HIGH COURT OF MADHYA PRADESH : JABALPUR Election Petition No.23/2009 Manoj Kumar Agrawal, aged about 43 years, son of late Vishwambharnath Agrawal, Resident of 27, Thakurdas Govindwala Marg, Quila Road, Burhanpur …Petitioner vs. Smt. Archana Chitnis, wife of Sameer Chitnis Resident of Dwarkapuri, Station Road, Burhanpur Permanent Address-165, Saket Nagar, Indore ...Respondent ------------------------------------------------------------------------------------------- Petitioner Shri Manoj Kumar Agrawal with Shri Y.M. Tiwari, Advocate, is present in person. Shri Mrigendra Singh with Shri Amit Khatri, Advocates for the respondent. ------------------------------------------------------------------------------------------- Date of Hearing : 06/09/2011 Date of Judgment: 16/12/2011 J U D G M E N T In this petition, election of the returned candidate viz. the respondent to the M.P. Legislative Assembly Constituency No.180 Burhanpur (for short “the Constituency”) has been called in question on the ground mentioned in Section 100(1)(b) of Representation of the People Act, 1951 (hereinafter referred to as ‘the Act’). The reliefs claimed therein are as follows – (i) declaration that election of the respondent is void. (ii) direction for prosecution of the respondent and other persons found guilty of the corrupt practices. (iii) direction to hold the election afresh. 2. The following calendar of events for the said election was notified on 31/10/2008 - a. Last date for filing nominations 07/11/2008 b. Date of scrutiny of nominations 08/11/2008 c. Last date for withdrawal of nominations 10/11/2008 d. Date of polling 27/11/2008 e. Date of counting/declaration of result 08/12/2008 3. As many as 14 candidates including the petitioner and the respondent contested the election. The petitioner was in the fray as an authorized candidate of Bahujan Samaj Party (BSP) whereas the respondent was fielded as the official candidate of Bhartiya Janta Party, the then Ruling Party in the State. During the election campaign of the respondent, poster in question (Ex-P-3), which contained appeal to the electorate to vote for her was distributed. As indicated therein, in all 1000 such posters were published by Mukesh Dewada, a party worker, with consent of the respondent and the charges incurred in publication thereof were also included in the accounts of expenditure furnished to the District Election Officer. In the final result-sheet prepared in Form 20 of the Conduct of Election Rules, 1961, the votes secured by the independent candidates as well as the candidates representing various political parties were reflected as under – S.No. Name of candidate Party Affiliation Number of votes secured 1. Archana Didi B.J.P. 85362 2. Girdhari Lal Kumawat R.J.D. 641 3. Nafees Mansha Khan S.P. 1573 4. Manoj Kumar Agrawal B.S.P. 5845 5. Sharif Rajgir C.P.I. 634 6. Hameed Kazi N.C.P. 52508 7. Isamuddin Leader Sujauddin S.A.P. 521 8. Dharmraj Devchand Mahajan B.J.S.H. 661 9. Mukund Sanyas R.P.I.(A) 553 10 Shakeel Khan Usman Khan L.J.P. 344 11. Kailash Parik IND 867 12. Dinesh Sudras IND 323 13. Premchand Baliram Nagraj IND 624 14. Mohan Patil Baliram Patil IND 3037 The respondent was declared elected as she had obtained the majority of votes. :: 2 :: E.P. No.23/2009 4. As per the petitioner, -- the constituency had 2,04,522 registered voters. Of these, there were approximately 1,20,000 Hindu voters. Various temples including temple of Lal Deval situated at the bank of river Tapti in the city of Burhanpur were depicted in the poster distributed by the respondent in furtherance of her election. Use of such a poster showing temple, which is a religious symbol of the Hindus in general in the election campaign against the backdrop of recent communal disturbances, amounted to corrupt practices as contemplated in sub-section (3) of Section 123 of the Act. 5. While denying the allegation, the respondent has submitted that it is an appeal in the name of religion that constitutes a corrupt practice whereas the poster did not contain any appeal to vote or refrain from voting for any person on the ground of religion and further that there is not even an iota of communal slant in the depiction of the temple. According to her, - (a) the famous structure of “Lal Deval” located at the bank of river Tapti is neither any religious symbol reflecting the identity of Burhanpur nor has been notified as such by the Department of Religious Trust and Endowments (Government of M.P.). (b) the poster related to river Tapti and not to any temple or monument situated on its bank and the contents thereof only reflected her emotional attachment and dreams about the development of Burhanpur with the river at its fulcrum as well as her plans to further implementation of mega recharge scheme for the benefit of the local farmers. (c) the poster only reflected the actual scenario at the bank of river Tapti, which is sign of identification of Burhanpur, and :: 3 :: E.P. No.23/2009 depiction of certain structures situated at its bank, was only incidental and not intentional. (d) Had there been any intention to project the temples as the religious symbols or use them for appeal to vote in her favour, the election symbol and her photograph would not have covered the poster so vitally. (e) copies of the poster were distributed throughout the Constituency during the election. 6. On the basis of the pleadings of the parties, the following issues have been framed. The corresponding answer is noted against each one of them - No. Issues Finding 1 Whether the poster in question (Annexure P-3) depicts a religious symbol within the meaning of sub-section (3) of Section 123 of the Act ? OR Whether the poster reflected the actual site of the bank of river Tapti in Burhanpur, if so, the effect ? No Yes 2 Whether by publishing and distributing the poster, the respondent made an appeal to vote on the ground of her religion for the furtherance of her prospects of the election or for prejudicially affecting the election of any other candidate in the fray ? No 3 Whether the respondent is guilty of corrupt practices under Section 123(3) of the Act ? No 4 Whether the election of the respondent to M.P. Legislative Assembly Constituency No.180, Burhanpur is liable to be declared as void under sub-Section 1(b) of Section 100 of the Act ? No 5 Relief and Costs. Petition dismissed with cost :: 4 :: E.P. No.23/2009 REASONS FOR THE FINDINGS ISSUE No.1 7. Petitioner Manoj Kumar (PW1) has asserted that the respondent, by way of poster (Ex.P-3), had made appeal to secure votes with the aid of temple, which is a religious symbol of the Hindus. According to him, in the poster, the temples situated at the bank of river Tapti in Burhanpur including Lal Deval Temple were purposely depicted. However, he has candidly admitted that – (a) If the photograph of the respondent and picture of “Lotus” flower, the election symbol of Bhartiya Janta Party, are removed from the poster, it would only show the actual site of the bank of river Tapti. (b) Scene depicted in the poster is that of Rajghat, a tourist place situated at the bank of river Tapti, which is revered equally by Hindus and Muslims. (c) The poster does not contain appeal on the ground of religion or God. (d) It is the popular belief that when the water of Tapti touches the top of “Lal Deval” temple, there is every likelihood that city of Surat (Gujarat), which is also located at the bank of the same river, will be flooded with its water. 8. Similar admissions have been made by Waseem Khan (PW3), an elector and a practicing Advocate, in his cross-examination. He further acknowledged that the poster did not hurt any religious faith. He was not in a position to answer the question as to whether after seeing the poster, the Muslim voters had voted against the Hindu candidates. 9. Even after claiming in the cross-examination, that an idol of Lord Shiva is consecrated in the Lal Deval temple, petitioner Manoj :: 5 :: E.P. No.23/2009 Kumar has not preferred to examine any worshipper of the deity. Waseem Khan (PW3) also pleaded complete ignorance of the fact that Lal Deval is used for measuring water level of river Tapti. 10. As deposed by the respondent (DW6), to her knowledge, regular worshipping is not being performed in any of the temples shown in the poster whereas the Lal Deval temple is, in fact, used for assessing the water level to anticipate any danger of flood in the city of Surat. According to her, in the area marked as “C”, there is a mosque in dilapidated condition and in the area marked as “D’ in the poster, another mosque known as “Kali Masjid” is situated and both the mosques are used by Muslims for offering prayers and Namaz. Her testimony drew ample support from the statements of other witnesses namely Siraj Ahmad Ansari (DW1), a weaver by occupation, Sunil Kharche (DW2), a sand contractor, Mohanlal (DW3), an employee of liquor contractor, Chetan Das (DW4), a farmer and Purushottam (DW5), a washerman. Among these witnesses, who are residents of Burhanpur only, Purushottam (DW5) came forward to state that idols in all the temples shown in the posters are in broken condition and, therefore, are not worshipped. Chetandas (DW4) also admitted that he had not visited any temple for worshipping. Mohanlal (DW3) was emphatic in saying that in the Lal Deval temple also, the idol is in broken condition. 11. Sunil (DW2), while admitting that in some of the temples located at Rajghat, the idols are regularly worshipped, has also informed that ancient temple of Saturn is situated there only. According to him, the Saturn temple, not shown in the poster, is considered to be the most revered place of worship for the Hindus simply because in the Hindu mythology, Goddess Tapti is the sister of Lord Saturn. Significance of Saturn temple was also highlighted by Mohan Lal (DW3) and Purushottam (DW5) by deposing that the :: 6 :: E.P. No.23/2009 idol installed therein is rare inasmuch as on its other side, idol of Lord Hanuman is carved. 12. Although, petitioner Manoj Kumar feigned ignorance of the peculiarity of the idol yet, he came forward to admit that in the Saturn Temple, a Shivlinga and an idol of Lord Ganesha are also worshipped. Purushottam (DW5) substantiated the fact stated by Sunil (DW2) that view of Rajghat as depicted in the poster appears to have been photographed from the Saturn Temple only. While admitting existence of old Saturn Temple at Rajghat, Siraj Ahmad Ansari (DW1) asserted that at the place shown in the poster below the word “Pur”, a mazar is situated where the followers of Islam used to go to offer Fatiha (prayer for the dead). He further asserted that in the poster, minarets in the Kali Masjid located in Zainabad are also visible. 13. Use of religion, caste, race, community or language for furtherance of the prospects of the election of the candidate is prohibited under sub-section (3) of Section 123 of the Act. It reads as under – “Section 123. Major Corrupt practices (1) ….. (2) ….. (3) 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, race, caste, community or language or the use of, or appeal to religious 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 the election of that candidate or for prejudicially affecting the election of any candidate: [Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.]” :: 7 :: E.P. No.23/2009 14. Accordingly, appeal to religious symbol is a corrupt practice as contemplated by the sub-section. However, what would be an appeal to religious symbol is a vexed question. The case law on the subject may be tabulated as under - Precedent The view taken Mohansingh v. Bhanwarlal AIR 1964 MP 137 (DB) Appeal in the name of cow or Nanda- deep is not an appeal to any religious symbol because (i) Deep is not any religious symbol (ii) it does not stand for, or represent, any particular God or Goddess and (iii) In common parlance, Nanda-Deep does not represent the symbol of any deity, Mata or Goddess and it requires some etymological research to know that 'Nanda' also means 'Durga', and Nanda-Deep is the symbol of Durga. Jagdev Singh Sidhanti v. Pratap Singh Daulta AIR 1965 SC 183 Word 'Om' used on a flag is not a religious symbol. Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji AIR 1965 SC 669 Describing election symbol as 'Dhruva Star' with its attributes in election pamphlets is not a corrupt practice as Dhruva Star is not a religious symbol. Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299 Cow and Calf is not a religious symbol. Mullapudi Venkata Krishna Rao v. Vedula Suryanarayana AIR 1994 SC 1627 Poster of leader of party to which successful candidate belonged, in attire of Lord Krishna blowing `shanku' (conch) and quoting words of Bagwadgita addressed by Krishna to Arjuna that his incarnation would be born upon the earth to restore dharma, is a religious symbol. 15. The proviso appended to the sub-section (3) [ibid] by the Act No.40 of 1975 is to the effect that no symbol allotted under this Act :: 8 :: E.P. No.23/2009 to a candidate shall be deemed to be a religious symbol for the purpose of this clause. Even prior to that, the Supreme Court in Ramanbhai’s case (supra), while deciding whether ‘Star’ that was allotted to Swatantra Party by the Election Commission was a religious symbol, had the occasion to lay down the guideline in the following terms - “if the voters are told that they should cast their vote for a particular candidate whose election symbol is associated with a particular religion just as the Cross is with Christianity, that will be using a religious symbol for obtaining votes. But where, as in the case of the Hindu religion, it is not possible to associate a particular symbol with religion, the use of a symbol even when it is associated with some deity, cannot, without something more, be regarded as a corrupt practice within the meaning of sub-section (3) of Section 123 of the Act. For instance, a particular object or a plant, a bird or an animal associated with a deity is used in such a way as to show that votes are being solicited in the name of that deity or as would indicate that the displeasure of that deity would be incurred if a voter does not react favourably to that appeal, it may be possible to say that this amounts to making an appeal in the name of religion. But the symbol standing by itself cannot be regarded as an appeal in the name of religion”. 16. Reverting to the evidence as marshalled above, the under- mentioned conclusions may safely be drawn - (i) If the photograph of the respondent and picture of “Lotus” flower, the election symbol of Bhartiya Janta Party, are removed from the poster (Ex.P-3), it would only present a panoramic view of Rajghat situated on the bank of river Tapti, its bed and the headland on the opposite bank. :: 9 :: E.P. No.23/2009 (ii) Rajghat also has structures including Lal Deval, which is used for assessing the water level to anticipate the danger of flood in the city of Surat (Gujarat). (iii) All the temples shown in the poster contain broken or abandoned idols considered as unworthy of worship. (iv) The most revered temple situated at the bank of river Tapti is the temple of Saturn who, according to Hindu Mythology, is her brother but this temple was not depicted in the poster. (v) Structures visible in the poster include a dilapidated Mosque at Rajghat and Kali Masjid located on the other side of the river. 17. A charge of corrupt practice is substantially akin to a criminal charge. As such, the contention that by not denying specifically the petitioner’s pleading regarding depiction of temples including Lal Deval Temple in the poster, the respondent has admitted that it is a religious symbol is apparently misconceived. In this regard, the following illuminating observations made by R.S. Sarkaria, J. in Razik Ram v. J. S. Chouhan AIR 1975 SC 667 may usefully be quoted - “The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus therefore, rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal :: 10 :: E.P. No.23/2009 and unimpeachable evidence beyond reasonable doubt. It is true that there is no difference between the general rules of evidence in civil and criminal cases, and the definition of "proved" in Section 3 of the Evidence Act does not draw a distinction between civil and criminal cases. Nor does this definition insist on perfect proof because absolute certainty amounting to demonstration is rarely to be had in the affairs of life. Nevertheless, the standard of measuring proof prescribed by the definition, is that of a person of prudence and practical good sense. 'Proof' means the effect of the evidence adduced in the case. Judged by the standard of prudent man, in the light of the nature of onus cast by law, the probative effect of evidence in civil and criminal proceedings is markedly different. The same evidence which may be sufficient to regard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a conviction. 18. In the face of the abovementioned fact-findings and the well- settled position of law on the subject, it is difficult to hold that the poster (Ex.P-3) depicts any religious symbol within the meaning of sub-section (3) of Section 123 of Act as it only reflects panoramic view of river Tapti in Burhanpur. The alternative issues under Serial No.(1)[above] are answered accordingly. ISSUE No.2 19. City of Burhanpur was rocked by communal riots on 09th and 10th of October, 2008 whereas Gazette Notification for the election was published on 31.10.2008. As many as 9 persons lost their lives during the riots. An inquiry into the riots was ordered by the M.P. State Human Rights Commission. Sushovan Banerjee (PW2), :: 11 :: E.P. No.23/2009 Inspector General of Police, had conducted the inquiry and submitted his report (Ex.P-5) before the Commission. These facts are not in dispute. 20. Manoj Kumar (PW1), the petitioner, has alleged that the respondent committed corrupt practice by making appeal to electors to vote for her through the medium of poster (Ex.P-3) representing temples against the backdrop of recent communal riots. According to him, publication and distribution of the poster in the post-riot period resulted in polarization of the electorate on communal basis and, accordingly, Muslims voted for Hameed Qazi whereas non-Muslims cast their votes in favour of the respondent. His witness Waseem Khan (PW3), while substantiating the allegation, has deposed that the riots had disturbed the communal harmony and spirit of brotherhood. 21. Manoj Kumar, in his testimony, has also made reference to paragraph 5 of the report (Ex.P-5) authored by Sushovan Banerjee (PW2) indicating that on 10th October, 2008, the respondent had visited Gandhi Chowk where Kailash Parik, a local BJP leader, was sitting on Dharna (picketing) along with his supporters and during her brief stay there, had also talked to the protestors. He further stressed that the riots continued even after respondent’s short meeting with Kailash Parik. 22. Highlighting these background circumstances, the petitioner has argued that publication and circulation of the poster (Ex.P-3) was not aimed at mere depiction of the temples at Rajghat but was intended to generate appeal to the voters to vote for the respondent on the ground of her religion. To fortify the argument, implicit reliance has been placed on decision of the Supreme Court in P.C. Thomas v. P.M. Ismail, (2009) 10 SCC 239. The ratio laid down in Kultar Singh v. Mukhtiar Singh AIR 1965 SC 141 that appeal to :: 12 :: E.P. No.23/2009 voters on ground of religion can be a corrupt practice even though rival candidates belong to same religion, has also been cited. Inviting attention to the observations made by the Apex Court in Das Rao Deshmukh, Dr. v. Kamal Kishore Nanasaheb Kadam AIR 1996 SC 391, the petitioner has further submitted that in the context in which the poster was published, it was likely to rouse passion in minds of voters on communal basis. 23. Denying the charge, the respondent Archana Chitnis (DW6) has explained that she had published the poster to highlight the physical and geographical situation of Rajghat in view of the fact that during the preceding years, she had remained involved in various developmental projects including mega artificial recharge scheme for bulk augmentation by harnessing the surplus runoff of Tapti river during the monsoon period. For this, reference has been made to (a) recommendations of Central Ground Water Board, Bhopal (Ex.D-1), (b) related correspondence (Ex.D-2 to D-22) and (c) extracts of relevant proceedings of Vidhan Sabha (Ex.D-23). According to her, river Tapti is the lifeline of entire area of Burhanpur and Rajghat, being the main bank of the river, is the identity of Burhanpur. 24. While admitting that on 10th of October, 2008, she had visited Gandhi Chowk where, against the backdrop of communal riots between Hindus and Muslims, Dharna (picketing) by certain supporters of BJP was organized, the respondent stated that during her stay for about two minutes, she had only consoled them. Nothing could be elicited in her cross-examination so as to suggest that she had, in any way, provoked the supporters of BJP to continue with the Dharna. 25. Further, as admitted by Sushovan Banerjee (PW2), his report (Ex.P-5) did not disclose any role of the respondent, whether direct or indirect, in the riots. The report also revealed that – :: 13 :: E.P. No.23/2009 (a) respective roles of sitting M.P. namely Nandkumar Singh Chouhan representing BJP and the sitting MLA of Burhanpur Constituency namely Hameed Qazi, who subsequently contested the election as official candidate of Nationalist Congress Party (NCP), were shrouded with doubt and were instrumental in triggering off the communal riots. (b) the respondent had visited Gandhi Chowk in the capacity of sitting MLA from Nepanagar Constituency. 26. As reflected in the table in Para 3 (above), Kailash Parik, referred to as the local BJP leader, who carried on picketing at the Gandhi Chowk, also contested the election as an independent candidate and had secured 867 votes. 27. In Kultar Singh’s case (supra), the Constitution Bench explained the test to be applied to decide as to whether a particular appeal made by a candidate falls within the mischief of Section 123(3) of the Act in the following terms – (i) The Courts should not be astute to read into the words used in the appeal anything more than can be attributed to them on its fair and reasonable construction. (ii) The document in question must be read as a whole and its purport and effect determined in a fair, objective and reasonable manner. 28. Further in P.C.