# MANUBllAI NANDLAL AMERSEY v. POPATLAL MANILAL JOSW & ORS

- **Citation:** [1969] 3 S.C.R. 217
- **Court:** Supreme Court of India
- **Decided:** 1969-01-07
- **Case number:** Election Petition No. 22 of 1967
- **Bench:** S. M. Soou, R. s. BACHAWAT, K. s. HEGDE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manubllai-nandlal-amersey-v-popatlal-manilal-josw-ors-4860
- **Pages:** 11

## Headnote

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Representation of the People Act (43 of 1951), ss.
86(5)
116A.
123(2), proviso (a)(ii)-Amendment of election petition-When should
be al/owed-Jurisdiction of Supreme Court under s. 116A-Interference
irith discretion of High Court-Undue influence-Threat of divine 'displeasure.
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 be charged fhe 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 01der giving him leave
to 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.~1. giving a
'peech 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 contraventio.n of the mandate
":ould 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 crossexamination on 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 Coun allowed the amendment.
The
High Court set aside the ·appellant's 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 · (I) 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.) : (I) The High Court erred in allowing
the
amendment.
When a corrupt practice is charged against the returned candidate the
election petition must setforth
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 dis7Sup CJ/69-15
218
SUPREME COURT REPORTS
[1969] 3 S.C.R
closed in . the particulars. Section 86(5) of the Act, however, allom
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 be granted if the petitioner
was not acting in good faith or had kept back facts
known to him.
1221 B--0, G-H; 222 A-BJ
In the present case, the. first respondent knew of both items of corrupt practice from his witnesses who were present at the speeches made
by S.M. lf 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 \\·hen
he first amended his petit

## Text

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MANUBllAI NANDLAL AMERSEY
v.
POPATLAL MANILAL JOSW & ORS.
January 7, 1969
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[S. M. Soou, R. s. BACHAWAT AND K. s. HEGDE, JJ.]
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Representation of the People Act (43 of 1951), ss.
86(5)
116A.
123(2), proviso (a)(ii)-Amendment of election petition-When should
be al/owed-Jurisdiction of Supreme Court under s. 116A-Interference
irith discretion of High Court-Undue influence-Threat of divine 'displeasure.
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 be charged fhe 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 01der giving him leave
to 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.~1. giving a
'peech 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 contraventio.n of the mandate
":ould 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 crossexamination on 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 Coun allowed the amendment.
The
High Court set aside the ·appellant's 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 · (I) 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.) : (I) The High Court erred in allowing
the
amendment.
When a corrupt practice is charged against the returned candidate the
election petition must setforth
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 dis7Sup CJ/69-15
218
SUPREME COURT REPORTS
[1969] 3 S.C.R
closed in . the particulars. Section 86(5) of the Act, however, allom
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 be granted if the petitioner
was not acting in good faith or had kept back facts
known to him.
1221 B--0, G-H; 222 A-BJ
In the present case, the. first respondent knew of both items of corrupt practice from his witnesses who were present at the speeches made
by S.M. lf 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 \\·hen
he first amended his petition. He was aware of the difference between
the two ch<ir!,ies of telling the electors about the sin of gohctya and thal
of telling the electors about the sin of disobeying the command of their
religious leader. But the first respondent deliberately refrained from taking
1he new charge earlier and moved the application for amendment in ba<l
faith at a very late stage of the trial.
Ordinarily, in an appeal under s.
l 16A 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
Juty to correct the error . .[222 B--0, F-H; 223 A-El
(Per Hegde. J.) The High Court has given good reasons in support
of itll order allowing the amendment and no case was made out to inter.
fcre 'vith it. ( '227 DJ
(2) (Per Bachawat, l.) There is no absolute \an 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 \Vas 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) cl. (ii), there is
such undue influence if any person, with the consent of the. candidat~
or his election agent, attempts to induce an
elector to believe that he
will be rendered un object of divine displeasure
or spiritual ·censure
1224 D-FJ
In the present case, S.M. spoke at the meet~ng on February 8, 1967
,i,.-ith the consent of the election agent of the appellant.
S.M.
v.'as
a
Kiriankar of rePute. and well known and respected for his lectures
on
Hindu religion. while his audience consisted mostly of illit~rate and orthodox 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 gohat)'a would be visited with divine displeasure. Therefore.
even apart from the charge relating to the command of Sri
Shankaracharya, the o;;peech was calculated to interfere with the free exercise of
c\ccfi-oral right.
The cocrupt practice was thus committed at the meeting
on. February 8. 1967. with the consent of 1he election agent of the
appellant. (224 G-H: 225 G-H; 226 F-G; 227 B-C]
Narbada Prasad v. C/i/10gan Lal, [1969] 1 S.C.R. 499, followed.
(Per Hegde, J.) Everyone of the speeches made by S. M.,
read as a
\\'hole _are fanatical outpourings and a direct challenge to the .concept of
a·secUJar democracv. and fell within the vice of the proviso (a) (ii) of s.
123(2) of the Aci. [227 E]
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NANDLAL V, MANILAL (Bachawat, I.)
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1438 of
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1,68.
Appeal under s. 116-A of the Representation of the People
Act, 1951 fJom 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 /. B. Dadachanji, for the appellant.
H. R. Gokha/e, K. G. Vakharia, K. L. Hath/ and Atiqur
Rshman, for respondents Nos. 1 and 2.
The Judgment of S1KR1 and BAcHAWAT, JJ. was delivered by
BACHAWAT, J.
HEGDE, J. delivered a separate opinion.
Bachawat, J. This appeal is directed against a judgment of
a. single judge of the Gujarat High Court set~g aside the elect~on
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.
Respon®nt 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
<>f the People Act, 1951. 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.
I:n: the particulars of this charge it was alleged that in the public
mettings held at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad,
Bhabhar and other places one Shambhu Ma!Iaraj told the electors that if they voted for the congress candidate they wuuld
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
SUPREME COURT REPORTS
[ l 969] 3 S.C.R ..
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 additi< .al 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 Bhogi!al 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 01; March 6.
Barot proved that he took shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh,
Amirgadh, Bhab:rnr, Laxmipura, Wav and Tharad and sent
reports of the s~eches 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 adioumed 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.
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NANDLAL v. MANILAL (Bachawat, J.)
221
The first question is whether the trial judge should have
allowed the amendment.
Section .83 ( l )(b) provides that "An
election petition shall setforth full particulars
of. any corrupt
practice that the petitioner alleges, .including as full a stat~ ·t
as possible of the names of thp parlies alleged to have comnu•
such corrupt practice and the date and place of the commis!;ion
of each such practice".
The section is mandatory.
Where a
corrupt practice is charged against the returned candidate lihe
election petition must selforth 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 e'vidence 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. Trlloki Singh(') the Court held that
though under the English Jaw 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 amendmC111t introducing fresh instances of the corrupt practice
alleged in the petition.
Referring to the English practice the
C?urt observed at page 382 : "it is sufficient if the particulars
are ordeted to be furnished within a reasonable time before the
com~encement of the trial".
Sectio1_1 83 (3) has been repealed
'.111d is i:ow repl~ced by s. 86 ( 5) which forbids any amendment
mtroducmg particulars of a corrupt practice not previously
alleged in the petition. Assuming that the amendment of March
7, 19~7 was peni;lissible under s. 86(5), the question is whether
the High Court nghtly 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 a.t a late stage should
be given in exceptional cases where the petitioner could not with
~I) 1957]' S.C.R. 371.
222
SUPREME COURT REPORTS
(1969] 3 S.C.R.
reasonable diligence have discovered the new facts earlier. Leave
A
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
~tarted.
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 Chotaii 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 ShankrachlU')'a had commanded them not to vote for the congress candidate and that
disobedience of his command would be
sinful,
P.W. 4
and
Chotaji Ilhattji must have informed respondent No. 1 of this
corrupt practice before April 10, 1967 when the election petition
was filed.
No 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 o4' the reports, he could setforth 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. Bi.rot
before
April
17,
1967.
Immediately after filing; the election petition he eould 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 obtainea 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
~.n 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 b.e treated as part of the evidence on the record.
Thereafter the trial proceeded and
11
more witnesses were
examined on the fopting that respondent No. 1 would not rely
on the charge with regard to the command of Jagadguru Shankracharya.
On that footing the appellant's counsel adopted a definite .
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NANDLAL V. MANILAL (Bachawat, J.)
223
Jin~ of cross-ex:amination.
On March 4,
he
CQllSented to
the marking of the full reports of the speeches of Shambhu
Maharaj as exhibits and on Marc:1 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
Ile\\
charge earlier.
Under s. ll 6A an appeal lies to this Court on any question
whether of law or fact from the order of the High Court. Tne
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
decisiQll of the case may be taken as
a ground of objection
in the appeal. In an appeal under s. ll 6A the whole case is
within the jurisdiction of this Court. Normally the Court does
not interfere with the Judge's discretion in granting amendnl.cnts
except on grounds of Jaw 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. Bart/am(')
Lord Atkin
observed:
"Appellate jurisdiction is always statutory : there
is in the statute no restriction upon the jurisdiction of
the court of appeal: arnt while the appellate coun 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 ground'
the decision will result in injustice being done it ha>
both the power and the duty to remedy it.''
We, therefore, hold that the order of the trial judge allowin:
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 rel)
on these speeches for any purpose whatsoever.
Accordingly
those speeches were not read in this Court. There is no charg1
(I) [1937] A.C. 473, 480-481.
224
SUPREME COURT REPORTS
[1969] 3 S.C.R.
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 congrei;s
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. Bl) 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 ba11 on cow slaughter throughout India.
Public criticism
of the Congress party for not abolishing cow slaughter throughout the country was pennissible 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 interfere;
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 t.o believe that he, or any person in whom he is interested.
will become or will be rendered an object of divine displeasure
or spiritual ceILrnre."
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.
Sanit Lal & Others(').
In considering the speeches the status of ~the speaker and tbe
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 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. B 1), 6 passages in the Wav
speech (Ex. B4) and 3 passages in the Amirgadh speech (Ex. B3).
ft) [t959] S 1pp. 2. S.C.R. 748, 758, 760.
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The learned trial judge found that the corrupt practice
was not committed by the 1st and 2nd passages in Ex. Bl, 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. B 1 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 displl'.asure
and spiritual censure. We have disallowed the amendment mt:oducing this charge and we must therefor-: set aside the findmg
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 tc the ban on cow slaughter in Pakistan, Afghanistan and Madhya Pradesh ~nd 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 thou-
'and cows are slaughtered .... In Ahmedabad there is a
prohibition on 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 194 7 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 bec0me 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
apa,rt from the command of Sri Shankracharya the electors are
d1stmctly 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 go·
hat,va 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
SUPREME COURT REPORTS
[1969] 3 S.C.R.
electoral right. In Narbada Prasad v. Chhagan Lal & Ors. ( 1 )
Hidayatu!lah, C.J., observed :
"It is not necessary to enlarge upon the fact that
cow is venerated in our country by ihe vast majority
of. ~he peo~le an~ that they believe not only in its
uuhty but Its holmess. It is also believed that one of
the cardinal sins is that of go-hatya.
Therefore, it is
quite obv~mts that w remind the voters that they would
be comm1ttmg the sm of go-hatya would be to remind
them. t~at they would be objects of divine displeasure
or spmtuaJ. censure."
In Encycjopaedia 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 i,n 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 modern
times.
It is well known that the Hindus of the present
day are fill¢ 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, ktlling) means ill
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
(I) [1969] S.C.E. 49~.
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NANDLAL v. MANILAL (Bachawat, J.)
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 bnt 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 every<'ne of the speeches made by
Shambhu Maharaj which are the subject matter of this appeal,
read as a whole as we should 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 ~Jection
cases. They are fanatical outpourings and a direct challeng~ to
the concept of a secular democracy.
A ppea/ dismissed.