vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. ELECTION PETITION NO.13 OF 2004 ELECTION PETITION NO.13 OF 2004 ELECTION PETITION NO.13 OF 2004 Shri Tukaram S. Dighole residing at present at 53, Akshay, H.P.T. College Road Nashik - 5. Permanent resident of Jaigaon Tal.Sinnar ... Petitioner V/s. Shri Manikrao Shivaji Kokate Amdar Sampark Karyalaya Sahakar Bhavan Shivaji Chowk Permanent resident of Somthane Tal.: Sinnar ... Respondent Mr.Pradeep Rajgopal i/b Mandar Goswami for Petitioner Mr.M.M. Vashi i/b S.M. Sabrad for Respondent CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. JUDGMENT RESERVED ON: SEPTEMBER 14, 2007 SEPTEMBER 14, 2007 SEPTEMBER 14, 2007 JUDGMENT PRONOUNCED ON: JANUARY 25th, 2008 JANUARY 25th, 2008 JANUARY 25th, 2008 JUDGMENT: JUDGMENT: JUDGMENT: . This election petition challenges the declaration of the respondent as the elected candidate from 69, Sinnar constituency at the election held on 13.10.2004. It has been filed by a candidate of the NCP-Congress and R.P.I. alliance who unsuccessfully contested the elections. The petitioner has alleged that the respondent has indulged in corrupt practices thereby materially affecting the result of the election for the Sinnar constituency. The petitioner has prayed that the election of the respondent be declared void u/s 100 1(b), 100 1(d)(ii), 100(d)(iv) of the Representation of the People Act, 1950 (for short, hereinafter referred : 2 : to as ‘the Act’). 2. The petitioner has alleged that the returned candidate had flagrantly violated the provisions of the Act and the election rules framed thereunder. He has also alleged that the returned candidate had violated several orders of the election commission issued under the provisions of the Act. The petitioner has pointed out in his election petition that 135065 votes were cast. The respondent secured 67556 votes while the petitioner managed 47593 votes. The respondent was therefore, declared elected by the returning officer on 16.10.2004. The Petitioner has contended that the respondent had caused deletion of names of a particular community from the voters’ list and voters from another community who supported the respondent were included in the electoral rolls by 10.7.2003. Bogus names were included in the voters’ list at the behest of the respondent with the connivance of the Talathi and the Tehsildar of the constituency. The petitioner claims to have complained, on 11.7.2003, to the Minister of State for Revenue and Forest, bringing to light the illegal deletion and addition of names to the voters’ list. The petitioner then claims that the respondent issued a pamphlet elucidating details of the work undertaken by the latter, who was a sitting MLA. The pamphlet had details about the inauguration of a welfare centre and about a bhoomi-puja being performed for the schools. : 3 : The petitioner on 7.9.2004 addressed a letter to the Divisional Commissioner (Revenue) Nasik Road, complaining against the Tehsildar who had deleted the names of the voters from the Vanzari community as well as other voters from the minority community. According to the petitioner, a letter/pamphlet was circulated in his constituency purported to be authored by him. This pamphlet which was allegedly signed by the petitioner exhorted the voters to cast their vote for the petitioner who belonged to the Vanzari caste. According to the petitioner copies of this letter were distributed amongst the members of the Maratha community in order to prejudice them. Reliance is placed on a copy of the letter/pamphlet dated 28.9.2004 by annexing it to the election petition at Exhibit E and E1. The petitioner claims to have complained about this false propaganda to the election commissioner on 11.10.2004, by a written communication, which is annexed at F and F1. The Election Commissioner was to identify the real author of the document by making the necessary investigations. The petitioner issued a public notice in the local newspaper clarifying to the effect that he had not issued the letter/pamphlet. This document has been annexed at Exhibit G and G1. An FIR was lodged by the petitioner with Sinnar police station and the case was registered as CR No.I-180/2004 on 12.10.2004 under sections 465, 467, 471, 419, 420, 500 of the Indian Penal Code. The FIR was lodged against an unknown : 4 : person on the basis of the letters/pamphlets. A representation was also sent to the Deputy Chief Minister by the petitioner seeking an enquiry into the issue. 3. The Petitioner has then alleged that the private secretary of the respondent had issued a press release stating that the employees of Bhairavnath Path Sanstha were working against the respondent and that the respondent had not complained against them. A news item was published in the local newspaper Deshdhoot mentioning that the respondent would initiate an enquiry against the petitioner, if elected, and that the existing Board of Directors of the Sanstha of which the petitioner was the Chairman, would be dissolved. A copy of the news item published on 12.10.2004 has been annexed to the petition. A representation was submitted to the Deputy Chief Minister again by the petitioner complaining of illegal and unauthorised work which was being carried out by the respondent when the model code of conduct was in force. A copy of this representation has also been annexed to the petition. The petitioner has further alleged that the respondent had published a special supplement to a local newspaper ’Gavkari’ on 3.9.2004 describing the work that he supposedly had carried out, despite the code of conduct being in force from 24.8.2004 till 25.10.2004. According to the Petitioner, this publication was issued to mislead the : 5 : voters into believing the bogus claims about the work allegedly carried out by the respondent. 4. The next allegation against the respondent is that on 25.11.2004, he had given a speech threatening that villages which did not support his candidature would be neglected by him, in the event he was returned as the candidate for the constituency. These villages according to the petitioner consist of a majority of persons from the Vanzari community to which the petitioner belongs. A copy of the news report about this speech which appeared in the newspaper ‘Sakal’ is annexed to the petition. 5. The other allegation is that the voters in certain booths were misguided by the Presiding Officers, their staff and polling agents into pressing the first button on the electronic voting machine, thereby benefitting the respondent. According to the petitioner, the voters were asked to press this button and thereafter the button corresponding to the candidate of their choice. 6. The petitioner has stated in para 23 of his petition that it was being filed alongwith the VHS cassette furnished by the Collector of Nasik containing video recordings of the speeches delivered by the respondent and by others on his behalf. The Respondent : 6 : had appealed for votes on a communal basis through these speeches according to the petitioner. The petitioner has relied on these recordings in support of his allegations in the petition. The results of the election held on 13.10.2004 were declared on 16.10.2004. 7. The respondent i.e. the returned candidate has filed his written statement denying the allegations contained in the petition. The respondent has contended that the petition was not maintainable as it was not in the prescribed format. The respondent has submitted that no details of the communal appeals allegedly made by him and his supporters were mentioned in the election petition or in the annexures thereto. The respondent therefore sought dismissal of the election petition as a copy of the VHS cassette and its transcript alongwith the petition was not furnished to him. The respondent has alleged non-compliance of the provisions of section 86 of the Act since the cassette which was one of the exhibits on which the petitioner relied was not verified. The respondent has then contended that no cause of action has been made out in the election petition and, therefore, it was required to be dismissed. Besides this, it was contended that the allegations in the petition were totally vague and could not be relied on for setting aside his election to the Sinnar constituency. : 7 : 8. The petitioner produced several documents alongwith an affidavit of documents on record as also a Compact Disk (hereinafter referred to as ‘CD’) which according to the petitioner was a reproduction of the speeches delivered by the respondent and his supporters during the election period when the code of conduct was in force. However, out of the 20 documents produced, only three documents have been exhibited. Exhibit P2 is the FIR dated 12.10.2004, exhibit P3 is the complaint dated 29.10.2004. Exhibit P4 is the special supplement issued in the newspaper Gavkari on 3.9.2004. None of the other documents including the VHS cassette and the CD have been exhibited as they have not been admitted in evidence or proved. 9. The petitioner and the respondent examined themselves before this Court in support of their contentions. Neither party led evidence of any other person on his behalf. 10. The evidence will have to be considered in the light of the issues framed by this Court which are answered as follows: ISSUES 1) Whether the Petitioner proves that the election of the Respondent is liable to be : 8 : quashed and set aside for having made communal appeals in his speeches recorded on the VHS cassette produced by the Petitioner in Court? NO 2) Whether the Petitioner proves that the election of the respondent is liable to be quashed and set aside under section 100(1)(d)(ii) and 100(1)(d)(iv) of the Representation of People Act 1951 for the reasons set out in paragraphs 9 to 18 of the Election Petition? NO 3) Whether the Petitioner proves that the Respondent had deliberately issued the letter at Exhibit E page 42 dated 28.9.2004 in the name of the Petitioner with a view to misguide the voters? NO 4) Whether the Respondent proves that he has not addressed communal and racial speeches as alleged in VHS Cassette filed by the Petitioner? Does not arise REASONS 10. Issue Nos.1 and 4: The main plank on which the petitioner has challenged the : 9 : election of the returned candidate is that the latter had delivered speeches which contained a communal appeal thereby violating the provisions contained in section 123(3) of the Act. The contention is that the VHS cassette which was produced in Court contains speeches which indicate that the respondent had indulged in corrupt practices by appealing to the communal sentiments of the electorate. The petitioner has examined himself to justify this allegation. An affidavit of evidence has been filed by him at Exhibit P1. A perusal of this affidavit shows that it is almost a reproduction of the petition, but in the first person. The petition refers to the communal speeches delivered by the Respondents and his supporters in paragraphs 19 and 23, in the affidavit of evidence. The petitioner has sought to prove this allegation by the averments made in para 19 and the last sentence contained in para 20. The Petitioner has not been cross-examined on these speeches at all on behalf of the respondent. 11. It was submitted by Mr.Rajgopal, appearing for the petitioner, that the VHS cassette containing these speeches had been produced in Court as required, as : 10 : evidence, after filing the election petition. He submits that this cassette is a public document and, therefore, need not be proved. According to the learned Counsel, section 169 of the Act empowers the Central Government in consultation with the election commission to frame rules under the Act. The Central Government has, therefore, framed the conduct of election rules 1961. Rule 93(2) of the Conduct of Election Rules stipulates certain criteria for production of such cassettes. He submits that under the Instructions for the Conduct of Elections found in the Compendium of Instructions of Conduct of Elections, the election commission is expected to record all speeches of the contesting candidates. These speeches are maintained by the election commission as public documents. Copies of such cassettes are issued by the election commission on payment of the requisite charges. Item No.177 of this Compendium of Instructions indicates that these video recordings are to be maintained in order to have a true, faithful and contemporaneous record of the violations of the election law and instructions of the commission. The video film recorded by the election commission is to be viewed by the returning officer, immediately, to ascertain whether any of the organisers/speakers or other participants in public meetings had committed infractions of the statutory provisions and the directions of the commission or the model code of conduct. The learned counsel submits that these tapes : 11 : are to be maintained in a certain manner as specified, indexed and accompanied by a number of explanatory note of the infringement. Instruction 13.5 for the Conduct of Elections indicates that in pursuance of rule 93(2) framed under the Act r/w section 76 of the Indian Evidence Act, the election commission has directed that a VHS cassette recording of speeches may be made available for inspection or a certified print may be issued on payment of requisite charges. The instructions also stipulate that no guarantee for the authenticity and veracity of the cassettes is undertaken by the election commission. The learned Counsel submits that the VHS cassette which is on record has been obtained from the office of the election commission on payment of a fee. He relies on the receipt issued by the election commission’s office, indicating the payment of the requisite charges. The learned counsel further submits that the VHS cassette and the receipt together prove that the VHS cassette is a public document, obtained from the custody of a public officer i.e. the election commissioner and, therefore there was no need for the petitioner to prove the contents of the VHS cassette. The learned counsel further submits that the contents of the VHS cassette had been replicated for convenience on a CD which is produced as Item 12 in the affidavit of documents. The transcripts of the speeches have also been produced according to the learned counsel and therefore, there is ample proof to believe that the : 12 : communal speeches delivered by the respondent exhorted the Marathas to vote for the respondent and not the petitioner who belongs to the Vanzari community. The learned counsel then submits that a public document such as the VHS cassette is not required to be proved nor is it necessary to plead the contents of the document. Reliance is placed on the following judgments in support of this submission. 12. To buttress this argument, the learned advocate has relied on the judgments in Madamanchi Ramappa & anr. v/s. Muthaluru Bojjappa, AIR 1963 SC 1633; AIR 1963 SC 1633; AIR 1963 SC 1633; Secretary, Cantonement Committee, Barrackpore v/s. Satish Chandra Sen, AIR 1931 PRIVY COUNCIL 1; AIR 1931 PRIVY COUNCIL 1; AIR 1931 PRIVY COUNCIL 1; Chandulal v/s. Pushkar Raj & Ors., AIR 1952 NAGPUR 271; AIR 1952 NAGPUR 271; AIR 1952 NAGPUR 271; Dalim Kumar Sain & Ors. v/s. Smt.Nandarani Dassi & anr., AIR 1970 AIR 1970 AIR 1970 CALCUTTA 292 CALCUTTA 292 CALCUTTA 292; Kabul Singh & Anr. v/s. Ram Singh & ors., AIR 1986 ALLHABAD 75; AIR 1986 ALLHABAD 75; AIR 1986 ALLHABAD 75; Thatithoi Chiru & Ors. v/s. ningampao Kabui & Ors., AIR 1990 GAUHATI 7; AIR 1990 GAUHATI 7; AIR 1990 GAUHATI 7; Fazal Sheikh & Ors. v/s. Abdur Rahman Mea & Ors. AIR 1991 AIR 1991 AIR 1991 ORISSA 17 ORISSA 17 ORISSA 17 and Naladhar Mahapatra & Anr. v/s. Seva Dibya & Ors., AIR 1991 ORISSA 166 AIR 1991 ORISSA 166 AIR 1991 ORISSA 166, besides other judgments. 13. Mr.Vashi, learned counsel appearing for the respondent, submits that the petitioner, despite being given ample opportunity by the Court, has not proved the contents of the VHS cassette. He submits that there is : 13 : no evidence to prove that the contents of the VHS cassette are the same as the CD produced at serial No.12 of the affidavit of documents. He points out that there is not even a shred of evidence to establish that the transcripts of the speeches produced on record were a true reproduction of the speeches delivered by the respondent and his supporters in the meetings held during the period when the model code of conduct was in force. The learned counsel submits that it would be wrong to accept the submissions on behalf of the petitioner that the VHS cassette was a true reproduction of the speeches delivered over a period of time on several dates in the Sinnar constituency. He further submits that the petitioner had failed to prove that he had obtained the VHS cassette by applying for it to the Election Commission and that it was a public document. Therefore, according to the learned counsel there was no need to cross-examine the witness i.e. the petitioner herein, on the speeches which according to the petitioner were communal in nature. He relies on the judgments in the cases of Ziyauddin Bukhari v/s. Brijmohan R. Mehra, AIR 1975 SC 1788; AIR 1975 SC 1788; AIR 1975 SC 1788; Gajanan K. Bapat v/s. Dattaji R. Meghe, AIR 1995 SC 2284; AIR 1995 SC 2284; AIR 1995 SC 2284; Quamarul Islam v/s. S.K. Kanta, AIR 1994 SC 1733; AIR 1994 SC 1733; AIR 1994 SC 1733; Rajendra Singh Yadav v/s. Chandra Sen, AIR 1979 SC 882 AIR 1979 SC 882 AIR 1979 SC 882; Amarnath Agarwal v/s. Dhillon Transport Agency, (2007) (2007) (2007) 4 SCC 306 4 SCC 306 4 SCC 306 and Dr.Ramesh Y. Prabhu v/s. Prabhakar K. Kunte, (1996) 1 SCC 130 (1996) 1 SCC 130 (1996) 1 SCC 130 besides the other judgments in : 14 : support of his contentions. 14. It is no doubt true that the petitioner has produced the VHS cassette on record. This cassette was produced on 30.11.2004. However, the petitioner has produced no evidence on record to indicate that this VHS cassette was a true reproduction of the original speeches. The submission of the learned counsel for the petitioner, that the VHS cassette is a public document as defined u/s 76 of the Indian Evidence Act, cannot be accepted. There is no evidence to indicate that the VHS cassette was obtained from the election commission. The petitioner who examined himself has not adverted to this video recording in his examination in chief. There is no averment in the affidavit filed in lieu of examination in chief to the effect that he had obtained the cassette from the office of the election commission and that he had paid the requisite charges for the same. At the time of the arguments, the learned counsel for the petitioner pointed out that this cassette was in fact issued to the petitioner by the election commission’s office. But this is not sufficient. A public document need not be proved under the Indian Evidence Act. However, it must be brought on record as evidence. It must be admitted in evidence as a certified copy of the original before any presumption can be drawn regarding its genuineness. I am fortified in my view by the decision of the Supreme Court in the : 15 : case of Amarnath Agarwal (supra) where the Supreme Court has held that the mere production of the documents alongwith the written submissions without exhibiting them at the trial would be sufficient for the Court to look into those documents as they were not in evidence and the defendant had no opportunity to reply to those documents. The petitioner has not proved the receipt issued by the election commission’s office and has thus failed to prove that the VHS cassette was a public document. That being the position, it is not possible to rely on the contents of the VHS cassette. 15. If one considers the cassette to be a private document, it was necessary for the petitioner to prove its contents by examining the videographer. Mere production of the cassette cannot lead to the inference that the cassette is a public document and, therefore, it need not be proved. Despite, the representative for the petitioner being told on several occasions that it was necessary for the petitioner to prove the cassette, the petitioner chose not to examine other witnesses on his behalf to establish that the VHS cassette contained a true depiction of the meetings held between 6th and 11th October, 2004. The respondent has specifically denied the contents of the VHS cassette and, therefore, it was all the more necessary for the petitioner to either prove the contents of the VHS cassette or to have the cassette admitted in evidence as a public document : 16 : for the genuineness of the contents to be presumed. 16. The transcripts produced by the petitioner have not been proved to be those of the video recordings. There is not even a single statement made either in the affidavit filed by the petitioner by way examination in chief or in the cross-examination to indicate that the document produced at serial numbers 13 and 14 represented the contents of the video recordings. The petitioner has not examined the person who had transcribed the speeches. There is no evidence to indicate when the transcription was done, whether it was done while the speech was being delivered or after the recording was made. These details have not been proved by the petitioner. In such circumstances, it is impossible to hold that the petitioner had proved that the respondent had appealed to the communal sentiments of the community or electorate of Sinnar. 17. In Madamanchi Ramappa (supra), the Supreme Court has observed that a document which is a certified copy of a public document need not be proved by calling a witness. The submission of the learned counsel is that since the VHS cassette is a public document which need not be proved by calling a witness. It is true that a public document need not be proved. However, in the present case, the VHS cassette though produced has not been admitted in evidence. The affidavit filed in lieu : 17 : of examination in chief makes no mention of this VHS cassette. Thus, the mere production of the cassette with the petition would not lead to the inference that it has been produced in evidence and since it is a public document, it need not be proved. 18. Similarly, in the case of Secretary, Cantonment Committee (supra), the Privy Council has held that an entry in the register maintained is admissible in evidence. In the present case, the petitioner has failed to show through his evidence that the cassette had been obtained from the election commission and that it was being produced in Court with the election petition. Even the election petition is silent on this issue. Mere production of a receipt allegedly issued by the office of the election commission, which is again not brought on record through the evidence, would not suffice to show that that receipt was issued against the payment made by the petitioner for obtaining a certified copy of the VHS cassette. All the other judgments cited by the learned counsel for the petitioner do not advance the petitioner’s case as the petitioner has failed to indicate the source of the VHS cassette in his evidence. The only reference to the cassette in his affidavit is as follows: "I say that Respondent has given some communal speeches, a cassette of which is annexed to the petition." This statement is absolutely vague. In the case of Ziyauddin Bukhari v/s. Brijmohan R. Mehra : 18 : (supra), the Apex Court considered the provisions of the Representation of People Act, 1950. The Supreme court laid down certain conditions which are required to satisfied for tape records of speeches to be admissible in evidence. The Supreme Court has held that (i) the voice of the person alleged to be speaking must be identified by the maker