QUAMARUL ISLAM v. S.K. KANTA AND ORS.

48. The learned trial judge fell in error, even without goinginto the question of the admissibility of cassette Ex.P7, which, has been seriously disputed by Mr. Sibal in view of the denial by the returned candidate that the voice in the cassette was his, to rely upon this piece of evidence and to hold on the basis thereof, that the appellant was guilty of committing the corrupt practices covered by Sections 123(2), (3), (3A) of the Act. We find ourselves unable to rely on eassette Ex.P7 or to hold that it was recorded in the manner and at the time and place as deposed to by the election petitioner and Shri Ingini. The casettee Ex.P7 is not a reliable piece of evidence and we rule it out of consideration for determining whether the appellant delivered the speeches at Jalanabad and in Roza Market as alleged by the election petitioner. G

49. So far as the speech of the returned candidate at Roza market is concerned, the election petitioner also made an effort to prove the same > by stating that he was himself present when the said speech was made and that he had heard the appellant say all that which has been published in the "Bahmani Newspaper" and extracted in the election petition. PW5 has

QUAMARULISLAM v. S.K. KANTA[DR.ANAND,J.J 255

supported the election petitio~er in that behalf. We have perused the testimony of the election petitioner and find that his claim that he had attended the meeting at Roza Market rather difficult to accept because at that point of time the election fever must have been at its highest pitch and the election petitioner busy with his own election propaganda. The deposi- tion of the election pertiti~ner, during cross examination with regard to his attending the Roza Market speech is interesting. He stated :

"I have attended the Meeting at the Roza Market area ·y at about 8 or 8-15 p.m. I have made notes of some matters in that Meeting. I have also noted the exact words used by Respondent No.1 in that Meeting. I have not produced c the said notes in the Court.

The extract of the speech shown at para 11 of my Petition is on the basis of my memory and the notes. I have not stated in my Petition about notes made by me of D that Meeting. I cannot say in the Report extracted at para 11 which part of the Report is made out of my memory and how much by my notes ...... "

Thus, according to the election petitioner's own showing he allegedly prepared some notes containing "the exact words used by respondent no.1". E Those notes, however, were not produced by the election petitioner either with the election petition or during the trial at any point of time. Even otherwise, it appears rather strange that a contesting candidate would, shortly before the date of poll be spending time to attend the election meeting of the rival candidate instead of working for his own election and not only that but even prepare notes of the speech of the rival candidate' in the exact words used "by the candidate". We find it difficult to accept

- this version or rely upon the same as it belies normal human conduct. The non-production of the notes by the election petitioner and the doubtful nature of cassette Ex.P7, impels us not to accept the version of the election petitioner on this aspect of the case. It is also noteworthy that even the application for holding the meeting at Roza Market, Ex.Pl, dated 16.11.1992, had been made on behalf of IUML and signed by Mahmood Ahmed, Secretary IUML and not by the returned candidate or by his election agent and no connection has been alleged, much less established between the said Mahmood Ahmed and the appellant. In the general diary H

256 SUPREME COURT REPORTS (1994] 1 S.C.R.

A of the police, there is no mention of the appellant having delivered any speech at Roza Market on the relevant date and it was admitted by Sh. Ingini that the diary contained no entry of the relevant date evidencing the holding of any meeting by the appellant at Roza Market. Thus, we find that no reliable evidence has at all been led by the election petitioner to prove,.. the holding of the meeting at Roza Market, as alleged in the petition, by B the returned candidate or about the contents of the alleged speech made by him. No witness of the locality was examined to substantiate the charge levelled in the election petition. The evidence on the record is not reliable or trustworthy to hold that the appellant delivered the offending speech as alleged in Roza Market which may come within the mischief of Sections c 123(2), (3), (3A) of the Act or to hold the appellant guilty of committing the alleged corrupt practices.

50. According to the election petitioner, the returned candidate also delivered an offensive speech at Jalanabad; the substratum whereof has already been extracted by us from the petition. In the election petition, apart from specifically mentioning that a speech was made by the appellant at Roza Market, there is no specific mention of any speech having been delivered by the appellant at J alanabad. The use of the expression at "several places" besides Roza Market, in the petition where the meetings were allegedly held appears to have been designedly made by the election petitioner to lead evidence in respect of such other places for which evidence could be subsequently procured. In the pleadings specific refer- ence to the speech by the appellant was made only of Roza Market and not either of Jalanabad or Muslim Chowk. The learned trial judge should not have permitted any evidence to be led in respect of the meetings allegedly held at Jalanabad or Muslim Chowk. A novel procedure appears to have been adopted by the learned trial judge in over-ruling the objection ., raised on behalf of the returned candidate during the cross examination in this respect by holding that since the evidence was in accordance with the issues", the objections had no merit. In the face of vague pleadings and the absence of specific mention of J alanabad as a place where the appellant spoke at a meeting, the .doubtful nature of cassette, Ex.P7, containing the tape recorded speech allegedly delivered at Jalanabad and the absence of any other evidence to support the plea, we hold that the election petitioner has miserably failed to discharge the burden which lay on him to prove that >-- H the returned candidate had committed the corrupt practice as alleged in

QUAMARULISLAM v. S.K. KANTA [DR. ANAND, J.] 257

the petition of delivering the offending speech at Jallanabad or at Roza A Market. The averments of the electiop petitioner were so vague that it left a wide scope to the election petitioner to adduce evidence inrespect of a meeting at any place, on any date, that he found convenient or for which he could procure evidence later on. In view of the vague pleadings and defective affidavits, the court would require much better type of evidence, absolutely reliable in character, in proof of the alleged meeting where offending speeches were delivered by the appellant, than the evidence as has been produced by the election petitioner in this case. There is, no reliable, trustworthy or satisfactory evidence on the record to hold that the appellant delivered the speeches as alleged by the election petitioner either at Roza Market or at J alanabad.

51. As already noticed, even if, it be assumed for the sake of argu- ment that some of the advertisements and messages published in the newspapers, the contents whereof have not been proved for the reasons already given, do bring home the charge of committing the corrupt prac- D tices as envisaged by Sections 123(2), (3), (3A) of the Act, the election petitioner has failed on facts, to connect the returned candidate with the commission of the alleged corrupt practices either by himself or through his election agent or by any other agent or person with his consent or with the consent of his election agent through any admissible and reliable E evidence. The learned trial judge was, therefore, not justified to set aside the election of the appellant on the basis of inadmissible and unreliable evidence. We are unable to accept the reasoning or the conclusions reached by the High Court.

... 52. We are conscious of the fact that there is an increase of electoral malpractices of which making an appeal on the ground of religion or attempting to create or promote feelings of enmity or hatred between different classes of citizens of India on grounds of religion, caste, com- munity etc. or of exercising undue influence, directly or indirectly with the F

free exercise of the electoral rights of the citizens, are examples and that G .the purity of electioq which is an essence of democracy is under a threat of erosion on account of such ·malpractices and while acting within the bounds of law, the courts owe a duty to the nation to see that such objectionable assaults wounding the purity of elections during the election propoganda are not allowed to go unpunished, but the courts can only act H

258 SUPREME COURT REPORTS [1994) lS.C.R.

A on the evidence led in the case and not on what ought to have been led.

53. A Constitution Bench of this Court in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, [1975) Supp. S.C.R. 281, cautioned:

"...... Our political hist~ry made it particularly necessary B that the basis of religion, race, caste, community, culture, creed and language which could generate powerful emo- tions depriving people of their powers of rational action should not be permitted to be exploited lest the imperative conditions for preservation of democratic freedoms were c distrubed. Section 123(2), and (3) and (3A) was enacted to eliminate from the electoral process appeals to those divisive factors which arouse irrational passions that run counter to the basic tenets of our Constitution. Due respect for the religious beliefs and practices, race, creed culture and language of other citizens is one of the basic postulates of our democratic system......"

and we respectfully reiterate the caution.

54. The reading of the newspaper 'Bahamani News' as produced in this case alongwith the advertisements and messages published therein on behalf of IUML and MYL if established, by trustworthy and reliable evidence to have been made by the returned candidate or by his election agent or by his agent or any other person with the consent of the returned candidate or his election agent, would have in all probabilities brought his case within the net of the commission of the corrupt practices, as alleged in the petition, but in this case the pleadings are so vague and the evidence so scanty, unsatisfactory and unreliable, besides being partly inadmissible, that it is not possible to connect the appellant, the returned candidate or his election agent with any of the corrupt practices alleged in the petition. We are constrained to observe that the High Court before invalidating the election and upsetting the verdict of the electorate, in its zeal to maintain purity of elections, ignored not only the defects in the pleadings in the election petition but also failed to analyse the evidence in its proper perspective and even relied upon such evidence as is not admissible in law. >-

H 55. The maintenance of purity of elections is indeed essential but ·the

QUAMARUL ISLAM v. S.K KANTA [DR. ANAND, J.] 259

court must be clear in its approach and appreciate that the proof of A commission of corrupt practices must be clear, cogent, specific and reliable as the charge of a corrupt practice is almost like a criminal charge and the one who brings forth that charge has the obligation to discharge the onus of proof by leading reliable, trustworthy and satisfactory evidence. The learned trial judge appears to have lost sight of the above ~alutory prin- B ciples of election law.

--"( 56. Though a number of judgments were cited at the bar, both on the question of defective pleadings and the requirements of proving allega- tions of making an appeal on the grounds of religion or exercising or attempting to exercise undue influence on the free exercise of the electoral right by the voters, we do not think it necessary to deal with any of those judgments as we have, found on facts, that the election petitioner has failed to prove the allegations made by him against the returned candidate. May be, the appellant in this case did make appeals as alleged in the petition, but his election cannot be set aside on mere probabilities but only if the allegations of the corrupt practice, as alleged in the petition, are satisfac- torily proved by trustworthy, reliable and admissible evidence, which in the instant case is found hopelessly wanting. Since, we have decided this appeal on analysis of the evidence on facts, we have not thought it necessary to deal with the submissions as regards the connection of the appellant, if any, with IUML or MYL or whether cassette Ex.P7 could be admitted in evidence.

57. Before parting with the judgment, we would also like to observe that the procedure followed by the trial judge during the trial of the election petition has left much to be desired. The provisions of the Act and the rules framed thereunder as also the provisions of the Code of Civil Procedure for production of documents and filing of the list of witnesses etc. were not kept in view and the trial was conducted in a very causal manner. We were informed during the course of the arguments, by learned counsel for both sides that the High Court has not framed any Rule for trial of the election petitions. We are surprised. If that be so, we request the Chief Justice of the High Court to look into it and frame Rules for proper trial of election petitions.

58. The result of our above discussion is that the judgment of the H

260 SUPREME COURT REPORTS (1994] 1 S.C.R.

A High Court declaring the election of the appellant from Gulbarga Assemb- • ly Constituency .to be void cannot be sustained. This appeal, therefore, succeeds and is allowed and as a consequence the election petition filed by Respondent No.1 in the High Court is dismissed. The appellant shall be entitled to costs which are assessed at Rs.10,000 payable by the election B petitioner-Respondent No.1.

G.N. Appeal allowed..