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REGD. NO. D. L. (N) 04/0007/2003—05
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No. 5]
NEW DELHI, FEBRUARY 28—MARCH 6, 2010, SATURDAY/PHALGUNA 9—PHALGUNA 15, 1931
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Separate Paging is given to this Part in order that it may be filed as a separate compilation
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PART II—Section 3—Sub-section (iii)
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Orders and Notifications Issued by Central Authorities (other than the Administrations of Union Territories)
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26
THE GAZETTE OF INDIA : MARCH 6, 2010/PHALGUNA 15, 1931
[PART II—SEC. 3(iii)]
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ELECTION COMMISSION OF INDIA
New Delhi, the 23rd February, 2010
O. N. 8.—In pursuance of sub-sections (1) and (2) of Section 13AA of the Representation of the People Act,1950
(43 of 1950), the Election Commission in consultation with the State Government of Karnataka hereby makes the following
amendments in its Notification No. 508/KT/2008 dated 19th March, 2008 namely :—
1. The existing entry relating to “4-Gulbarga” mentioned in the Table appended to the said Notification shall be
substituted by the entries mentioned below :—
S1. No. & Name of
Designation of District Election
Area of jurisdiction
District
Officer
(1)
(2)
(3)
4-Gulbarga
Deputy Commissioner, Gulbarga
34.
Afzalpur
35.
Jevargi
40.
Chittapur (SC)
41.
Sedam
42.
Chincholi (SC)
43.
Gulbarga Rural (SC)
44.
Gulbarga Dakshin
45.
Gulbarga Uttar
46.
Aland
5-Yadgir
Deputy Commissioner, Yadgir
36.
Shorapur (ST)
37.
Shahapur
38.
Yadgir
39.
Gurmitkal
2. The rest of the entries from “5-Bidar” onwards mentioned in the said Table appended to the said notification
shall be re-numbered accordingly.
[No. 508/KT/2010]
By Order,
BERNARD JOHN, Secy.
(1)
(2)
(3)
¹Hkkx IIó[k.M 3(iii)º
Hkkjr dk jkti=k % ekpZ 6] 2010@iQkYxqu 15] 1931
27
ubZ fnYyh] 4 ekpZ] 2010
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fuokZpu vk;ksx] eqEcbZ mPp U;k;ky; ds 2004 dh fuokZpu ;kfpdk la[;k 13 ds fu.kZ; ds fojQ¼ nkf[ky dh xbZ 2008 dh flfoy vihy
la- 2928 esa Hkkjr ds mPpre U;k;ky; ds fnukad 5 iQjojh] 2010 dk fu.kZ; ,rn~}kjk izdkf'kr djrk gS A
(fu.kZ;@vkns'k bl vf/lwpuk ds vaxzsth Hkkx esa Nik gS A)
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New Delhi, the 4th March, 2010
O. N. 9.—In pursuance of sub-section 2(b) of Section 116 (C) of the Representation of the People Act, 1951, (43
of 1951) the Election Commission of India hereby publishes the judgment dated 5th February, 2010 of the Supreme Court of
India in Civil Appeal No. 2928 of 2008 against the Judgment and Order of the High Court of Judicature at Bombay in
Election Petition No. 13 of 2004.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2928 OF 2008
TUKARAM S. DIGHOLE
. . .APPELLANT
VERSUS
MANIK RAO SHIVAJI KOKATE
. . .RESPONDENT
JUDGMENT
D. K. JAIN, J. :
1. This appeal under Section 116-A of the Representation of the People Act, 1951 (for short ‘the Act’) is directed
against the final judgment and order dated 25th January, 2008, rendered by the High Court of Judicature at Bombay in
Election Petition No.13 of 2004, whereby the election petition preferred by the appellant, challenging the election of the
respondent to the House of People (Lok Sabha) from 69, Sinnar Parliamentary Constituency in the State of Maharashtra has
been dismissed.
2. Briefly stated, the material facts giving rise to the present appeal are as under :
Election to the said Parliamentary Constituency was held on 13th October, 2004 and the results were declared on
16th October, 2004. The appellant contested the elections as a candidate of NCP Congress—R.P.I. alliance, whereas the
respondent contested the election as a Shiv Sena - Bharatiya Janta Party alliance candidate. Out of a total of 1,35,063 votes
cast in the election, while the respondent secured 67,556 votes, the appellant could manage 47,593 votes. Resultantly, the
respondent was declared elected.
3. Not being satisfied with the election result, the appellant preferred an election petition, challenging the election
on several grounds and for declaring the said election to be void in terms of Sections 100(1) (b), 100(1) (d) (ii) and 100(1) (d)
(iv) of the Act, with consequential relief of declaring the appellant as elected in terms of Section 101(b) of the Act.
4. The election petition was contested by the respondent denying all the allegations. It was pleaded that the
election petition was not maintainable in as much as it was not in the prescribed format no details of the communal appeals
allegedly made by respondent and his agents were mentioned in the petition; certified copies of the VHS Cassette and its
transcript, containing the speeches delivered by the respondent, had not been furnished and even the provisions of
28
THE GAZETTE OF INDIA : MARCH 6, 2010/PHALGUNA 15, 1931
[PART II—SEC. 3(iii)]
Section 86 of the Act had not been complied with.
5. Upon consideration of the pleadings, the High Court (hereinafter referred to as “the Tribunal”) framed the
following Issues :
“(1)
Whether the petitioner proves that the election of the respondent is liable to be quashed and set aside for
having made communal appeals in his speeches recorded on the VHS Cassette produced by the petitioner
in Court?
(2)
Whether the petitioner proves that the election of the respondent is liable to be quashed and set aside under
Sections 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?
(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?
(4)
Whether the respondent proves that he has not addressed communal and racial speeches as alleged in VHS
Cassette filed by the petitioner?”
6. In support of the case, one of the documents placed on record, by the appellant was a VHS Cassette which,
according to him, was obtained from the Election Commission of India and contained a true reproduction of the speeches
delivered by the respondent and his supporters during the election campaign. Out of the 20 documents produced, only
3 documents viz. FIR dated 12th October, 2004 (Ex. P2), complaint dated 29th October, 2004 (Ex. P3) and a special supple-
ment issued in the newspaper “Gavkari” on 3rd September, 2004 (Ex. P4) were exhibited. No other documents, including the
VHS Cassette, were exhibited. The appellant and the respondent examined themselves as witnesses in support of their
respective stands. No other witness was examined.
7. Analysing the evidence adduced by the parties on the Issues, the Tribunal answered Issues Nos. 1 to 3 in the
negative and in view of answer to Issue No.1 Issue No. 4 was not answered. On Issue No. 1 the Tribunal observed that
though the appellant had placed on record the VHS Cassette but had failed to produce any evidence to show that the said
cassette was a true reproduction of the original speeches. The Tribunal did not accept the plea of the appellant that, since
the cassette is a “public document”, as defined in Section 74 of the Indian Evidence Act, 1872 (for short the Evidence Act),
its mere production was sufficient and no further evidence was required to be adduced to prove as to how the said cassette
was obtained by the appellant. It has been observed that even in the affidavit filed by the appellant, in lieu of examination-
in-chief, there is no mention of the said cassette and that it had been obtained from the office of the Election Commission
on payment of requisite charges for the same, The Tribunal has also found that. the transcripts produced by the appellant
have not been proved to be those of the original audio recordings. The Tribunal finally held that since the contents of the
cassette and the transcripts had not been proved, the allegation of the appellant that the respondent had indulged in
corrupt practices by appealing to the Maratha community to vote on the basis of community, could not be accepted. On
Issue No. 2 the Tribunal has observed that apart from the fact that there are no specific pleadings in the election petition
with regard to the claim of the respondent , about the work done by him and the alleged threats by him in publication
“Desh dhoot”, the appellant had failed to adduce any evidence to prove that the claims made by the respondent in the
special supplement of the local newspaper (Ex. P4) were false or that the said threats amounted , to corrupt practices under
Section 123(2) (a) (i) of the Act. The Tribunal has, accordingly, held that the appellant has failed to prove that the
respondent had indulged in any corrupt practices. As regards Issue No. 3 the Tribunal has held that the letter/pamphlet
purportedly written by the appellant and allegedly circulated by the respondent in order to defame the appellant had not
been proved by the appellant. The election petition having been dismissed with costs, the appellant is before us in this
appeal.
8. Mr. Krishnan Venugopal, learned senior counsel, appearing on behalf of the appellant, confined his challenge
to the finding of the Tribunal on Issue No. 1. He submitted that besides being a public, document, the contents of VHS
Cassette were not specifically denied by the respondent and, therefore, no further evidence was required to be produced to
prove the authenticity of the cassette. According to the learned counsel, the Tribunal has committed a serious error of law
in rejecting the evidence adduced by the appellant, in the form of the said cassette. It was strenuously urged that the finding
of the Tribunal to the effect that the appellant had failed to prove the factum of communal speeches being made by the
respondent and/or his agents, is palpably erroneous and, therefore, deserves to be set aside.
9. Mr. K. V. Vishwanathan, learned senior counsel, appearing on behalf of the respondent, on the other hand,
supported the decision of the Tribunal and submitted that apart from the fact that there was no specific pleading in the
¹Hkkx IIó[k.M 3(iii)º
Hkkjr dk jkti=k % ekpZ 6] 2010@iQkYxqu 15] 1931
29
election petition with regard to the mode of acquisition of the cassette in question, even if it was assumed that the said
cassette was a public document yet in order to attract the provisions of Section 123 of the Act, the appellant was required
to prove with cogent evidence that the speeches recorded therein were, in fact, made by the respondent and his agents. In
support of the proposition that unless a document is exhibited at the trial and is put in evidence it cannot be looked into,
reliance was placed on a decision of this Court in Amar Nath Agarwalla Vs. Dhillon Transport Agency1. Learned counsel
asserted that the finding recorded by the Tribunal on the issue, being a pure finding of fact, no interference is called for.
10. The short question for consideration is whether the Tribunal was justified in discarding the cassette placed on
record by the appellant to prove the allegation of appeal by the respondent to the voters to vote on communal ground,
amounting to a corrupt practice within the meaning of Section 123(3) of the Act?
11. Before we proceed to examine the controversy at hand, we deem it necessary to reiterate that a charge of
corrupt practice, envisaged by the Act, is equated with a criminal charge and therefore, standard of proof therefor would not
be preponderance of probabilities as in a civil action but proof beyond reasonable doubt as in a criminal trial. If a stringent
test of proof is not applied, a serious prejudice is likely to be caused to the successful candidate whose election would not
only be set aside, he may also, incur disqualification to contest an election for a certain period, adversely affecting his
political career. Thus, a heavy onus lies on the election petitioner to prove the charge of corrupt practice in the same way
as a criminal charge is proved.
12. Explaining the nature and extent of burden of proof in an election trial involving a charge of corrupt practice,
in Razik Ram Vs. Jaswant Singh Chouhan2 , speaking for the Bench, Sarkaria, J. observed as under :
....It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. 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, un-
equivocal and unimpeachable evidence beyond reasonable doubt.”
(emphasis supplied)
13. In Jeet Mohinder Singh Vs. Harminder Singh Jassi3, a Bench of three judges of this Court, summarising the
principles laid down by this Court from time to time in the field of election jurisprudence adumbrated the following legal
principles, relevant for our purpose to be kept in view by the Election Tribunals and the Appellate Courts while dealing with
election petitions and appeals arising therefrom :
“(i)
The success of a candidate who has won at an election should not be lightly interfered with. Any petition
seeking such interference must strictly conform to the requirements of the law. Though the purity of the
election process has to be safeguarded and the Court shall be vigilant to see that people do not get elected
by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves
serious consequences not only for the returned candidate and the constituency, but also for the public at
large inasmuch as re-election involves an enormous load on the public funds and administration.
(ii)
Charge of corrupt practice is quasi-criminal in character. If substantiated, it leads not only to the setting
aside of the election of the successful candidate, but also of his being disqualified to contest an election for
a certain period. It may entail extinction of a person’s public life and political career. A trial of an election
petition though within the realm of civil law is akin to trial on a criminal charge. Two consequences follow.
Firstly, the allegations relating to commission of a corrupt practice should be sufficiently clear and stated
precisely so as to afford the person charged a full opportunity of meeting the same. Secondly, the charges
When put to issue should be proved by clear, cogent and credible evidence. To prove charge of corrupt
practice a mere preponderance of probabilities would not be enough. There would be a presumption of
innocence available to the person charged. The charge shall have to be proved to the hilt, the standard of
proof being the same as in a criminal trial.
1 (2007) 4 SCC 306
2 (1975) 4 SCC 769
3 (1999) 9 SCC 386
30
THE GAZETTE OF INDIA : MARCH 6, 2010/PHALGUNA 15, 1931
[PART II—SEC. 3(iii)]
(iii)
The. Appellate Court attaches great value to the opinion formed by the trial Judge more so when the trial
Judge recording findings of fact is the same who had recorded the evidence. The Appellate Court shall
remember that the jurisdiction to try an election petition has been vested in a Judge of the High Court.
Secondly, the trial Judge may have had the benefit of watching the demeanour of witnesses and forming
first-hand opinion of them in the process of evaluation of evidence. The Supreme Court may reassess the
evidence and come to its own conclusions on feeling satisfied that in recording findings of fact the High
Court has disregarded settled principles governing the approach to evidence or committed grave or pal-
pable errors.”
14. In the backdrop of the afore-stated principles, we may now advert to the facts at hand to examine if the finding
recorded by the, Tribunal in the judgment in appeal, holding that the appellant has failed to prove that the respondent had
committed corrupt practice, falling within the ambit of sub-section (3) of Section 123 of the Act, is justified or not.
15. Section 123 of the Act defines corrupt practices. In the instant case, Issue No. 1 is based on the alleged
violation of sub-section (3) of Section 123, which reads as follows :
“(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 the clause,]”
16. The vital ingredients of the sub-section, relevant for this appeal, are —(i) appeal by a candidate or his agent
or by any person with the consent of a candidate or his election agent; (ii) to vote or refrain, from voting for any person and
(iii) on the ground of religion, race, caste, community or language. As stated above, the case of the appellant is that the
respondent had appealed to the electorate to vote on communal lines. In support of the allegation, a cassette, allegedly
containing speeches made by him and his agents, along with its transcript was produced. According to the appellant, the
cassette contained speeches, which were recorded at the instance of the Election Commission and that the cassette having
been obtained from the Election Commission, it was a public document and therefore, the burden of proof which lay on him
to prove the allegation stood discharged.
17. Chapter V of the Evidence Act deals with documentary evidence. Section 61 thereof lays down that the
contents of documents may be proved either by primary or by secondary evidence. As per Section 62 of the Evidence Act;
primary evidence means the document itself produced for the inspection of the Court. Section 63 categorises five kinds of
secondary evidence. Section 64 lays down that documents must be proved by primary evidence except in the cases
mentioned in the following Sections. To put the matter briefly, the general rule is that secondary evidence is not admissible
until the non-production of primary evidence is satisfactorily proved. However, clause (e) of Section 65, which enumerates
the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when
the original document is a “public document” secondary evidence is admissible even though the original document is still
in existence and available. Section 74 of the Evidence Act defines what are known as “public documents”. As per
Section 75 of the Evidence Act, all documents other than those stated in Section 74 are private documents. There is no
dispute that certified copy of a document issued by the Election Commission would be a public document.
18. However, in the present case, the dispute is not whether a cassette is a public document but the issues are
whether : (i) the finding by the Tribunal that in the absence of any evidence to show that the VHS Cassette was obtained
by the appellant from the Election Commission, the cassette placed on record by the appellant could not be treated as a
public document is perverse and (ii) a mere production of an audio cassette, assuming that the same is a certified copy
issued by the Election Commission, is per se conclusive of the fact that what is contained in the cassette is the true and
correct recording of the speech allegedly delivered by the respondent or his agent?
19. Insofar as the first question, formulated above, is concerned, it would be profitable to extract the observations
of the Tribunal on the issue. The Tribunal observed thus :
“14. It is no doubt true that the Petitioner has produced the VHS Cassette on record. This cassette was produce
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 submissions of the learned counsel for the Petitioner, that the
¹Hkkx IIó[k.M 3(iii)º
Hkkjr dk jkti=k % ekpZ 6] 2010@iQkYxqu 15] 1931
31
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
commissions 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 case of Amarnath Agarwal (supra) where the Supreme Court has held that the mere
production of the documents along with 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
commissions 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.” .
Thus, observing that the appellant had failed to produce even the receipt stated to have been issued by the
Election Commission’s Office, the Tribunal held that mere production of the cassette with the Election Petition would not
lead to the inference that it had been produced in evidence and being a public document, it was not required to be proved.
Having perused the material on record, we are in complete agreement with the Tribunal that in the absence of any cogent
evidence regarding the source and the manner of its acquisition, the authenticity of the cassette was not proved and it
could not be read in evidence despite the fact that the cassette is a public document. No relevant material was brought to
our notice which would impel us to hold that the finding by the Tribunal is perverse, warranting our interference,
20. The second issue, in our opinion, is of greater importance than the first one. It is well settled that tape-records
of speeches are “documents” as defined in Section 3 of the Evidence Act and stand on no different footing than photo-
graphs. (See : Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors.4). There is also no doubt that the new
techniques and devices are the order of the day. Audio and video tape technology has emerged as a powerful medium
through which a first hand information about an event can be gathered and in a given situation may prove to be a crucial
piece of evidence. At the same time, with fast development in the electronic techniques, the tapes/cassettes are more
susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such
evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set
of rules by which the admissibility of such evidence may be judged but it needs to be, emphasized that to rule out the
possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more
stringent as compared to other documentary evidence.
21. In Yusufalli Esmail Nagree Vs. State of Maharashtra5, this Court observed that since the tape-records are prone
to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that
such evidence must be received with caution. The Court must be satisfied, beyond reasonable doubt that the record has not
been tampered with.
22. In R. Vs. Maqsud Ali6, it was said that it would be wrong to deny to the law of evidence advantages to be
gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded
are properly identified. Such evidence should always be regarded with some caution and assessed in the light of all the
circumstances of each case.
23. In Ziyauddin Burhanuddin Bukhari; (supra), relying on R. Vs. Maqsud Ali (supra), a Bench of three judges of
this Court held that the tape-records of speeches were admissible in evidence on satisfying the following conditions :
“(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others
who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence,
direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the
4 (1976) 2 SEE 17
5 (1967) 3 SCR. 720.
6 (1965) 2 ALL E.R. 464.
32
THE GAZETTE OF INDIA : MARCH 6, 2010/PHALGUNA 15, 1931
[PART II—SEC. 3(iii)]
Evidence Act.”
24. Similar conditions for admissibility of a tape-recorded statement were reiterated in Ram Singh & Ors. Vs. Col.
Ram Singh7 and recently in R. K. Anand Vs. Registrar, Delhi High Court8.
25. Tested on the touchstone of the tests and safeguards, enumerated above, we are of the opinion that in the
instant case the appellant has miserably failed to prove the authenticity of the cassette as well as the accuracy of the
speeches purportedly made by the respondent. Admittedly, the appellant did not lead any evidence to prove that the
cassette produced on record was a true reproduction of the original speeches by the respondent or his agent. On a careful
consideration of the evidence and circumstances of the case, we are convinced that the appellant has failed to prove his
case that the respondent was guilty of indulging in corrupt practices.
26. For the afore-going reasons, we see no merit in this appeal. We, therefore, affirm the decision of the Tribunal
and dismiss the appeal with costs, quantified at Rs. 201000.
Sd/-
......................................J.
(D. K. JAIN)
Sd/-
......................................J.
(P. SATHASIVAM)
NEW DELHI :
FEBRUARY 5, 2010
[No. 82/MT-HP/13/2004]
By Order,
STANDHOPE YUHLUNG, Secy.
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.
7 1985 (Supp) SCC 611
8 (2009) 8 SCC 106.