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

- **Citation:** [1994] 1 S.C.R. 210
- **Court:** Supreme Court of India
- **Decided:** 1994-01-21
- **Case number:** Civil Appeal No. 4211 of 1992
- **Bench:** S.Ratnavel Pandian, R.M.Sahai, Dr.As.Anand
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/quamarul-islam-v-s-k-kanta-and-ors-12091
- **Pages:** 51

## Headnote

Representation of People Act, 1951 : Sections 123(2), (3), (3A.), (4)
and 124(7)-Election Petition filed against returned candidate-Allegation of
corrupt practices-f'roof of-Failure to adduce admissible and reliable
C evidence-Election cannot be set aside on mere probabilities-Trial conducted
in a very casual manner-Absence of Rules in this regard-High Court to
frame 1Ules for proper trial of election petitions-Suggestion given to Kamataka
High Court.
Practice & Procedure : Election Petition--Trial of-Affidavit in support
D of Petition-f'ennitted to be filed after the arguments-Such a practice unknown to civil or election law-Hence Deprecated.
The appellant was the returned candidate from 10 Gulbarga As·
sembly constituency in 1989 and Respondent No.1 was his nearest rival.
E
He filed an election petition challenging the election of the appellant on
grounds of corrupt practices. It was alleged that the Indian Union Muslim
League (IUML) and Muslim Youth League appealed for votes on the
grounds of religion through advertisements in an Urdu newspaper seeking
votes for the appellant; that the person appointed by the appellant as
convenor of Muslim Youth League(MYL) later became his election agent;
F
that speeches were delivered by the appellant seeking votes on grounds of
religion; and that the said newspaper, apart from the messages, also
contained a sacred religious symbol, written in Urdu, meaning 'voice of the
prophet'.
The appellant denied the allegations asserting that be was a canG didate of Muslim League and that he had nothing to do with the IDML or
MYL and that his election agent was not the person as alleged in the
petition, but a different person. As regards the messages and advertisements inserted in the Urdu newspapers, appellant stated that they neither
originated nor sponsored, or published at his instance. He also denied that
H he had delivered any speeches as alleged or that he had made any appeal
210
QUAMARULISLAM v. S.K KANTA
211
on ground of religion at all.
The matter was heard by a Single Judge of the High Court who held
that the appellant was directly responsible for committing corrupt practices under Section 123 of the Representation of the People Act, 1951 and
set aside the election of the appellant. Hence this appeal.
On behalf of the appellant, it was contended that the pleadings in
the election petition were so vague, lacking in material facts and particulars besides being frivolous and vexatious that the same did not give
A
B
rise to any triable issue at all, and therefore the petition ought to have
been dismissed. Besides, the evidence relied upon was inadmissible and C
unreliable.
On behalf of the respondent, it was contended that having failed to
raise any objection about the alleged defects at the initial stage and having
faced the trial, it was not open to the appellant now to urge that the defects
in the pleadings should have resulted in the dismissal of the election D
petition at this belated stage.
Allowing the appeal, this Court
HELD : 1. The trial judge was not justified in setting aside the
election of the appellant on the basis of inadmissibly and unreliable E
evidence. The election petitioner has failed to connect the returned candidate with the commission of the alleged corrupt practices either by
himself or through his election agent or by any other agent or person with
his consent or with the consent of his election agent through any admissible
and reliable evidence. (257-D, E]
F
2. A careful perusal of the allegations of corrupt practice under
S.123( 4) of the Representation of the People Act, 1951 shows that it is not
even asserted by the election petitioner that the statement alleged to have
been made by the returned candidate on 1.11.1989 about the non-signing
of the passport forms of certain people in the constituency was false to the G
knowledge of the returned candidate or that he made it without believing
that statement to be true. There was, thus, no allegation whatsoever whi

## Text

_Characters 0–39,736 of 113,762. This is a partial read: ask again with offset=39736 for what follows._

A
QUAMARUL ISLAM
v.
S.K. KANTA AND ORS.
JANUARY 21, 1994
B
[S.RATNAVEL PANDIAN, R.M.SAHAI AND DR.AS.ANAND, JJ.)
Representation of People Act, 1951 : Sections 123(2), (3), (3A.), (4)
and 124(7)-Election Petition filed against returned candidate-Allegation of
corrupt practices-f'roof of-Failure to adduce admissible and reliable
C evidence-Election cannot be set aside on mere probabilities-Trial conducted
in a very casual manner-Absence of Rules in this regard-High Court to
frame 1Ules for proper trial of election petitions-Suggestion given to Kamataka
High Court.
Practice & Procedure : Election Petition--Trial of-Affidavit in support
D of Petition-f'ennitted to be filed after the arguments-Such a practice unknown to civil or election law-Hence Deprecated.
The appellant was the returned candidate from 10 Gulbarga As·
sembly constituency in 1989 and Respondent No.1 was his nearest rival.
E
He filed an election petition challenging the election of the appellant on
grounds of corrupt practices. It was alleged that the Indian Union Muslim
League (IUML) and Muslim Youth League appealed for votes on the
grounds of religion through advertisements in an Urdu newspaper seeking
votes for the appellant; that the person appointed by the appellant as
convenor of Muslim Youth League(MYL) later became his election agent;
F
that speeches were delivered by the appellant seeking votes on grounds of
religion; and that the said newspaper, apart from the messages, also
contained a sacred religious symbol, written in Urdu, meaning 'voice of the
prophet'.
The appellant denied the allegations asserting that be was a canG didate of Muslim League and that he had nothing to do with the IDML or
MYL and that his election agent was not the person as alleged in the
petition, but a different person. As regards the messages and advertisements inserted in the Urdu newspapers, appellant stated that they neither
originated nor sponsored, or published at his instance. He also denied that
H he had delivered any speeches as alleged or that he had made any appeal
210
QUAMARULISLAM v. S.K KANTA
211
on ground of religion at all.
The matter was heard by a Single Judge of the High Court who held
that the appellant was directly responsible for committing corrupt practices under Section 123 of the Representation of the People Act, 1951 and
set aside the election of the appellant. Hence this appeal.
On behalf of the appellant, it was contended that the pleadings in
the election petition were so vague, lacking in material facts and particulars besides being frivolous and vexatious that the same did not give
A
B
rise to any triable issue at all, and therefore the petition ought to have
been dismissed. Besides, the evidence relied upon was inadmissible and C
unreliable.
On behalf of the respondent, it was contended that having failed to
raise any objection about the alleged defects at the initial stage and having
faced the trial, it was not open to the appellant now to urge that the defects
in the pleadings should have resulted in the dismissal of the election D
petition at this belated stage.
Allowing the appeal, this Court
HELD : 1. The trial judge was not justified in setting aside the
election of the appellant on the basis of inadmissibly and unreliable E
evidence. The election petitioner has failed to connect the returned candidate with the commission of the alleged corrupt practices either by
himself or through his election agent or by any other agent or person with
his consent or with the consent of his election agent through any admissible
and reliable evidence. (257-D, E]
F
2. A careful perusal of the allegations of corrupt practice under
S.123( 4) of the Representation of the People Act, 1951 shows that it is not
even asserted by the election petitioner that the statement alleged to have
been made by the returned candidate on 1.11.1989 about the non-signing
of the passport forms of certain people in the constituency was false to the G
knowledge of the returned candidate or that he made it without believing
that statement to be true. There was, thus, no allegation whatsoever which
satisfied the basic requirements of Section 123(4) of the Act. It was not
even alleged by.the election petitioner that the returned candidate made a
statement of fact which was false to his knowledge or which he did not H
212
SUPREME COURT REPORTS
(1994] 1 S.C.R.
A
believe to be true and in the absence of any such avennent in the election
petition and the affldavit'filed in support thereof, the trial court should
not even have framed an issue relating to the said corrupt practice. Even
in the evidence, it was not deposed by the election petitioner that the
statement allegedly made by the returned candidate was false to the
B
knowledge of the returned candidate or/and was made by him without
believing it to be true. (242-H, 243-A-B, CJ
3.1. Admittedly, on his own showing, PW4 was not present at the time
when the speeches were delivered by the returned candidate at different
meetings and the publications in the newspaper were made on the basis of
C the reports sent by bis reporter. It is in the evidence of PW4 that the
reports about the meetings were sent to him by his reporter, who had
covered those meetings. He, however, was not examined by the election
petitioner as a witness. PW4, also did not produce the original reports as
sent to him by the Reporter as according to the witness, those reports were
D not preserved. No manuscript of the reports was produced. The mere
production of the copy of the newspaptr cannot be treated as proof of the
report of the speech (news item) contained therein. [244-C-E]
E
F
3.2. Newspaper reports by themselves are not evidence of the con·
tents thereof. Those reports are only hearsay evidence. These have to be
proved and the manner of proving a newspaper report is well settled. Since,
in this case, neither the reporter who heard the speech and sent the report
was examined nor even bis reports produced, the production of the
newspaper by the Editor and publisher viz. PW4 by itself cannot amount
to proving the contents of the newspaper reports. Newspaper, is at the best
secondary evidence of its contents and is not admissible in evidence
without proper proof of the contents under the Indian Evidence Act. The
trial judge could not treat the newspaper reports as duly 'proved' only by
the production of the copies of the newspaper. The election petitioner also
examined PW5, who was the polling agent of the election petitioner and a
resident of the locality in support of the correctness of the reports includ·
G ing advertisements and messages ~s published in the said newspaper. His
evidence also falls short of proving the contents of the reports of the
a1leged speeches or the messages and the advertisements, which appeared
in different issues of the newspaper. Since, the maker of the report which
formed basis of the pub~ications, did not appear in the court to depose
H about the facts as perceived by him, the facts contained in the published
')<-'
-
QUAMARUL ISLAM v. S.K. KANTA
213
reports were clearly inadmissible. No evidence was led by the election A
petitioner to prove the contents of the messages and the advertisements as
the original manuscript of the advertisements or the messages was not
produced at the trial. No witness came forward to prove the receipt of the
manuscript of any of the advertisements or the messages or the publication
of the same in accordance with the manuscript. There is no satisfactory
and reliable evidence on the record to even establish that the same were B
actually issued by IUML or MYL, ignoring for the time being, whether or
not the appellant had any connection with IUML or MYL or that the same
were publiished by him or with his consent by any other person or
published by his election agent or by any other person with the consent of
his election agent. The evidence of the election petitioner himself or of PW 4 C
and PW5 to prove the contents of the messages and advertisements in the
newspaper was wrongly admitted and relied upon as evidence of the
contents of the statement contained therein. (244-F-H; 245-A-E]
3.3. The evidence of the Circle Inspector and the election petitioner D
regarding the recording of the speeches of the appellant is not at all
satisfactory, convincing or trustworthy. The denial of the election
petitioner that he even knew the Circle Inspector when according to the
Inspector both of them hail from the same village and had known each
other intimately for the last 10-U years is an obvious effort on the part of
the election petitioner to project total absence of any liaison between the E
two and to show that the Inspector was an independent witness. It detracts
so materially from the testimony of the election petitioner regarding the
story of the cassettee Ex.P7, that it would not be safe to accept the version
of the petitioner or the Inspector about the tape-recording of the speeches
allegedly made by the appellant. (254-B-D]
F
3.4. According to the election petitioner's own showing he allegedly
prepared some notes containing "the exact words used by respondent no.1 ".
Those notes, however, were not produced by the election petitioner either
with the election petition or during the trial at any point of time. Even G
otherwise, it appears rather strange that a contesting condidate would,
shortly before the date of poll be spending time to attend the election
meeting of the rival candidate instead of working for his own election and
not only that but even prepare notes of the speech of the rival candidate "in
the exact words used by the candidate". It is difficult to accept this version
or rely upon the same as it belies normal human conduct. [255-E, F]
H
A
B
214
SUPREME COURT REPORTS
[1994) 1 S.C,R.
3.5. No reliable evidence has at all been led by the election petitioner
to prove the holding of the meeting at Roza Market, as alleged in the
petition, by the returned candidate or about the contents of the alleged
speech made by him. No witness of the locality was examined to substantiate the charge levelled in the election petition. The evidence on the record
is not reliable or trustworthy io hold that the appellant delivered the
offending speech as alleged in Roza market which may come within the
mischief of Section 123(2), (3), (3A) of the Act or to hold the appellant
guilty of committing the alleged corrupt practices. [256-B-CJ
Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors., [1990) 2
C S.C.C. 173; Samant N. Balkrishna and Anr. v. George Fernandez and Ors.,
[1969] 3 S.C.C. 238; Virendra Kumar~ .Jclecha v. Jagijiwan and Ors., [1972)
3 S.C.R. 955; Ba/wan Singh v: Lakshmi Narain, A.l.R. (1960) S.C. 770 and
Laxmi Raj Shetty v. State of Tamil Nadu, [1988) 3 S.C.C. 319, relied on.
D
E
4. In the pleadings specific reference to the speech by the appellant
was made only of Roza market ~nd not either of Jalanabad or Muslim
Chowk. The trial judge should not have permitted any evidence to be led
in respect of the meetings allegedly held at Jalanabad or Muslim Chowk.
A novel procedure appears to have been adopted by the trial judge in
over-ruling the objection raised on behalf of the returned candidate during
the cross-examination in this respect by holding that since the evidence
was in accordance with the issue~, the objections had no merit. In the face
of vague pleadings and the absence of specific mention of Jalanabad as a
place where the appellant spoke at a meeting, the doubtful nature of
cassette, Ex.P7, containing the tape-recorded speech allegedly delivered at
F
Jalanabad and the absence of any other evidence to support the plea, the
election petitioner has miserably failed to discharge the burden which lay
on him to prove that the returned candidate had committed the corrupt
practice as alleged in the petition of delivering the offending speech at
Jallanab~d or at Roza Market. The averments of the election petitioner
were so vague that it left a wide scope to the election petitioner to adduce
G evidence in respect of a. meeting at any place, on any date, that he found
convenient or for which he could procure evidence later on. In view of the
vague pleadings and defective affidavits, the court would require much
better type of evidence, absolutely reliable in character, in proof of the
alleged meeting where offending speeches were delivered by the appellant,
H than the evidence as has been produced by the election petitioner in this
-
-
----
\
~/
QUAMARUL ISLAM v. S.K. KANTA
215
case. There is, no reliable, trustworthy or satisfactory evidence on the A
record to bold that the appellant delivered the speeches as alleged by the
election petitioner either at Roza Market or at Jalanabad.
[256-F-H; 257-A-C]
S. There is an increase of electoral malpractices of which making an
appeal on the ground of religion or attempting to create or promote
feelings of enmity or hatred between different classes of citizens of India
on grounds of religion, caste, community etc. or of exercising undue
influence, directly or indirectly with the free exercise of the electoral rights
of the citiziens, are examples and that the purity of election which is an
essence of democracy is under a threat of erosion on account of such
malpractices and while acting within the bounds of law, the courts owe a
duty to the nation to see that such objectionable assaults wounding the
purity of elections during the election propoganda are not allowed to go
unpunished, but the courts can only act on the evidence led in the case and
not on what ought to have been led. [257-F-H; 258-A]
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra,
(1975) Supp. S.C.R. 281, relied on.
B
c
D
6. 'The High Court before invalidating the election and upsetting the
verdict of the electorate, in its zeal to maintain purity of elections, ignored E
not only the defects in the pleadings in the election petition but also failed
to analyse the evidence in its proper perspective and even relied upon such
evidence as is not admissible in law. The maintenance of purity of elections
is indeed essential but the court must be clear in its approach and
appreciate that the proof of commission of corrupt practices must be clear,
cogent, specific and reliable as the charge of a corrupt practice is almost F
like a criminal charge and the one who brings forth that charge has the
obligation to discharge the onus of proof by leading reliable, trustworthy
and satisfactory evidence. (258-G, H; 259-A]
7. It is difficult to understand as to how the trial judge permitted the
filing of an affidavit on 4.9.1992, in support of the election petition after G
the arguments were over. It was a novel procedure, unkown to civil law or
the election law, and was in direct breach of the statutory provisions
contained in the Representation of the People Act and the rules framed
thereunder. Such an affidavit, could not have been permitted to be brought
on record. The trial judge did not apply his mind to the case in a proper H
216
SUPREME COURT REPORTS
(1994] 1 S.C.R.
A and judicial sense and took into consideration the second affidavit dated
4.9.1992 while deciding the election petition. (237-A, BJ
~
Virendra Kumar Saklecha v. /agjiwan and Ors., (1972) 3 S.C.R. 955,
reited on.
B
8. The procedure followed by the trial judge during the trial of the
election petition has left much to be desired. The provisions of the Act and
the rules framed thereunder as also the provisions of the Code of Civil
Procedure for production of documents and filing of the list of witnesses
etc. were not kept in view and the trial was conducted in a very casual
C manner. It appears the High Court bas not framed any Rules for trial of the
election petitions. If that be so the Ct..'~f Justice of the High Court may look
into it and frame Rules for proper trial of election petitions. (259-F-G]
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4211 of
1992.
From the Judgment and Order dated 25.9.1992 of the Karnataka
High Court in Election Petition No.14 of 1990.
Kapil Sibal and P. Mahale for the Appellan.t.
E
Ms. Kiran Suri and M. Veerappa for the Respondents.
The Judgment of the Court was delivered by
1. DR. ANAND, J. On 25th of September 1992, the election of the
appellant, Mr. Quamarul Islam, from 10 Gulbarga Assembly Constituency
F was set aside by the High Court of Karnataka by allmying an Election
Petition filed by the defeated candidate, respondent no.1, Shri S.K. Kanta.
The aggrieved, unseated candidate, (appellant) has filed this appeal under
Section 116A of the Representation of People Act, 1951 (hereinafter
referred to as 'Act').
G
2. On 24.11.1989, elections were held to the Karnataka Legislative
Assembly. The appellant contested the election as a candidate of Muslim
League from 10 Gulbarga Assembly Constituency. The election petitioner
respondent no.1 herein contested the election as a candidate of Janta Dal
Party. While the appellant secured 55801 votes respondent no.l secured
H 51204 votes. There were other candidates also in the fray belonging to
QUAMARULISLAM v. S.K. KANTA [DR. ANAND, J.]
217
different political parties besides six independent candidates. Respondent A
No.2 contesting on the ticket of Congress(!) secured 12,675 votes while all
other candidates secured insignificant number of votes. Respondent No.I
questioned the election of the appellant through an Election Petition on
various grounds, allegmg the commission of corrupt practices by him within
the meaning of Sections 123(2), 123(3), 123(3A), 123( 4) and 124(7) of the B
Act. Allegations regarding receipt of improper votes, rejection of valid
votes besides adoption of illegal procedure during the counting were also
made. The learned single Judge trying the Election Petition after recording
the evidence and taking into account documents etc., produced at the trial,
found that the appellant had committed the corrupt practices defined in
sub-sections (2), (3), (3A) and ( 4) of Section 123 of the Act and, therefore, C
declared the election of the appellant void. The other allegations were held
not established. The Electi~ Petition was allowed with costs. The returned
candidate, was, unseated.
3. According to the averments in the Election Petition, the appellant
was described as the General Secetary of the Karnataka Branch of the D
Indian Union Muslim League (hereinafter referred to as 'IUML') who
taking advantage of his position appointed persons to various organisations
in the IUML. It is averred that Mohd. Moiuddin Pasha was appointed as
a Convenor of the Muslim Youth League (hereinafter referred to as
'MYL') and that the said Mohd. Moiuddin Pasha acted as election agent · E
of the appellant. Reliance was placed on certain advertisements and messages issued by IUML seeking votes for the appellant. Reference was also
made to the Bahmani News, an Urdu Newspaper, published from Gulbarga
and it was alleged that the messages printed therein and the advertisements
issued and published therein by IUML and MYL were aimed at furthering
p
the election prospects of the appellant. Reliance was also placed on the
alleged speeches delivered by the appellant and his election agent and
other agents with his consent, seeking votes on grounds of religion, etc., as
published in the said newspaper. The following "messages" published in
various issues of Bahmani News were extracted in the petition, on the basis G
of which it was maintained that the said publications amounted to commission of corrupt practices as defined in Section 123(2) of the Act.
"Re-collect your memory before voting.
that you might have come across to hear this sentence:-
H
A
B
c
D
E
F
G
H
218
SUPREME COURT REPORTS
[1994] 1 S.C.R.
"I will not sign on your passport forms becuase, I have
been elected only on Hindu Votes, you go to him to whom
you have voted.
Now your Election decision is definitely in favour of
Muslim unity".
Issued by Indian Union Muslim League, Gulbarga.
The said newspaper again contained another message to the following effect, in the publication of 2.11.1989;
· "Can you Vote such party, its Chief Minister wanted to
impose restrictions on the Azan (call for the prayer) and
he is also intending to do so. Cartainly your election
decision will be in favour of Muslim Unity.
Issued by Indian Union Muslim League".
Reference was also made to the publication in the said newspaper
dated 3.11.1989 containing the message to the following effect :
"Who is the person not willing to regularise his house ..... .
who will vote that party person, who had created obstacles
to regularise the houses by exhibiting communal feelings.
Certainly this time your election decision is in favour of
Muslim Unity.
Issued by Indian Union Muslim League".
The newspaper of 5th November, 1989 contained a message to the
following effect :-
"Person must have links with the religion without that he
is nothing as the Waves in the river and out of river
nothing. Your utmost power should be used to strengthen
the Muslim Unity''.
The paper of 8th November, 1989 contained the message to the
following effect :-
"Do you like to partition the city in two parts for repre-
--4...
QUAMARULISLAM v.S.K.KANTA[DR.ANAND,J.]
219
senting only one community which is being represented
since last six years by a particular person; should he be
elected again?
Certainly this time you will elect your own representative
in Assembly.
Issued by Indian Union Muslim League".
The message to the following effect was, allegedly published on
14.11.1989 in the same newspaper:
A
B
"It is the voice of every Muslaman, No Babari Masjid No
C
Vote".
Issued by Muslim Youth League, Gulbarga.
The newspaper of the 15th November, 1989 contained the message
to the following effect :-
D
"Muslim League's Victory is your victory. For Gulbarga
Assembly Constituency, vote and elect Indian Union Mulsim League's strong, young candidate-Tigar of Karnataka
- (Sher-e- Karnataka) - Sri Quamarul Islam. You Create
a History of muslim Unity with full support of your own
E
and establish your particular representative in Assembly.
Issued by Indian Union Muslim League".
The said paper also contained an advertisement issued by the Muslim
Youth League, Gulbarga, with the following message, dated 15.11.1989 :
F
Thus, said Paigamber-e-Islam.
Muslaman is just like a wall, His every part of Body is
supporting with each other. 24th November, 1989, it is the
day for creating a History of your Unity.
G
Issued by Muslim Youth League, Gulbarga".
It is then stated in the election petition that :
"Respondent has directly interfered \vith the electorate
H
A
B
c
D
E
F
G
220
SUPREME COURT REPORTS
(1994] 1 S.C.R.
of Gulbarga Assembly Constituency by publishing these
publications in the Urdu Daily, through his own organisation viz. the Indian Union Muslim League, of which he is
the General Secretary of the Karnataka State and through
the convenor of the Muslim Youth League, Gulbarga. Sri
Moh'llllJD.ed Moiuddin Pasha, who has been appointed by
respondent-I in his capacity as the General Secretary of
the Indian Union Muslim League. These publications have
been published in the Bahniani News, a Urdu Newspaper,
which has got wide circulation in the Gulbarga Assembly
Constituency and the same has been distributed in the
localities wherein Muslim community people are thickly
populated, which are stated at the beginning of this para-
·graph".,
It is further asserted in the election petition :
" ...... These publications have been made by respondent-I
and with his consent is the daily Urdu Newspaper referred
to above. Many such publications have been made
thoughout the period of election i.e. between 1.11.1989 to
24.11.1989 including the date of election. The appeals
ma~e by the publications have been made by respondent-I
and with his consent by the Muslim Youth League and
these appeals have been made to further the prospects of
the election of respondent-I prejudicially affecting the
election of this petitioner. The said appeals are made on
the ground of religion and caste viz. the Muslim Community.Respondent-I belongs to the Mohammedan community. Respondent=! belongs to the Mohammedan
electorate in particular and the said appeals amount ,to ·
religious appeal as referred to in Section 123(3) of the
Representation of the People Act, 1951".
4. An allegation was also made in the Election Petition to the effect
that the publication dated 15.1.1989 in the Bahmani News not only conveyed a message but also contained a sacred religious symbol written in
urdu which when translated means "Ershad-e- Nabhi" (voice of prophet),
and on that basis, it was asserted that the appellant had made use of
H religious symbol and thereby committed the corrupt practice covered by
QUAMARULISLAM v. S.K. KANTA(DR.ANAND,J.]
221
Section 123(3).
A
5. Respondent no.1 also alleged that the appellant had by the said
publications attempted to promote feelings of enmity and hatred between
different classes of citizens of India on grounds of religion, race, caste and
community. These publications were alleged to have been made with the
consent of the appellant by the convenor of MYL for the furtherance of B
the prospects of election of the appellant and which action amounted to
commission of corrupt practices within the meaning of Section 123(3A) of
the Act.
6. The appellant is also alleged to have committed the corrupt pracC
tices within the meaning of Section 123( 4) of the Act. The grounds contained
in the Election Petition in respect of the said allegation read as follows :
"That apart from the publication of these messages in
these papers, a statement of fact, which is a false statement
has been made by the respondent-I and with his consent
in the paper dated 1.11.1989 which is to the following
effect :-
"Re-collect your memory before voting.
that you might have come across to hear this sentence:-
"I will not sign on your passport forms becuase, I
have been elected only on Hindu Votes, you go to
him to whom you have voted.
The said publication made on 1.11.1989 in the
Urdu daily Newspaper is a statement of fact, which
is false and it relates to the personal character and
conduct of this petitioner. And this statement is
made by respondent-I reasonably calculated to
prejudice the election prospects of this petitioner.
This amounts to corrupt practice within the meaning of section 123(4) of the said Act".
D
E
F
G
According to respondent no.1, the appellant not only got the messages
published in the newspapers as noticed above but also in his speeches to H
222
SUPREME COURT REPORTS
[1994] 1 S.C.R.
A
the electorate of the constituency made such offensive appeals which
strictly fall within the mischief of Sections 1~(3) and 123(3A) of the Act.
The precise allegations in that behalf are contained in sub-para (11) of
election petition which reads as follows :
B
c
D
E
F
G
H
"That apart, apart from publishing the message in the
newspapers, respondent no.1 has spoken to the electorate
of the 10 Gulbarga Assembly Constituency in various
places offencing the religious feelings of the communities
and thereby bringing a rift between the other communities
and Muslims, amounting a corrupt practice as stated in
Section 123(3) and (3A) of the Act. In fact at Roza Market
area, about 8 days prior to the date of poll at about 9 .30
p.m. respondent at an election meeting, among other
things, uttered the following speech in Urdu, which clearly
indicates that there has been interference in the free
exercise of the electoral right by the Electorate on the
basis of the religion and community feelings. The extract
of the speech reads thus :-
·"Muslim Youth League ke convenor Mister Mohiuddin
Pasha. Gujeesta Numaindane Main Passport form per
dasthakat nahin karoonga, · Kahakar Firkha prasthi Ka
Ainae Lagaya. Sabekha MIA Nay Muslim Illakhaun main
Borewell Key liye sifarish tak nahee ki. Prakash Akash
Kore nay chay saath muslim Makan today hain. Musalmanaun Kaa Imaani Josh Tha jo unhonney Muslim league
to bar bear jeeyade vote diye. Aap ko sabz parcham ki
Izzad Rakhana hai. Apnay Ittehad ko Mazhooth Karna
hooga. Hindustan. Mein Jab Tah Ek bhi Musalman Kalmaa Haquee bolnay walaa hai Muslim league ki Naheen
Meetta sakta. Jab loom Apnay mobaUey mainjavogey the
athraaf dekho kaheen umnaafikhary Islam (Islaam kay
Gaddar) Meer Jafar, Mir Sadiq, jaisay cominay Millath
Kay khilaaf Muslim League Kay kheelaaf kaheen sazeesh
tho nahee kar rehey hai:ii".
The utterances of the respondent-I excerpted above
amounts to corrupt practice or undue influence and
QUAMARUL ISLAM v. S.K KANTA [DR. ANAND, J.)
223
religious appeal on the ground of caste and religion".
The appellant is also alleged to have procured the assistance of the
returning officer, a gazetted officer of the rank of special Deputy Commissioner for the furtherance of the prospects of his election thereby committing a corrupt practice under Section 123(7) of the Act.
7. According to respondent no.1, the appellant committed the "corrupt practices referred to above by himself and with his consent by the said
Mohd. Moiuddin Pasha, who has acted as his election agent".
A
B
8. Though in the election petition, allegations were also made by
respondent no.1 against the appellant, alleging irregularities during countC
ing, incorrect publication of the electoral rolls, and improper de-limitation
of constituencies and malpractices committed at various polling-booths and
polling-stations, but since neither before the learned Trial Judge nor before
this Court, any arguments were addressed in respect of those allegations,
we do not feel called upon to deal with those allegations much less extract D
the same in this judgment.
9. In the affidavit filed in support of the allegations of corrupt
practice in the Election Petition, the petitioner deposed as follows :-
"3. The averment pertaining to the corrupt practices under
Section 123(2) of the Respresentation of People Act,
made by 1st Respondent and his election Agent
Mohammed Mohiuddin Pasha referred to in paragraphs
IV(4), 5(1) to (viii) are based on personal knowledge and
information which I believe to be true.
4. The averment pertaining to the corrupt practices under
Section 123(3) of the Respresentation of People Act,
made by 1st Respondent and his election Agent
Mohammed Mohiuddin Pasha. referred to in paragraphs
E
F
IV(5)(i) to (ix) and (x) are based on personal knowledge
G
and information which I believe to be true.
5. The averment pertaining to the corrupt practices under
Section 123(3A) of the Respresentation of People Act,
made by 1st Respondent and his election Agent
Mohammed Mohiuddin Pasha referred to in paragraphs
H
224
A
B
c
SUPREME COURT REPORTS
[1994) 1 S.C.R.
IV(S)(ix) to (xi) and. (x) are based on personal knowledge
and information which I believe to be true.
6. The averment pertaining to the corrupt practices under
Section 123( 4) of the Respresentation of People Act,
made by 1st Respo~dent and his election Agent
Mohammed Mohiudclin Pasha referred to in paragraphs
IV(5)(x) are based on personal knowledge and information which I believe to be true.
7. The averment pertaining to the corrupt practices under
Section 123(7) of the Respresentation of People Act,
made by 1st Respondent and the Returning Officer
respondent no.13 referred to in paragraph IV 95(xiii) are
based on personal knowledge and information which I
believe to be true.
D
10. In the written-st~tement filed by the respondent-appellant, all the
allegations levelled against him about the commission of the corrupt practices were denied. It was asserted that the appellant had filed his nomination paper on 31.10.1989 as a candidate of Muslim League and that the
allegation to the effect that the appellant was the General Secretary of the
E
Karnataka branch of IUML and in that capacity he had enlisted the
support of the MYL was false. It was categorically asserted that "this
respondent has not appointed Mohd. Moiuddin Pasha as the election agent
at any time. One Kesar Mohd. was the election agent of the respondent".
The appellant-respondent stated that the publications (messages and advertiesments) extracted in the election petition allegedly issued by the
F
IUML or by MYL had nothing to do with him as he was not a member of
the IUML much less, its General Secretary. That the appellant-respondent
was also not a member of MYL either and had nothing to do with the .
messages and advertisements allegedly published in "Bahm.ani News" and
that the same were not originated or sponsored by the respondent nor were
G the same published either at the instance of this respondent or his election
agent. The appellant-respondent also denied that he had delivered
speeches as alleged in the election petition or that he had made any appeal
on the ground of religion etc. The respondent also stated that :
"It is not possible to understand the grievance of the
H
petitioner set out in para 6 of the petition. It is not bis
')..._ ..
QUAMARULISLAM v.S.KKANTA[DR.ANAND,J.)
225
case the voters included in the Assembly Constituency had
not been permitted to cast their votes at the election. Gnce
again, the allegation set out in para 7 of the petition suffers
from vagueness and uncertainty".
A
11. On the basis of the pleadings of the parties, the following issues
were framed by the learned trial Judge :
B
(1) "Whether the petitioner proves that Respondent No.1
has committed acts as alleged in the petition of undue
influence on voters interfering with free exercise of
votes attracting Section 123(2) of the Representation
of the People Act, 1951?
(2) Whether the petitioner proves that Respondent No.1
has committed acts as alleged in the petition that he
appealed to the religion, caste, community or used
religious symbols to further his prospects of election
and/or for prejudicially affecting the election of the
petitioner attracting Section 123(3) of the Representation of the People Act, 1951?
c
D
(3) Whether the petitioner proves that Respondent No.1
E
has committed acts as alleged in the petition to
promote or attempt to promote feelings of enmity or
hatred between different classes of voters on grounds
of religion, caste, community for furtherance of the
prospects of election of Respondent No.1 or for
F
prejudici~l,ly affecting the election of the petitioner
attracting Section 123(3A) of the Representation of
the People Act, 1951?
( 4) Whether the petitioner proves that Respondent No.1
has committed acts alleged in the petition of publishing
any pamphlet or statement which is false or believed
to be false in relation to the personal character, conduct of the petitioner calculated to prejudice the propsects of the petitioner attracting Section 123( 4) of the
Representation of the People Act, 1951?
G
H
226
A
•B
c
D
F
H
SUPREME COURT REPORTS
[1994) 1 S.C.R.
(5) Whether the petitioner proves that Respondent No.1
has committed acts alleged in the petition to procure
or obtain the assistance of persons in service of the
Government as enumerated therein to further the
prospects of Respondent No. l's election attracting
Section 123(7) of the Respresentation of the People
Act, 1951?
( 6) Whether the petitiOner proves that Mohd. Moiuddin
Pasha acted as the election agent of Respondent no.1
or with his consent committed the aforesaid corrupt
practices in issue Nos.1 to 5?
(7) Whether the petitioner proves that the election of
Respondent No.1 is vitiated on account of illegal or
improper.
(i) exclusion of voters from exercising their votes
and/or
(ii) Acceptance of votes which are invalid and/or
(iii) rejection or refusal of votes which are valid
(8) Whether ·the petitioner proves that the election of
Respondent No.1 is vitiated on account of improper
or illegal procedure adopted or irregularities in the
conduct of election?
(9) Whether the recrimination petition is bad for want of
compliance of any of the provisions of the Respresentation of the People Act, 1951?
(10) Whether Respondent No.1 proves that the petitioner
or any person acting as his agent or any other person
., , with his knowledge and consent committed acts at-
..... tracting Section 123(3) and 123(3A) of the Repre-
·-sentation of the People Act, 1951 as alleged in the
· recrimination petition?
(11) Whether Respondent No.1 proves that petitioner or
y-
QUAMARUL ISLAM v. S.K. KANTA [DR. ANAND, J.)
any person acting as his agent or any other person with
his knowledge and consent restrained voters from exercising their franchise as alleged in para-9 of the
recrimination petition?
(12) To what reliefs, if any, the parties are entitled?
227
A
B
12. The High Court dealt with issues 1-4 attracting Section 123(2),
123(3), 123(3A) and 123(4) of the Act together. After considering the
ditect, circumstantial and documentary evidence, all the above four issues
were decided in the affirmative and it was held that the appellant-respondent had committed the corrupt practices attracting Section 123(2), 123(3), C
123(3A) and 123( 4) of the Act. Issue No.5 was decided in the negative with
the result that the appellant was not found to have committed the corrupt
practice attracting Section 123(7) of the Act. Issue Nos.7 and 8 were dealt
with together and were answered in the negative and against the election
petitioner. Issues Nos.9-11 had been framed due to the filing of the
recrimination petition by the appellant-respondent and since the appellantD
respondent did not press the recrimination petition, therefore, these three
issues were not considered by the learned trial Judge.
13. The learned Judge also considered the question of-issuing a
notice to Sh. Mohd. Moiuddin Pasha under Section 99 of the Act on the E
basis of the allegations made against him in the election petition while
dealing with issue No.6, but after the appellant filed his written state~ent
and the recrimination petition and denied Mr. Pasha's participation in the
election campaign in any capacity whatsoever to further the prospects of
his elections, the Court came to the conclusion that the evidence and
material on the record was totally inadequate to warrant the issuance of a
notice under Section 99 of the Act and the issue was decided accordingly.
Finally, the appellant-respondent was held directly responsible for committing the corrupt practices under Section 123(2), (3), (3A), (4) of the Act
and consequently, the learned trial judge held the election of the appellant
F
to the Karnataka Legislative Assembly from 10 Gulbarga Assembly conG
stitutency as null and void.
14. Since, the learned trial judge has reproduced the evidence both
oral and documentary in extenso, we do not find it necessary to reproduce
the same and shall conteqt ourselves by referring only to the relevant
evidence during the course of discussion. It is only the findings on issues H
228
SUPREME COURT REPORTS
.[1994) 1 S.C.R.
A
1-4 and 12 which have been decided against the appellant-herein on which
arguments have been addressed before us by learned counsel for the
parties. We, therefore, refrain from dealing with the remaining issues,
including issues 9-11, which arose out of the recrimination petition which
was not pressed before the trial court.
B
15. Mr. Kapil Sibal, the learned senior advocate appearing for the
appellant, the returned candidate whose election was set aside by the High
Court, in the first place submitted . that the pleadings of the election
petitioner in his petition were so vague, general in nature, lacking in
material facts and particulars, besides being frivolous and vexatious, that
C
the learned trial court should have stuck down and deleted all the pleadings
and dismissed the election petition as the averments in the election petition
did not give rise to any triable issue at the threshold.