Case: Kanti Prasad Jayshanker Yagnik Vs. Purshottamdas Ranchhoddas Patel And Others

3. The poll for the election was taken on February 21, 1967, and the result of the election declared on February 22, 1967. Purshottamdas Ranchhoddas Patel, the petitioner in the High Court and respondent before us, secured 16159 votes whereas the appellant secured 23055 votes. The other candidates, who were respondents to the petition, secured 720 votes, 1017 votes and 454 votes, respectively. The petition out of which this appeal arises was filed on April 5, 1967, and the petitioner prayed for the relief that the election of the appellant be declared void and further prayed that he be declared duly elected to the Assembly. Various grounds were urged in the petition but we need only deal with the ground that the appellant and his agents arranged public meetings of Shri Shambhu Maharaj on February 18, 1967, at various villages which were part of the Mechsana Assembly constituency, and Shambhu Maharaj made a systematic appeal in his speeches to a large section of the electors to vote for the appellant on ground of religion, caste and community, and the electors were told that it would be an irreligious act to vote for the petitioner who was a Congress candidate as Congress allowed slaughtering of cows and bullocks. It was also alleged that Shri Shambhu Maharaj had used undue influence and interfere with the free electoral rights of electors by inducing or attempting to induce them to believe that they would become object of divine displeasure or spiritual censure by his speeches.The petitioner sought to prove the speeches by producing members of the Police Force, as witnesses, who had under instructions of Government taken down notes of the speeches and reported them to their officers. The High Court relied on the reports of these members of the Police Force and held that their reports were correctly recorded and fairly represented the speeches made by Shambhu Maharaj. In this connection, the High Court discarded the testimony of the petitioners witnesses (P. Ws. 25 to 33) on the ground that it would be safe not to accept the evidence of partisan witnesses unless it was corroborated by independent witnesses.

Reasoning:
8. In this case it is clear that the reports were written by the witnesses themselves at the time of the speeches or soon afterwards when the speeches were fresh in their memory.It seems to us that it is not necessary that a witness should specifically state that he has no specific recollection of the facts and that he is sure that the facts were correctly recorded in the document, before the document can be used under Section 160. It is enough if it appears from his evidence that these conditions are established.In this particular case the witnesses were giving their testimony in Court after a lapse of nearly nine months and one would have to have super-human memory to specifically recollect the details of the speeches, especially when the witness may have attended and reported many similar meetings as a part of his duty during the election campaign.It may be implied in this case that the witnesses had no specific recollection of the facts.In cross-examination questions were directed to establishing that the reports were not exact reports. He stated that he was taking down all the speeches of Shambhu Maharaj who was speaking at medium pace and he wrote whatever Shambhu Maharaj spoke. He further stated that he was writing down from memory immediately after the words were spoken by Shambhu Maharaj. He admitted that "it is true that every word spoken by Shambhu Maharaj was not taken down by me in my report but what I have taken down was in fact spoken by him." He, however, added that "it is not true that what I have written out in Ex. "J" was not written down at Motiday village.12. On this evidence it seems to us that it is quite clear that both the conditions required by Section 160 have been complied with. While the speech was delivered on February 18, 1967, he was giving his evidence on November 7, 1967. It is implicit that he had no specific recollection of the speeches, and the second condition is also satisfied because he made notes and then made out the report from his notes. It may be that the counsel would have been well advised to have read out Ex. "J rather than produce it as an exhibit, but this is apparently done in some Indian Courts to save time andit is now too late in the day to condemn such practice, specially as it is a difference without any substance. It is true that the report is, strictly speaking, not substantive evidence as such, and the document can only be used as a part of the oral evidence sanctified by the oath.The High Court has found three speeches to constitute "corrupt practices". The following three passages in Ex. J - speech delivered by Shambhu Maharaj at village Motidav of February 18, 1967 - were complained of by the learned Counsel in the HighI will say one fact and that is that at present the Congress is stating everywhere that nobody else will make the people happy except themselves. But I say that apart from God no other Government either Congress or Swatantra Party can make people happy. An Agriculturists may have one bigha of land (about half an acre) and he might have sown wheat but if there is heavy frost or locusts or if one bullock worth Rs. 1000/- dies, Government may give him money, may give him bullock, but I do not think that that man can be happy; but nature can make him happy. Today in our India, everyday 33,000 cows are being slaughtered throughout the country. Ten to eleven lacks of bullocks are being slaughtered during the year and in Ahmedabad Town alone 10,000 bullocks are slaughtered.(2) This unworthy Congress Government has cut the nose of Hindu Society. Sant Fateh Singh, the religious preceptor of the Sikhs, fasted for 10 days; whereas Jagadguru fasted for 73 days, still this Government is not even thinking of opening negotiations. This unworthy Government accepted the contention of the Sikhs after the fast of 10 days; whereas in spite of the penance undertaken by Jagadguru by is fast of 73 days, the Government as not considered any topic in this connection. Your Jagadguru had full confidence that, except or ten crores who are the followers of the Congress, twenty to thirty crores from the Hindu Society would help him.(3) For example, if any Maulvi from Mucca had fasted for 73 days and had given such a mandate to our Muslim brothers, then would they have voted for the Congress. That you have to consider. In the same manner, if Fateh Singh, the religious leader of Sikhs, had fasted for 73 days, would they (Sikhs) have voted for the Congress ? In the same manner if there were Parsis or Christians, then they also would vote for their religious preceptor. This is what you have to consider. The mandate of your religious preceptor is that do not cast your vote for anyone, the mandate of the Jagadguru is that let cows be slaughtered, let bullocks be slaughtered. In Gujarat State though there is ban, still bullocks are allowed to be slaughtered the bullocks which give every individual happiness throughout the life. This Government asks for votes in the name of the bullocks (the Congress Party election symbol being a pair of bullocks with yoke on) and I am, therefore, having an experience. Do not vote for the Congress and by putting the mark of vote on the symbol of bullocks amounts to cutting the throat of a bullock by a knife symbolised by your vote. It is my mandate that you should not do this dastardly act.The High Court did not find the first two passages to constitute "corrupt practices". The third passage was held by the High Court to constitute "corrupt practice" on the ground that"though there is no proof that Shankaracharya had any religious following as such in this particular constituency, there is no mandate in writing from the Jagadguru and there is no direct address to his followers by the Jagadguru Shambhu Maharaj has clearly appealed to the Hindu voters as such not to vote for the Congress Party lest they might be betraying their religious leader, particularly when he had fasted for 73 days in a cause which had some basis in the religious beliefs of theare unable to agree with the High Court in this respect. The decision of this Court in Ram Dial v. Sant Lal, 1959 Supp (2) SCR 748 = (AIR 1959 SC 855  ) is clearly distinguishable because there it was held by this Court that Shri Sat Guru wielded great local influence among the large number of Namdharis who were voters in the Sirsa constituency. In the present case there is no proof that Jagadguru Shankaracharya of Puri was the religious head of the majority of the electors in this constituency or exercised great influence on them. It cannot be held on the facts of this case that an ordinary Hindu voter in this constituency would feel that he would be committing a sin if he disregarded the alleged directive of the Jagadguru.25. One other ground given by the High Court is that "there can be no doubt that in this passage (passage No. 3) Shambhu Maharaj had put forward an appeal to the electors not to vote for the Congress Party in the name of the religion." In our opinion, there is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name of religion.What Section 123 (3) bars is that an appeal by a candidate or his agent or any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, i.e., the religion of the candidate.26. The following four passages in Ex. K, a speech delivered by Shambhu Maharaj at Kherwa after midnight of February 18, 1967, were objected toThe Congress says that it has brought happiness and will give happiness in future; but even a father cannot give happiness to his son, nor can a son give happiness to his father. Giving happiness rests in the hands of God. But God gives happiness where there is religion. He does not give happiness to the irreligious.(2) Formerly there were no famines. Possibly once in 100 years there might be one famine. As against that nowadays every year there is some natural calamity like a famine. Either there is no rain or there is frost or there is visitation of locust or there is some disease in the crops and some calamity or the other is constantly visiting us. The reason for this is that Congress permits slaughter of 33,000 bullocks everyday. When slaughter of cows is banned, bullocks are allowed to be slaughtered. In Gujarat 12,000 bullocks are being slaughtered.(3) Nobody would sit till 12.30 at night to listen to any talks by the Congresswalas. But I have come to tell the public, which is fond of its religion, to elect the Swatantra Party, so that the slaughter of bullocks might be stopped and all people who are fond of their religion are also keeping away till 12.30 atVijaykumarbhai has gone. A Brahmin minister must be there and hence Kantilalbhai is going to be a minister, hence vote for him. We must have at least one minister who is a Brahmin. Hence vote or Kantilalbhai. At the same time vote for Bhaikaka and H. M. Patel by putting your voting mark on the star.The High Court held the first two passages read together to constitute "corrupt practice" on the ground that "they amounted to interference with the free exercise of the electoral right of the voters by holding out threats of divine displeasure and spiritual censure." The High Court held that in these passages there was a direct causal relationship between the cow slaughter and the natural calamities and this clearly showed that the voters were told that if they did not want such natural calamities to visit them they should not vote for the Congress Party and thus avoid the divine displeasure which was responsible for these natural calamities. It seems to us that this is not a fair reading of these two passages. Cow slaughter is not mentioned in these passages except to say that cow slaughter is banned in Gujarat. The casual relationship, if any, exists between slaughter of 33,000 bullocks every day and natural calamities.This, in our view, cannot amount to constitute "corrupt practice" within Section 123 (2) proviso (a) (ii). The law does not place any bar on describing a party as irreligious or saying that because that political party is irreligious natural calamities have resulted because of its disregard of religion.28. We do not find anything objectionable in the third passage became here again it is only an appeal to elect the Swatantra Party because the people in that party are fond of their religion.29. The last passage in Ex. K clearly fell within the mischief of Sec. 123(3). The High Court in this connection observedreference to Vijaykumarbhai is to Vijaykumar Trivedi, who was a Brahmin and was a minister in the Gujarat Government till March 1967, and when this speech was delivered. The reference to Kantilalbhai is to the first respondent, who is also a Brahmin and the reference to Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra Party and H. M. Patel is another leader of the Swatantra Party and what Shambhu Maharaj was asking in this connection was that it was necessary that there should be one Brahmin in the Gujarat State Ministry and if one Brahmin, Vijaykumar Trivedi, was to leave the ministry, another Brahmin Minister, viz., the first respondent should be first elected so that he might get a seat in the Legislature and thereafter become a minister, and thus it is clear that in the passage, Shambhu Maharaj was asking the people to vote for the first respondent because he was a Brahmin by caste. It has been stated as a categorical statement that there must be at least one Minister, who was a Brahmin. Under Section 123 (3) of the Act, an appeal by any person to vote for any person on the ground of his caste or community is a corrupt practice, provided, of course, that such person has made such appeal with the consent of the candidate concerned. I will come to the question of consent a bit later on, but it is clear that in this particular passage an appeal was being made to the electors to cast their votes for the first respondent because the first respondent is a Brahmin and also because of the promise which had been put forward in this passage, that there should be at least one Brahmin Minister in the Ministry. I may point out that so far as the petitioner is concerned, the petitioner is a Patidar and it is in the context of this background that an appeal is made in the name of caste of the first respondent and the people are asked to vote for the first respondent because he was aseems to us that the High Court is correct in drawing the inference that Shambhu Maharaj was asking his voters to vote for the first respondent because he was a Brahmin.30. Shambhu Maharaj is reported to have adopted the same theme in Ex. P when he said that "Vijaykumarbhai had gone out and Kantilalbhai is going to be the Minister."31. Following three passages were objected in Ex. P, a speech made at DangerwaThe time of election has arrived. The Congress Party is carrying on its propaganda desperately but what I want to say is that if Swatantra Party comes into power then it will not turn your roof-tiles into gold. Only God gives happiness. There is frost, there is rust in the crops, there is excess of rains, there is a famine all these are due to the workings of God. Every day twenty four crores of cows are being slaughtered, then how God will tolerate that and how will you get happiness ?(2) Look at the Congressmen who are destroyers of Hindu Religion.(3) Every year we get one or the other natural calamity like excessive rain, or failure of rain or earthquake. This happens because they ask for votes in the name of live bullocks, where as they get the bullocks slaughtered. The symbol should be of butcher and except ruthless and hard-hearted Congress nobody else will get bullocks slaughtered.It seems to us that the first and the third passages, read together, constitute an attempt to induce the electors to believe that they would become objects of divine displeasure if they voted for the Congress and thereby allowed cow slaughter to be continued.In the first and third passages of Ex. P, therefore, there is clear implication that if you vote for the Congress who are responsible for 24 crores of cows being slaughtered then God will be displeased; in other words there will be divine displeasure and the voters will not get happiness.The second passage does not seem to be objectionable and the High Court has not found it to beHigh Court examined the speeches, Exs. I, J, K, L and P, in connection with this question and came to the conclusion that common topics, common language and common approach existed in all the speeches, and this indicated that Shambhu Maharaj did deliver the speeches. Further, according to the High Court, the reports were submitted by different constables at different times and to different Police Stations, and the learned Judge found that there could possibly be no consultation between the various police constables who took down the statements, and that the totality of the effect emerging from different reports made the reports credible.37. We agree with the conclusions arrived at by the High Court. It is true that the exact words were not taken down by the various police constables, but the similarity of approach, appeal and the attack on the Congress is remarkable and in these circumstances it must be held that the police constables correctly reproduced the substance of the speeches. It is not necessary in these cases that exact words must be reproduced before a speech can be held to amount to "corrupt practice.agree that the statements contained in Exh. P, amount to a corrupt practice under Section 123 (2) of the Representation of the People Act and also agree that those statements were made with the consent of the returnedS. 123 (2) requires is to induce or attempt to induce "an elector" - which means even a single elector---that he will be rendered an object of spiritual censure if he exercises or refuses the exercise his electoral right in a particular manner. But undoubtedly the inducement or an attempt to induce complained of should be such as to amount to a direct or indirect interference or attempt to interfere with the free exercise of the electoral right. Whether a particular statement comes within Sec. 123 (2) or not depends on various factors such as the nature of the statement, the person who made it and the persons to whom it is addressed. No doubt the nature of the statements in question is of utmost importance. They may exploit well accepted religious beliefs but that is not the only thing that comes within the mischief of Section 123 (2). A respected religious preacher may induce or attempt to induce the illiterate and superstitious voters who form the bulk of our voters that they will become the object of divine displeasure if they do not exercise their franchise if a particular manner. His statements may not have any support from the religious books but yet they may amount to a corrupt practice in law. I see no justification to cut down the scope of Section 123 (2). It will not be in public interest to do so.42. I am unable to agree that the appeal to vote (in Exh. K) for the appellant on the ground that he is likely to be a Minister as according to Shambhu Maharaj there should be at least one Brahmin Minister in the cabinet is an appeal to vote on the ground of the appellants caste.The second requirement would be satisfied if the Court comes to the conclusion that the witness was in a position to correctly record the facts in the document.10. Are then the requirements of Section 160 satisfied in this case ? As an example we may consider the evidence of P. W. 7, who testified regarding the speech, Ex. J., delivered at village Motiday.He stated that Shambhu Maharaj addressed the meeting at Motiday at about 5.30 P. M. on February 18, 1967, and the appellant was present at that meeting; Managanlal A. Patel was also present at the time when Shambhu Maharaj was speaking; while the speeches were being delivered he was making notes of what was being spoken; in this manner he had written out a report regarding all that had happened at the meeting; after returning to Mehsana he submitted his report of the meeting to P. S. I. Choudhary. He was shown two reports about the meetings at Motiday, and he statedthese reports, part of "X", are in my handwriting. I wrote out the contents of these two reports at Motiday when the meetings were going on." (The two reports put in and marked Ex. "J" collectively.It seems to us that on the facts the report, Ex. J, was properly use under Section 160 of the Indian Evidenceagree with the High Court that there is no force in this contention.We may add that many police witnesses depose that the appellant was present and it has not been shown to us that he dissociated himself with any of the remarks in the speeches.agree that the statements contained in Exh. P, amount to a corrupt practice under Section 123 (2) of the Representation of the People Act and also agree that those statements were made with the consent of the returnedcandidate. Hence this appeal has to be dismissed but I am unable to agree that before a statement can be considered as an attempt to induce an elector to belive that he will be rendered an object of spiritual censure if he acts in a particular manner that statement must have been made by a person who is a religious head of the majority of the electors in the constituency concerned.WhatS. 123 (2) requires is to induce or attempt to induce "an elector"which means even a singlehe will be rendered an object of spiritual censure if he exercises or refuses the exercise his electoral right in a particular manner. But undoubtedly the inducement or an attempt to induce complained of should be such as to amount to a direct or indirect interference or attempt to interfere with the free exercise of the electoral right. Whether a particular statement comes within Sec. 123 (2) or not depends on various factors such as the nature of the statement, the person who made it and the persons to whom it is addressed. No doubt the nature of the statements in question is of utmost importance. They may exploit well accepted religious beliefs but that is not the only thing that comes within the mischief of Section 123 (2). A respected religious preacher may induce or attempt to induce the illiterate and superstitious voters who form the bulk of our voters that they will become the object of divine displeasure if they do not exercise their franchise if a particular manner. His statements may not have any support from the religious books but yet they may amount to a corrupt practice in law. I see no justification to cut down the scope of Section 123 (2). It will not be in public interest to do so.42. I am unable to agree that the appeal to vote (in Exh. K) for the appellant on the ground that he is likely to be a Minister as according to Shambhu Maharaj there should be at least one Brahmin Minister in the cabinet is an appeal to vote on the ground of the appellantsis no use hiding the fact that communal and regional representations in all our political institutions have become a must. Shambhu Maharaj merely gave expression to that fact from public platforms. One may not appreciate his campaigning for that point of view but I am unable to agree that his statements in that regard amount to corrupt practice under Section 123 (3).Those statements cannot be considered as an appeal to vote on the basis of the appellants caste. The caste of the appellant has come into the picture incidentally.