Holding

The Supreme Court held that the election petition failed to prove any corrupt practice by the returned candidate with admissible and reliable evidence, and therefore the High Court's order setting aside the election was unsustainable.

Summary

The returned candidate Quamarul Islam contested the 1989 Karnataka Assembly election and was challenged by his rival S.K. Kanta on alleged corrupt practices under Sections 123(2), (3), (3A) and (4) of the Representation of the People Act, 1951, including religious appeals and false statements. The High Court set aside the election based on newspaper advertisements, alleged speeches, and a cassette recording, despite the petitioner's vague pleadings and reliance on secondary evidence. On appeal, the Supreme Court held that the petitioner failed to connect the appellant with any corrupt practice through admissible, reliable evidence and that the trial court had improperly admitted hearsay newspaper reports and an unreliable cassette. The Court emphasized that election petitions require precise pleadings, full particulars, and proof beyond mere probabilities. Consequently, the High Court's order was reversed, the election was upheld, and the petition dismissed.

Issues considered

The petitioner's pleadings were vague and lacked material facts and particulars required under the Representation of the People Act, 1951.
Whether the evidence of newspaper reports and advertisements was admissible and sufficient to prove corrupt practices under Sections 123(2), (3) and (3A).
Whether the cassette recording (Ex.P7) was admissible and reliable evidence of the appellant's speeches.
Whether the trial court erred in setting aside the election on the basis of inadmissible or unreliable evidence.
Whether an election can be invalidated on mere probabilities without clear, cogent proof.

Legislation cited

Code of Civil Procedures. Order 13 Rule 2
Election Symbols (Reservation and Allotment) Order, 1968
Indian Evidence Act, 1872s. 78(2), s. 81
Representation of the People Act, 1951s. 123(2), s. 123(3), s. 123(3A), s. 123(4), s. 124(7)

Subjects

election petitioncorrupt practicesreligious appealadmissibility of evidencenewspaper reportscassette recordingRepresentation of the People Actprocedural defectselectoral law

Judgment

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 un-
known 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 can-
G 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 advertise-
ments 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. A
The matter was heard by a Single Judge of the High Court who held
that the appellant was directly responsible for committing corrupt prac-
tices under Section 123 of the Representation of the People Act, 1951 and
set aside the election of the appellant. Hence this appeal.
B
On behalf of the appellant, it was contended that the pleadings in
the election petition were so vague, lacking in material facts and par-
ticulars besides being frivolous and vexatious that the same did not give
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 can-
didate 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
knowledge of the returned candidate or/and was made by him without
B 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]

3.2. Newspaper reports by themselves are not evidence of the con·
tents thereof. Those reports are only hearsay evidence. These have to be
E 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
F 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 PW4 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
214 SUPREME COURT REPORTS [1994) 1 S.C,R.

A 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 substan-
tiate the charge levelled in the election petition. The evidence on the record
-
is not reliable or trustworthy io hold that the appellant delivered the
B 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 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
E 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 B
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
c
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]
D
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra,
(1975) Supp. S.C.R. 281, relied on.

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]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4211 of
1992.
D
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 mes-
sages 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 commis-
sion 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
218 SUPREME COURT REPORTS [1994] 1 S.C.R.

A "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".
B
Issued by Indian Union Muslim League, Gulbarga.

The said newspaper again contained another message to the follow-
ing effect, in the publication of 2.11.1989;

c · "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".
D
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
E 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".
F
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
G 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 :-

H "Do you like to partition the city in two parts for repre-
QUAMARULISLAM v.S.K.KANTA[DR.ANAND,J.] 219

--4... senting only one community which is being represented A
since last six years by a particular person; should he be
elected again?

Certainly this time you will elect your own representative
in Assembly.
B
Issued by Indian Union Muslim League".

The message to the following effect was, allegedly published on
14.11.1989 in the same newspaper:

"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 Mul-
sim 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
220 SUPREME COURT REPORTS (1994] 1 S.C.R.

A of Gulbarga Assembly Constituency by publishing these
publications in the Urdu Daily, through his own organisa-
tion 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
B 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
c 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 :

D "......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
E
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 Com-
F munity.Respondent-I belongs to the Mohammedan com-
munity. 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".
G 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 con-
veyed 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 prac- C
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 D
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 sen- E
tence:-

"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.
F
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
G
prejudice the election prospects of this petitioner.
This amounts to corrupt practice within the mean-
ing of section 123(4) of the said Act".

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 :

"That apart, apart from publishing the message in the
B 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
c 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
D 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
E 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. Musal-
manaun Kaa Imaani Josh Tha jo unhonney Muslim league
F 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 Kal-
maa Haquee bolnay walaa hai Muslim league ki Naheen
Meetta sakta. Jab loom Apnay mobaUey mainjavogey the
athraaf dekho kaheen umnaafikhary Islam (Islaam kay
G 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
H 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". A
The appellant is also alleged to have procured the assistance of the
returning officer, a gazetted officer of the rank of special Deputy Commis-
sioner for the furtherance of the prospects of his election thereby commit-
ting a corrupt practice under Section 123(7) of the Act.
B
7. According to respondent no.1, the appellant committed the "cor-
rupt practices referred to above by himself and with his consent by the said
Mohd. Moiuddin Pasha, who has acted as his election agent".

8. Though in the election petition, allegations were also made by
respondent no.1 against the appellant, alleging irregularities during count- C
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 E
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.
F
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
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 SUPREME COURT REPORTS [1994) 1 S.C.R.

A 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
B Mohammed Mohiudclin Pasha referred to in paragraphs
IV(5)(x) are based on personal knowledge and informa-
tion which I believe to be true.

7. The averment pertaining to the corrupt practices under
Section 123(7) of the Respresentation of People Act,
c 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 prac-
tices were denied. It was asserted that the appellant had filed his nomina-
tion 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 ad-
vertiesments) 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 A
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".

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 c
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
D
religious symbols to further his prospects of election
and/or for prejudicially affecting the election of the
petitioner attracting Section 123(3) of the Repre-
sentation of the People Act, 1951?

(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 G
any pamphlet or statement which is false or believed
to be false in relation to the personal character, con-
duct of the petitioner calculated to prejudice the prop-
sects of the petitioner attracting Section 123(4) of the
Representation of the People Act, 1951? H
226 SUPREME COURT REPORTS [1994) 1 S.C.R.

A (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
•B 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
c practices in issue Nos.1 to 5? y-
(7) Whether the petitioner proves that the election of
Respondent No.1 is vitiated on account of illegal or
improper.

D (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?

F (9) Whether the recrimination petition is bad for want of
compliance of any of the provisions of the Respresen-
tation 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?

H (11) Whether Respondent No.1 proves that petitioner or
QUAMARUL ISLAM v. S.K. KANTA [DR. ANAND, J.) 227

any person acting as his agent or any other person with A
his knowledge and consent restrained voters from ex-
ercising their franchise as alleged in para-9 of the
recrimination petition?

(12) To what reliefs, if any, the parties are entitled?
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-respon-
dent 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 appellant- D
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 F
notice under Section 99 of the Act and the issue was decided accordingly.
Finally, the appellant-respondent was held directly responsible for commit-
ting 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
to the Karnataka Legislative Assembly from 10 Gulbarga Assembly con- G
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 y-
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. Learned counsel
argued that the pleadings in an election petition are required to be ab-
solutely precise and clear, containing all necessary facts and particUiars, as
D required by law which discloses a complete cause of action and in the
absence of the same, the returned candidate cannot be called opon to meet
the charge set out in a defective election petition. Learned counsel for the
·~
respondent did not dispute the proposition of law as canvassed by Mr. Sibal
but submitted that having failed to raise any objection about the alleged
defects at the initial stage and having faced the trial and led evidence, it
E was not open to the appellant now to argue that the defect in the pleadings
alone should result in the dismissal of the election petition at this belated
stage.

16. In Laxmi Narayan Nayak v. Ramratan Chaturvedi. and Ors., [1990]
·F 2 S.C.C. 173, after dealing with a catena of authorities, regarding the nature
0

of pleadings and evidence to be led in support thereof in an election
petition, a Division Bench of this Court to which one of us, namely Pandian
J ., was a party, formulated some essential tests with regard to the nature
of pleadings and evidence in an election petition. It is useful to eXtract the
principles laid down therein. They are as follows :
G
(1) "The pleadings of the election petitioner in his petition
should be absolutely precise and clear containing all
necessary details and particulars as required by law
vide Dhartipakar Madan /al Aganval v. Rajiv Gandh~
and Kana Prabhakara Rao v. M. Seshagiri Rao.
{

·.. ·~ .. QUAMARULISLAM v.S.K.KANTA[DR.ANAND,J.) 229

(2) The allegations in the election petition should not be A
vague, general in nature or lacking of materials or
frivolous or vexatioiis because the court is empowered
•
at any stage of the proceedings to strike down or delete

.. . pleadings which are suffering trom such vices as not
raising any triable issue videManphul Singh v. Surinder
Singh, ..,:.d
Kona Prabhakara ·Rao v. M. ·Seshagiri Rao
B
and_Dhartipakar Madan Lal AgtllWal v. Rajiv Gandhi.

(3) The evidence adduced in support of the pleadings
should be of such nature leading to an irresistible
conclusion or unimpeachable result that the allegations c
made, have been committed rendering the election
void under Section 100 vide lumuna Prusad Mukhariya
v. Lachhi Ram, and Rahim Khan v. Khurshid Ahmed.
!
( 4) The evidence produced before the court in suport of
the pleadings must be clear, eongent satisfactory, D
credible and positive ·and also should staiid the test of
strict and scrupulous scrutiny vide Ram Sharan Yadav
v. Thakur Mu?eshwar Nath Singh.

(5) It is unsafe in an election case to accept oral evidence
E
at its face value without looking for assurances for
some surer circumstances or unimpeachable doeu-· ·
,_,.. ments vide Rahim Khan v. · Khurshid 'Admiid,
M.Narayana Rao v. Venkata Raddy, Lakshmi Raman·
Acharya v. Chandan Singh,· and Ramji Prasad Singh v.·
Ram Bi/as Iha. · F

(6) The onus of proof of the allegations made in the
election petition is undou~tedly on the person who
assails an election which has been· concluded vide
Rahim Khan v. Khurshid Ahmed, Mohan Singh v.
Bhan war/a~ and Ramji Prasad Singh v. Ram Bi/as Iha'.
G·

17. We are in r~spectfol agreement with the above principles and that
saves us the botheration of referring to the various judgments, which were •
considered and noticed by the Division Bench while dealing with the
s!lbject. We shall, therefore, only consider such of the judgments, as in our H
230 SUPREME COURT REPORTS (1994) 1 S.C.R.

A opinion, have a direct bearing on the controversy before us.

18. In Simant N. Balkrishna and. anr. v. George Fernandez and Ors.,
.
(1969) 3 S.C.C. 238, after dealing with the substantive law on the subject of
election petition, this Court dealt with the procedural provisions contained
in Sections 81, 83 and 84 of the Act. It was noticed that Section 81 provides •
B that the election petition must contain a concise statement of the material
facts on which the petitioner relies and further that he must also set forth
full particulars of any corrupt practice that he alleges including as full a·
statement as possible of all the names of parties alleged to have committed
such corrupt practice and the date and place of the commission of each
C such practice. Section 83 which requ·res the fulle&t possible particulars to
be provided in an election petition was held to be mandatory. This Court
then went on to point out the difference between material facts and
particulars and observed :

D ' ......What. is the difference between material facts and
particulars? The word 'material' shows that the facts
necessary to formulate a complete cause of action must
be stated. Omission of a single material fact leads to an
incomplete cause of action and the statement of claim
becomes bad. The function of particulars is to present as
E full a picture of the cause of action with such further
information in detail as to make the opposite party under-
stand the case he will have to meet. There may be some
overlapping between material facts and particulars but the
two are quite. distinct. Thus material facts will mention
F that a statement of fact (which must be set out) was made
and it must be alleged that it refers to the character and
conduct of the candidate that it is false or which the
returned candidate believes to be false or does not believe
to be true and that it is calculated to prejudice the chances
of the petitioner. In the particulars the name of the person
G making the statement, with the date,· time and place will
be mentioned. The material facts thus will show the
grounds of corrupt practice and the complete cause of
action and the particulars will give the necessary informa-
tion to present a full picture of the cause of action. In
H stating the material facts it will not do merely to quote the
QUAMARULISLAM v.S.K.KANTA(DR.ANAND,J.] 231

words of the section because then the efficiency of the A
words 'material facts' \\ill be lost. The. fact which con~
stitutes the corrupt practice must be stated and the fact
must be co-related to one of the heads <Jf corrupt practice.
Just as a plafut without disclosing a proper cause of action
• canot be said to be a good plaint, so also an election
B
petition without the material facts relating to a. corrupt
practice. is no election petition at .all A petition which
merely cites the sections cannot be said to disclose a cause
of action. where the allegation is the making of .a false
statement. That statement must appear and the particulars
must be full as to the person making the. statement and c
the necessary information. Formerly the petition used to
be in two parts. The material facts had to be included in
, the petition and the particulars in a schedule. It is incon-
ceivable that a petition could be filed without the material
facts and the schedule by merely citing the. corrupt prac- .
ti~ from the statute. Indeed the penalty of dismissal
D
summarily was enjoined for petitions ·which did not i:om-
ply with the requirement. Today the particulars need not
be separately included in a schedule but the distinction
remains. The entire and complete caiise of action must be
in the petition in the shape of material facts, the par- E
ticulars being the further information to. complete the
picture ......"

19. The .Court then went on to consider the power of the trial court
to allow amendment of an election petition found deficient in its pleadings F
and laid down that the said power can be exercised only to _allow particulars
to be amplified but that there is a complete proluoition against an amend-
ment 'which will have the effect of introducing ·particulars of corrupt
practice not previously alleged in the petition'. The allegation of corrupt
practice in the election petition must show a complete cause of action by
disclosing all material facts and if the election petitioner has omitted to G
allege a corrupt practice. He cannot be permitted to give even the. par-
ticulars of that corrupt practice, by way of an amendment.
•
20. In Virendra Kumar Sak/echa v. Jagjiwan and Ors, (1972} 3 S.C.R.
955, this Court emphasized the importance of an affidavit filed in support H
232 SUPREME COURT REPORTS [1994] 1 S.C.R.

A of an election petition, whereby the election of tb,e returned candidate-has
been questioned on allegations of corrupt practice. It was held that the
allegations of corrupt practice are by law required to be supported by an
affidavit and the deponent of the affidavit must set out in the affidavit
clearly as to which statements relating to the corrupt practice are true to
B the knowledge of the deponent and which of the statements are true to his
information, in which event the deponent is required to furnish the source
of ·information also. The court dealing with the importance of furnishing
the source of information at the earliest opportunity observed :

"The non-disclosure of grounds or sources of informa-
c tion in an election petitioI' which is to be filed within 45
days from the date of elect.on of the returned candidate,
will have to be scrutinised from two points of view. The
non- disclosure of the grounds will indicate that the elec-
tion petitioner did not not come forward with the sources
D of information at the first opportunity. The real impor-
tance of setting out the sources of information at the time
of the presentation of the petition is to give the other side
notice of the contemporaneous evidence on which. the
election petition is based. That will give an oppo~tunity to
the other side to test the genuineness and veracity of the
E sources of information. The other point of view is that the
election petitioner· will not be able. to make any departure
from the sources or grounds. If there is any embellishment
of the case it will be discovered".

21. It is in the light of the above settled principles, that we shall first
F
examine the pleadings, including the affidavit filed by the election
petitioner in support of the allegations of corrupt practice to find out
whether they satisfy the tests laid down by this Court in various judgments.

22. According to the election petitioner, the appellant was the
G general secretary for Karnataka State of the Indian Union Muslim League
and had appointed Mohd. Moiuddin Pasha as convener of the Muslim
Youth League, who also acted as the agent of the appellant in the entire
,: election. We have already extracted the offending messages which were
published in "The Bahmani News" allegedly by IUML and MYL in the
H earlier part of this judgment. The petitioner went on to say :
OU AMAR UL ISLAM v. S.K. KANTA [DR. ANAND, J.) 233

"......These publications have been made by respondent- I A
and with .. his consent in the daily Urdu News paper
referred to above. Many such publications have been
made throughout the period of election i.e. between
1.11.1989 to 24.11.1989 including the date of election. The
appeals made by the publications have been made by B
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 prejudically af-
fecting the election of this petitioners. The said appe.tls
are made on the ground of religion and caste viz. the
Muslim Community. Respondent-I belongs to the
c
Mohammedan community. Respondent-I belongs to the
Mohammedan electorate in particular and the said ap-
peals amount to religious appeal as referred to in Section
123(3) of the Representation of the People Act, 1951".
D
23. The election petitioner, thereafter, referred to the message and
advertisement in "The Bahmani News" dated 15.11.1989 in the following
terms:

"In fact the appeal in the publication dated 15.11.1989 E
in the above mentioned Urdu Newspaper, has not only
got a message, but also contains a sacred religious symbol
written in Urdu, which reads Ershade Nabhavi when

- translated would convey the following meaning. Voice of
paigamber-e-Islam i.e. Voice of Prophet of Islam. Seeking
votes under a r~ligious symbol amounts to corrupt practice
under Section 123{3). Besides the use of the said symbol
F

and the publication also amounts to promotion of feelings
of enmity and hatred between different class of citizen of
Indian on the ground of relgion, race, caste and com- G
munity. This also amounts to an attempt by the respon-
dent-I and with has consent, by the Convenor of Muslim
Youth League for the furtherance of the prospects of the
election of respondent-I and have prejudically affected the
election of this petitioner, and amounts to corrupt practice H
234 SUPREME COURT REPORTS [1994] 1 S.C.R.

A under section 123(3A) of the aforesaid Act."

The election petitioner then stated that apart from the messages published
in the newspaper which come within the mischief of Sections 123(2), (3)
and 3A of the Act, a statement of fact, which is a false statement, was also
made by the appellant and with his consent by others, as published in the
B newspaper dated 1.11.1989, to the following effect :
-..,,-
!

"Recollect your memory before voting, that you might have
come across to hear this sentences :-

"I Will not sign on your passport forms because I have
c 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
D relates to the personal character and conduct bf 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".
E The election petitioner has been alleged that the returned candiate ·
also delivered speeches which amount to the commission of various corrupt
practices. In paragrah 11 of the election petition, the election petitioner
asserted:

F "That apart, apart from publishing the message in the
newspaper, respondent no.1 has spoken to the el~ctorate
of the 10 Gulbarga Assembly Copstituency in various
places offencing the religious·feeiings of the communities
and thereby bringing a rift between the other communities
and -M~lims, amounting a corrupt practice as stated in
G 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-11 at an election meeting, among other
things uttered the following speech in Urdu, which clearly
indicates that there has been interference in the free
H exercise of the electoral right by the Electorate on the
QUAMARUL ISLAM v. S.K. KANTA [DR. ANAND, J.] 235

basis of the religion and community feelings. The extract
of the speech reads thus :-

"Muslim Youth League ke convenor Mister Mohiuddin
Pasha. Gujeesta Numaindl!Jle Main passport form per
dasthakat nahin karoonga, Kahakar Firkha prasthi Ka
Ainae Lagaya. Sabekha MIA Nay Muslim Ilakhaun main B
Borewell kay liye sifarish tak nahee ki. Prakash Akash
Kore nay chay saath muslim Makan today hain. Musal-
manaun kaa Imaani Josh Tha jo unhonney Muslim league
to har bear jeeyade vote diye. Aap ko sabz parcham ki
Izzad Rakhana hai. Apnay Ittehad ko Mazhooth Karna c
hooga. Hindustan Mein Jab Tah Ek hi Musalman Kalmaa
Haquee bolnay walaa hai Muslim league ko Naheen Meet-
ta sakta. Jab toom Apnay mohalley main javogey the
athraaf dekho kaheen umnaafikhay Islam (Islaam kay
Gaddar) Meer Jafar, Mir Sadiq, jaisay cominay Millath
Kay khilaaf Muslim League _kay kheelaff kaheen sazeesh D
tho nahee kar rahey hain".

The utterances of the respondent-I excerpted above
amounts to corrupt practice or undue influence and
religious appeal on the ground of caste and religion". E
24. In para (xiv), the election petition stated thus :

. "The respondent-I committed the corrupt practices
narrated above in· the No.10 Gulbarga Assembly Con-
stituency, by the various publications, utterances and by F
procuring the assistance of the Re.turning Officer,
throughout the period of election i.e. from 1.11.1989 to
24.11.1989".

In the affidavit filed in support of the allegations of the corrupt practice in
the petition (as akeady extracted) the election petitioner did not disclose G
the source of information, which the election petitioner, believed to be true
in. support of the allegations of corrupt practice as detailed in the election
petition. Besides, Shri Moiuddin Pasha was specifically described as the
election agent of the appellant-respondent who had also committed the
corrupt practices alleged in the petiton. H
236 SUPREME COURT REPORTS [1994) 1 S.C.R.

A 25. In the written statement (styled as objection statement) the
appellant herein categorically asserted that he had not appointed Mohd.
Moiuddin Pasha as an election agent at any time and that Kaiser
Mohammed was his election agent. In para 5, the appellant stated as
follows:
B
"The allegations that this respondent had committed cor-·
rupt practices within the meaning of Section 123(2), (3), y·
(3A) and (4) of the Peoples Representation Act, are all
false. The publications if any, issued by the Indian Union
Muslim League or by Muslim Youth League have anything
c to do with this respondent, as he was not a Member of
the Indian-Union Muslim League, much less its Secretary.
This respondent was not a member of Muslim Youth
League either. This respondent had nothing to do with
the publications alleged to have been published in
D Bahamani News. It is submitted that the publications in
Bahamani News were not originated nor sponsored by this
respondent. Hence, the publications in Bahamani News
regarding Ershed-na-bhavi have anything to do with this
respondent nor they were published either at the instance
of this respondent or that of his election agent".
E
The respondent denied making speeches as alleged in para 5 of the petition •
and stated that the allegations were false and a figment of the imagination
of the petitioner. The appellant supported his assertion that he was a
candidate of the Muslim League Party and not of the IUML by annexing
F with his written statement, Form A and Form B, as prescribed by para
13(b) of the Election Symbols (Reservation and Allotment Order 1968).

26. It transpires from the record that after evidence was led by the
parties, the election petitioner filed yet another affidavit on 4.9.1992. In the
said affidavit, which was filed after the arguments were over, Mr. Moiuddin
G Pasha, who had been described as an election agent in the first affidavit
· filed in support of the allegations of corrupt practices along with the
election petition, was now described "only as an agent". The avernients
'made in the second affidavit dated 4.9.1992 were stated to be based on
"personal knowledge" and not on the basis of 'belief or "information" wilike
H in the first affidavit. We .are at a loss to understand as to how the learned
QUAMARUL ISLAM v. SX KANTA [DR. ANAND, J.) 237

trial judge permitted the filing of an affidavit on 4.9.1992, in support of the A
election petition after the arguments were over. It was a novel procedure,
unknown to civil law or the election law, and was in direct breach of the
statutory provisions contained in the R.P. Act and the rules framed there-
under. (See [1972] 3 S.C.R. 955 supra). Such an affidavit, could not have
been permitted to be brought on record and we are constrained to say that B
the learned trial judge did not apply his mind to the case in a proper and
judicial ·sense and took into consideration the second affidavit dated
4.9.1992 while deciding the election petition.

27. It also appears form the record that the returned cnadidate
(appellant herein) filed an application, being IA III on 3.4.1992, stating C
therein that the election petition was liable to be dismissed for lack of
furnishing material facts and material particulars in the election petition.
In the application, specific objection was raised with regard to the lack of
material facts and material particulars in the election petition and it was
asserted that the election petition did not disclose a full cause of action. D
That application, however, was decided alongwith the main election peti-
tion and rejected on the ground that it was "too late in the day to set the
clock back". We also find that when the returned candidate raised objec-
tions during the course of recording of evidence to certain "material" being
brought on record on the ground that it had not been pleaded in the
election petition or that it was not supported by the affidavit filed in E
support the allegations of corrupt practice filed alongwith the election
petition, the learned trial judge over-ruled the objections. It is interesting
to note the court-ruling in this behalf: ·

"Courts Ruling: This tribunal has proceeded to record the p
evidence of this witness so far given on the basis of issues •
. 2, 3 and 4 which are the corrupt practices covered under
123(2), (3), {3A) and 123(4). These issues though a burden
on the petitioner to prove that the respondent No.1 has
committed that he appealed to the religion, caste com-
munity or religious symbols to further his prospects and G
it promote or attempt feelings religion caste, community
.etc.

Since the evidence of this witness is in accordance with
the issues framed in this Election Petition the objections H
238 SUPREME COURT REPORTS [1994) 1 S.C.R.

A of the learned counsel for the respondent is over-ruled".

28. The newspapers referred to and relied upon in the election
petition had not been filed along with the election petition. The copies of
newspapers and some other documents 'Were filed subsequently and in the
accompanying application it was stated by the election petitioner that the
B same were not available with him earlier. Those documents were filed after
the evidence had commenced. The returned candidate (appellant) raised
objections to the production of those documents at that late stage. In the
affidavit filed in support of the objections, the appellant stated :

"3. In the entire Election Petition there is no reference to
c any of these documents now sought to be produced.

4. On the pleadings, this Hon'ble Court has framed issues
which are mainly referable to Section 123 of the Repre-
sentation of Peoples' Act. Section 123 of the Act refers to
D corrupt practice. The statement that the petitioner coul.d
not produce the copies of the newspaper as they were not
available,. is false. In an Election Petition wherein the
allegations relate to corrupt practice the law is clear, in
that; Section 83 of the Act provides that the Election
Petition should contain a concise statement of facts on
E which the petitioner relies, and, further that he must also
set-forth full particulars of corrupt practice that the
petitioner alleges, including as full a statement as possible
of the names of the parties alleged to have committed such
corrupt practice and .the date and place of each such
F corrupt practice. The Section is mandatory.

• The applicatior1 cannot be entertained at all at this late
stage. Even now, no facts or circumstances have been
mentioned to give even the haziest picture for the basis
that the publications were effected for and on behalf of
G this respondent and with the connivance of this respon-
dent. It is submitted that nothing can be rather than truth
the copies of the newspapers were not available for a
period of nearly two years. That apart, that is not a ground
for accepting documents without pleadings in t~e Election
H Petition at this late stage. ·
QUAM.AR.UL ISLAM v. S.K. KANTA [DR. ANAND, J.) 239

For the reasons stated above, this respondent prays A
that this Hon'ble Court may be pleased to reject the
application, in the interest of justice".

Amongst the documents which the election petitioner sought to produce
at that late stage were some advertisements allegedly issued by the IUML B
and MYL in the newspapers between 1.11.1989 and 24.11.1989 as also
reports of speeches allegedly made by the appellant during the election
campaign. The Court dealt with the application and the objections vide its
order dated 11th of October 1991. The learned trial judge allowing the
application of the election petitioner, observed :
c
23. "The petitioner has made a reference to these
newspapers and this Court also issued summons to the
Editor to bring the newspapers maintained in his office in
accordace with the Indian Press Act and to give evidence
about those newspapers. Due to non-availability of those
D
newspapers, the petitioner has shown the excerpts of those
newspapers which were in his possession at the time of
filing of this petition and those excerpts were brought to
the notice of the witness P.W.4, the Editor of those
newspaper and those portions were marked as petitioner's
exhibits. The contention of the petition or that these E
newspapers are produced at this stage due to non-produc-
tion by the editor of the said newspaper allowing of these
newspapers as documents relied by the petitioner at this
stage is justified. The· question of proof contained in the
newspaper is the subject matter evidence and at this stage, F
such contingency does not require a debate. Since PW4
has failed to produce these documents, the petitioner can
lead a secondary evidence under Section of the Indian
Evidence Act, if law provides such contingency.

24. What we are concerned at this stage is condoning the G
late production of documents by the petitioner and ap-
preciating the reason assigned for such late production as
contemplate under Order 13 Rule 2 of the Code of Civil
Procedure. The Judgments of the Supreme Court averted
by Sri Mohandas Hegde are not relevant at this stage of H
240 SUPREME COURT REPORTS (1994) 1 s~c.R.

A the case. Since the petitioner has shown sufficient cause
for non-produi:tion of these docume~ts, I.A I is liable to
be allowed ......"

29. In our opinion, the approach of the trial judge was not correct
and it seems that he was treatin~ the trial of the election petitiodin a rather
B casual manner, unmindful of the provisions of the Act and the Rules
framed thereunder as also the law laid down by this Court from time to
time on the relevant aspect.

30. The election petitioner filed the first list of witnesses on 21.9.1990.
C At serial No.3, the election petitioner summoned "Circle Inspector of
Police Gulbarga" :

1."to produce all the original documents pertaining to
Muslim League candidate permission granted to Sri
Mahamad Ahmed, IUML, Gulbarga bearing permission
D No.35-89, 54-89 and 70-89 and to give evidence in the
matter.

2. to produce the oral complaint registered by the on
24.11.1989 at Roza Police Station".

E Again, at serial No.(i) in the further prayer in the same application, the
petitioner summoned Shri Prakash Kore Ex. C.I.T.B. Gulbarga H.No.5-589,
Chote Roza, near Police Station, Gulbarga, "to produce the original tape
recorded ~peech of' Sh. QamalUl Islam". It was in an additional list of
witnesses filed on 22.10.1990, that the election petitioner summoned, at
F serial No.1, Mr. Azizullah, Editor, Publisher & Printer of 'Bahamani News'
with the documents mentioned against his name. At serial No.6 of the
additional list dated 22.10.1990, the petitioner also summoned ''Basavaraj
Ingini C.P.l. Harnabad, Distt. Bidar to produce all the original documents
pertaining to Muslim League candidate - permission granted to public
meetings and loud-speaker permission throughout the election period and
G produce the recorded speech of Sri Quamarnl Islam in public meeting held
at various places and give the evidence". The learned trial judge allowed
the summoning of witnesses as contained in the lists dated 21.9.1990 and
22.10.1990 in a totally mechanical manner. The election petitioner was not
called upon to explain as to why the name of the editor Shri Azizullah did
.H not figure in the first list of witnesses ~r why a departure was made in the
QUAMARUL ISLAM v. S.K. KANTA (DR. ANAND, J.) 241

second list by summoning Shri Basavaraj Ingini with the tape recorded· A
-+ speech of the appellant, when he was not asked to produce any sm:h tape
recorded speech in the first list where he had been summoned at serial
no.3 and instead it was Mr. Kore, summoned at s.no. (i) in the further
prayer in the first list of witnesses who had been directed to produce the
tape recorded speech of the appellant. In an election petition the filing of B
a
- the list of witnesses, with brief of the relevance of their evidence is not
only intended to put the opposite party on notice about the evidence sought
to bP; summoned but also to bind the party to the production of the relevant
evidence as detailed in the list. The list of witnesses has a lot of sanctity
and importance but in this case, no consideration appears to have been
given by the learned trial judge to this aspect and without examining the C
two lists, orders came to be made to summon the witnesses in a mechanical
manner. The procedure adopted by the learned trial judge was not the
proper procedure to be followed while trying an election petition. The list
of witnesses are required to be carefully scrutinised before issuance of
summons. That apparently was not done in the present case.
D
31. The allegations of corrupt practice in the election petition, in our
opinion, are rather vague. The allegations as noticed in the earlier part of
this judgment, are not specific, precise ad clear. Both material facts and
particulars have not been supplied with sufficient clarity. The original
affidavit filed in support of the election petition and the affidavit filed at E
the stage of arguments, with an attempt to bring it in tune with the evidence
led in the case, are also not clear and expose the shifting stand of the
election petitioner. We have already commented upon the manner in which
the list of witnesses were filed and two different witnesses in the different
lists were asked to produce the same material object i.e. the tape recorded
F
speech of the appellant. It is, after keeping, in view all these factors that we
have to analyse the·evidence led in the case and appreciate the arguments
raised at the bar. Indeed, the returned candidate, appellant herein, also
did not in the written statement point out the defects in the pleadings or
the lack of material facts and material particulars at the earliest stage and
both the parties went on to trial despite these defective pleadings. G

32. A Constitution Bench of this Court in Ba/wan Singh v. Lakshmi
Narain, A.l.R. (1960) S.C. 770, observed :

"......Insistence upon full particulars of corrupt practices is H
242 SUPREME COURT REPORTS (1994) 1 S.C.R.

A undoubtedly of paramount importance in the trial of an
election petition, but if the parties go to trial despite the.
absence of full partieulars of the corrupt practice alleged,
and evidence of the contesting parties is· Jed on the plea
raised by the petition, the petition cannot thereafter be

-
dismissed for want of particulars, .because the defect is
B one of procedure and not one of jurisdiction of the
Tribunal to adjudicate upon the plea in the absence of
particulars. The appellate court may be justified in setting
aside the judgment of the Tribunal if it is satisfied that by
reason of the absence of full particulrs, material prejudice
c has resulted......"

33. Even if the application of the appellant, IA III, seeking dismissal
of the election petition may be held to have been rightly rejected on the
ground that after the parties had gone to trial, despite the absence of full
D facts and particulars of the alleged corrupt practice and had led evidence,
an election petition is not liable to be thereafter dismissed for those defects
only but in such cases, the evidence that is required to prove the allegations
of corrupt practices in an election petition has to be more strictly
scrutinised, lest the evidence, which in a way travels beyond the pleadings,
is accepted withoutproper analysis.
E
34. Before we proceed to consider, whether any connection has been
established between the Muslim League and IUML or whether the
returned candidate can be fastened with the liability for the publication of
the advertisements and messages in the newspapers, allegedly got publish-
F ed by the IUML or MYL, ·we consider it appropriate to deal with the proof
of allegations relating to the commission to various corrupt practice, as
alleged in the petition.

35. We shall first deal with the allegations with regard to the com-
mission of corrupt practice under Section 123(4) of the Act which are
G contained in ground no.10 of the petition and extracted in an earlier part
of this judgment. A careful perusal of the allegation 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 was false to the knowledge of the returned candidate ·
H or that he made it without believing that statement to be true. There was, , /
I
QUAMARULISLAM v.S.K.KANTA[DR.ANAND,J.] 243

thus, no allegation whatsoever which satisfied the basic requirements of A
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 believe to be true and in the absence
of any such averment in the election petition and the affidavit filed in
support thereof, the trial court should not even have framed an issue B
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 as contained in the said paragraph was false to the
kilowledge of the returned candidate or/and was made by him without
believing it to be true. The learned trial judge, therefore, fell in error in
holding that the returned candidate was guilty of committing the corrupt C
practice as envisaged by Section 123(4) of the Act and in fairness to
learned counsel for the election petitioner (Respondent-I) we must record
that he also did not support the finding of the High Court as regards the
commission of corrupt practice under Section 123(4) of the Act and we
accordingly set aside that finding. The evidence of Shri Subhash Chandra D
Khutiya, PW2, who was the Deputy Commissioner of Gulbarga District on
27.10.1989 or of Shri Ramarao Patil, PW3, who took· charge of the Cor-
poration Commissioner of Gulbarga on 6th of June 1988 and handed over
the said charge on 15.6.1990 and was the returning officer in the election
held during 1989 relates to other issues which have been found against the
election petitioner and with which we are strictly speaking not concerned, E
as their correctness has not been assailed before us.

36. Coming now to the allegations regarding commission of corrupt
practices under Section 123(2)(3) and (3A) of the Act. Though reading of
the full text of the reports and messages/advertisements as published in p
Bahmani Newspapers of different dates, which were produced at a rather
late stage during the trial, do give rise to an inference that they contain an
appeal on the ground of religion and have the tendency to promote or
attempt to promote feelings of enmity and hatred between different classes
of citizens of India on grounds of religion, community etc. for the fur-
therance of prospects of the election of the returned candidate or prejudi- G
dally affecting the election of any other candidate and amount to a virulent
type of objectionable communal propaganda, not permitted by law and
amounts to the commission of corrupt practices as envisaged by Sections
123(2)(3) and (3A) of the Act, but the basic question to which we have to
first address ourselves is whether the said publications have been proved H
244 SUPREME COURT REPORTS [1994] 1 S.C.'.R.

A by any admissible evidence and if so whether they can be connected with
the returned candidate or can be said to have been issued by the returned
candidate or his election agent or by any other person with the consent of
the election agent or the returned candidate himself.

37. The allegations regarding the. commission of these corrupt prac-
B tices are ~ought to be proved firstly by the production of copies of
"Bahamani News", to prove which the election petitioner examined Shri
Azizullah Sharmast PW4, the editor and publisher of the Bahmani
· Newspaper.

c 38. We shall first advert to and deal with the reports relating to the
speeches allegedly made by the appellant and his election agent, at Roza
Market, Jalanabad and Muslim Chowk on different dates as alleged in the
. petition. Admittedly, on his own showing, the said witness Shri Azizullah,
PW4 was not present at the time when the speeches were delivered by the
returned candidate at different meetings and the publications in the
D
newspaper were made on the basis of the reports sent by reporter. It is in
the evidence of PW4, Azizulla Sharmast, that the reports about the meet-
ings were sent to him by the reporter, Mr. Mohd. Feroz who had covered
those meetings. Mr. Feroz, however, was not examined by the election
petitioner as a witness. Mr. Azizullah, PW4, also did not produce the
E original reports as sent to him by Mr. Feroz as according to the witness,
·those reports were not preserved. No manuscript of the reports was
produced. Can the mere production of the copy of the newspaper be
treated as proof of the report of the speech (news item) contained therein?
In our opinion the answer has to be in the negative.
F
39. Newspaper reports by themselves are not evidence of the contents
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 his reports produced, the production of the newspaper
G by the Editor and publisher, PW4 by itself cannot amount to proving the
• ..
·contents of the newspaper' reports. Newspaper, is at the best secondary
.. evid~nce_ of its contents and is not admissible in evidence without proper ,/
proof· of the contents under the Indian Evidence Act. The learned trial
judge could not treat the newspaper reports as duly 'proved' only by the
H production of the copies of the newspaper. The election petitioner abo
,. . ,'
QUAMARULISLAf.1 v. S.K. KANTA [DR. ANAND, J.] 245

examined Abrar Razi, PW5, who was the polling agent of the election A
petitioner and resident of the localit}' in support of the corectness of the
reports including advertisements and messages as published in the said
newspaper. We have carefully perused his testimony and find that his
evidence also falls short of proving the contents of the reports of the
alleged speeches or the messages and the advertisements, which appeared B
in different issues of the newspaper. Since, the maker of the report which
formed basis of the publications, did not appear in the court to depose
.about the facts as perceived by him, the facts contained in the published
reports were clearly inadmissible. No evidence was led by the election
petitioner to prove the contents of the messages and the advertisements as
the original manuscript of the advertisements or the messages was not C
prouced 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 came in accordance with the manscript. There is no satisfactory and
reliable evidence on the record to even establish that the same were
actually issued by IUML or MYL, ignoring for the time being, whether or D
not the appellant had any connection with IUML or MYL or that the same
were published 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 PW4 and PW5
to prove the contents of the messages and advertisements in the newspaper
in our opinion was wrongly admitted and relied upon as evidence of the E
contents of the statement contained therein.

40. This Court in Laxmi Raj Shetty v. State of Tamil Nadu, [1988] 3
S.C.C. 319 at 346, considered the question of admissibility of the news items
appearing in a press report in the Newspaper and opined : F

"We cannot take judicial notice of the facts stated in
a news item being in the nature of hearsay secondary
evidence, unless proved by evidence aliunde. A report in
a newspaper is only hearsay evidence. A newspaper is not G
one of the documents referred to in Section 78(2) of the
Evidence Act, 1872 which an allegation of fact can be
proved. The presumption of genuineness attached under
Section 81 of the Evidence Act to a newspaper report
\ cannot be treated as proved of the facts reported therein. H
246 SUPREME COURT REPORTS [1994] 1 S.C.R.

A It is now well settled that a statement of fact contained in
a newspaper is nerely hearsay and, therefore, inadmissible

l
in evidence in the absence of the maker of the statement
appearing in court and deposing to have perceived the
fact reported."
B In the present case, we find that no legally admissible evidence has been
led by the respondent-election petitioner, in proof of the facts contained
in the newspaper reports (news items), messages and advertisements. The.
appellant, returned candidate, denied tbe making of the offending state-
ments. The various newspaper reports, •.Jvertisements and messages, as
c published in Bahmani Newspaper cannot be treated as proof of the facts
stated therein and cannot be used against the appellant in the absence of
\.
any evidence aliunde.

41. The election petitioner also sought to prove the allegations
regarding the making of speeches as alleged in the petition and reported
D in the newspaper, at Roza Market and Jalanabad, by the appellant, by
production of a cassette, Ex.P7, allegedly recorded by PWl Basavaraj Ingini,
Circle Inspector of Police, containing the tape recording of the speeches
of the appellant, as detailed in para (xi) of the election petition (supra).

42 .. In the said paragraph, reference is made to the speech at Roza
E market allegedly made by the appellant 8 days prior to the date of poll at
about 9.30 p.m. The returned candidate denied to have made any such
speech. PWI, Basavaraj Ingini, was working as the Circle Inspector of
Police at Gulbarga-City Police Station Gulbarga from 8.8.1988 to 28.5.1990.
The cassette was produced by him in the High Court on 12.11.1990 and
F kept in safe custody by the court. In his deposition at the trial given on
13.11.1990 apart from stating that he had given licence for use of loud-
speakers etc. to various candidates including the appellant, he deposed :

"............ .In some places I have recorded the speech made
by R-1 in a cassette. The places where the speech made
G by R- 1 was recorded in Roza market and Jilanabad. I
have recorded the speeches as routine of police work. I
have produced the cassette, where I recorded the speech
in obedience to the summons issued from this court
............................................ I had the custody of this Tape )
H after recording the same. Nobody has any access to the I
QUAMARUL ISLAM v. S.K. KANTA [DR. ANAND, J.] 247

Tape ............. " A
43 The witness thereafter, went on to say that the voice in the tape
was that of the appellant and added :

"I was keeping Ex P-7 in my personal safe custody. Ex
P-7 was not used by anybody as it was in my custody. B
(Witness volunteers that he has also not made attempt to
listen to the cassette) I do not have the transcript of the
speech recorded in Ex P-7.)

During the cross exammation, the witness admitted :
c
"I did not inform anybody about the recording of
speeches in this Election Campaign. I have not informed
the petitioner about informed the petitioner about record-
ing the speech made by R-1. I do not know how the
petitioner came to know about my possessing the cassette
D
at Ex. P-7. I have recorded the speeches of various persons
in this Election in 5 to 6 cassettes. After recording I did
not play these cassettes in my house. I have kept these
cassettes m,_a cupboard (Almirah owned by me).

I carried the cassettes along with me when I was E
transferred from Humnabad. The Almirah I referred
above had only one key. My wife had no access to the said
Almirah.

In Ex P-7 two pieces of speeches are recorded at
Rozar and Jilanabad. It was not contained full speech but F
a part of the speech of each place and the Tape was
completely used.

I recorded the speech from a distance of 100 yards
from the place where the Dias kept. I did not find any
objectionable statments in the speech of R-1 according to
G
me ....... "

44. Since, neither the general diary of the police station nor any other
material had been produced by the witness we found it necessary, after
\ perusing his evidence, to summon Shri Ingini; as a court witness alongwith H
\
248 SUPREME COURT REPORTS (1994) 1 $.C.R.

A some record which we considered necessary to do justice between the
parties.

45. Appearing as a court witness in this court, Shri Basavaraj Ingini,
PWI, stated that he was maintaining the general diary of the circle (police)
station and that he also attended meetings conducted during the last
B elections of various candidates since maintenance of law and order was a
part of his duty. He went on to add that on 15.11.1989, he attended the
meeting at about 8 a.m. at J alanabad, addressed by the appellant while on
16.11.1989, he attended the meeting of the returned candidate held at Roza
market, where the appellant and some others addressed the meetings and
c that he tape recorded the speech.. .: of the appellant and other speakers.
The witness was then ~onfronted with the general diary (which had been
summoned by us) dated 16.11.1989 and 17.11.1989 pertaining fo the meet-
ings held on 15.11.1989 and 16.11.1989 at Roza Market and Jalanabad and
he admitted that he did not make any entry in the general diary regarding
the tape recording of the speeches of iilc; appellant and others on either
D of these dates. He deposed that he had made the tape recordings under
oral instructions given to him by the Superintendent of Police, Gulbarga,
but conceded that there was no entry in the daily diary with regard to any
such oral instructons having been given to him. He went on to add that he
had, after tape recording the speeches, informed the Superintendent of
E Police orally that he had tape recorded the speeches. When asked as to
why he had kept the tape recorded cassettes with him and not deposited
the same in the police station, since in his earlier deposition at the trial, he
had deposed that he had tape recorded the speeches as "routine police
work", the witness answered that since "they were not required for official
purpose" he kept the same with himself. He was then asked that if they
F were not required for official purpose "why did you keep the recorded ·
speech with you"? The Witness answ~red that "it was done casually". The
following questions and answers· of the witness, as recorded in this Court,
are of significance, to appraciate the credibility of the ace evidence led by
the election petitioner regarding the cassette, Ex.P7.
G
"Question: Did you meet Mr·. S.K. Kanta at any point of
time after the election?
.
Answer: Yes. l
/
H Question: When and in what connection?
I
QUAMARULISLAM v. S.K. KANTA (DR. ANAND, J.] 249

Answer: Once or twice in law and order problem. A
Question: After you were transfered from Gulbarga Police
Station.............. .

Answer: I did not meet Mr. Kanta after I was transferred
from Gulbarga constitutency. B
Question: Have you made any entry in your General Diary
that you tape recorded the speeches of candidates on the
instructions of Superintendent of Police and that you are
having the tape recorded speeches in your possession?
c
Answer: No .
.
Question: Did you inform Mr. Kanta that you had tape
recorded the speech of Mr. Quamarul Islam and you are
in possessison of the recorded speech? D
Asnwer: At no point of time I informed Mr. Kanta that I
am in possession of the recorded speech.

Question: Did he ask you at any point of time that you
are in possession of his tape recorded speech?
E
Answer: No.

Question: When did you hand over the recorded speech
to the Court and on which date?

Answer: I do _not remember; it may be 12th or 13th.
F

Question: Did you inform Mr. Kanta that you were in
possession of the tape recorded speech?'
..
Answer: No."
G
46. The witness, when further questioned, stated that he was ap-
pointed as a direct recruit sub-inspector and was promoted to the rank of
Inspector of Police in 1981 and that he had known Mr. Kanta intimately
for about 10-12 years prior to the said election as they hail from the same
village. He asserted that he had not informed Mr. Kanta at any point of H
250 SUPREME COURT REPORTS [1994] 1 S.C.R.

A time that he had even attended the meeting of the appellant. The witness
added that both the tape recorded and the tapes (cassettes) were his
personal property and that "I have not informed anyone that I have
recorded (the tape recorded) speech of Quamarul Islam or that I was
keeping the same with me". To a specific questions by the Court:
B "Therefore we take it. that you have not informed anyone .
that you recorded the tape recorded speech under the
instructions of S.P.

Answer: Yes."·

C The witness was then asked by the Court:

"Question: Did you inform the Court when you were
examined as a witness in the election petition that you ·
have not made any entry in your general diary about the
recording of the speech or that was on the oral instructions
D
of the S.P.".

"Answer: No. For the first time before the Supreme Court
I am coming with an explanation that the speech was
recorded under the oral instsructions of Superintendent
E of Police because I was not asked earlier any such question
as to under whose instuctions I tape recorded the speech".

The Court then asked him whether he had at the trial stated before the
trial court that he had recorded the speeches as a "routine police work?"
and he replied in the affirmative. He was then questioned :
F
"Question: Therefore this question was asked to why the
(speeches) was recorded?

Answer: Yes, I was asked.
•
G Question: Even then you did not come forward. with an
explanation that you tape recorded the speech under the
oral instructions of Superintendent of Police.

Answer: No."

H During his cross examination on behalf of the appellant by Mr. Sibal, t~e
QUAMARUL ISLAM v. S.K. KANTA [DR. ANAND, J.) 251

---1 witness admitted that when the Superintendent of Police gave him oral A
instructions to record the speeches of candidate whether the S.P. had
enquire~ iHhe appellant was in need of a tape recorded for the purpose
and the witness replied in the affirmative. He was then asked :

"Question: Therefore you believed that the instructions
were official instructions? B
~
Answer: Yes".
/

The witness was then asked whether he had made any entry about attend-
ing t~ meeting of the appellant at Roza Market in the daily diary and after
referring to the daily diary relating to 16.11.1989, written on 17.11.1989, the
c
witness admitted that "I have not mentioned Roza Market speech of
Quamarul Islam" in the daily diary report for the relevant date.

The witness when further questioned deposed that after his transfer from
Gulbarga police station, he had carried the tape recorded cassettes along D
-------- with the tape recorder with him and had kept the cassettes in the almirah
at his residence alongwith his other cassettes and contrary to what he had
stated before the trial judge, admitted that "my wife and children had
access to the almirah only in which the cassettes were kept but they were
to use only music cassettes".
E
47. We have carefully perused the relevant pleadings, the deposition
of Shri Ingini at the trial, the testimony of the election petitioner and the
deposition of Shii Ingini as a court witness. It appears rather strange to us
that on oral orders of the Superintendent of Police, Shri Basavaraj Ingini,
PWl, Circle Inspector should have used his own tape recorder and tape F
recorded the speeches at various meetings of different candidates on his
personal cassettes and thereafter on his transfer ·from Gulbarga police
<
station taken all those cassettes with him and kept then in his own safe
/

custody in an almirah, though the same were not required for any "official
purpose". Sh. Ingini has been unable to explain either before the trial judge
• or before us as to why he was 'preserving' all those cassettes and for whose G
bem..tit. There are not only many loose ends in his evidence but certain
_..{ glairing features which cast serious doubts on the credibility of this witness
and the election petitioner regarding the recording of the speeches of the
appellant in cassette, Ex.P7. In his statement made at the trial, Sh. Ingini
categorically stated that the recorded tape were kept by him in his "per- H
252 SUPREME COURT REPORTS [1994] 1 S.C.R.

A sonal custody" and that nobody else including his wife had any access to
the same, but appearing as a court witness, he conceded that his wife and
children also had access to those cassettes but went on to add that they
were to listen only to the music cassettes. According to Shri Ingini, he knew
Shri Kanta, the election petitioner intimately for the past more than 10/12
years, as they belong to the same village and that they had been visiting
B each other. The election peitioner, appearing as PW6 at the trial, however,
categorically stated "/ do not know PWJ Basavaraj Ingini at all". According
to Shri Ingini, he did not inform Shri Kanta or anyone else, except the S.P.
orally that he had tape-recorded the speeches and that he did not inform
anyone that he was having the recorded cassettes in his possession and that
c after recording the cassette, he had not replayed it even to hear it. The
election petitioner - respondent No.l, at the trial when questioned as to
how he came to know about the tape recorded cassette which had been
summoned by him from the witness, answered:

"...... I do not know PWl Basavaraj Ingini. As per the
D information that police will generally make Tape record-
ing of the speeches, I came to know the recording.

Question: Who gave the information regarding the Tape
recording?
E
Answer: I came to know by general information.

I cannot say which person on which date and at what
time informed me about this tape recording. I was aware
about the general information of recording the speeches
F of Tape recording at the time of my filing of Election
Petition. I did not take any efforts to get at that cassette.
I did not make any mention in my Election Petition in
resp_ect of this tape recording. It is not correct to suggest
that 'even though I was aware of the existence of a tape, I
did not mention in my Petition" deliberately.
G
The election petitioner - respondent no.1 then stated that "I did not hear
the said cassette completely before filing the petition" implying thereby that
he had .'partially' heard the cassette before the same was played in the High
Court. From the evidence of Basavaraj lngini, PWl, and the election
H · petitioner, we find that the story regarding the recording of the cassette
··~

QUAMARUL ISLAM v. S.K. KANTA [DR. ANAND, J.] 253

Ex.P7 by Shri Ingini is shrouded in mystry and the cassette. Ex.P7 appears A
to be a piece of evidence on which reliance cannot be placed since the very
basis as to how it came to be recorded and why it was preserved or how
the election petitioner came to know about it, has not been explained by
the election petitioner and has been further confused by Basavaraj Ingini,
appearing as a court witness. The appellant has denied his voice in the B
recorded cassette. In this connection, it is also pertinent to remember that
>'
whereas in the list of witnesses initially filed by the election petitioner, he
had cited Mr. Kore as the witness from whom the cassette containing the
speech of the appellant was sought to be produced even though in the same
list the Circle Inspector of Gulbarga police station (Sh. Ingini) had also C
been summoned alongwith the record but not the tape recorded cassette. It
was only in the second list of witnesses, that the election petitioner sought
the production of the cassette from Shri Basavaraj Ingini, who he again
cited as a witness notwithstanding the fact that he had already summoned
the said witness in the first list of witnesses. Is it that Mr. Kore had refused
to oblige the election petitioner and therefore Mr. Ingini, who knew the D
election petitioner intimately for 10-12 years and hailed from his village,
was thought of as a convenient witness to produce the recorded cassette?
We are only left to guess, because the election petitioner has not advanced
any explanation for the meaningful departure between th.e two lists of
witnesses. Since, cassette Ex.P7 was only a piece of evidence, the non E
mention of the same in the pleadings may not be of much consequence in
so far as the petition is concerned because evidence is not required to be
pleaded, but then it was an obligation on the part of the election petitioner
to explain as to how in the first list of witnesses, the cassette which was
summoned from Mr. Kore was later on summoned from Shri Ingini and F
what made the election petitioner to think that the cassette had been
preserved and even taken away by Shri Ingini from Gulbarga, after his
transfer and retained in his safe custody at his new place of posting. No
explanation has been offered at all by the witnesses or their learned
counsel. According to Basavaraj Ingini, PWl, after he had recorded the
cassette, he did not play it at all till he appeared in the court as a witness G
during the trial. He categorically asserted that nobody had heard the
cassette before the filing of the petition nor had he disclosed about
recording of the same to anyone, except orally to the Superintendent of
Police, yet, the election petitioner admitted during his cross examination
that he had heard the cassette before the filing of the petition but when H
254 SUPREME COURT REPORTS [1994) 1 S.C.R.

A confronted as to why he had not mentioned about it in the election petition
he stated that "he did not have any knowledge about the cassette' and later
on added that he had not completely heard it. When, where and from
whom did the election petitioner obtain the recorded cassette to hear it
partially? There is no explanation on the record about it. The manner in
which cassette Ex.P7, came into existence and was produced at the trial
B and relied upon by the election petitioner has created an impression on ·
our minds that the election petitioner has not come out with the true story.
The evidence of the Circle Inspector Basavraj lngini and the election
petitioner regarding the recording of the speeches of the appellant at Roza
Market and Jalanabad is not at all satisfactory convincing or trustworthy.
c The denial of the election petitioner that he even knew Shri lngini, when
according to Shri Ingini both of them hail from the same village and had
known each other intimately for the last 10-12 years is an obvious effort on
the part of the election petitioner to project total absence of any liaison
between the two and to show that Shri Ingini is an independent witness. It
D detracts so materially from the testimony of the election petitioner regard-
ing the story of the cassette Ex.P7, that it would not be safe to accept the
version of the petitioner or Sh. Ingini about the tape recording of the
speeches allegedly made by the appellant.

48. The learned trial judge fell in error, even without goinginto the
E question of the admissibility of cassette Ex.P7, which, has been seriously
disputed by Mr. Sibal in view of the denial by the returned candidate that
the voice in the cassette was his, to rely upon this piece of evidence and to
hold on the basis thereof, that the appellant was guilty of committing the
corrupt practices covered by Sections 123(2), (3), (3A) of the Act. We find
ourselves unable to rely on eassette Ex.P7 or to hold that it was recorded
F
in the manner and at the time and place as deposed to by the election
petitioner and Shri Ingini. The casettee Ex.P7 is not a reliable piece of
evidence and we rule it out of consideration for determining whether the
appellant delivered the speeches at Jalanabad and in Roza Market as
alleged by the election petitioner.
G
49. So far as the speech of the returned candidate at Roza market is
concerned, the election petitioner also made an effort to prove the same
>
by stating that he was himself present when the said speech was made and
that he had heard the appellant say all that which has been published in
H the "Bahmani Newspaper" and extracted in the election petition. PW5 has
QUAMARULISLAM v. S.K. KANTA[DR.ANAND,J.J 255

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

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

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

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

- this version or rely upon the same as it belies normal human conduct. The
non-production of the notes by the election petitioner and the doubtful
nature of cassette Ex.P7, impels us not to accept the version of the election
petitioner on this aspect of the case. It is also noteworthy that even the G
application for holding the meeting at Roza Market, Ex.Pl, dated
16.11.1992, had been made on behalf of IUML and signed by Mahmood
Ahmed, Secretary IUML and not by the returned candidate or by his
election agent and no connection has been alleged, much less established
between the said Mahmood Ahmed and the appellant. In the general diary H
256 SUPREME COURT REPORTS (1994] 1 S.C.R.

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

50. According to the election petitioner, the returned candidate also
delivered an offensive speech at Jalanabad; the substratum whereof has
D already been extracted by us from the petition. In the election petition,
apart from specifically mentioning that a speech was made by the appellant
at Roza Market, there is no specific mention of any speech having been
delivered by the appellant at J alanabad. The use of the expression at
"several places" besides Roza Market, in the petition where the meetings
E were allegedly held appears to have been designedly made by the election
petitioner to lead evidence in respect of such other places for which
evidence could be subsequently procured. In the pleadings specific refer-
ence to the speech by the appellant was made only of Roza Market and
not either of Jalanabad or Muslim Chowk. The learned trial judge should
not have permitted any evidence to be led in respect of the meetings
F allegedly held at Jalanabad or Muslim Chowk. A novel procedure appears
to have been adopted by the learned trial judge in over-ruling the objection
., raised on behalf of the returned candidate during the cross examination in
this respect by holding that since the evidence was in accordance with the
issues", the objections had no merit. In the face of vague pleadings and the
G absence of specific mention of J alanabad as a place where the appellant
spoke at a meeting, the .doubtful nature of cassette, Ex.P7, containing the
tape recorded speech allegedly delivered at Jalanabad and the absence of
any other evidence to support the plea, we hold that the election petitioner
has miserably failed to discharge the burden which lay on him to prove that
>--
H the returned candidate had committed the corrupt practice as alleged in
QUAMARULISLAM v. S.K. KANTA [DR. ANAND, J.] 257

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

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

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

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

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

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

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

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

and we respectfully reiterate the caution.

54. The reading of the newspaper 'Bahamani News' as produced in
E this case alongwith the advertisements and messages published therein on
behalf of IUML and MYL if established, by trustworthy and reliable
evidence to have been made by the returned candidate or by his election
agent or by his agent or any other person with the consent of the returned
candidate or his election agent, would have in all probabilities brought his
case within the net of the commission of the corrupt practices, as alleged
F
in the petition, but in this case the pleadings are so vague and the evidence
so scanty, unsatisfactory and unreliable, besides being partly inadmissible,
that it is not possible to connect the appellant, the returned candidate or
his election agent with any of the corrupt practices alleged in the petition.
We are constrained to observe that the High Court before invalidating the
G election and upsetting the verdict of the electorate, in its zeal to maintain
purity of elections, ignored not only the defects in the pleadings in the
election petition but also failed to analyse the evidence in its proper
perspective and even relied upon such evidence as is not admissible in law.
>-
H 55. The maintenance of purity of elections is indeed essential but ·the
QUAMARUL ISLAM v. S.K KANTA [DR. ANAND, J.] 259

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

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

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

58. The result of our above discussion is that the judgment of the H
260 SUPREME COURT REPORTS (1994] 1 S.C.R.

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

G.N. Appeal allowed..