not availed of the same or has omitted to make that denial for any reason. Nothing of any significance to require a specific mention was said on behalf of the respondent to doubt the correctness of this proposition which is so obvious. It is difficult to appreciate how the High Court could reach a different conclusion and on its erroneous impression deny to the noticee the right she had to plead and prove the absence of the candidate Prof. Kapse from her meeting and the want of the candidate s consent for her speech, in order to show that the alleged corrupt practice was not made out for want of an essential constituent part thereof on account of which she could not be held guilty for the commission of any corrupt practice. It was for the High Court after giving her the opportunity contemplated by the proviso to subsection (1) of Section 99 to have ultimately formed its opinion whether her version could be accepted or not. That stage, however, did not reach because of the error committed at the threshold of the inquiry made under Section 99 of the R.P. Act by denial of this op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation of fact in the plaint and when a defendant denies any such fact he must not do so evasively but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted of which no other proof is necessary unless the court in its discretion under the proviso to Rule 5 requires any fact so admitted to be proved otherwise than by such implied admission. The requirement, therefore, is that the denial should be made of the point of substance to amount to a specific denial of the allegation of fact. The written statement has to be read as a whole to see whether any implied admission can be spelled out therefrom. In the above-quoted portions extracted from the written statement, there is specific assertion that Sadhvi Reethambara was in no way concerned with Prof. Kapse (respondent in the election petition) and her acts and deeds were not relevant; Prof. Kapse had not invited her at Thane on 21.5.1991 and such allegations were wholly baseless and false; it was denied that Prof. Kapse had done anything as alleged in para 11 of the election petition; the part attributed to Sadhvi Reethambara was denied by Prof. Kapse who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that evidence is led for proving presence at that time elsewhere to improbablise the allegation made in the petition without any express pleading to that effect in the written statement, may be of significance only to assess the probative value of such evidence but the evidence cannot be shut out as irrelevant or inadmissible. The High Court s order refusing permission to Prof. Kapse to lead that evidence and thereafter to amend the written statement for making a clear assertion to this effect is contrary to law. The finding on this question even against the returned candidate Prof. Kapse is, therefore, vitiated due to this defect. The express denial by Prof. Kapse in his statement of his presence in the meeting at Thane on 21.5.1991 cannot be rejected. The implied admission read in the written statement of Prof.Kapse has earlier been rejected by us. There is no reliable evidence to prove the alleged conduct of Prof. Kapse which was relied to prove his consent for the speech of Sadhvi Reethambara, irrespective of the nature of her speech. This alone is sufficient to reject the finding of the High Court that any corrupt practice is proved to have been committed by Prof. Kapse on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litical parties was only a pretence or that the other parties were appealing the Muslim minority for the sake of votes. The petitioner is put to the strict proof of the said allegations. This respondent, however, states that the portions of speeches quoted by the petitioner are out of context and hence misleading. It is also not true that Mr. Mahajan appealed to the voters to elect the Govt. which believed devotion of Ram. The petitioner is put to the strict proof that the respondent was present at that time. The respondent does not admit that Mr. Mahajan further stated that for prestigious Hindustan and for the construction of Ram Temple voters should elect the respondent are wholly baseless and out of context. The respondent is not aware whether there is any such record about the said speeches with the police." It was specifically denied in the written statement that appeal to voters was made to elect the Government which believed in devotion to Ram or that the appeal was made on the ground of Hindu religion. The finding of the High Court on appreciation of the evidence adduced at the trial on this point may be summarised with reference to certain extracts from the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the manifesto of the B.J.P. was also a basis for pleading this corrupt practice and that the candidate Prof. Kapse was guilty of corrupt practice for the contents of the B.J.P. Manifesto. The above extracts from the impugned judgment show that the manifesto of the B.J.P. is a strong basis for finding the candidate guilty of this corrupt practice and that too without any such basis being pleaded in the election petition. There is also reference to admission by Pramod Mahajan and the appellant that appeal for votes was made in the name of Hindu religion. The admission is spelt out on the basis of the manifesto of the B.J.P. of which he was a candidate. It is difficult to appreciate how and where such admissions were found by the High Court in the depositions of the appellant Prof. Kapse and Pramod Mahajan. Registration with the Election Commission as a political party for the purposes of the R.P. Act is made in accordance with Section 29-A of the R.P. Act. Sub-section (5) of Section 29-A requires the memorandum or rules and regulations of the association or body to contain a specific provision that it shall bear true faith and allegiance to the Constitution of India as by law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He also stated that he was taking down notes during the meeting and after preparation of the report, those notes were destroyed. The translation of the original Ex.J is marked Ex.J-1 and it was admitted in evidence subject to objection relating to its admissibility. This is the entire statement of S.B. Phadke (PW-4). The witness did not depose to any fact relating to the meeting or any speech given therein and he did not even name any of the speakers at that meeting. The scribe of the document Ex.J has not been examined even though PW-4 has said that it was signed by him. The testimony of PW-4 read as a whole proves nothing even if it is taken at its face value. There is thus no witness who has deposed to the fact of Pramod Mahajan giving a speech and the contents thereof. No particular portion of the alleged speech of Pramod Mahajan has been proved to show that there was any appeal made for votes on the ground of religion, much less any particular religion. Emphasis in the contents of the report of the speech of Pramod Mahajan in Ex.J/J-1 is on the functioning of Janata Dal on the basis of caste and religion; the need for a common rule and law for all in the country; criticism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to him is equality of all religions. He was also cross-examined about his concept of different religions. There is nothing in his cross-examination to detract from the merit of his version relating to the meeting of 11.6.1991 at Kalyan and his version of the speech of Pramod Mahajan or his own speech. The roving cross-examination in general about the religion is wholly irrelevant for the purpose of the charge which was levelled against him. Pramod Mahajan also appeared as a witness. According to him, in his speech made on 11.6.1991 at Kalyan he commented on the policy of the other political parties and made his criticism of the same. According to him, he said nothing to seek votes on the ground of Hindu religion or to support Hindutva. He criticised misrule of the Congress (I) for several decades. According to him, he said that for centuries, Hindus, Muslims and members of other communities have been living as brothers and sisters and by and large it is so. He also said that ours is a secular country and that the state has no religion and it is not true that he and his party believe that India belongs to Hindus alone, since it belongs to all. This is the sum and substance of h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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