Appeal No 1438 of 1968
Appeal under section 116 A of the Representation of the People Act 1951 from the judgment and order dated April 22 23 1968 of the Gujarat High Court in Election Petition No 22 of 1967
IM Nanavati P M Raval D N Mishra and J B Dada chanji for the appellant
HR Gokhale K G Vakharia K L Hathi and Atiqur Rahman for respondents Nos 1 and 2
The Judgment of SIKRI and BACHAWAT JJ was delivered by BACHAWAT J HEGDE J delivered a separate opinion
Bachawat J
This appeal is directed against a judgment of single judge of the Gujarat High Court setting aside the election of the appellant from the Banaskantha Parliamentary constituency
At the last general election to the Lok Sabha from the  Banaskantha constituency in Gujarat there were three contesting candidates
The appellant the Swatantra party candidate secured 110028 votes
Respondent No 2 the Congress party candidate secured 105621 votes
Respondent No 3 an independent candidate secured 14265 votes
The appellant was declared elected
The election petition was filed by respondent No 1 an elector in the constituency
Respondent No 1 alleged a number of corrupt practices on the part of the appellant or his election agents but at the trial he pressed only the charge of corrupt practice under section 123 2 proviso a ii of the Representation of the People Act 195 1
In the petition the charge was that several persons with the consent of the appellant or his election agents induced or attempted to induce the electors to believe that if they voted for the congress party candidate they would become the objects of divine displeasure and spiritual censure
In the particulars of this charge it was alleged that in the public meetings held at Amirgadh Ikbalgadh Wav Laxmipura Tharad Bhabhar and other places one Shambhu Maharaj told the electors that if they voted for the congress candidate they would commit the sin of cow slaughter and urged them in the name of mother cow to take a vow not to vote for the congress candidate with the result that several members of the audience publicly took the vow
At a late stage of the trial on March 7 1968 the High Court gave leave to respondent No 1 to amend the petition by adding fresh particulars of the corrupt practice
The substance of the new charge was that at those meetings Shambhu Maharaj 220 induced or attempted to induce the electors to believe that their religious head Jagadguru Shankracharya had commanded them not to vote for the congress and that contravention of his Command would be a sin and would be visited with spiritual censure and divine displeasure
The High Court found that the aforesaid practice was committed by Shambhu Maharaj with the Consent of one Punambhai the election agent of the appellant and declared the appellant s election to be void
The appellant challenges the legality of the order passed by the High Court on March 7 1968 allowing the amendment
The election petition was filed on April 10 1967
The appellant filed his written statement on June 1 on September 9 the High Court gave leave to respondent No 1 to amend the petition by adding the charge that certain persons were threatened that they would commit the sins of go hatya Brahma hatya and Sadhuhatya if they worked for the congress candidate
The order disallowed amendments seeking to introduce charges of appeal to voters in the name of religion under section 123 3
The appellant filed his additional written statement on October 19
Issues were framed on November 30
Respondent No 1 filed his list of witnesses on January 11 1968
On February 21 the trial started and PW 1 PW 2 PW 3 and PW 4 were examined
PW 4 Ram Swarup was a witness with regard to the meeting at Amirgadh
The issues were amended on March 1 so as to make it clear that there was no charge of any corrupt practice under section 1233
On the same date respondent No 1 was examined as PW 5
On March 2 PW 6 PW 7 PW 8 and PW 9 were examined
PW 7 and PW 8 spoke about the meetings at Palanpur and Bhabhar
PW 9 Bhogilal spoke about the meeting at Ikbalgadh
On March 4 PW 10 and PW 11 were examined and spoke about the meetings at Wav and Laxmipura
On the same day PW 12 section P Pandya a sub inspector of police at Palanpur and PW 13 CB Barot a short hand writer were examined
The examination of Barot was concluded on March 6
Barot proved that he took shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh Amirgadh Bhabhar Laxmipura Wav and Tharad and sent reports of the speeches to section P Pandya
On March 6 PW 14 and PW 15 were examined
On March 5 respondent No 1 filed an application for leave to amend the petition by adding portions of the speeches which referred to the command of Shankracharya not to vote for the congress and the consequences of not obeying the command
The application was allowed on March 7 1968
The trial was then adjourned and started again on April 8
Between April 8 and April 15 PW 17 PW 18 DW 1 and DW 2 were examined
 The judgment was delivered on April22 and 23
221 The first question is whether the trial judge should have allowed the amendment
Section 831b provides that An election petition 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
The section is mandatory
Where a corrupt practice is charged against the returned candidate the election petition must set forth full particulars of the corrupt practice so as to give the charge a definite character and to
enable the court to understand what the charge is
The charge must be substantially proved as laid and evidence cannot be allowed to be given in respect of a charge not disclosed in the particulars
On a charge of telling the electors that by giving their vote to the Congress candidate they would commit the sin of go hatya evidence cannot be led to prove the charge of telling them that they would commit a sin of Brahma hatya or the sin of disobeying the command of their religious leader
Section 865 allows amendment of the particulars
It provides that the High Court may upon such terms
as to costs and otherwise as it may deem fit allow the particulars of any corrupt  practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition
 In Harish Chandra Bajpai vs Triloki Singh1 the Court held that though under the English law the petitioner was not obliged to give the particulars of the corrupt practice in his petition the difference was a matter of form and not of substance and that under section 833 as it stood before 1955 the Court could allow an amendment introducing fresh instances of the corrupt practice alleged in the petition
Referring to the English practice the Court observed at page 382  it is sufficient if the particulars are ordered to be furnished within a reasonable time before the commencement of the trial
Section 833 has been repealed and is now replaced by section 865 which forbids any amendment introducing particulars of a corrupt practice not previously alleged in the petition
Assuming that the amendment of March 7 1967 was permissible under section 865 the question is whether the High Court rightly allowed it
Normally an application for amendment under section 865 should be made within a reasonable time before the commencement of the trial
The Court has power to allow an amendment even after the commencement of the trial but as a rule leave to amend at a late stage should be given in exceptional cases where the petitioner could not with 11957 SCR 371
222 reasonable diligence have discovered the new facts earlier
Leave to amend will not be given if the petitioner is not acting in good faith or has kept back the facts known to him before the trial started
According to respondent No 1 Shambhu Maharaj committed corrupt practice at election meetings held at Ikbalgadh where PW 9 was present Amirgadh where PW 4 Was present and at Wav where
one Chotaji Bhattji was present and that he came to know of the corrupt practices from those persons
All the meetings are referred to in the election petition
If Shambhu Maharaj had told the electors that Sri Shankracharya had commanded them not to vote for the congress candidate and that disobedience of his command would be sinful PW 4 and Chotaji Bhattji must have informed respondent No 1 of this corrupt practice before April 10 1967 when the election petition was filed
No explanation is given as to why respondent No 1 withheld this information in the petition
Respondent No 1 now says that on April 17 1967 he applied for certified copies of the reports of C B Barot to the Deputy Inspector General of Police CID Ahmedabad but the application was rejected on May 14 1967
Assuming that he could not get certified copies of the reports he could set forth in the petition  the substance of the charge with regard to the command of Sri Shankracharya from the information supplied by his informants
He knew of the reports of C B Barot before April 17 1967
Immediately after filing the election petition he could subpoena the reports and under orders of the Court he could inspect them long before the trial started
He was aware that the charge of telling the electors that they would commit the sin of go hatya was quite different from the charge of telling them that they would commit the sin of Brahma hatya or the sin of disobeying the command of their religious leader Sri Shankracharya
On September 25 1967 he obtained an order giving him leave to amend the petition by adding the charge with regard to the sins of Brahma hatya and Sadhu hatya but he deliberately refrained from adding the charge with regard to the sin of disobeying the command of Sri Shankracharya
The trial commenced on February 29 1968
On that date PW 4 said that at the Amirgadh meeting Shambhu Maharaj told the electors that he had brought a mandate from Jagadguru Shankracharya
On an objection being raised by the appellant s counsel Mr Mehta counsel for respondent No 1 agreed that the statement of PW 4 would not be treated as part of the evidence on the record
Thereafter the trial proceeded and 11 more witnesses were examined on the footing that respondent No 1 would not rely on the charge with regard to the command of Jagadguru Shankra charya
On that footing the appellant s counsel adopted a definite 223 line of cross examination
On March 4 he consented to the marking of the full reports of the speeches of  Shambhu Maharaj as exhibits and on March 5 he extracted an admission from Barot that the witness had taken verbatim notes of the speeches of Shambhu Maharaj
Counsel adopted this line of cross examination because he took the stand that the speeches did not prove the corrupt practice alleged in the petition
The application for amendment was filed on March 5 and was allowed on March 7
The order allowing the amendment has resulted in manifest injustice to the appellant
His counsel could not thereafter take the stand that the reports had been fabricated at the instance of the congress party  Respondent No 1 moved the application for amendment in bad faith at a very late stage of the trial
He deliberately refrained from taking the new charge earlier
Under section 116A an appeal lies to this Court on any question whether of law or fact from the order of the High Court
The procedure in appeal is regulated by section 116C
All the provisions of the Code of Civil Procedure including section 105 apply to the appeal and any error in an order of the Trial court affecting the decision of the case may be taken as a ground of objection in the appeal
In an appeal under section 116A the whole case is within the jurisdiction of this Court
Normally the Court does not interfere with the Judge s discretion in granting amendments except on grounds of law but where as in this case the order has resulted in manifest injustice the Court has the power and the duty to correct the error
In Evans vs Bartlam1 Lord Atkin observed Appellate jurisdiction is always statutory  there is in the statute no restriction upon the jurisdiction of the court of appeal and while the appellate court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge s discretion except on grounds of law yet if it sees that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it
 We therefore hold that the order of the trial judge allowing the amendment was erroneous and must be set aside
Respondent No 1 proved six speeches of Shambhu Maharaj
He did not rely in the trial court on the speeches at Laxmipura Bhabhar and Tharad
Mr Gokhale stated that he did not rely on these speeches for any purpose whatsoever
Accordingly those speeches were not read in this Court
There is no charge 1 1937 AC473480 481 224 against the appellant on the ground of appeal to the electors on the ground of religion
The only
charge against him is that in his speeches at lkbalgadh Amirgadh and Wav Shambhu Maharaj with the consent of his election agent Punambhai told the electors that if they voted for the congress party candidates the voters would commit the sin of cow slaughter gaumata vadh
 Respondent No 1 has not proved the charge that the electors were urged in the name of mother cow to take a vow not to vote for the congress party candidates with the result that several members of the audience publicly took the vow
The Ikbalgadh speech exhibit B1 and the Amirgadh speech exhibit B3 were delivered on February 8 1967
The Wav speech exhibit B4 was delivered on February 9 1967
There was then an acute political controversy with regard to the total ban on cow slaughter
Section 51 of the Bombay Animal Preservation Act 1954 Bombay Act No LXXII of 1954 as amended by Gujarat Act No XVI of 1961 there was a total ban on cow slaughter in Gujarat
But there was no absolute ban on cow slaughter in several other States
The Swatantra party was agitating for a total ban on cow slaughter throughout India
Public criticism of the Congress party for not abolishing cow slaughter throughout the country was permissible and legitimate
But the criticism ceases to be legitimate if the speaker commits the corrupt practice of undue influence under section 1232 that is if he interferes or attempts to interfere with the free exercise of electoral right
Under section 1232 proviso a cl
ii there is such undue influence if any person with the consent of the candidate or his election agent induces or attempts to induce a candidate or an elector to believe that be or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure
 The actual effect of the speech is not material
Corrupt practice is committed if the speech is calculated to interfere with the free exercise of electoral right and to leave no choice to the electors in the matter see Ram Dial vs San Lal  Others1
In considering the speeches the status of the speaker and the character of the audience are relevant considerations
Shambhu Maharaj was a kirtankar of repute and well known and respected for his lectures on Hindu religion
The audience consisted mostly of illiterate and orthodox Hindus of the rural areas adivasis and rabaris belonging to the scheduled tribes and scheduled castes
In this background let us now consider the speeches
Respondent No 1 charges corrupt practice in respect of 4 passages in the Ikbalgadh speech exhibit B1 passages in the Wav speech exhibit B4 and 3 passages 
in the Amirgadh speech exhibit B3
1 1959 Supp 2
SCR 748 758 760
225 The learned trial judge found that the corrupt practice was not committed by the 1st and 2nd passages in exhibit B1 the 1st 2nd and 3rd and 6th passages in exhibit B4 and the 1st passage in exhibit B3
But the learned Judge held that 3rd and 4th passages in exhibit B1 and the 4th and 5th passages in exhibit B4 amounted to corrupt practice as the electors were told that Sri Shankracharya had commanded them not to vote for the congress and that if they disobeyed his command they would incur divine displeasure and spiritual censure
We have disallowed the amendment introducing this charge and we must therefore set aside the finding of the learned judge with regard to those passages
We find that the passages do not show any corrupt practice as alleged in the petition
In the 2nd passage in the Amirgadh speech exhibit B3 the speaker referred to the ban on cow slaughter in Pakistan Afghanistan and Madhya Pradesh and said that the Swatantra Party had promised to ban slaughter of cow progeny and exemption of land revenue
He also said  Sun rises and twenty two thousand cows are slaughtered 
In Ahmedabad there is a prohibition oh cow slaughter but the slaughtering of calf and ox is continued
The earth took the form of a cow and if the said Gaumata  or ox is slaughtered how can earth be satisfied and so long as the earth is not satisfied how can there be fertility in the earth
 In the third passage exhibit B3 the speaker said In the year 1942 sixteen lacs and in
1946 twenty four lacs and in 1947 after India became separate and at present about 1 crore cows are slaughtered
You say whether to vote for congress is to become partner in sin or anything else
If you give cooperation for good cause you may get good fruit and if you cooperate in committing a sin you become a partner of sin
Why you become a partner of sin by giving votes to congress  He then referred to the command of Sri Shankracharya that the electors should not vote for the Congress party
But even apart from the command of Sri Shankracharya the electors are distinctly told that though there was a ban on cow slaughter in Ahmedabad the congress was permitting the slaughter of crores of cows elsewhere in India and was committing the sin of gohatya and those who vote for the congress would be partners in the sin
The dominant theme of the speech was that those who commit the sin of go hatya would be visited with divine displeasure
Having regard to the character of the audience the speech was calculated to interfere with the free exercise of 226 electoral right
In Narbada Prasad vs Chhagan Lal  Ors
Hidayatullah CJ observed  It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness
It is also believed that one of the cardinal sins is that of go hatya
Therefore it is quite obvious that to remind the voters that they would be committing the sin of go hatya would be to remind them that they would be objects of divine displeasure or spiritual censure In Encyclopaedia of Religion and Ethics edited by James Hastings vol 4 pp 225 226 it is stated A well known verse Mahabharata xiii
744 says  All that kill eat and permit the slaughter of cows rot in hell for as many years as there are hairs on the body of the cow so slain Reverence for the cow has not diminished in modem times
It is well known that the Hindus of the present day are filled with horror at the slaughter of the cow which is therefore prohibited in native States under treaties with the English
 According to B N Mehta s Modern Gujarati English Dictionary vol 1 page 480 gohatya go a cowhatya killing means in Gujarat slaughter of a cow killing a cow being one of the five great sins according to Hindu scriptures which can be atoned for only with capital punishment Accordingly the offending passages in the Amirgadh speech fell within section 123 2 proviso a ii
We are satisfied that Shambhu Maharaj spoke at the Amirgadh meeting with the consent of Punambhai the election agent of the appellant
Punambhai was present at the Amirgadh meeting
He addressed the meeting before Shambhu Maharaj spoke
Shambhu Maharaj addressed several other election meetings of the Swatantra party
Punambhai issued a pamphlet calling one of the meetings
PW 10 proved that he was asked by Punambhai to call Shambhu Maharaj for addressing another meeting as the voters were uneducated and had deep belief in religion
Punambhai accompanied Shambhu Maharaj from one place to another
On February 8 1967 he went with Shambhu Maharaj to the meeting at Ikbalgadh 1 1969 SCE 499
227 and thereafter went to Amirgadh
On February 9 he went with Shambhu Maharaj to the meeting at Wav
The offending passages of the speech at the Amirgadh meeting are integral parts of the dominant theme of the sin of cow slaughter
They cannot be regarded as stray words spoken by Shambhu Maharaj without Punambhai s consent
Punambhai did not raise any objection to the impugned speeches at the meeting
He gave evidence in Court but did not say that he was not a consenting party to the offending passages
We hold that the corrupt practice under section 1232 proviso a ii was committed at the Amirgadh meeting on February 8 1967 with the consent of the election agent of the appellant
In the result the appeal is dismissed
There will be no order as to costs
Hegde J I have had the advantage of reading the judgment just now read out by Bachawat J
I agree that the appeal should be dismissed
But I am unable to agree that the amendment complained of was not properly allowed
The learned trial judge has given good reasons in support of his order
In my opinion no case is made out to interfere with that order
I am also of the opinion that each and everyone of the speeches made by Shambhu Maharaj which are the subject matter of this appeal read as a whole as we should do fall within the vice of proviso aii of section 1232 of the Representation of the People Act 1951
Nothing so bad as those speeches I have come across in election cases
They are fanatical outpourings and a direct challenge to the concept of a secular democracy
Appeal dismissed


Summary:
The appellant the Swatantra party candidate was declared elected to the Lok Sabha as against the Congress party candidate
On April 10 1967 the first respondent an elector in the constituency filed an election petition
In the petition he charged the appellant with corrupt practice under section 1232 proviso a ii of the Representation of the People Act 1951
The allegation was that one SM with the consent of the appellant or his election agents told the electors in speeches that if they voted for the Congress candidate they would commit the sin of cow Slaughter and would become objects of divine displeasure
On September 25 1967 the first respondent obtained an order giving him leave o amend the petition by adding a charge with regard to the sin of Brahma hatya and Sadhu hatya
On February 29 1968 the trial commenced and one of the witnesses said that he heard SM giving a speech on February 8 1967 where SM told the electors that Sri Shankaracharya had commanded them not to vote for the Congress and that a contravention of the mandate would be visited with spiritual censure
On an objection being raised by the appellant s counsel the first respondent agreed that the statement of the witness should not be treated as part of the evidence
The trial proceeded 11 witnesses were examined and the appellant agreed to the marking of the full reports of the speeches of SM as exhibits and adopted a definite line of cross examination on the footing that the first respondent would not rely on the charge with regard to the command of Sri Shankaracharya
However on March 5 1968 the first respondent applied for an amendment of his petition to include a charge of corrupt practice based on the command of Sri Shankaracharya and the High Court allowed the amendment
The High Court set aside the appellants election on its finding that the corrupt practice in relation to the command of Sri Shankaracharya was proved
In appeal to this Court on the questions 1 Whether the High Court should have allowed the amendment and 2 Whether the appellant was guilty of any corrupt practice HELD  The appellant s election was rightly set aside
Per Bachawat J  1 The High Court erred in allowing the amendment
When a corrupt practice is charged against the returned candidate the election petition Must set forth full particulars of the corrupt practice so as to give the charge a definite character and to enable the Court to understand what the charge is
It must be substantially proved as laid and evidence cannot be allowed to be given in respect of a charge not dis 7Sup CI69 15 218 closed in the particulars
Section 865 of the Act however allows amendment of particulars but the Court shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition and normally an application for amendment should be made within a reasonable time
Though the Court has power to allow an amendment even after commencement of the trial leave to amend would not he granted if the petitioner was not acting in good faith or had kept back facts known to him
221 B D G H 222 A B In the present ease the first respondent knew of both items of corrupt practice  from his witnesses who were present at the speeches made by SM
If SM had told the electors about the mandate of Sri Shankaracharya the witnesses must have given information to the first respondent and no explanation was given by the first respondent as to why he withheld the information at the time of filing the petition or when he first amended his petition
He was aware of the difference between the two charges of telling the electors about the sin of gohatya and that of telling the electors about the sin of disobeying the command of their religious leader
But the first respondent deliberately refrained from taking the new charge earlier and moved the application for amendment in bad faith at a very late stage of the trial
Ordinarily in an appeal under section 116A of the Act this Court would not interfere with the discretion of the High Court in granting amendments but since the order of the High Court has resulted in manifest injustice this Court has the power and duty to correct the error
222 B D F H 223A E Per Hegde J The High Court has given good reasons in support of its order allowing the amendment and no case was made out to interfere with it
227 D 2 Per Bachawat J There is  no absolute ban on cow slaughter in several states in India and the Swatantra party was agitating for such a total ban
Public criticism of the Congress party for not abolishing cow Slaughter was permissible but the criticism ceases to be legitimate if the speaker commits the corrupt practice of undue influence under section 1232 of the Act
Under section 1232 proviso  a el
ii there is such undue influence if any person with the consent of the candidate or his election agent attempts to induce an elector to believe that he will be tendered an object of divine displeasure or spiritual censure
224 D F In the present case SM spoke at the meeting on February8 1967 with the consent of the election agent of the appellant
SMwas a Kirtankar of repute and well known and respected for his lectures on Hindu religion while his audience consisted mostly of illiterate and ortho dox Hindus of rural areas who are filled with horror at the slaughter of a cow
The dominant theme of the speech was that those who commit the sin of gohatya would be visited with divine displeasure
Therefore even apart from the charge relating to the command of Sri Shankaracharya the speech was calculated to interfere with the free exercise of electroral right
The corrupt practice was thus committed at the meeting on February 8 1967 with the consent of the election agent of the appellant
224 G H 225 G H 226 F G 227 B C Narbada Prasad vs Chhagan Lal   followed
Per Hegde J Everyone of the speeches made by SM read as a whole are fanatical outpourings and a direct challenge to the concept of a secular democracy and fell within the vice of the proviso aii of section 1232 of the Act
227 E 219