Case: Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra &amp; Ors

1. This appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as the Act) is directed against the judgment and order of the High Court of Bombay setting aside the election of the appellant to the Maharashtra State Assembly from Kumbharwada constituency held onon a voters election petition.2. The voter alleged that the appellant, in the course of his election, had committed corrupt practices defined in Sec. 123,(2) and (3) and (3A) of the Act. The gist of the charges against the appellant Ziyauddin Burhanuddin Bukhari (hereinafter referred to as Bukhari), a Muslim League candidate, was: that, he had made speeches in the course of his election campaign calculated to induce a belief in the voters that they will be objects of divine displeasure or spiritual censure if they voted for Shaukat Currimbhoy Chagla (hereinafter referred to as Chagla), a Congress party candidate, who was impleaded as the 2nd respondent that, in the above mentioned speeches, the appellant had called upon the electors to vote for him and not for Chagla on the ground that he alone stood for all that was Muslim whereas. Chagla represented all that was against Muslim religion and belief so that Chagla could not be a true Muslim at all, the object of such appeals being to further the chances of election of Bukhari and to prejudicially affect the prospects of the election of Chagla; that, the appellant, Bukhari, had attempted to promote feelings of enmity and hatred between Muslims and Hindus on grounds of religion and community. Particulars of the speeches delivered at sixteen meetings and what was said there by Bukhari were furnished with the election petition.3. The alleged corrupt practices are defined in the following provisions of Section 123:"(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:Provided that:(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who:(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism andor expulsion from any caste or community; or,(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right shall not be decried to be interference within the meaning of this clause.(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.(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate."

Reasoning:
from the fact that the High Court dealing with this question had, in our opinion, rightly recorded the finding that the issue No. 2, framed on this objection, was specifically given up in its entirety by the learned Counsel for the appellant, so that he could not wriggle out of it by a vague reservation of some right to urge that the affidavit filed was not in proper form, we were not shown any defect of form at all in the affidavit filed. All that was urged is that the relevant affidavit does not give the sources of information so far as corrupt practices under Section 123 (3) and 123 (3A) are concerned. As was pointed out by this Court in Hardwari Lal v. Kanwal Singh, (1972) 2 SCR 742   = (AIR 1972 SC 515  ) this is not a defect of the required form but may, in suitable cases, form theof an objection based on Section 86 and S. 123 (7) of the Act relating to supply of material particulars. It was indicated by this Court in Prabhu Narayan v. A. K. Srivastava, C.A. No. 1174 of 1973, delivered on= (AIR 1975 SC 968  ) that a petition can only be dismissed for a substantial defect.Still another objection was that the Trial Court had erroneously allowed an amendment of the election petition by an order datedReliance was placed upon this Courts decision in Manubhai Nandlal v. Popatlal Manilal Joshi, (1969) 3 SCR 217   = (AIR 1969 SC 734  ) and Samant N. Balakrishna v. George Fernandes, (1969) 3 SCR 603   = (AIR 1969 SC 1201  ), to contend that the amendment asked for should not have been allowed. We have examined the application for amendments of the petition sought by the petitioner and allowed by the Court. We think that the amendments really removed vagueness from the petition by confining the allegations of corrupt practice to what the appellant Bukhari himself had said in his speeches. Attributions of those very statements to his agents, in the alternative, which introduced some ambiguity, were deleted. Another amendment sought was the insertion of names of persons said to have made certain other speeches. The High court had allowed the amendments on the ground that they did not amount to any allegation of a fresh corrupt practice. The question whether the speeches of certain persons other than the appellant were rightly permitted to become theof consideration by the amendment has lost all importance as the appellant has been held guilty of corrupt practices solely for speeches made by himself and we propose to deal with these only. We, therefore, find no force in the objections to the order allowing amendment of the election petition, which only clarified the petitionersare, however, unable to find, from material on record that the conduct at the trial by the learned trial Judge was unfair in any respect. Moreover we think that the only really material questions before the Court for decision, on which we have ourselves reexamined the whole evidence on record, were: Did the appellants speeches contain what was said to beand also sought to be proved by oral evidence supported by the notes of those who are alleged to have heard these speeches themselves? If this was so, was their effect upon the ordinary average voters of this country such as to come within the mischief provided for by any of the three heads of provisions of Section 123 of the Act set out above? These are questions capable of determination objectively irrespective of the subjective inclinations or opinions of the Judge deciding such issues although we cannot, and should not even try to, escape the consequences, upon any case before us, of our conclusions about the purposes and meanings of the relevant provisions of Section 123 of the Act, set out above, reached by applying relevant rules of interpretation of such provisions.In our opinion the High Court had rightly relied upon the tape recorded reproductions of the appellants speeches. It had given three grounds for considering the tape records to be reliable and authentic; firstly, the tape records had been prepared and preserved safely by an independent authority, the police, and not by a party to the case; secondly, the transcripts from the tape records, shown to have been duly prepared under independent supervision and control very soon afterwards, made subsequent tampering with the cassettes easy to detect; and, thirdly, the police had made the tape records as parts of its routine duties in relation to election speeches and not for the purpose of laying any trap to procure evidence.evidence.25. As regards the shorthand notes full shorthand transcripts made by those who heard the speeches, the High Court had treated these also as corroborative evidence which could be used by a witness to refresh his memory as laid down in Section 159 of the Evidence Act. It held that their contents could be brought on record by direct oral evidence in the manner prescribed by Section 160 of the Evidence Act, a course the propriety of which has the support of decisions in this Court in Laxminarayan v. Returning Officer, (1974) 3 SCC 425   = (AIR 1974 SC 66  ) and in Kanti Prasad Jayshanker v. Purshottamdas Ranchhoddas, (1969) 3 SCR 400   = (AIR 1969 SC 851  ). We find no errors in the views adopted by the High Court on these questions.We think that, although Section 99 of the Act may permit the award of special costs in suitable cases, and, although, the appellant has been found guilty of corrupt practices of quite an offensive kind, yet, the order for costs appears to us to err on the side of severity. If the respondent Chagla is aggrieved in such a manner that he has grounds for some actionable claim against the appellant, he can, if so advised, take other steps which may be open to him under the law. An order for costs should not become a substitute for such other action with which we are not concerned here. Moreover, in the case before us, the petition itself was not filed by the 2nd respondent Chagla. In these circumstances, we do not think that there should have been an order for costs payable by the appellant to the second respondent Chagla. We therefore, set aside the order awarding Rs.. 3,000/as costs to Chagla. We also reduce by half the costs awarded to the successful petitioner, that is to say, from Rs. 12,000/e, however, think that the appellant must pay respondents 1 and 2 in this Court their costs occasioned by his appeal to this Court.