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PETITIONER: DR.DAS RAO DESHMUKH

       Vs.

RESPONDENT: KAMAL KISHORE NANASAHEBKADAM & ORS.

DATE OF JUDGMENT14/07/1995

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) FAIZAN UDDIN (J)

CITATION:  1996 AIR  391            1995 SCC  (5) 123  JT 1995 (5)   313        1995 SCALE  (4)424

ACT:

HEADNOTE:

JUDGMENT:           THE 14TH DAY OF JULY,1995 Present:           Hon’ble Mr.Justice G.N.Ray           Hon’ble Mr.Justice Faizan Uddin Mr. Raju Ramachandran, Mr. Maknand Adkar, Mr.P.H.Parekh, Mr.S.Uday Kumar Sagar, Mr. Amit Dhingra, Advs. for the appellant Mr.V.C.Kotwal, Sr. Adv. Mr. Girish Desai, Dr.R.B.Masodkar, and Mr.K.L.Taneja, Advs. with him for the Respondents.                     J U D G M E N T The following Judgment of the Court was delivered:                IN THE SUPREME COURT OF INDIA                CIVIL APPELLATE JURISDICTION                CIVIL APPEAL NO.3169 OF 1991 Dr.Das Rao Deshmukh           versus Kamal Kishore Nanasaheb Kadam and others                     J U D G E N T G.N.Ray.J.      This appeal is directed against the judgment dated July 18, 1991  passed by the Bombay High Court (Aurangabad Bench) in Election  Petition No.8  of 1991  The respondent  No.1 in this appeal.  Sri Kamal  Kishore Nanasaheb  Kadam  preferred Election Petition  No.8 of  1991 before the Aurangabad Bench of the Bombay High Court inter alia challenging the election of  the   appellant  Dr.Das   Rao  Deshmukh   from  Assembly Constituency No.170  Nanded in  the Maharashtra  Legislative Assembly held  on February  27,  1990.  having  secured  the highest  vote  in  the  said  election,  the  appellant  was declared  elected   to  the  Maharashtra  State  Legislative Assembly in  the said  election  from  the  Nanded  Assembly Constituency. By the impugned judgment, such election of the appellant was  declared null  and  void  on  the  ground  of corrupt  practice  indulged  by  the  appellant  Dr.Das  Rao

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Deshmukh  under   Section  123  (3)  and  123  (3A)  of  the Representation of  People Act, 1951 (hereinafter referred to as the  Representation Act). The High Court, by the impugned judgment, also  awarded a  cost of  Rs.10,000/- against  the appellant and  in favour  of the election petitioner. It may be indicated  here that  shortly after  the hearing  of this appeal  was   concluded,  the   general  election   of   the Maharashtra State  Legislative Assembly including the Nanded Assembly Constituency was held in February, 1995. In view of such election,  the contest  as to  general election in 1990 would have  lost, for all practical purposes, any importance and this  appeal would  have become infructuous. But in view of the  finding of  the High  Court that  the appellant  had indulged in  corrupt practice  under Section 123 (3) and 123 (3A) of the Representation Act which has serious consequence concerning the appellant, a decision of this appeal on merit is necessary.      In the election petition preferred by Sri Kamai Kishore Nanasaheb Kadam,  the election  petitioner alleged  that the appellant Dr.Das  Rao Deshmukh  was a  nominee of  Shiv Sena party in the said Nanded Constituency but he carried out his election campaign  on the  basis of  Hindu Religion  and for that purpose  promoted and  attempted  to  promote  communal hatred between  two communities  namely the  Hindus and  the Muslims. The  election petitioner  gave detailed accounts as to how  such campaign  on the ground of religion was carried out by  the appellant  Dr.Das Rao  Deshmukh with  the active support of  his election agents and leaders of Shiv Sena and Bharatiya Janta  Party (hereinafter referred to as BJP). The last Assembly  election in the State of Maharashtra was held on February  27, 1990.  As per  the schedule declared by the Election Commission  for the  9th General  Election for  the Legislative Assembly  for  the  State  of  Maharashtra,  the nomination papers  were to  be filed  on February  3,  1990, nominations were  to be  scrutinised on  the very  same day. Last date  for withdrawal  of nomination papers was February 7, 1990  and the  result of  election was  to be declared on March 2,  1990. The  election petitiner was the Congress (I) nominee and  the appellant  Dr.Deshmukh was  the nominee  of Shiv Sena  party. The  appellant  secured  48465  votes  and election petitioner  secured 33270  votes. Chandrakant Bagve and Vinayak  Partharkar respectively  Shakha Pramukh of Shiv Sena and Local President of the said Shakha were incharge of the election campaign on behalf of Dr.Deshmukh. Shri Chander Shekhar Sonavane was the election agent of Dr. Deshmukh. The election  petitioner   alleged  that  the  Shiv  Sena  Party conducted election  campaign  by  holding  public  meetings, distributing banners  and  hand  bills,  pamphlets,  playing audio and  video cassettes, depicting the election manifesto as well  as the  election campaign  of  Shiv  Sena.  It  was alleged that  Shiv Sena  party had  recorded  two  cassettes namely Avhan  and Awanan  and ’Ajinkya’. It was alleged that all such campaigns were with the consent of Dr.Deshmukh. The election petitioner  divided the  allegations in  Part II to Part VII of the election petition. The allegations about the campaign on  the basis  of religion were indicated in Part V and Part  VI. Part  VI is the synopsis of the particulars of the campaign  which. according  to the  election petitioner. Were offensive.  The classification  in those parts has been made with reference to various types of document, cassettes, both audio  and video  for facilitating the understanding of the allegations of the election petitioner. The organisation of the  Shiv Sena Party was registered as political party on October 29,  1988. According to the election petitioner, the main idea of establishing the Shiv Sena party was to promote

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and espouse  the cause  of Hinduism. The election petitioner alleged that  the Shiv  Sena came  out with the message in a daily newspaper  called "Samna"  and the  thrust of the said newspaper was that the Hindus and the Hindu religion were in danger  and   that  they   needed  awakening.  The  election petitioner further  alleged that  in Nanded constituency the said newspaper  had wide circulation. The main allegation of the said  Shiv Sena  party was  that Hindu  religion was  in peril in  the hands of the ruling Congress (I) Party. It was alleged that  during the  entire tenure  of the  rule by the Congress I,  the  said  party  had  esooused  the  cause  of Mohammadens and Christians and it was required to be checked by constituting  Hindu Vote  Bank. The  Supremo of Shiv Sena Party Shri  Balasaheb  Thackrey  had  openly  canvassed  for capturing political  power by indicating that such power had to be  owned by  ’Dharmayudh It  was alleged  that when  the election of  Shiv Sena  candidate Dr.Ramesh Prabhoo from the Vile Parle  Constituency on  December 13, 1987 was set aside on the ground that the campaign was found to be in breach of Section 123 (3) and 123 (3A) of the Representation Act, Shri Thackrey came  out in the newspaper ’Samna’ that Hindus must unite, Hindu religion must grow and this concept should make new  Hindustan.   Similar  speeches   were  also   delivered thereafter. It  was further  alleged  that  on  the  eve  of election of  four Shiv  Sena candidates at the 9th Lok Sabha Elections. the  same message  was delivered by Shri Thackrey and he  declared that  he would desire to noist Saffron Flag at  Vidhan   Bhavan  at   Bombay.  The  election  petitioner contended that  the appellant  Dr.Deshmukh joined  Shiv Sena and adopted the entire election campaign carried out by Shiv Sena throughout  the State  of Maharashtra.  The  said  Shri Deshmukh also  consented that  persons named in para 3.02 of the election  petition would campaign for him. The said list mentioned several  names including  the names  of respondent Nos.2 to  6 to  the  election  petition.  In  Part  IV,  the election petitioner  gave the  area of  Nanded  Constituency No.170 and  in para  5, the  detailed corrupt  practice  was indicated. It was alleged by the election petitioner that on February 2,  1990, there  was an  announcement by the Nanded Shakha  of  Shiv  Sena  party  that  the  meeting  would  be addressed by  Shri Balasaheb Thackrey on February 4, 1990 at about 1.30  P.M. and an advertisement was published in local newspaper  Godatir  Samachar.  It  was  indicated  that  the meeting  would   be  held  at  Indira  Gandhi  Maidan  where Dr.Deshmukh would  remain  present.  At  the  said  meeting, Dr.Deshmukh was  given a  welcome by  Shri Thackrey and Shri Thackrey delivered  a lengthy  speech in  the meeting.  Shri Ashok Deshmukh,  Nandu Kulkarni  and Chandrakant  Bagve also addressed the  same meeting.  The report of such meeting and the speeches  delivered therein  were published  in  Godatir Samachar on  February 5,  1990. In  the said  meeting,  Shri Thackrey made  a speech and he made no secret that he sought votes on  the plank  of religion. The entire speech was tape recorded and  there were  audio and  video cassettes of such speech. The  synopsis of the said speech was that Nanded was the city of Gurdwara and it should be kept in mind that Guru of the  Sikh religion had given kripan for protection of the Sikh religion.  He  further  stated  that  the  Hindus  were leaving  Kashmir  and  they  were  killed  in  Punjab.  Shri Thackrey further  stated that  the country was Hindustan and the Hinduism  needed protection.  Referring to the political leaders like  Sharad Pawar and Shri V.P.Singh, Shri Thackrey stated that  they had  only praised the Mohammadens and Shri V.P.Singh visited  Snani-Imam after the elections but he did not care  for Hindus votes. Shri Thackrey warned that Hindus

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could  not  be  insubordinated  and  neglected  and  at  the Assembly elections  they would fly the Saffron flag and rule in the  State of  Maharashtra. He  stated that  he  had  the blessings of  Tulja Bhavani, Goddess of Tuljapur and Goodess of Shivaji  Maharaj. He  also indicated that the history was twisted  and   the  facts   which  would  not  be  liked  by Mohammadens had  been altered.  Shri Thackrey  referred to a book written  by Dr.Babasaheb Ambedkar "Ridders in Hinduism" published by the Government where Lord Rama and Lord Krishna had been  maligned. It  was further  stated by  the election petitioner that Dr.Deshmukh also addressed by saying that it was a  golden day  at Nanded  because the  feet of Balasaheb Thackrey had  touched the  soil of  Nanded. The  strength of Shri Balasaheb  Thackrey should  be  the  strength  of  Shri Balasaheb Thackrey should be the hoisted at Vidhan Bhavan.      With reference  to Avhan  and Awhan the video tapes, it was contended  by the  election petitioner  that in the said video tapes  powerful  exhortation  and  inducement  to  the voters to  vote on  the ground  of religion  had been  made. There was  an appeal  that if  a Muslim would try to destroy Hinduism in  Hindustan public  would not keep quiet but take out the  intestines like  that of  Afzulkhan.  It  was  also alleged that  Muslims were  loyal to Pakistan and Urdu could not be  the national  language of  Hindustan. An  appeal was also made  to the  fact that  the Rulers would visit Muslims and Mosques  but not the Hindu temples and the Hindus should therefore constitute  a Vote  Bank and  should noist Saffron Flag on  the  Assembly  building.  The  election  petitioner alleged that  the said  tapes were  circulated in Nanded and other places.      The election  petitioner also  alleged that on February 9, 1990,  the inauguration  meeting for  commencement of the election campaign  of Dr.Deshmukh was held at Shiwaji Maidan Stadium at  Nanded. Shri  Chandrakant,  Shri  Kirtane,  Shri Nandu Kulkarni  and others sooke. All of them championed the cause of  Hinduism. The  detailes of their speeches would be seen in  the video cassettes. It was also alleged that there had been  publicity through  posters and  pamphlets  showing that the voters were asked to vote on the basis of religion. On the car of election agent of Dr.Deshmukh, Shri Sonwane, a poster was displayed which called upon the voters to vote in the name  of Hindu  religion. Such posters were displayed at various places  at Nanded.  The election  petitioner alleged that the  materials used for election campaign including the speeches delivered  by the speakers of Shiv Sena and BJP for and on  behalf of  Dr.Deshmukh clearly  amounted to  corrupt practice under  Section 123  (2) and Section 123 (3A) of the Representation Act.      Dr.Deshmukh contested the election petition by filing a written statement  (Ex.7) inter alia denying the allegations made in  the election  petition about  the corrupt  practice alleged by the election petitioner. Dr.Deshmukh contended in the written  statement that  he was a candidate of Shiv Sena at the last Assembly Elections and that Shri Sonwane was his election agent, but he denied that Shri Chandrakant Bagve or Vinayak Partharkar  were incharge  of his election campaign. He also  stated that  the details  of the  speeches and  the posters had  not been  furnished by  the petitioner  and for want  of  specific  particulars  of  such  allegations,  the petition should  be dismissed.  Dr.Deshmukh  contended  that Shiv Sena  was a  recognised political  party having its own constitution  which   was  in   keeping  with  orinciple  of socialism, secularism  and democracy. It was stated that the views expressed in Samna newspaper by Shri Thackrey were his personal views.  Dr.Deshmukh  also  stated  that  the  views

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expressed in Samna could not be attributed to Dr.Deshmukh as the views subscribed by him. Dr.Deshmukh also contended that the elections of other candidates of Shiv Sena and BJP party had not  been challenged  on the ground of election campaign on  the   score  of   religion.  Such   fact  according   to Dr.Deshmukh, would  amply demonstrate  that the  campaign by Shiv Sena  and BJP  Party had not been based on religion. He also denied  that the  propaganda machinery of the Shiv Sena was angaged  on his  behalf with  his consent  or  with  the consent of  his election  agent. Dr.Deshmukh  contended that only  the   statement  which   were  contained  in  election manifesto of  the  party  should  be  looked  into  and  the ideology of  Shiv Sena  or that  of Shri  Thackrey  was  not relevant for  deciding the  election  petition.  Dr.Deshmukh admitted that  he was  present at the meeting held at Nanded on February  4, 1990 called by Shiv Sena and he had accorded welcome to  Shri Thackrey and touched his feet but such fact would not  mean that  whatever Shri  Thackrey would state as his  personal  view  would  be  that  election  campaign  of Dr.Deshmukh.  Dr.  Deshmukh  did  not  admit  the  headlines appearing in Godatir Samachar on February 5, 1990 and he had denied the  other party  of speeches  of  Shri  Thackrey  as published in  the newspaper and contended that Shri Thackrey did treat  the Muslims  as anti  Hindus. Dr.Deshmukh pointed out  that  on  the  other  hand,  Shri  Antualay  and  Mohd. Azanharuddin had  been accepted  as true Indians. He pointed out that Shri Thackrey had criticised those mohammandens who were  anti-Indians   of  anti-nationals.   Dr.Deshmukh  also contended that  the cassettes  of Avhan  and Awahan  did not contain any  insinuation asking  the voters  to vote  on the basis of  religion and  no part  of the speeches did promote religion and  no part of the speeches did promote illwill or hatred between the two communities.      Coming to  the meeting  held  at  Narsi,  Dr.  Deshmukh stated that  he was  not present at the meeting and anything stated in such meeting was not binding on the petitioner and his election  agent. As  regards audio  and video cassettes. Dr.Deshmukh  stated   that  report   of  such  speeches  did therefore the same should not be looked into by the Court.      Coming to  the alleged  propaganda made by Dr. Deshmukh and his election agent through posters. publication etc. Dr. Deshmukh stated  that such  posters and publications had not been displayed  or published with the consent of Dr.Deshmukh and there  was no  evidence to  show that  such  posters  or publications were made at the instance of Dr. Deshmukh. With reference  to   the  Annexure  A.  Dr.Deshmukh  stated  that although the  said  annexure  was  issued  in  the  name  of Dr.Deshmukh but  in fact the same did not bear his signature and as  such the  same could  not be  treated as  issued  by Dr.Deshmukh  He   also  contended  that  the  car  in  which offensive posters  were stated  to have  been displayed, did not belong  to his election agent and he was not responsible for anything disolayed in such car. Dr. Deshmukh stated that there were  internal disputes  of Congress  I party  and the people did  not vote  for the  Congress I party. It was also stated that  the election petitioner was the Chairman of the University Centre  at  Nanded  and  he  was  prosecuted  for various offences  under Sections  520, 506 and 467 of Indian Penal Code.  The people  also did  not like the petitioner’s seeking permission  to start  Engineering and  Architectural College at  Nanded  known  as  college  of  Engineering  and Architecture. It  was contended that the voters belived that the election  petitioner was  acting only  for his  personal gains and  he was  not concerned  with the  welfare  of  the voters. It  was for  such reasons that they did not vote for

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the election  petitioner. It  may be  stated here  that  the respondent Nos.2  to 5  in the election petition were served with notice but they did not appear and contest the petition and the  election petitioner  was therefore dicided ex parte against them.  Respondent Nos.6 although appeared through an Advocate, did not file any written statement.      On the  pleadings of the parties, 13 issues were framed by the  learned Judge.  The learned Judge. however, answered Issue No.4:-  "Whether the petitioner proves that respondent No.1 utilised  the propaganda machinery of Shiv Sena party". In the  negative. The learned Judge, however, answered Issue No.6 and  Issue No.8  in the  affirmative only to the extent indicated in  the Judgment.  The learned Judge also answered Issue No.10  to the  effect "whether  the petitioner  proves that respondent  NO.1 his  election agent  and other  person named in  the petition  with the  consent of respondent No.1 and his election agent, carried out election campaign on the basis of  religion and  also with a view to promote religion hatred  between   different  class   of  citizens  and  thus committed corrupt practices under Section 123 (2), (3), (3A) of the  Representation People  Act? in  the affirmative, The learned Judge  by the impugned judgment held that in view of such corrupt  practice,  the  election  of  Dr.Deshmukh  was liable to be set aside. As aforesaid, the learned Judge also awarded a  cost of  Rs.10,000/- against  Dr. Deshmukh and in favour of the election petitioner.      Shri  Ramachandran,   learned  Advocate  appearing  for Dr.Deshmukh, has  submitted that the expression "consent" in relation to  a corrupt  practice as  used in Section 123 (3) and 123  (3A) of the Representation Act has been interpreted by this  Court as  not mere  knowledge of or connivance at a corrupt practice.  For such  contention, the learned counsel has  referred  to  dicision  of  this  Court  in  Samant  N. Balakrishna etc.  Vs. Beorge  Fernandez and others etc. (AIR 1969 SC  1201 at  1221-22).  He  also  referred  to  another decision of  this Court  in  Haji  C.H.  Mohammad  Koya  Vs. T.K.S.M.A. Muthukoya  (1979 (2) SCC 8). Mr. Ramachandran has contended that  while consent  may be  proved  not  only  by direct  but   also  by  cricumstantial  evidence,  the  same standard is  to be  applied in assessing such circumstantial evidence as  it is applied in Criminal Law, namely, that the circumstances must  point unerringly  to only one conclusion and must  not be  consistent with  any other  explanation or hypotheses. He  has submitted that this Court in Balakrishna Samant’s case  (supra) has indicated that although the trial of an  election petition is conducted in accordance with the Civil Procedure Code, the corrupt practice must be proved in the same way as a criminal charge is proved. Mr Ramachandran has also  submitted that  in construing  the  provisions  of Section 123  (3) and 123 (3A) of the Representation Act, the widest possible latitude ought to be given to the expression of opinion in the context of democractic jiscourse so as not to  infringe   on  the  freedom  of  speech  and  expression guaranteed by  Article 19  (1) (a)  of the  Constitution  of India. He  has submitted that there is no doubt that freedom of such  speech is  subject to  reasonable  restrictions  as envisaged by  Article 19(2).Mr.  Ramachandran has  submitted that the  restriction ought to be strictly construed. He has also submitted  that the  expression used in Section 123 (3) of the  Representation Act  is "on  the ground  of religion, race, caste,  community or  language". Mr.  Ramachandran has submitted that  the said Section does not use the words with reference to religion, race, caste etc. (emphasis added) but the expression  used, namely, on the ground of would require that an  appeal be  made for votes by speeches or propaganda

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which tell  a voter  that he  is not  true or  loyal to  his religion, caste  etc.  unless  he  votes  for  a  particular person. If  mere references  to religion,  community,  caste etc. are  construed as  falling within  the scope of Section 123 (3)  of the  Representation  Act,  it  would  result  in stifling debate  on issues which have contemporary relevance and do come up at the time of elections. In a plural society such as  ours, such  issues pertain not only to religion and secularism but  also language  policy, reservation  policies etc.  Mr.   Ramachandran  has   further  submitted  that  in construing a speech made or a poster published in the course of an  election, the  widest latitude  ought  to  be  given. Referring to  the decision of this Court in Kulter Singh Vs. Mukhtiar Singh  (AIR 1965  SC  141),  Mr.  Ramachandran  has submitted that this Court has held that the principles which have been  applied in  construing  such  a  document  as  an election poster  are well settled. The document must be read as a  whole and its purport and effect determined in a fair, objective and  reasonable manner. In reading such documents. It would  be  unrealistic  to  ignore  the  fact  that  when election  meetings   are  held   and  appeals  are  made  by candidates of  coposing political parties, the atmosphere is usually surcharged  with partisan  feelings and emotions and the  use  of  hyperboles  or  exaggerated  language  or  the adoption of  mataphors and the extravagance of expression in attacking one  another are all parts of the game and so when the question  about the  effect  of  speeches  delivered  or pamphlets distributed  at election meetings is argued in the cold atmosphere  of a  judicial chamber, some allowance must be made  and the  impugned speeches  or  pamphlets  must  be construed  in   the  light.  Mr.  Ramachandran  has  further submitted that this Court has indicated in the said decision that there  are several  parties whose  membership is either confined to  or predominantly  held by members of particular communities or  religions and  that an  appeal made  by such candidates of  such parties  for votes  may, if  successful, lead to  their election  and  in  an  indirect  way  may  be influenced  by   consideration  of  religion,  race,  caste, community or  language. So  long as  the law recognizes such parties for  the purpose  of election and parliamentry life, this  situation  cannot  be  avoided.  Mr  Ramachandran  has submitted that  the aforesaid  view of  this court  has been reiterated in  the case  of Ebrahim  Suleiman Sait  Vs. M.C. Mohammed and  another (1980  (1) SCC  398  at  402-403).  In Suleiman’s decision,  the speech to the effect that "he made it very  clear that  the anti  religious  parties  must  not entertain that  the faint  hope of securing the votes of any Muslim. In  whose head  the Islam’s  blood was flowirg", was not held  to be  offending under  the provisions relating to corrupt practice.  Mr. Ramachandran  has also submitted that if a  person is  not a  party to an election petition but is liable to  be guilty  of a  corrupt practice, a notice under Section 99 of the Representation Act is to be issued to such person and  the Court  has no  discretion in the matter. For the aforesaid  contention, reference to the decision of this Court in  D.P.Mishra Vs.  Kamal Narayan  Sharma and  another (AIR 1970 SC 1477 at 1489) has been made by him.      Coming to the correctness of the factual finding of the High Court  relating to  the commission of corrupt practice, Mr. Ramachandran  has submitted that the meeting of February 4, 1990  at Nanded  was addressed  by Shri  Thackrey. Such a meeting was admittedly organised by Shiv Sena candidate. The last date  for withdrawal  of  nomination  papers  was  upto February 7,  1990 and  it was  open to  the party  to revoke applicant’s nomination  as party  candidate upto  that date.

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Mr. Ramachandran  has submitted that in such a situation, it would be  wholly unrealistic  to expect  that the  appellant would be  in a  position to  repudiate or dissociate himself from particular portions of the speech of the leader of Shiv Sena party  even though  he might  not have  agreed with all that was  said in  the course  of such a long speech or with the choice  of words  in the  speech. Mr.  Ramachandran  has submitted that  the presence of the appellant at the meeting of February  4, 1990 should not be construed as amounting to consent as interpreted by this Court in Balakrishna Samant’s case (supra)  or decision  in Mohammed  Koya’s case (supra). Mr. Ramachandran  has also  submitted that  in  the  written statement, the appellant also contended that he was also not present throughout the meeting. Mr. Ramachandran has further submitted that  even if  it is  assumed that he consented to the speech  delivered in  the said  meeting of  February  4, 1990, the  speech read  as a  whole  does  not  satisfy  the requirements  of  Section  123  (3)  and  123  (3A)  of  the Representation  Act   despite  the  strong  and  rhetoriacal language used  in the  said speech. The said speech does not appeal on  the  ground  of  religion  nor  does  it  promote feelings of enmirty or hatred on grounds of religion. He has also submitted  that even  if the Court prima facie comes to the finding that the said speech of Shri Thackrey amounts to corrupt practice  within the  meaning of Section 123 (3) and 123 (3A)  of the  Representation Act  and the  appellant had consented to  such  speech  of  Shri  Thackrey,  it  was  an obligation of  the Court  to issue a notice under Section 99 of the Representation Act to Shri Thackrey and no finding of corrupt  practice  could  have  been  rendered  against  the appellant in the absence of a notice under Section 99 of the Representation Act.      Coming to  the speech  delivered in the meeting held on February 9,  1990 at  Nanded, Mr. Ramachandran has submitted that the  said meeting  was "Shubharambh". ceremony when the appellant inaugurated  his campaign  two days after the last date  for   withdrawal  of   nominations.   Admittedly,   no permission for  a regular  meeting was granted by the police authorities. According  to  the  person  who  took  a  video recording of  the meeting,  there was slogan shouting but no speeches were made and according to the appellant’s withness there was  no speech  delivered in  the  said  meeting.  Mr. Ramachandran has  suomitted that whatever had been spoken at the said meeting were in reality long discussions with party men and  sympathisers and  it  did  not  assume  the  formal character of  the speech but was part of the inauguration of the campaign  for the election. The leaders of the Shiv Sena and also  representatives of  the BJP which was a partner of the Shiv  Sena in  the election contest were present and the presence of  the  appellant  cannot  amount  to  consent  as interpreted by  this Court  in  the  decisions  referred  to hereinbefore. Mr.  Ramachandran has also submitted that even if it  is assumed  that the  appellant has  consented to the said statement  attributed to  the various  speakers at  the said inauguration of election meeting, none of the so called offending portions  set out in para 5.04 at pages 212-216 of Vol.I falls  within the  scobe and  ambit of Section 123 (3) and 123(3A)  of the Representation Act. Mr. Ramachandran has also submitted  that the  Godatir Samachar  publication  was made on  the basis  of the  report made  by the reporter who according to  his understanding of the portion of the speech recorded the  same in  his  own  language.  He  has  further submitted that  the newspaper  publication relied  on by the election petitioner for the purpose of offensive part of the speeches delivered  at the  meeting should not be taken into

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consideration as  being  inadmissible  or  not  proved.  The learned  Judge   unfortunately  erred   in  relying  on  the newspaper publication in basing impugned decision. Coming to  the allegation  about  publishing  the  material. namely, advertisements,  pamohlets, posters  etc. as alleged in the election petition amounting to corrupt practice under Section 123  and 123  (3A) of  the  Representation  Act.  Mr Ramachandran has  submitted that  only such material as  can be directly  attributed to  the appellant  or  his  election agent may  be taken into account. He has also submitted that there has been clear finding by the High Court in respect of Issue No.4  that it  was not  proved that the appellant used the machinery  of Shiv Sena party. On an analysis of all the material attributable  to the  appellant  and  his  election agent as  summarised in  the discussion under Issue No.6 Mr. Ramachandran has submitted that none of them read as a whole in the  context of  the tests  laid down  by this  Court for adjudging speeches,  publicity material  etc. can be said to offend Section  123 (3)  and 123  (3A) of the Representation Act. An  offending  sentence  namely  teach  the  Muslims  a lesson" is  to be  found in  posters of  Ex. O  series. With regard to  the said  posters the evidence relied upon by the High Court  does not  connect the  appellant or his election agent with  the same.  The evidence  of P.W. 20 Ramesh Rasal who  in  addition  to  being  Executive  Editor  of  Godatir Samachar’is a  partner of  Ramesh  Offset  Press,  does  not connect the  appellant or  his agent  with these  particular posters. Evidence in the form of receipts from Ramesh Offset Press is  still not  evdence in  regard to  these particular posters and  therefore  the  proof  has  not  fulfilled  the standard of  requirement of  proof in  a criminal  case. Mr. Ramachandran has submitted that the manifestation of popular choice should  not be easily interfered with unless there is proof that  a corrupt  practice has  been resprted  to.  Mr. Ramachandran has  also submitted  that if  strict  standards required to  be established are applied corrupt practice has not been  established in  the  instant  case.  The  impugned judgment of  the High  Court is  speculative and lies in the reaim of  conjectures. Accordingly,  the same  should be set aside by allowing this appeal.      Mr.Kotwal, the learned Senior Counsel appearing for the election petitioner  Shri Kamal  Kishore Nanasaheb Kadam has seriously disputed the contentions made by Mr. Ramachandran. He has  submitted that  the appellant  Dr.Deshmukh     filed his nomination paper as a nominee of Shiv Sena-BJP alliance. It is  immaterial whether  the date  for withdrawal  was not over when  the election  meeting of  Shiv Sena  was held  at Nanded on  February 4,  1990. According  to Mr.  Kotwal,  it cannot be  reasonably contended that the appellant who filed the   nomination paper  as a nominee of Shiv Sena would deny that although  he attended  the meeting  on February 4, 1990 and sought the blessings of Shiv Sena Supremo Shri Thackrey, he did  not subscribe  to  the  appeal  for  voting  in  the election by  the said  Supremo of  Shiv Sena. Mr. Kotwal has submitted that  when election  campaign meeting  of the Shiv Sena was  held and  the appellant  as a nominee of Shiv Sena attended the said meeting and publicity sought the blessings of Shiv  Sena Supremo  and listened  to the  address made by him, by  his conduct,  he made  it quite  clear  before  the public that  he had  subcribed to the views expressed in the said meeting  by the  Shiv Sena Chief. It is not the case of the appellant  that he  had protested  to any  part  of  the speech delivered  by Shri Thackrey or even explained his own viewpoints to  the mambers  of the  public  present  thereby indicating that  he had  subscribed  only  to  the  election

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manifesto of Shiv Sena and not to any other statement of the speakers in the said meeting beyond such election manifesto. Mr. Kotwal  has also  submitted that the meeting of February 9, 1990  was the  meeting organised by the appellant himself so as  to formally start his election campaign. Such meeting was termed  as ’Shubharambh".  Mr  Kotwal  has  stated  that although police  had not  given permission  to hold a formal public meeting,  such election  campaign meeting had in fact been held in a conspicuous public place at Nanded and it has transpired from  evidence that  a large number of person had attended the  said meeting.  In the  said meeting, the local Shiv Sena  and BJP  leaders addressed  and they  appealed to vote for  Dr. Deshmukh  mainly on  the score of religion. In the written  statement, the appellant stated that no meeting was held  on February  9, 1990.  In the  alternative, it was contended in  the written  statement that  the appellant had not asked  the speakers  to speak.  Mr.Kotwal has  submitted that such contention made in the written statement. has been proved to be false by convincing and unimpeachable avidences adduced   in    the   case.    The   editor    of   ’Godatir Samachar’(P.W.20)  the   Video  Photographer,   Shri   Malwa (P.W.30) and  the Police  sub-Inspector Moh.  Abdullah  Khan (P.W.B)  had  proved  beyond  an  idta  of  doubt  that  the appellant himself  was present  in the  election meeting  of February 9,  1990 when  the speeches  were delivered by Shri Nandu  Kulkarni,   Shri  Sunil  Nerlakar,  Shri  Chandrakant Mahski,  Shri   Ganesh   Kiratane   and   others.   In   the advertisement given  for the meeting termed as ’Shubharambh’ to  be  held  on  February  9,  1990.  it  was  specifically mentioned  that   Shri  Ganesh   Kirtane,  Shri  Chandrakant Sonwane, Shri  Nandu Kulkarni  and a  number of other people would remain  present. Shri Chandrakant Mahski addressed the said meeting by stating that the hindu flag would fly on the Maharashtra Assembly.  Shri Sunil Nerlekar also spoke in the said meeting  and said  that nothing was done for Hindus but hindus had  been ridiculed. He gave a warning that those who would insult  hindus would  not be  tolerated by  the hindus because the nation was nation of hindus. He also stated that on  the   basis  of  their  own  strength  the  hindus  were contesting the  election.  Mr.  Kotwal  has  submitted  that although policies  of  the  fuling  Congress  I  party  were criticised but  the speakers made it quite clear that hindus should unite  for the cause of the hindus and would vote for the appellant  Dr.Deshmukh so  that the  interest of  hindus should be  protected. He  has submitted  that such statement obviously refers to an appeal on the score of hindu religion and the  passion on  the basis  of religion was sought to be roused amongst  the hindus voters with an appeal to unite to protect the  interest of  one community, namely, the hindus. He has  submitted that  such speech,  if considered  in  the proper perspective,  must  be  held  to  have  offended  the sentiments of  the  followers  of  other  religion  and  was intended to  rouse the  communal passion  on  the  score  of religion Mr. Kotwal has also referred to one of the specimen of the  posters, being  Ext.o.20. In the said poster, it was indicated that  to protect  hinduism and  hindu religion the valuable vote  should be cast in favour of the Shiv Sena-BJP alliance candidate Dr. Deshmukh and such vote should be cast to "teach  a  lesson  to  Muslims"  (emphasis  added).  Such posters were  exhibited in a number of places in the town of Nanded. Convincing  evidence has  been led that such posters were displayed  at the  residence of election agent and also at the residence and chamber of Dr.Deshmukh. In the car used by election  agent of  Dr.Deshmukh,  such  poster  was  also displayed. Such  poster was also displayed on the sign board

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of Shiv  Sena Shakha and other public places. Mr. Kotwal has contended that  the partner  of Ramesh  Offset  Press,  Shri Ramesh Rasal  (P.W.20) has clearly stated that the appellant and his  election agent  placed orders  for the  printing of such  posters.   He  has   submitted   that   although   Mr. Ramachandran,  the   learned  counsel   for  the   appellant contended that Shri Rasal did not specifically give evidence that Dr. Deshmukh himself had placed orders for such posters or paid  price for printing of such posters. Such submission should not  be accepted.  Mr Kotwal has submitted that if in an election  such posters  are allowed  to be  displayed  at various public  places and  also at  the  residence  of  the appellant and  in the  car where  the election  agent of the appellant had  been moving  for canvassing  the vote for the appellant, the  appellant should not be permitted to contend that some  indenpendent agency  without  has  authority  had disolayed such posters and he should not be held responsible for such  posters and  he should not be held responsible for such publicity  on account  of the  said posters. Mr. Kotwal has submitted  that the  poster is  offensive perse  because along with  the appeal  to vote for Dr. Deshmukh a statement was made  in the  said poster  that the  muslims  should  be taught a lession. Such poster, in any event, was intended to bring disharmony  between the  two communities,  namely, the hindus and the muslims and was definitely intended to arouse passion on  a communal basis in the minds of the voters. The said poster  was intended  to bring  hatred between  the two communities, namely,  the hindus  and the  muslims. He  has, therefore, submitted  that on  the score  of displaying  the said  poster   without  any  other  evidence  about  corrupt practice, the  finding of  the High Court that the appellant was quilty of corrupt practice under Section 123 (3) and 123 (3A) of  the Representation  Act should  be  upheld  and  no interference is  called for  in this  appeal. Mr. Kotwal has also made  elaborate  submissions  on  the  other  offending advertisements and  also the  wall paintings for the purpose of contending  that all  such materials were solely intended to bring  disharmony between the two communities and to make an appeal on the score of religion so that the hinous should vote only  in favour  of the  Shiv Sena-BJP  candidate,  Dr. Deshmukh who would safeguard the interest of hindus.      Mr. Kotwal has submitted that Section 123 has undergone a change  after the  amendment in  1961, Section  123 of the Representation Act  only  prohibited  systematic  appeal  by candidate or  any other person on behalf of the candidate to vote or refrain from voting on the score of caste, religion, race, community or the use of or appeal to religion, symbols or the  use of  or appeal  to national  symbols such  as the national flag  or the national emblem for the furtherance of the prospects  of that  candidates election.  In the objects and reasons  for  the  amendment  to  Section  123,  it  was indicated that  such amendment  was  necessary  for  curbing communal and  separatist tendencies  in the  country. It was proposed to widen the scope of corrupt practice mentioned in clause 3 of Section 123 of the Representation of people Act. Mr. Kotwal  has submitted  that in various decisions dealing with the  scope and  ambit of  corrupt  practice  under  the Representation  Act.   this  Court  has  observed  that  the paramount and  basic purpose  underlying Section  123 (3) of Act is the concept of secular democracy. Section 123 (3) was enacted to  aliminate from the electioral process appeals to divisive factors  such as  religion, caste  etc. which  give vent to  irrational passions.  it is essential that powerful emotions generated by religion should not be permitted to be exhibited during  elections and  the decision  and choice of

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the people  are not coloured in any way. In this connection, Mr. Kotwal  has referred  to the  decision of  this Court in S.Harcharan Singh Vs. S. Sajan Singh and others (AIR 1985 SC 236). Mr.  Kotwal has  submitted that  in order to determine whether certain  activities  come  within  the  mischief  of section 123  (3), regard must be had to the substance of the matter rather  than to  the mere  from or  phraseology.  The inhibition of  the section  should not  be permitted  to  be circumvented inoirectly  of by circuitous or subtle devices. The court  should attach importance to the paramount purpose of Section  123 (3)  namely to  prevent religious  influence from  entering   the  electoral   filed.  The   nature   and consequence of  an act  may not  appear on its very face but the same  can be  implied having regard to the language, the context, the  status and  position of the person issuing the statements,  the   appearance  and  Known  religion  of  the candidate, the class of persons to whom the statement or act is directed,  It has  been submitted  that it  is the  total effect of  such an  appela that  has to  be borne in mind in deciding whether  there was an appeal to religion as such or not.  Mr.   Kotwal  has  submitted  that  in  the  guise  of criticising political  policies. one  should not directly or indirectly  or   by  circuitous  or  subtle  devices  permit religious influence to enter the electoral field.      Mr.  Kotwal  has  submitted  that  to  prevant  corrupt practice it  is necessary  to  name  all  persons  who  have indulged in corrupt practice in an election campaign. A duty has been  cast on  the Court  to name not only those who are parties to  the proceeding  indulging in corrupt pratice but also those  who  are  not  parties  but  have  connived  and indulged in  corrupt practice  either with  the consent by a candidate or  his election agent or have indulged in corrupt practice on their own without such consent. According to Mr. Kotwal an  order under  Section 99 of the Representation Act need not  be passed  simultaneously  with  the  order  under Section 98  and naming  of collaborators to corrupt practice who were  not parties  in the  election case,  may  be  made subsequently by  a sucplementary or complimentary order. Mr. Kotwal has  submitted that  Section 123  should be construed pragmatically by keeping in mind that the mischief for which said Section  has been  incorporated in  the  Representation Act,  is  not  suporessed.  According  to  Mr.  Kotwal,  the proceeding against the returned Candidate  and all  those who  are parties  to  the petition should be treated as separate and distinct from the proceeding against  collaborators. He has submitted that for the  purpose  of  naming  the  collaborators,  the  returned candidate is  not  entitled  to  a  nearing  in  the  notice proceedings. He  has also  submitted that for the purpose of finding against  the parties,  the proceeding  should not be kept  pending   only  for   the  purpose   of   naming   the collaborators, who  were not  on record, after following the appropriate procedure.  In this  connection, Mr.  Kotwal has referred to  the decisions of this Court in R.M.Seshadri Vs. S.V.Pai one  others (AIR 1969 SC 692). D.P. Mishra Vs. Kamal Narayan Sharma  and another (AIR 1970 SC 1477)D.P.Mishra Vs. Kamalnarayan Sharma  and others (AIR 1971 SC B56),Ranim Khan Vs. Khurshid  Ahmed and others (AIR 1975 SC 290). Mr. Kotwal has  submitted   that  for   the  purpose   of  naming   the collaborators, the  High Court  may be  directed  to  follow appropriate procedure for giving notice to the collaborators so as  to afford  an opportunity to them to place their case but the  decision made  against the  appellant should not be kept pending.  He  has  contended  that  in  the  facts  and circumstances of  the case,  the corrupt practice pursued by

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the appellant  having been  fully established  by cogent and convincing evidence.  the appeal  preferred by  Dr. Deshmukh should be dismissed.      After giving our anxious consigeration to the facts and circumstances of  the  case  and  contentions  made  by  the respective counsel for the partice, it appears to us that in the instant  case, it has been convincingly established that the appellant  has permitted to disoplay poster Ext.0.20 for the purpose  of his  election campaign.  In the said poster, appeal to vote for the appellant was made for the purpose of teaching a  lession to  muslims. Such  appeal,  to  say  the least, was  potentially offensive  and was  likely to  rouse passion in  the minds  of the voters on communal basis. Such appeal  to   teach  a  lession  was  also  likely  to  bring disharmony between the two communities namely the hindus and the muslims  and  offended  the  secular  structure  of  the country. In  our view,  use of  such  poster  by  itself  is sufficient to  hold  that  the  appellant  had  indulged  in corrupt practice  under Section 123 (3) and 123  (3A) of the Representation Act.  we may, however, indicate that speeches delivered in  the election  meeting by  leaders of political parties should  be appreciated dispassionately by keeping in mind the  context in  which such  speeches were  made.  This Court has  indicated a  note of  caution  that  in  election speeches appeals are made by candidate of opposing political parties often  in an  atmosphere  surcharged  with  partisan feelings and  emotions. Use  of  hyperboles  or  exaggerated language  or  adoption  of  metaphors  and  extravagance  of expression in  attacking one  party or  a candidate are very common and  court should  consider the  real thrust  of  the speech without  labouring to  disect one or two sentences of the speech, to decide whether the speech was really intended to generate  improper passions  on the  score  of  religion, caste, community  etc. In  deciding whether  a party  or his collaporators had  indulged in  corrupt practice regard must be had  to the substance of the matter rather than mere from or phraseology.  In Kultar  Singh’s case (supra), this Court has  recognised   that  there   are  several  parties  whose membership is  either confined  to or  predominantly held by members of  some communities  or religion and that an appeal made by  candidates of  such parties  for votes  may  in  an indirct way  concavely be  influenced by  considerations  of religion, race,  community or  language. So  long as the law recognises such  parties for  the purpose  of  election  and parliamentary life,  this situation  cannot be avoided. Such view has  also been  reiterated in  later decisions  of this Court. It has been very streneously contended by the learned counsel for  the appellant  that appeal to vote for hindutwa should not be confused with appeal to vote only for a member of one  community namely  the hindus.  Criticism of partisan treatment meted  out to  the Hindus  by the  ruling congress party or  appeasement policy  in favour  of one community or followers  of   a  particular  religion  impairing  national integrity and  appeal  to  oppose  such  improper  and  anti national policy  should not  be held to be an appeal to vote only on  the basis  of a  particular religion.  It has  been contended that  the thrust  of the speeches was that inequal treatment meted  out to  hindus and  deliberate  hurting  of sentiments of  hindus have  encouraged divisive  forces  and anti national  elements in  the country and hindus should be aware of  such divisive forces and try to unite against such divisive  and  anti  national  forces  in  selecting  proper candidate who would safeguard the unity and integrity of the country. In  our view,  it is  not necessary to consider the philosophy of hindu religion and its tenets of tolenance and

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respect for  different religious  faiths for  the purpose of appreciating whether  appeal was  really made  for  hindutwa which is something different from outward practices and some of the  followings professed by followers of hindu religion. In the  instant case,  we have  already indicated  that  the appellant had  given publicity  to the  voters by exhibiting the poster  Ext.0.20 which  was per  se highly offensive and potentially vulnerable  and was  likely to  bring natred and misunderstanding between  the two  communities, namely,  the hindus and  the muslims.  In our view, the poster containing an appeal  to vote  for the appellant to teach the muslims a lesson cannot  be justified  in any  manner even  by  giving reasonable latitudes in election speeches.      As the  appeal can  be disposed  of by holding that the appellant was  guilty of  corrupt  practice  for  which  his election was  liable to  be set aside for displying the said poster Ext.0.20, we refrain from considering the real impact of the  speeches delivered  in the  meetings of  February 4, 1990 and  February 9,  1990 by making an incepth analysis of the  same   in  the   light  of   the  guidelines  indicated hereinbefore.      In the special facts of the case, it also appears to us that it  may not  be  necessary  to  consider  the  disputed contentions as to whether the general publicity of Shiv Sena and BJP  for the  general election  in  Maharashtra  and  of Nanded Assembly Constituency amounts to publicity by or with the consent  of the appellant and whether such publicity can be construed  as constituting corrupt practice under Section 123 (3)  and 123  (3A) of  the Representation  Act. It  may, however, be  indicated here that the High Court has answered issue  No.4  namely  "whether  the  petitioner  proves  that Respondent No.1  detilised the  propaganda machinery of Shiv Sena party" in the negative.      In that view of the matter, it is also not necessary to remand  the   matter  to  the  High  Court  for  naming  the collaborators  of   corrupt  practice   by   following   the appropriate procedure for the purpose. This appeal therefore fails and is dismmissed with costs.