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PETITIONER: MULLAPUDI VENKATA KRISHNA RAO

       Vs.

RESPONDENT: VEDULASURYANARAYANA

DATE OF JUDGMENT16/03/1993

BENCH: BHARUCHA S.P. (J) BENCH: BHARUCHA S.P. (J) KULDIP SINGH (J) KASLIWAL, N.M. (J)

CITATION:  1994 AIR 1627            1993 SCR  (2) 346  1993 SCC  Supl.  (3) 504 JT 1993  Supl.    100  1993 SCALE  (2)170

ACT: Representation of the People Act 1951: Section   123(3)--Corrupt  practice--Religious   symbol--Use of--Charge    against    elected     candidate--Establishing of--Standard of proof required in such cases.

HEADNOTE: The  appellant’s  election to the Legislative  Assembly  was challenged by the Respondent in his election petition before the High Court.  It was contended by the election petitioner that  the  respondent had used a religious  symbol  for  the furtherance  of his election prospects which was  a  corrupt practice  under Section 123(3) of the Representation of  the People  Act, 1951.  The High Court declared the election  of the  successful candidate to be void and set it aside.   The successful candidate preferred the present appeal. On the question whether the use of a religious symbol in the election  of  Respondent amounted to  corrupt  practice  u/s 123(3)  of the Representation of the People Act, 1951,  this court, HELD:1.1.  There is no doubt that the offending poster is  a religious symbol.  The depiction of anyone in the attire  of Lord  Krishna blowing a ’shanku’ and quoting the words  from the  Bhagavad Gita addressed by Lord Krishna to Arjuna  that his  incarnation would be born upon the earth in  age  after age to restore dharma is not only to a Hindu by religion but to every Indian symbolic of the Hindu religion.  The use  by a candidate of such a symbol coupled with the printing  upon it of words derogatory of a rival political party must  lead to the conclusion that the religious symbol was used with  a view  to prejudicially affect the election of the  candidate of the rival political party. [350G-H] 1.2.But  there  is no evidence to show  that  the  offending poster  was  printed by or at the behest  of  the successful candidate.  The successful 346 347 candidate  himself  in his evidence denied that he  had  the offending  posters printed or pasted.  The averment  in  the election petition that the offending posters were pasted  by followers,  supporters  and  party  men  of  the  successful

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candidate is not established. [351B-D] 1.3.The  evidence  on  record does not  establish  that  the offending   posters  were  used  at  the  election  by   the successful  candidate  or his election agent or  with  their consent. [352D] 1.4.The  standard  of  proof  in  an  election  petition  is rigorous, having regard to the quasi-criminal nature of  the proceeding.    The  charge  laid  against   the   successful candidate under  section 123(3) has not been established  on the basis of the evidence on record. [351G]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3719 of 1991. From  the  Judgment and Order dated 3.9.1991 of  the  Andhra Pradesh High Court in Election Petition No. 22 of 1990. P.P.  Rao,  D.  Prakash  Reddy  and  A.V.V.  Nair  for   the Appellant. C.  Sitaramaiah,  B. Rajeshwar Rao, Vimal  Dave,  Mrs.  Rani Chhabra (NP) for the Respondent. The Judgment of the Court was delivered by BHARUCHA,  J. This is an appeal under the provisions of  the Representation of the People Act, 1951, against the judgment and  order of the High Court of Andhra Pradesh  whereby  the election  of the appellant before us to the  Andhra  Pradesh Legislative  Assembly from the Tanuku Assembly  constituency was declared void and set aside in view of the finding  that he had committed the corrupt practice proscribed by  section 123(3) of the Act.               Section 123(3), inter alia, states that               "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.......... or the use of               or appeal to 348               religious  symbols for the furtherance of  the               prospects of the election of that candidate or               for  prejudicially affecting the  election  of               any other candidate is a corrupt practice". The  respondent,  a  candidate of the  Telugu  Desam  Party, secured  the largest number of votes at the  said  election, which was held on 22nd November, 1989.  The High Court found that  during  the election campaign posters  depicting  N.T. Rama Rao, the leader of the Telugu Desam Party, in the  role of Lord Krishna, blowing a conch shell, had been used.   The offending poster bore at the top a ’sloka’ from the Bhagavad Gita, which said, roughly translated, that the Lord would be born upon this earth in age after age to establish dharma or righteouness.   At  its bottom the offending  poster  stated that the deceitful Congress, which had sold out the country, should  be defeated.  It was the contention of the  election petitioner  before  the High Court, who was a voter  in  the Constituency, that the offending posters had been  exhibited by  or  at the behest of the successful candidate.   It  was held  by  the  High  Court that it had  no  doubt  that  the offending  poster  was a religious symbol,  its  implication being  that  N.T. Rama Rao, who was an incarnation  of  Lord Krishna,  exhorted voters to defeat the deceitful  Congress. The  High  Court went on to consider whether  the  offending posters had been affixed by the successful candidate or  his election  agent  or by any person with the  consent  of  the successful candidate or his election agent.  It came to  the

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conclusion  that  it was clear from the evidence  "that  the respondent  or his agent or other persons with  his  consent have  used  religious  symbol for  the  furtherance  of  the prospects  of the respondent or for prejudicially  affecting the election of the Congress I candidate’.  Accordingly, the corrupt practice under section 123(3) was found to have been established.  The High Court did not accept the case of  the election petitioner in regard to the other corrupt practices that  had  been alleged.  Upon the basis of the  finding  in regard  to  the corrupt practice under section  123(3),  the High  Court  allowed  the election  petition,  declared  the election  of the successful candidate to be void and set  it aside. As aforestated, the successful candidate is in appeal. The   election   petition  alleged  that   the   "respondent herein.......  and,  with his consent  and  connivance,  his followers,  supporters and his party men and election  agent had  resorted  to large scale display of  wall  posters  and paintings on the walls of the picture of Lord Krishna".  The offending  349 posters,  which were described, had been pasted on walls  at important  places in all villages and towns  throughout  the Constituency and also on the sides of vans and vehicles used for   canvassing.    The  election  petition   stated   that particulars of some of the instances where, inter alia,  the offending  posters were exhibited were given in  Schedule  A thereto.   Schedule  A gave various  addresses  whereat  the offending  posters had been pasted.  Photographs  would,  it was  stated,  be produced in support of the  allegation  and four  witnesses,  would depose thereto,  namely,  Penicherla Rama  Krishna Raju, Dukka Suri Appa Rao, Allabani  Venkanna, Venni  Subba  Rao.   The  schedule  also  referred  to  "oil painting  and  posters"  on  the  publicity  vans  at  three locations, which would be established by photographs and  by leading  the  evidence of Bollina Satvanarayana  and  Kudapa Akkanna. In his written statement the successful candidate denied the allegations afore-stated. The  election  petitioner  filed documents  along  with  the election petition, which included the affidavits of the four first named persons.  The affidavit of Dukkasuri Appa Rao is representative  of  the three affidavits of  those  who  are alleged  to have pasted the offending posters.   The  fourth affidavit   is  of  the  photographer.   The  affidavit   of Dukkasuri Appa Rao stated that the successful candidate  had assigned to him the work of pasting wall posters and he  had been  paid Rs. 25 per day.  Among these wall  posters  there were a few "photos showing Sri N.T. Rama Rao in the disguise of Lord Krishna Playing ’shanku"’. The  election  petitioner examined Dukkasuri  Appa  Rao  and Venne  Subba Rao before the High Court.  He did not  examine the  third  person who was alleged to have pasted  the  wall posters  at  the addresses mentioned in Schedule  A  to  the petition.   The examination-in-chief of Dukkasuri  Appa  Rao and  Venne  Subba  Rao  is  almost  identical.   The   cross examination  of  the  former  is  more  extensive.   It   is therefore that we refer to his evidence.  Dukkasuri Appa Rao deposed that he was a labourer in Tanuku.  He and two others had  pasted  wall  posters  on  behalf  of  the   successful candidate.  They had affixed wall posters and door  posters. The  posters had been given to them about 15 days  prior  to the  election when they had gone to the Telugu  Desam  Party election  office.   The successful candidate,  his  election agent  and some others were present there.   The  successful

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candidate had 350 engaged  Dukkasuri  Appa  Rao and two others  to  affix  the posters on wages of Rs. 25 per head.  They were given  about 1500  wall posters and 5000 door posters.  The wall  posters depicted  N.T.  Rama Rao in the role of Lord  Krishna.   The wages had been paid daily.  Dukkasuri Appa Rao had  retained with  himself one poster because he had liked it and he  had given  it  to  the election petitioner  about  three  months before  the  date of his deposition.  In  cross  examination Dukkasuri  Appa  Rao stated that he  also  did  agricultural work.   He was not a member of the Telugu Desam  Party.   He had  not  been called to the election office of  that  party either  before  or  after the election. while  he  had  been working near a coffee hotel somebody, whose name he did  not know,  had  come and called him to the  Telugu  Desam  Party office.   The  election  petitioner had  asked  him  in  the Congress  Party office whether he had any election  posters. He  had replied that he had one and gave it to the  election petitioner.   It was similar to the poster at Ex.  A-2  (the offending  poster).   His affidavit had been  taken  by  the election  petitioner  at  Tanuku.  After  having  made  that affidavit  the election petitioner had asked for the  poster and he had given it to him. It  must  be  stated here that no evidence was  led  by  the election  petitioner to show that the offending posters  had been  got  printed  by  or  on  behalf  of  the   successful candidate.  Learned counsel for the election petitioner drew our  attention  to the cross-examination of  the  successful candidate  wherein it had been stated that he  had  incurred the  expenditure  of Rs. 4,000 upon  writing  wall  posters, painting and other publicity and had also paid Rs. 8,000  to a printer.  These statements, however, were not followed  up in  further  cross-examination.   There  is,  therefore,  no evidence to show that the offending posters were printed  by or on behalf of the successful candidate. There is no doubt in our mind that the offending poster is a religious symbol.  The depiction of anyone, be it N.T.  Rama Rao  or  any  other person, in the attire  of  Lord  Krishna blowing  a ’shanku’ and quoting the words from the  Bhagavad Gita   addressed  by  Lord  Krishna  to  Arjuna   that   his incarnation would be born upon the earth in age after age to restore  dharma  is not only to a Hindu by religion  but  to every  Indian symbolic of the Hindu religion.  The use by  a candidate of such a symbol coupled with the printing upon it of words derogatory of a rival political party must lead  to the  conclusion  that the religious symbol was used  with  a view  to prejudicially affect the election of the  candidate of the rival political party. 351 The  question,  therefore, is : is it established  upon  the record that the offending poster was used at the election by the successful candidate or his agent or by any other person with the consent of the successful candidate or his election agent.   As  has been stated, there is no evidence  to  show that the offending poster was printed by or at the behest of the successful candidate.  The successful candidate  himself in his evidence denied that he had had the offending posters printed  or pasted.  The evidence of Dukkasuri Appa Rao  and Venne  Subba Rao is, in our view, not satisfactory.  In  the first place, the averment in the election petition was  that the  offending  posters had been pasted by  the  "respondent herein  who is a Telugu Desam party candidate and  with  his consent  and  connivance his followers  supporters  and  his party men and election agent........ Both Dukkasuri Appa Rao

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and Venne Subba Rao stated in the witness-box that they were not members of the Telugu Desam Party.  They were called  to the Telugu Desam Party election office for the first time on the day on which they were engaged for a daily wage to paste the  wall  posters.  The averment in the  election  petition that  the  offending  posters  were  pasted  by   followers, supporters  and  party men of the successful  candidate  is, therefore,  not established.  If the evidence  of  Dukkasuri Appa Rao and Venne Subba Rao was true the election  petition would  have  stated that the successful  candidate  and  his election  agent  had engaged Dukkasuri Appa  Rao  and  Venne Subba  Rao  on daily wages to affix the  offending  posters. Secondly,  the offending posters were not put  to  Dukkasuri Appa  Rao  and Venne Subba Rao in examination in  chief  and were  not identified by them as being the posters that  they had  pasted.   Thirdly,  neither  of  these  two   witnesses identified the places at which they had pasted the offending posters.  It was not stated by them that they had pasted the posters  at  any  of the addresses in  Tanuku  mentioned  in Schedule  A  to  the election  petition.   The  evidence  of Dukkasuri  Appa  Rao is suspect also because he  claimed  to have  retained  one offending poster which he  gave  to  the petitioner;  this is not borne out by the election  petition or the affidavit made by him. The  standard of proof in an election petition is  rigorous, having   regard   to  the  quasi-criminal  nature   of   the proceeding.   We  are not satisfied that upon  the  evidence before  us the charge laid against the successful  candidate under section 123(3) has been established. Learned  counsel on behalf of the election  petitioner  drew our atten- 352 tion  to the statements made by the  successful  candidate’s election  agent in regard to a van used for canvassing.   He stated  that  the van toured the Constituency.   There  were photographs  of  N.T.  Rama Rao in his  various  film  roles exhibited  in  the  van.  He said that exhibit  A-13  was  a photograph which showed "that a poster showing N.T. Rama Rao in  the  role  of Krishna blowing a  conch  was  affixed  to publicity  van but I have no personal knowledge  about  it". The  statement  that  the election  agent  had  no  personal knowledge  in this behalf was not probed in  further  cross- examination.   It  is also not established that  the  poster shown by the photograph exhibit A-13 was what we have called the  offending poster in that it not only showed  N.T.  Rama Rao  in  the role of Lord Krishna blowing a conch  but  also contained the afore-mentioned ’sloka’ from the Bhagavad Gita and  the statement that the Congress was a  deceitful  party which  should be defeated.  So far as we can ascertain  from the  judgment  under  appeal,  the  offending  posters  were produced only at exhibits A-2 and A-18. The  evidence  upon  the  record  does  not,  to  our  mind, establish  that  the  offending posters  were  used  at  the election  by the successful candidate or his election  agent or with their consent. Having  regard  to our finding that the  charge  of  corrupt practice  under section 123(3) has not been established,  we do  not find it necessary to consider the argument that  the election petition did not plead all necessary material facts and  did  not  give all necessary particulars  so  that  the election petition was liable to be dismissed in limine. In  the  result  the  appeal is  allowed  and  the  election petition  is  dismissed.  The respondent shall  pay  to  the appellant costs quantified at Rs. 10,000. G.N.

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                         Appeal allowed. 353