http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 10

Vs.

RESPONDENT:
POPATIAL MANILAL JOSHI & ORS.

DATE OF JUDGMENT:
07/01/1969

BENCH:
BACHAWAT, R.S.
BENCH:
BACHAWAT, R.S.
SIKRI, S.M.
HEGDE, K.S.

CITATION:
1969 AIR 734 1969 SCR (3) 217
1969 SCC (1) 372
CITATOR INFO :
RF 1970 SC2097 (264)
RF 1975 SC1788 (8)
R 1982 SC 515 (20)
R 1986 SC1253 (14,18)
D 1990 SC1731 (9)

ACT:
Representation of the People Act (43 of 1951), ss. 86(5)
116A, 23(2), proviso (a)(ii)-Amendment of election petition-
When should be allowed-Jurisdiction of Supreme Court under
s. 116 A-Interference with discretion of High Court-Undue
influence-Threat of divine displeasure.

HEADNOTE:
The appellant, the Swatantra party candidate, was declared
elected to the Lok Sabha as against the Congress party
candidate. On April 10, 1967, the first respondent, an
elector in the constituency filed an election petition. In
the petition he charged the appellant with corrupt practice
under s. 123(2) proviso (a) (ii) of the Representation of
the People Act, 1951. The allegation was that one: S.M.,
with the consent of the appellant or his election agents,
told the electors in speeches that if they voted for the
Congress candidate, they would commit the sin of cow
Slaughter and would become objects of divine displeasure.
On September 25, 1967 the first respondent ’obtained ’an
order giving him leave ,o amend the petition by adding a
charge with regard to the sin of Brahma hatya and Sadhu
hatya. On February 29, 1968 the trial commenced and one of
the witnesses said that he heard S.M. giving a speech on
February 8, 1967, where S.M. told the electors that Sri
Shankaracharya had commanded them not to vote for the
Congress and that a contravention of the mandate would be
visited with spiritual censure. On an objection being
raised by the appellant’s counsel, the first respondent
agreed that the statement of the witness should not be
treated as part of the evidence. The trial proceeded, 11
witnesses were examined and the appellant agreed to the
marking of the full reports of the speeches of S.M. as
exhibits and adopted a definite line of cross-examination on
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the footing that the first respondent would not rely on the
charge with regard to the command of Sri Shankaracharya.
However on March 5, 1968, the first respondent ’applied for
an amendment of his petition to include a charge of corrupt
practice based on the command of Sri Shankaracharya and the
High Court allowed the amendment. The, High Court set aside
the ’appellants election on its finding that the corrupt
practice in relation to the command of Sri Shankaracharya
was proved.
In appeal to this Court on the questions (1) Whether the
High Court should have allowed the amendment; and (2)
Whether the appellant was guilty of any corrupt practice,
HELD : The appellant’s election was rightly set aside.
(Per Bachawat, J.) : (1) The High, Court erred in allowing
the amendment.
When a corrupt practice is charged against the returned
candidate the election petition Must set forth full
particulars of the corrupt practice so as to give the charge
a definite character and to enable the Court to understand
what the charge is. It must be substantially proved as laid
and evidence cannot be allowed to be given in respect of a
charge not dis
7Sup CI/69-15
218
closed in the particulars. Section 86(5) of the Act,
however, allows amendment of particulars, but the Court
shall not allow any amendment of the petition which will
have the effect of introducing particulars of a corrupt
practice not previously alleged in the petition, and
normally, an application for amendment should be made within
a reasonable time. Though the Court has power to allow an
amendment even after commencement of the trial, leave to
amend would not he granted if the petitioner was not acting
in good faith or had kept back facts known to him. [221 B-D,
G-H; 222 A-B]
In the present ease, the first respondent knew of both items
of corrupt practice’ from his witnesses who were present at
the speeches made by S.M. If S.M. had told the electors
about the mandate of Sri Shankaracharya, the witnesses must
have given information to the first respondent, and no
explanation was given by the first respondent as to why he
withheld the information at the time of filing the petition
or when he first amended his petition. He was aware of the
difference between the two charges of telling the electors
about the sin of gohatya and that of telling the electors
about the sin of disobeying the command of their religious
leader. But the :first respondent deliberately refrained
from taking the new charge earlier and moved the application
for amendment in bad faith at a very late stage of the
trial. Ordinarily, in an appeal under s. 116A of the Act,
this Court would not interfere with the discretion of the
High Court in granting amendments, but since the order of
the High Court has resulted in ’manifest injustice, this
Court has the power and duty to correct the error. [222 B-D,
F-H; 223,A-E]
(Per Hegde, J.) The High Court has given good reasons in
support of its order allowing the amendment and no case was
made out to interfere with it. [227 D]
(2) (Per Bachawat, J.) There is’ no absolute ban on cow
slaughter in several states in India and the Swatantra party
was agitating for such a total ban. Public criticism
’of the Congress party for not abolishing cow ’Slaughter was
permissible, but the criticism ceases to be legitimate if
the speaker commits the corrupt practice of undue influence
under s. 123(2) of the Act. Under s. 123(2), proviso (-a)
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el. (ii), there is such undue influence if any person, with
the consent of the candidate or his election agent, attempts
to induce an elector to, believe that he will be tendered an
object of divine displeasure or spiritual censure. [224 D-F]
In the present case, S.M. spoke at the meeting on
February8, 1967 with the consent of the election agent
of the appellant. S.M.was a Kirtankar of repute and well
known and respected for his lectures on Hindu religion,
while his audience consisted mostly of illiterate and ortho-
dox Hindus of rural areas who are filled with horror at the
slaughter of a cow. The dominant theme of the speech was
that those who commit the sin of gohatya would be visited
with divine displeasure. Therefore, even apart from the
charge relating to the command of Sri Shankaracharya, the
speech was calculated to interfere with the free exercise of
electroral right. The corrupt practice was thus committed
at the meeting on February 8, 1967, with the consent of the
election agent of the appellant. [224 G-H; 225 G-H; 226 F-G
227 B-C]
Narbada Prasad v. Chhagan Lal, [1969] 1 S.C.R. 499,
followed.
(Per Hegde, J.) Everyone of the speeches made by S.M., read
as a whole, are fanatical outpourings and a direct challenge
to the concept of a secular democracy, and fell within the
vice of the proviso (a)(ii) of s. 123(2) of the Act. [227 E]
219

JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1438 of 1968.
Appeal under s. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated April 22, 23,
1968 of the Gujarat High Court in Election Petition No. 22
of 1967.
I.M. Nanavati, P. M. Raval, D. N. Mishra and J. B. Dada-
chanji, for the appellant.
H.R. Gokhale, K. G. Vakharia, K. L. Hathi and Atiqur
Rahman, for respondents Nos. 1 and 2.
The Judgment of SIKRI and BACHAWAT, JJ. was delivered by
BACHAWAT, J. HEGDE, J. delivered a separate opinion.
Bachawat, J. This appeal is directed against a judgment of
single judge of the Gujarat High Court setting aside the
election of the appellant from the Banaskantha Parliamentary
constituency. At the last general election to the Lok Sabha
from the’ Banaskantha constituency in Gujarat there were
three contesting candidates. The appellant, the Swatantra
party candidate, secured 110,028 votes. Respondent No. 2,
the Congress party candidate secured 1,05,621 votes.
Respondent No. 3, an independent candidate secured 14,265
votes. The appellant was declared elected.
The election petition was filed by respondent No. 1, an
elector in the constituency. Respondent No. 1 alleged a
number of corrupt practices on the part of the appellant or
his election agents, but at the trial, he pressed only the
charge of corrupt practice under s. 123 (2) proviso (a) (ii)
of the Representation of the People Act, 195 1. In the
petition- the charge was that several persons with the
consent of the appellant or his election agents induced or
attempted to induce the electors to believe that if they
voted for the congress party candidate they would become the
objects of divine displeasure and spiritual, censure. In
the particulars of this charge it was alleged that in the
public meetings held at Amirgadh, Ikbalgadh, Wav, Laxmipura,
Tharad Bhabhar and other places one Shambhu Maharaj told the
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electors that if they voted for the congress candidate they
would commit the sin of cow slaughter and urged them in the
name of mother cow to take a vow not to vote for the
congress candidate with the result that several members of
the audience publicly took the vow.
At a late stage of the trial on March 7, 1968, the High
Court gave leave, to respondent No. 1 to, amend the petition
by adding fresh particulars of the corrupt practice. The
substance of the new charge was that at those meetings
Shambhu Maharaj
220
induced or attempted to induce the electors to believe that
their religious head Jagadguru Shankracharya had commanded
them not to vote for the congress and that contravention of
his Command would be a sin and would be visited with
spiritual censure and divine displeasure. The High Court
found that the aforesaid practice was committed by Shambhu
Maharaj with the Consent of one Punambhai, the election
agent of the appellant, and declared the appellant’s
election to be void.
The appellant challenges the legality of the order passed by
the High Court on March 7, 1968 allowing the amendment. The
election petition was filed on April 10, 1967. The
appellant filed his written statement on June 1; on
September 9, the High Court gave leave to respondent No. 1
to amend the petition, by adding the charge that certain
persons were threatened that they would commit the sins of
go hatya, Brahma-hatya and Sadhuhatya, if they worked for
the congress candidate. The order disallowed amendments
seeking to introduce, charges of appeal to voters in the
name of religion under S. 123 (3). The appellant filed his
additional written statement on October 19. Issues were
framed on November 30. Respondent No. 1 filed his list of
witnesses on January 11, 1968. On February 21, the trial
started and P.W. 1, P.W. 2, P.W. 3 and P.W. 4 were examined.
P.W. 4, Ram Swarup was a witness with regard to the meeting
at Amirgadh. The issues were amended on March 1, so as to
make it clear that there was no charge of any corrupt
practice under S. 123(3). On the same date, respondent No.
1 was examined as P.W. 5. On March 2, P.W. 6, P.W. 7, P.W. 8
and P.W. 9 were examined. P.W. 7 and P.W. 8 spoke about the
meetings at Palanpur and Bhabhar. P.W. 9 Bhogilal spoke
about the meeting at Ikbalgadh. On March 4, P.W. 10 and
P.W. 11 were examined and spoke, about the meetings at Wav
and Laxmipura. On the same day, P.W. 12 S. P. Pandya, a
sub-inspector of police at Palanpur, and P.W. 13, C.B.
Barot, a short-hand writer were examined. The examination
of Barot was concluded on March 6. Barot proved that he,
took shorthand notes of the speeches of Shambhu Maharaj at
Ikbalgadh, Amirgadh, Bhabhar, Laxmipura, Wav and Tharad and
sent reports of the speeches to S. P. Pandya. On March 6,
P.W. 14 and P.W. 15 were examined. On March 5, respondent
No. 1 filed, an application for leave to amend the petition
by adding portions of the speeches which referred to the
command of Shankracharya not to vote for the congress and
the consequences of not- obeying the command. The
application was allowed on March 7, 1968. The trial was,
then adjourned and started again on April 8. Between April 8
and April 15, P.W. 17, P.W. 18, D.W. 1 and, D.W. 2 were
examined., The judgment was delivered on April,22 and 23.
221
The first question is whether the trial judge should have
allowed the amendment. Section 83(1)(b) provides that "An
election petition shall set-forth full particulars of any
corrupt practice that the petitioner alleges, including as
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full a statement ;as possible of the names of the parties
alleged to have committed such corrupt practice and the
date, and place of the commission of each such practice".
The section is mandatory. Where a corrupt practice is
charged against the returned candidate the election petition
must set-forth full particulars of the corrupt practice so
as to give the charge a definite character and to. enable
the court to understand what the charge is. The charge must
be substantially proved as laid and evidence cannot be
allowed to be given in respect of a charge not disclosed in
the particulars. On a charge, of telling the electors that
by giving their vote to the Congress candidate, they would
commit the sin of go-hatya, evidence cannot be led to prove
the charge of telling them that they would commit a sin of
Brahma-hatya or the sin of disobeying the command of their
religious leader. Section 86(5) allows amendment of the
particulars,. It provides that "the High Court may, upon
such terms. as to, costs and otherwise as it may deem fit,
allow the particulars of- any corrupt’ practice alleged in
the, petition to, be amended or amplified in- such manner as
may in its opinion be necessary for ensuring a fair and
effective trial of the petition, but shall not allow any
amendment of the petition which will have the effect of
introducing particulars of a corrupt practice, not
previously alleged in the petition." In Harish Chandra
Bajpai v. Triloki Singh(1) the Court held that though under
the English law the petitioner was not obliged to give, the
particulars of the corrupt practice in his petition the
difference was a matter of form and not of substance and
that under S. 83(3) as it stood before 1955 the Court could
allow an amendment introducing fresh instances of the
corrupt practice alleged in the petition. Referring to the
English practice the Court observed at page 382 : "it is
sufficient if the particulars are ordered to be furnished
within a reasonable time before the commencement of the
trial". Section 83(3) has been repealed and is now replaced
by s. 86(5) which forbids any amendment introducing
particulars of a corrupt practice not previously alleged in
the petition. Assuming that the amendment of March 7, 1967
was permissible under s. 86(5), the question is whether the
High Court rightly allowed it. Normally an application for
amendment under s. 86(5) should be made within a reasonable
time before the commencement of the trial. The Court has
power to allow an amendment even after the commencement of
the trial, but as a rule leave to amend at a late stage
should be given in exceptional cases where the petitioner
could not with
(1)[1957] S.C.R. 371.
222
reasonable diligence have discovered the new facts earlier.
Leave to amend will not be given if the petitioner is not
acting in good faith or has kept back the facts known to him
before the trial started.
According to respondent No. 1 Shambhu Maharaj committed
corrupt practice at election meetings held at Ikbalgadh
where P.W. 9 was present, Amirgadh where P.W. 4 Was present
and at Wav where. one Chotaji Bhattji was present and that
he came to know of the, corrupt practices from those
persons. All the meetings are referred to in the election
petition. If Shambhu Maharaj had told the electors that Sri
Shankracharya had commanded them not to vote for the
congress candidate and that disobedience of his command
would be sinful, P.W. 4 and Chotaji Bhattji must have
informed respondent No. 1 of this corrupt practice before
April 10, 1967 when the election petition was filed. No
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explanation is given as to why respondent No. 1 withheld
this information in the petition. Respondent No. 1 now says
that on April’17, 1967 he applied for certified copies of
the reports of C. B. Barot to the Deputy Inspector-General
of Police, C.I.D., Ahmedabad but the application was
rejected on May 14, 1967. Assuming that he could not get
certified copies of the reports, he could set-forth in the
petition’ the substance of the charge with regard to the
command of Sri Shankracharya from the information supplied
by his informants. He knew of the reports of C. B. Barot
before April 17, 1967. Immediately after filing the
election petition he could subpoena the reports and under
orders of the Court he could inspect them long before the
trial started. He was aware that the charge of telling the
electors that they would commit the sin of go-hatya was
quite different from the charge of telling them that they
would commit the sin of Brahma-hatya or the sin of
disobeying the command of their religious leader Sri
Shankracharya. On September 25, 1967, he obtained an order
giving him leave to amend the petition by adding the charge
with regard to the sins of Brahma-hatya and Sadhu-hatya, but
he deliberately refrained from adding the charge with regard
to the sin of disobeying the command of Sri Shankracharya.
The, trial commenced on February 29, 1968. On that date
P.W. 4 said that at the Amirgadh meeting Shambhu Maharaj
told the electors that he had brought a mandate from
Jagadguru Shankracharya. On an objection being raised by
the appellant’s counsel Mr. Mehta, counsel for respondent
No. 1, agreed that the statement of P.W. 4 would not be
treated as part of the evidence on the record. Thereafter
the trial proceeded and 11 more witnesses were examined on
the footing that respondent No. 1 would not rely on the
charge with regard to the, command of Jagadguru Shankra-
charya. On that footing the appellant’s counsel adopted a
definite
223
line of cross-examination. On March 4, he consented to the
marking of the full reports of the speeches of , Shambhu
Maharaj as exhibits and on March 5, he extracted an
admission from Barot that the witness had taken verbatim
notes of the speeches of Shambhu Maharaj. Counsel adopted
this line of cross-examination because he took, the stand
that the speeches did not prove the corrupt practice alleged
in the petition. The application, for amendment was filed
on March 5 and was allowed on March 7. The order allowing
the amendment has resulted in manifest injustice to the
appellant. His counsel could not thereafter take the stand
that the reports had been fabricated at the instance of the
congress party , Respondent No. 1 moved the application for
amendment in bad faith at a very late stage of the trial.
He deliberately refrained from taking the new charge
earlier.
Under s. 116A an appeal lies to this Court on any question
whether of law or fact from the order of the High Court.
The procedure in appeal is regulated by s. 116C. All the
provisions of the Code of Civil Procedure including s. 105
apply to the appeal, and any error in an order of the Trial
court affecting the decision of the case may be taken as a
ground of objection in the appeal. In an appeal under s.
116A the whole case is within the jurisdiction of this
Court. Normally the Court does not interfere with the
Judge’s discretion in granting amendments except on grounds
of law but where, as in this case, the order has resulted in
manifest injustice, the Court has the power and the duty to
correct the error. In Evans v. Bartlam(1) Lord Atkin
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observed
"Appellate jurisdiction is always statutory :
there is in the statute no restriction upon
the jurisdiction of the court of appeal: and
while the appellate court in the exercise of
its appellate power is no doubt entirely
justified in saying that normally it will not
interfere with the exercise of the judge’s
discretion except on grounds of law, yet if it
sees, that on other grounds the decision will
result in injustice being done it has both the
power and the duty to remedy it."
We, therefore, hold that the order of the trial judge
allowing the amendment was erroneous and must be set aside.
Respondent No. 1 proved six speeches of Shambhu Maharaj. He
did not rely in the trial court on the speeches at
Laxmipura, Bhabhar and Tharad. Mr. Gokhale stated that he
did not rely on these ’speeches for any purpose whatsoever.
Accordingly, those speeches were not read in this Court.
There is no charge
(1) [1937] A.C.473,480-481
224
against the, appellant on the ground of appeal to the
electors ,on the ground of religion. The only. charge
against him is that in his speeches at lkbalgadh, Amirgadh
and Wav, Shambhu Maharaj with the consent- of his election
agent Punambhai told the electors that "if they voted for
the congress party candidates the voters would commit the
sin of cow slaughter (gaumata vadh)." Respondent No. 1 has
not proved the charge that the electors were urged in the
name of mother cow to take a vow not to vote for the
congress party candidates, with the ,result that several
members of the, audience publicly took the vow. The
Ikbalgadh speech (Ex. B1) and the Amirgadh speech (Ex. B3)
were delivered on February 8, 1967. The Wav speech (Ex.
B4) was delivered on February 9, 1967. There was then an
acute political controversy with regard to the total ban on
cow slaughter. Section 5(1) of the Bombay Animal
Preservation Act, 1954 (Bombay Act No. LXXII of 1954) as
amended by Gujarat Act No. XVI of 1961, there was a total
ban on cow slaughter in Gujarat. But there was no absolute
ban, on cow slaughter in several other States. The
Swatantra party was agitating for a total ban on cow
slaughter throughout India. Public criticism of the
Congress party for not abolishing cow slaughter throughout
the country was permissible and legitimate. But the
criticism ceases to be legitimate if the speaker commits the
corrupt practice of undue influence under s. 123(2), that
is, if he interferes or attempts to interfere with the free
exercise of electoral right. Under. s. 123(2) proviso (a)
cl. (ii) there is such undue influence if any person with
the consent of the candidate or his election agent induces
or attempts to induce a candidate or an elector to believe
that be, or any person in whom he is interested, will become
or will be rendered an object of divine displeasure or
spiritual censure." The actual effect of the speech is not
material,. Corrupt practice, is committed if the speech is
calculated to interfere with the free exercise of electoral
right and to leave no choice to the: electors in- the
matter, see Ram Dial v., San; Lal & Others(1).
In considering the speeches the status of the speaker and
the character of the audience are relevant considerations.
Shambhu Maharaj was a kirtankar of repute and well known and
respected for his lectures on Hindu religion. The audience
consisted mostly of illiterate and orthodox Hindus of the
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rural areas, adivasis and rabaris belonging to the scheduled
tribes and scheduled castes. In this background, let us now
consider the speeches. Respondent No. 1 charges corrupt
practice in respect of 4 passages in the Ikbalgadh speech
(Ex. B1), passages in the Wav speech (Ex. B4) and 3
passages’. in the Amirgadh speech (Ex. B3).
(1) [1959] Supp. 2. S.C.R. 748, 758, 760.
225
The learned trial judge found that the corrupt practice was
not committed by the 1st and 2nd passages in Ex. B1, the
1st, 2nd and 3rd and 6th passages in Ex. B4 and the 1st
passage in Ex. B3.
But the learned Judge held that 3rd and 4th passages in Ex.
B1 and the 4th and 5th passages in Ex. B4 amounted to
corrupt practice as the electors were told that Sri
Shankracharya had commanded them not to vote for the
congress and that if they disobeyed his command they would
incur divine displeasure and spiritual censure. We have
disallowed the amendment introducing this charge and we must
therefore set aside the finding of the learned judge with
regard to those passages. We find that the passages do not
show any corrupt practice as alleged in the petition.
In the 2nd passage, in the, Amirgadh speech (Ex. B3) the
speaker referred to-the ban on cow slaughter in Pakistan,
Afghanistan and Madhya Pradesh and said that the Swatantra
Party had promised to ban slaughter of cow progeny and
exemption of land revenue. He also said : "Sun rises and
twenty two thousand cows are slaughtered .... In Ahmedabad
there is a prohibition oh cow slaughter but the slaughtering
of calf and ox is continued. The earth took the form of a
cow and if the said ’Gaumata’ or ox is slaughtered how can
earth be satisfied and so long as the earth is not satisfied
how can there be fertility in the earth." In the third
passage (Ex. B3), the speaker said:-
"In the year 1942 sixteen lacs and in. 1946
twenty four lacs and in 1947 after India
became separate and at present about 1 crore
cows are slaughtered. You say whether to vote
for congress is to become partner in sin or
anything else. If you give cooperation for
good cause you may get good fruit and if you
cooperate in committing a sin you become a
partner of sin. Why you become a partner of
sin by giving votes to congress ?"
He then referred to the command of Sri Shankracharya that
the electors should not vote for the Congress party. But
even apart from the command of Sri Shankracharya the
electors are distinctly told that though there was a ban on
cow slaughter in Ahmedabad, the congress was permitting the
slaughter of crores of cows elsewhere in India and was
committing the sin of gohatya and those who vote for the
congress would be partners in the sin. The dominant theme
of the speech was that those who commit the sin of go-hatya
would be visited with divine displeasure. Having regard to
the character of the audience, the speech was calculated to
interfere with the free exercise of
226
electoral right. In Narbada Prasad v. Chhagan Lal & Ors.
Hidayatullah, C.J., observed :
"It is not necessary to enlarge upon the fact
that cow is venerated in our country by the
vast majority of the people and that they
believe not only in its utility but its
holiness. It, is also believed that one of
the cardinal sins is that of go-hatya.
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Therefore, it is quite obvious that to remind
the voters that they would be committing the
sin of go-hatya would be to remind them that
they would be objects of divine displeasure or
spiritual censure."
In Encyclopaedia of Religion and Ethics,
edited by James Hastings, vol. 4, pp. 225,
226, it is stated:-
"A well known verse (Mahabharata, xiii. 74.4)
says : ’All that kill, eat and permit
the slaughter of cows, rot in hell for as many
years as there are hairs on the body of the
cow so slain.
"Reverence for the cow has not diminished in
modem times. It is well known that the Hindus
of the present day ’are filled with horror at
the slaughter of the cow, which is therefore
prohibited in native States under treaties
with the English."
According to B. N. Mehta’s Modern Gujarati-English
Dictionary, vol. 1, page 480, gohatya (go, a cow+hatya,
killing) means in Gujarat "slaughter of a cow; killing a
cow, being one of the five great sins according to Hindu
scriptures which can be atoned for only with capital
punishment."
Accordingly, the offending passages in the Amirgadh speech
fell within s. 123 (2) proviso (a) (ii). We are satisfied
that Shambhu Maharaj spoke at the Amirgadh meeting with the
consent of Punambhai, the election agent of the appellant.
Punambhai was present at the Amirgadh meeting. He addressed
the meeting before Shambhu Maharaj spoke. Shambhu Maharaj
addressed several other election meetings of the Swatantra
party. Punambhai issued a pamphlet calling one of the
meetings. P.W. 10 proved that he was asked by Punambhai to
call Shambhu Maharaj for addressing another meeting as the
voters were uneducated and had deep belief in religion.
Punambhai accompanied Shambhu Maharaj from one place to
another. On February 8, 1967 he went with Shambhu Maharaj
to the meeting at Ikbalgadh
(1) [1969] S.C.E. 499.
227
and thereafter went to Amirgadh. On February 9, he went
with Shambhu Maharaj to the meeting at Wav. The offending
passages of the speech at the Amirgadh meeting are integral
parts of the dominant theme of the sin of cow slaughter.
They cannot be regarded as stray words spoken by Shambhu
Maharaj without Punambhai’s consent. Punambhai did not
raise any objection to the impugned speeches at the
’meeting. He gave evidence in Court but did not say that he
was not a consenting party to the offending passages. We
hold that the corrupt practice under s. 123(2) proviso (a)
(ii) was committed at the Amirgadh meeting on February 8,
1967 with the consent of the election agent of the
appellant.
In the result, the appeal is dismissed. There will be no
order as to costs.
Hegde, J. I have had the advantage of reading the judgment
just now read out by Bachawat, J. I agree that the appeal
should be dismissed. But I am unable to agree that the
amendment complained of was not properly allowed. The
learned trial judge has given good reasons in support of his
order. In my opinion no case is made out to interfere with
that order. I am also of the opinion that each and everyone
of the speeches made by Shambhu Maharaj which are the
subject matter of this appeal, read as a whole as we should
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do, fall within the vice of proviso a(ii) of s. 123(2) of
the Representation of the People Act, 1951. Nothing so bad
as those speeches I have come across in election cases.
They are fanatical outpourings and a direct challenge to the
concept of a secular democracy.
Appeal dismissed.
228