Mohammad Yusuf and Another vs Bhairon Singh Shekhawat

V.S. Kokje, J.—This is the respondent''s application in an election petition for striking out pleadings and rejection of the petition for non-compliance with the provisions of Section 83(1)(a) & (b) of the Representation of the People Act, 1951 (for short ''the Act'' hereinafter). The application has been moved under Order V1 Rule 16 and Order VII Rule 11 of the CPC read with Sections 83, 86 and 87 of the Act.

It would be necessary to state basic facts before dealing with the application.

The petition relates to the respondent''s election to the Rajasthan Legislative Assembly from Bali Constituency (No. 166). October 19, 1993 was the last date for filing nominations, October 20, 1993 was the date fixed for scrutiny of nominations, October 22, 1993 was the last date for withdrawal of candidature, November 11, 1993 was the date of polling and November 27, 1993 was the date on which the counting was to commence. The original petitioner Mitha Lal Jain was the candidate set up by the Indian National Congress whereas the respondent was the candidate set up by the Bhartiya Janta Party. The respondent was declared elected at the election and Mitha Lal Jain, the original petitioner challenged the election by filing the election petition on January 12, 1994.

The election of the respondent was challenged on the grounds enumeraled in Section 100(1)(b) of the Act. To appreciate the controversy, it could be necessary to reproduce paragraph - 7 of the petition as also its verification :

PARA-7 (a) : that on 27th October, 1993 in a largely attended election meeting held in the afternoon in village Beda, which is situated in the constituency in question, the respondent Shri Bhairon Singh Shekhawat (on a public address system) made an appeal in the name of Lord Ram for seeking votes and also referred to the demolition of the structure of Babari Masjid and construction of the Ram Tample in the context of promotion of hatred between different classes of citizens of India on the ground of religion and community. The offending statement/appeal constitutes corrupt practice of undue influence within the meaning of Section 123(2), appeal on the ground of religion and caste and use of religious symbol u/s 123(3) and relating to promotion of hatred between different classes of citizens of India on the ground of religion and community u/s 123(3A) of the Act:

(b) that in the latter part of this speech the respondent Shri Bhairon Singh Shekhawat made an appeal to the electors to cast their votes for the furtherance of the prospects of his election on the ground of his religion (Hindu religion) and also made an appeal to the religious symbol of Goddess Laxmi seated on a lotus (Kamal Ka Phool) who is worshipped by every Hindu and particularly on the eve of ''Dhan Teras'' and the lotus being the symbol allotted to BJP which constitutes a corrupt practice within the meaning of Section 123(3) of the Act. The aforesaid speech is quoted as under:

^^lHkk ds v/;{k egksn;]

mifLFkr HkkbZ;ksa vkSj cguksa]

vki yksxksa us lkQk cU/kk dj esjk lEeku fd;k gS lkQk rks eSus cka/k fy;k ysfdfu esjs lkeus ;s leL;k gS fd bl lkQs dks eSa ysdj tk�a ;k bl lkQs dks ;gha NksM+ tk�a D;wdh lkQk cU/kkus ls lEeku ugha gksrk �vLi"V� lkQs ds lkFk gh vkidks ftl dke ds fy, eS vk;k gw� mldk lEeku djuk gksxk vc vki QSlyk dj ys vks fd lEeku djuk pkgrs gks rc rks eSa bldks ys tk� vkSj lEeku ugha djuk pkgrs gks rks eSa ;gh NksM+ tk�a �rkfy;ksa dh vkokt�] rks ,d ckj lc gkFk mBkdj dgks fd ge lcdk lEeku djasxs vc ;s esjk ugha gS] eSa ftl dke ds fy, fudyk gw� oks dke D;k gS \\ vHkh ukjk yxk jgs Fks t; Jh jke t; Jh jke ge dks ;kn gksxk fd vaxzstksa dk tc jkt Fkk vkSj fgUnwLrku esa egkRek xka/kh us ukjk yxk;k Fkk oUnsekrje ! oUnsekrje dk tc ukjk yxrk Fkk rks lnhZ esa Hkh vaxztksa ds ilhus vkrs Fks vkSj oks oUns ekrje dk ukjk yxkrs yxkrs fgUnqLrku ls vaxzztks dks fudky fn;k A vkt fgUnwLrku esa t; Jh jke dk ukjk yxrk gS A bl t; Jh jke ds ukjs esa bruh gh rkdr gS ftruh oUns ekrje ds ukjs esa rkdr Fkh] oUns ekrje us vaxzstks dks jokuk fd;k A rks t; Jh jke dk�xzsl ds ihNs iM+ x;k gS bldks jokuk djds gh NksM+sxk �rkfy;ksa dh vkokt� blfy;s ,d ckj esjs lkFk fQj cksyks t; Jh jke] t; Jh jke �turk cksyrh gS t; Jh jke turk cksyrh gS t; Jh jke� vkSj ftlds t; Jh jke dk vki ukjk yxk jgs gks pquko bl ckr dk gS Hkxoku jke ds tUe LFkku ij Hkxoku jke dk eafUnj cus D;k fgUnwLrku ds iz/kkuea=h dgrs gSa fd eSa ml LFkku ij efLtr cuk�axk A vkidks ;g ekywe ugha gS fd vaxzstks ds tekus esa fd eafnj vkSj efLtn dk >xM+k pyk vaxzstksa us ns[kk fd blls cf<+;k dksbZ cht ugha gS fd fgUnw vkSj eqlyeku dks blh rjg yM+k fn;k tkos yxkrkj fgUnw vkSj eqlyeku dks yM+k;k yM+krs yM+krs gkyr ;g gks xbZ fd fgUnwLrku ds nks VwdM+s gks x;s ikfdLFkku cu x;k vkSj fgUnwLrku mlds ckn esa gekjh dk�xzsl ikVhZ us Hkh fgUnwLrku esa jkt djuk gS rks fgUnw vkSj eqlyeku dks yM+kvks rks yxkrkj ;s <kaps dk >xM+k [kM+k dj fn;k A <kps dk >xM+k bruk c<+ x;k fd fgUnwLrku fd yksxksa us ogka dkj lsok ''kq: dh vkSj dkj lsok esa vkius ns[kk gksxk fd yksx ogka O;kikj djus ugha x;s ukSdjh djus ugha x;s] dkssbZ /ku ikus ugha x;s] yksx Hkxoku jke dk eafnj ogka cus ;s ladYi ds lkFk v;ks?;k esa x;s mu ij xksfy;ka pyh vkSj v;ks/;k dh xfy;ksa esa [kwu cgus yxk A mlds ckn bl ljdkj dh vka[k [kqyh vkSj vka[k [kqyrs gh mUgksaus dgk fd ^^HkkbZ ckcjh efLtn ,d''ku desVh vkSj fo''o fgUnw ifj"kn cSBdj bldk QSlyk djsa oks vkils eS cSB ugha jgs fQj ml le; tc iz/kkuea=h us eq>s vkSj egkjk"V� ds eq[;ea=h ''kjn iokj dks dgk fd budks vkil esa cSBdj ckrphr djks geus ckr phr djh vkSj ckr phr esa eqlyeku bl ckr ds gka Hkj x;s fd vxj ;g eku yh ;g lkfcr gks tk;s fd ;s tks <kapk cuk gqvk gS fdlh /kkfeZd LFky dks rkM+dj cuk;k gS rks efLtn dk nkokk NksM+ nsaxs A dk�xzl ds yksx ukjkt gq;s ysfdu ckr Vy xbZ vkSj Vyus ds ckn esa geus iz/kkuea=h th ls dgk fd bldk QSlyk lqizhe dksVZ ds fdlh tt dks ns nks iz/kkuea=h th us mRrj ugha fn;k vksj tc <kapk VwVk rks blds ckn esa bl ekeys dks iz/kkuea=h th us lqizhe dksVZ dks Hkstk vkSj Hkstus ds ckn esa dgrs gS fd vHkh QSlyk ugha gqvk dgrs gSa fd eSa rks <kaps dh txg efLtn cuk�axk A ogka Hkxoku jke dh ewfrZ vkt Hkh gS yksx mudk n''kZu djrs gSa iwtk ikB djrs gSa vxj Hkxoku jke dh ewfrZ tgka gS ogha efLtn curh gS rks urhtk D;k fudysxk ml ewfrZ dks mBkdj ys tkuk iM+sxk vki yksx i{k esa gS D;k ewfrZ dks mBkdj ys tkus ds dksbZ i{k esa ugha gS vc ge ;s dgrs gSa gekjk efLtn ls >xM+k ugha gS ;s dsoy ,d <kapk gS ftlesa vkt rd fdlh eqlyeku us uekt ugha i<h vkt rd fdlh dqjk.k dh fdrkc ugha j[kh xbZ] vkt rd ;gka ds vtku ugha nh xbZ ysfdu eqlyekuksa esa ,d vyxkc dk Hkko iSnk djus ds fy, ckj&ckj bldks efLtn dk uke fn;k x;k og efLtn dHkh ugha gks ldrh gS blfy, ugha gks ldrh gS fd ml <kaps esa ,d [kaHks esa Hkxoku ckjg vorkj dk QksVks yxk gqvk] iRFkj yxk gqvk Fkk vkSj tgka ckjg vcrkj dk f''kykys[k yxk gqvk Fkk oks efLtn ugha cu ldrh ysfdu yksxksa dks eqxkyrk nsus vkSj vkil esa ruko iSnk djus] ruko blfy, iSnk djsa fd fgUnw vkSj eqlyeku esa >xM+k pyrk jgs vkSj mudk oksV iDdk dk�xzsl dh tsc esa tkrk jgs bl ckr dks ysdj >xM+k ;s py jgk gS ysfdu tc HkaM+k QwVk rks eqlyekuksa dks Hkh fo''okl �vLi"V� gks x;k fd ;s iz/kkuea=h dks pkgs dk�xzsl ds usrk gks ;s ckj ckj xyr ckr dgrs gSa fd <kapk VwV x;k rks ;gka efLtn cusxh eu esa gj eqlyeku tkurk gSa fd efLtn ;gka ugha cusxh eu esa gj eqlyeku tkurk gSa fd efLtn ;gka ugha cusxh vHkh pquko gq;s dsjy esa pquko gq;s rks eqlyekuksa us dk�xzsl dks gjk fn;k] gjk fn;k rks iz/kkuea=h dks fpark c<+h eqlyekuksa ds cM+s cM+s eqYyk eksyoh;ksa dks cqyk;k vius ?kj ij [kkuk [kkus ds fy;s A lc ,d nwljs dh rkjhQ djus yxs ,d ekSyoh [kM+s gks x;s vkSj [kM+s gksdj dgk fd ;s lc yksx rks �ijh ckrsa dj jgs gSs buds eu dh ckr dg ns� D;k rks iz/kkuea=h th us dgk dg ns fd eu dh ckr ;g gS fd vkt dk eqlyeku fgUnwLrku dk vxj lcls T;knk fdlh dh ''kDy ls uQjr djrk gS rks fgUnwLrku ds iz/kkuea=h ujflagjko dh ''kDy ls vkSj tc ;s brk dkg rks [kkuk rks Hkwy x;s vkSj iz/kkuea=h th vpjt ls viuh ''kDy ns[kus yx x;s ckdh ds ykxs viuh ''kDys ns[k dj ogka ls & �vLi"V� vc efLtn ds lkFk gh esa jktLFkku dk eq[;ea=h jkg dksbZ eqlyeku eq>s [kM+k gksdj ;g dg ns fd vtesj esa [oktk lkgc dh njxkg gS ml njxkg ij fdlh dk�xzsl dh ljdkj us ,d u;k iSlk yxk;k gks eSus ml njxkg dk fodkl djkus ds fy, lk<+s ikap djksM+ :i;k fn;k vxj esjs fnekx esa efLtn dk ;k eqlyeku dk fojks/k gksrk rks ogka eS bl izdkj dh & �vLi"V� blfy, bl ckr dk vkidks QSlyk djuk gS fd eafnj cuuk gS rks esjs lkFk [kM+s gks tkvks efLtn cukuh gS tks cusxh ugha vkt ujflag jko dh txg ujflag vorkj Hkh ysdj vk tkosa rks efLtn ogka ugha cusxh ogka ij Hkxoku jke kdk eafnj cusxk vkSj blfy, eS dgrk gw� fd vkt dh fLFkfr esa ;s pquko tks gks jgk gS] ogha pqukosa bl ckr dk QSlyk gksxk fd bl Hkxoku jke ds tUe LFkku ij eafnj cuuk pkfg;s ;k ugha] Hkxoku jke lc ds fy, gS ogka & �vLi"V� fojkts gS blds fy, Hkh gSa vkSj xjhc dh >ksiM+h ds vUnj Hkh jke gS vxj dzbZ xkaoks esa dbZ ckj dksbZ xM+cM+ gks tkrh gS dksbZ vkneh dksbZ xM+cM+ dj ns rks xkao ds yksx dgrs gSa] bldk jke fydy x;k cU/kqvksa pkgs xjhc gks pkgs vehj nhokyh vk jgh gS bl nhokyh ij gj vkneh nhokyh dk R;kSgkj euk;sxk gj vkneh y{ehth dk iwtu djsxk gj vkneh nh;k cRrh djsxk ;s D;wa djsxk fd Hkxoku jke 14 o"kZ ds ouokl ds ckn tc HkkbZ yadk dks yadk ds jko.k dks ekjdj v;ks/;k igqaps rks v;ks/;kokfl;ksa us mudk Lokxr fd;k] nhokyh eukbZ ogh nhokyh ge vkt rd eukrs vk jgs gSa A yksd gj lky jko.k dk o/k gksrk gS vkSj gj lky nhokyh eukrs gSa ogh R;kSgkj py jgk gS vc bl R;kSgkj ds vanj pquko gS A vkius ns[kk fd yadk esa dksbZ [kkus ihus dh deh ugha lksus dh yadk dgrs gS ml lksus dh yadk dks tykdj fn;k tykdj mldks jk[k dj fn;k vkSj jk[k djus ds ckn jko.k dk o/k dj fn;k vkSj fQj Hkxoku jke fnYyh igqaps rks bl ckj & ckyh] ckyh dh turk ij ;g bYtke D;k gS fd ckyh dh turk fdlh ds cgdkos esa vkdj fdlh fd ncko esa vkdj fdlh ykyp esa vkdj mu yksxksa us Hkxoku jke ds fojks/k esa ;s eafnj ds fojks/k esa fdlh izdkj dk oksV fn;k gS ftlds fy;s vki & �vLi"V� vc eSa vius ckjs esa ifjp; nw bldh vo'';drk ugha jktLFkku esa nksa ckj esa eq[;ea=h jg pqdk gw� vkSj nksuksa ckj esa yksx tkurs gS igyh ckj eq[;ea=h cuk rks vaR;ksn; dk dk;Z�e pkyw dj xjhc dh jksVh dk bartke fd;k esjs tkus ds ckn dk;Z�e cUn gks x;k nqckjk vk;k rks fQj mldks pkyw fd;k eSus dke ds cnys vukt ;kstuk pykbZ vkSj xkao ds ljiapksa dks cqykdj dg fn;k fd rqEgkjsa gkFkksa esa ftruk ne gks rks vukt dh csfj;ka mBkvksa xkoa esa ys tkvks tks Hkh fodkl ds dk;Z djkus gks oks djkvksa] etnwjksa dks etnwjh esa xsgwa nsoks muds dkj.k ftu etnwjksa us xssgw [ksr esa ns[kk Fkk muds ?kj esa xsgwa dh cksfj;ka yn xbZ vkSj dbZ o"kkZs rd mUgksaus xsgwa [kk;k vcdh ckj tc eSa eq[;ea=h cuk rks eSus ?kks"k.kk dh Fkh fd eSa ckjkuh tehu dk yxku ekQ d:axk vkSj ;g Hkh ?kks"k.kk dh Fkh fd 10 gtkj :i;s rd dk dtkZ ekQ d:axk tc eS dgrk Fkk eS dtkZ ekQ d:axk rks dk�xzsl ds usrk tks ;s rsjs ihNs ihNs Hkk"k.k nsrs Fks fd HkS:flag xyr ckr dg jgk gS dkuwu gS gh ugha dtkZ ekQ gks gh ugha ldrk eSus Hkh tokc fn;k fd eS fo/kku lHkk esa tk jgk gw� rks xk; HkSl pjkus ds fy, ugha ogka dkuwu cukus tk jgk gw� A dkuwu cuk�axk vkSj dtkZ ekQ d:xk vkt bZekunkjh ls [kM+s gksdj dksbZ Hkh Nkrh ij gkFk j[k dj dg ns vkt rd dk�xzsl ds jkt esa fdlh us dtkZ ekQ fd;k gS vkt rd fdlh us jkt esa dksbZ ckjkuh tehu dk yxku ekQ gqvk gS] eSus ckjkuh tehu ekQ fd;k vkSj 340 djksM+ :i;s dk dtkZ ekQ fd;k A vkSj ;s fd;k rks dk�xzsl okys dks cM+h fpUrk gqbZ fd ;s rks xkaoks esa ?kql x;k ;s rks fdlkuksa esa ?kql x;k vc ;s jsckjh lekt ds yksx cSBs gSa vkt ds dqN eghus igys 6&7 jckfj;ksa dks �doky djrs gS 7 ;k 8 tokc vkrk gS &9� 9 jsckfj;ksa dks ekj fn;k dk�xzsl dk jkt Fkk ,d dk�xzssl dk usrk ogka ugha x;k gekjh ikVhZ ds fo/kk;d ogka iqgqaps eSus i= fy[kk xouZj ls dgk fd tks ej x;s mUgsa ,d&,d yk[k :i;k nks vkSj ;s HkSM+ dksbZ ,d jsckjh dh ugha jktLFkku dh lEifr gS budks pjkus dk izcU/k djkuk iM+sxk eS eq[;ea=h Fkk rks dbZ ckj ,sls >xM+s vk;s mu >xM+ks dks eSus fuiVk;k iqfyl Hksth rkdr fn[kkbZ vkSj HkSM+ks dk i''kqvksa dk ikyu gks bl laca/k esa viuh rjQ ls eSus dksbZ dlj ugha NkM+h vc esjs lkeus ,d lTtu pquko yM+ jgsa gSa] eS vkidks 1962 dh ckr ;kn fnykrk gw� ugha 1967 dh 67 esa ,d ckj lhdj ls ,d dk�xzsl ds lTtu Hkkj}kt th oks gkjrs gh ugh Fks rks ogk ds ykxksa us QSlyk djds ,d vPNs [kkls djksM+ifr dks ys vk;s vkSj djkM+ifr us iSlksa ds cyij thr gkfly dj yh vkSj thrdj pys x;s ,d ckj xkao ds yksx muds ikl dke ds fy;s x;s fd lkgc geus vkidks oksV fn;k gS vki gekjk dke djkvks rks dgus yxs fd vkius dkSu&lk oksV fn;k gS fd lkgc ge oksV ugha nsrs rks vki thrrs ugha rsk mUgksaus dgk fd vkius oksV fn;k gS esjs ls iSls ysdj vkidk ,glku D;k iSlk ysdj vkius oksV fn;k gS esjs �ij ,glku D;k gS vkt oks fLFkfr ij fopkj djks eS rks vki pkgs oksV ns ;k ugha ns eSa vkidk vglku ean jgwaxk D;ksa fd jktLFkku dh turk ds lkFk tqM+k gqvk gwa ysfdu ;fn fgUnwLrku dh turk dk bZeku fcdus yx x;k fgUnwLrku dh turk dk oksV [khjnk tkus yxk rks vki ;g Hkjkslk j[kdj pfy;s fd ckyh {ks= gks pkgs jktLFkku gks mlesa dke ugha gksxk vkSj fQj yksxksa dks irk yxsxk fd jktLFkku dh 200 fo/kku lHkk dh lhVksa ij dksbZ dk;ZdrkZ dks [kM+k djus dh t:jr ugha ;gka ij rks djksM+ifr ykdj [kM+k dj nks oks xkM+h;ksa essa cSBk;ksaxs] feBkbZ f[kyk;saxs iSlk ckaVsaxs vkSj thrdj pys tk;saxs] ml le; vkidks f''kdk;r djus dk ekSdk ugha feysxk fd ikuh dh Vadh esa ls ikuh ugha vk jgk gS] fctys ds [kEHkksa ls fctyh ugha ty jgh gS fdlkuksa ds lkeus dbZ izdkj dh leL;k,sa gSa oks leL;k,sa dHkh vkids lkeus vk,xh gh ugh eS rks vkils bruk gh oknk djrk gw� fd vkius eq>s ftrkdj jktLFkku dh fo/kku lHkk esa Hkstk rks Hkkjrh; turk ikVhZ dk jkt jktLFkku esa fuf''pr :i ls vk,xk nwfu;k dh dksbZ rkdr jksd ugha ldrh vkSj jkt vk;sxk rks vki yksxksa ds vkf''kokZn ls mldk usr`Ro djus dk ekSdk Hkh eq>s feysxk vkSj eksSdkfeysxk rks ,d o"kZ ds okn vkidks irk yxsxk fd geus HkSjksflag dks ftrk;k mlds dkj.k ls fdruk fodkl dk dke muds dkj.k ls gqvk oks gh fo''okl eSa vkidks ns ldrk gw�] vkt eSa dg nwa Vdh yxk; nwaxk] lM+d cuk ns�axk mldh dgus dh t:jr ugha gS vxys efgus esa D;k dj ns�axk ;g dgus dh j:jr ugha gS ysfdu ,d o"kZ ds ckn esa ckyh {ks= dh turk dks ;g irk yx tk;s fd geus {ks= ds fodkl ds fdrus dke djk;s gS ;gh vkidks eSa xkjUVh ns ldrk gw� nwljk fdlkuksa dks dg nsuk pkgrk gw� fd fdlh ds ykyp esa vkdj dk�xzsl ikVhZ dks oksV ns fn;k rks ftl [ksr ls isV Hkjrs gks ;s [ksr isV Hkjsxk ugha ;s [ksr isV ds �ij ykr ekjsxk ljdkj us dtZs esa ncdj vcdh ckj QSlyk fd;k gS fnYyh dh ljdkj us ,d Madsy izLrko ykxw fd;k tk, cks Madsy izLrko dk eryc ;g gS fd fdlku dks [kkn ij lclhMh feyrh gS oks can djks fctyh ij lclhMh feyrh gS oks can djksa] flpkbZ ij lclhMh feyrh gS oks can djksa tks ljdkjh Hkko r; rjrh gS vukt ij oks Hkko r; djuk can dks xYys dh nqdkuksa ij tks lLrk vukt feyrk gS oks O;oLFkk xYys dh nqdkuksa ij lLrs xYYkksa dh nqdkuksa ij lLrk vukt cspks er A vkSj fgUnwLrku esaa vukt dk vk;kr djks rkfd vukt ds Hkko fxj tk;s A bu phtksa dk fojks/k dksbZ ugha dj jgk gS bu phtksa dk fojks/k ge dj jgs gSa vkSj geus ;g r; dj fy;k fd tSls Hkxoku jke dk efUnj v;ks/;k esa cusxk mlh izdkj ls geus r; dj fy;k nqfu;k dh dksbZ rkdr vk tk;s fgUnwLrku esa Madsy izLrko ykxw ugha gksus nsaxs ml fdlku dh [ksr NksM+us ds fy;s etcwj ugha djsaxs mlh rjg ls xjhc dks vkt fgUnwLrku esa ftrus xjhc cSBs gSa �''ksM;wy dkLV ds gksa ;k V�kbZc ds gks� ;g xjhch ^^vjcksa :i;k [kpZ dj fn;k vkSj xjhch feVh \\** ;s xjhch tkucw> dj j[krs gSa fd pquko dk ekSdk vk;s] xjhc dks tehu dk iVVk ns fn;k vkSj oksV ys fy;k dgha okfYefd Hkou cuk fn;k vkSj oksV ys fy;k dgha ij geus ikap lkS vknfe;ksa dks ukSdjh fnyok nh vkSj oksV ys fy;k dgha fdlh ds jksVh ds bartke dj fn;k vkSj oksV ys fy;s ;g xjhch ml le; rd ugha feVsxh tc rd xjhc bZekunkjh ls jktSfrd gfFk;kj dk mi;ksx ughsa djsxk vc xjhc mBus yxs gSa jktUfrd gfFk;kj dk mi;ksx djus yxs gSa vkSj mlds dkj.k ls lcdks fpark gks jgh gS �vLi"V� esjk fo''okl gS fd budk dgus ds ckn dksbZ vkSj fo''ks"k dgus dh vko'';drk ugha vki ds chp esa vkius eq>s ftrk;k rks ckj ckj gk�axk D;k fd;k gS oks Hkh eSa vkidks crk�axk ysfdu ;g rc lc yksx esjs ihNs iM+dj ckyh ys vk;s eSa rks t;iqj ls pquko yM+ jgk Fkk dgha Hkk"k.k nsus dh t:jr ugha Fkh tkus t:jr dh ugha Fkh cPpk cPpk eq>s tkurk gS vkSj eSa cPps&cPps dks tkurk gw� ysfdu ;g ve`r th vksj xqekuey th vkSj ckdh ds lkS ipkl vkneh ;gka ls pys x;s fd ckyh ls pquko yM+uk iM+sxk eSa buds dgus ls ;gk pquko esaa vk x;k vkSj bml fygkt ls fuosnu djuk pkgrk gw� fd /kursjl ds fnu X;kjg rkjh[k dks Hkjrh; turk ikVhZ ds fu''kku dey ds Qwy ij BIik yxkvks geus fnYyh esa dgk fd HkkbZ /kursjl ds fnu ;g R;kSgkj gS ml fnu oksV er iM+us nks rks ugha fd ge rks /kursjl ds fnu gh oksV djsaxs geus Hkh dgk fd dksbZ fpUrk dh ckr ugha gekjk [kpkZ de gksxk rks bysD''ku okys iwNus yxs [kpkZ dSls de gksxk \\ fd HkkbZ bl fnu gj vkneh y{ehth dk iku [kjhnsxk dksbZ ,slk fnUnw dk ?kj ugha feysxk tks y{ehth dk ikuk ugha ys vkSj ml ikus esa y{eh th dey ds Qwy ls fydyrh gqbZ fn[ksxh vSj dey ds Qwy dk vius vki gh izpkj gks tkosxk vSkj fQj vki dgksxs fdf dey ds Qwy dk izpkj y{eh th us dj fn;k rks HkkbZ y{ehth vxj dey dk Qwy dk izpkj djrh gS rks nqfu;k dh dkSulh rkdr gS fd y{ehth ds Qwy ds �ij mldks ns[ks ugha vkSj Hkkjrh; turk ikVhZ ds Qwy ij mldk BIik ugha yxk;s blfy; X;kjg rkjh[k dks tksj ls BIik yxkdj bl ckr dk QSlyk djs fd fgUnwLrku jktuhrh esa ,d ubZ fn''kk vk tk;s] bl ckj dk pquko igys ds pquko dh rjg ugha gS igys pquko gksrs Fks rks vki yksx dgrs Fks rc lc ,d gks tkvks dk�xzsl dks gVkvks rks ,d gksdj vkvks vc ds dksbZ ugha dgsxk Hkkjrh; turk ikVhZ vdsyh bruh rkdroj gks xbZ gS fd tks vc dk�xzsl ds gh usrk dgrs gSa fd Hkkrh; turk ikVhZ dk eqdkcyk djuk gS rks lc ,d gks tkvks vksj lc ,d gks tkvks rks vkius ns[kk gksxk A vkt ckyh esa D;k dk�xzsl ds dk;ZdrkZ ugha gksaxs \\ �vLi"V� fdlh ckyh ds dk�xzsl ds usrk dks [kM+k djus vkSj dksbZ dk;Z ugha gksrk thr tkrk rks gkFk rks idM+ ysrs vc ds mEehnokj ,slk yk;s fd gkFk idM+us ds fy, cEcbZ tkuk iM+sxk vkSj cEcbZ tkdj gkFk idM+ksxs rks D;k gkyr gksxh vkidh vki blh ls vUnkt yxk ysa A eq>s T;knk dgus dh vko'';drk ugha gS A eS vki yksxksa us Lokxr fd;k lkQk cU/kk;k blds fy, /kU;okn nsuk pkgrk gw�] vki ls vihy djuk pkgrk gw�] fd 11 rkjh[k dks �vLi"V�

(c) that the aforesaid offending speech of the respondent as well as the other speeches were recorded on a tape by Shri Jayanti Lal son of Shri Bal Chand Jain, resident of Bali, who was working for the petitioner in the election. The original cassette is submitted herewith along with three extra copies -- one meant for this Hontile Court and two extra copies to be served on the respondent along with the copy of the election petition. The petitioner prays that the original cassette may be kept in a sealed cover;

(d) that the BJP published a poster containing the symbol of Goddess Laxmi seated on a lotus (Kamal Ka Phool) having five upper and three lower petals with a stem, which is the symbol allotted to the BJP, in Rajasthan Patrika dated 9th November, 1993, at page 10 of Jodhpur Edition which has a wide circulation in the constituency under the signatures of the respondent Shri Bhairon Singh Shekhawat, as former Chief Minister. A copy of this cutting of the aforesaid newspaper is submitted herewith and marked Annexure 1.

(e) that likewise the BJP published a similar poster under the signatures of the respondent as well as Shri Ram Das Agrawal, Pradesh President of the BJP in daily Nav Jyoti dated 10th November, 1993, at page 9 of the Ajmer Edition, which has a wide circulation in the said constituency. A cutting of the aforesaid newspaper is submitted herewith and marked Annexure 2,

By publishing the aforesaid posters Annexure 1 and 2 the respondent made an appeal to the electors on the ground of religious symbol and made use of it for the furtherance of the prospects of his election. Therefore, he has committed corrupt practice as defined in Section 123(3) of the Act.

VERIFICATION

1, Mitha Lal above-named petitioner this 11th day of January, 1994, verify that the contents of paragraphs Nos. 1 to 5 are fruc to my knowledge and the documents referred to therein and the contents of paras 6, 7, 8. 9, 10 and 11 are true on the basis of the information received and believed to be true.

JODHPUR

11-1-1994

Sd/- Mitha Lal

Petitioner

The annexures referred to in para-graphs-7(d) and (e) above were publications, in the Newspapers referred to in the paragraphs of Diwali Greetings on behalf of Bhartiya Janta Party by the respondent as Ex. Chief Minister and one Ram Dass Agrawal as the State President of the party. Facsimile signatures of the respondent and Ram Dass Agrawal were also printed in the Newspapers, The publication carried the heading "Bhartiya Janta Party" and caried the bottom line to the effect that it was published by the Bhartiya Janta Party, Rajasthan. Borders on both the sides carried pictures of earthern lamps. The body contained a picture of Goddess Laxmi seated on a lotus having five upper petals and three lower petals with the stem. On the top of the picture of the Goddess "Shri Ganeshaya Namha" was printed and on the right and left sides respectively of the Goddess "Shubh" and "Labh" were printed. On both sides "Swastik" was also printed. Apart from these, below the picture of the Goddess seated on the lotus, greetings "Shubh Diwali" was also printed.

The petition was accompanied by an affidavit of the original petitioner Mitha Lal Jain. Since objections have been raised to the validity of the affidavit, it would be necessary to reproduce the affidavit :

AFFIDAVIT

I, Mitha Lal aged 53 years son of Shri Ratan Chand Jain, petitioner in the accompanying election petition calling in question the election of Shri Bhairon Sinngh Shekhawat (sole respondent in the said petition make oath and state :

(a) that the statements made in para 7 and its sub-paras (a) to (e) of the accompanying election petition about the commission of the corrupt practices of undue influence as defined u/s 123(2), appeal of religious symbol and use thereof as defined u/s 123(3) and promotion of hatred. between different classes of citizens of India on the ground of religion and community as defined in Section 123(3A) of the Representation of the People Act, 1951, are true to my knowledge and the documents referred to therein.

(b) that the averments relating to the ground for setting aside the election of the respondent on the basis of corrupt practices set out in para 8 of the election petition and so also the prayer clause in para 11 are true to my knowledge.

Deponent.

VERIFICATION

I, Mitha Lal aged 53 years son of Shri Ratan Chand Jain, above-named deponent solemnly affirm that the contents of my above affidavit are true and correct to my knowledge. Nothing has been concealed and no part of it is false. So help me God.

Jodhpur

11-1-1994

Deponent

After the service of notice on March 4, 1994 an application under Order VI Rule 16 and Order VII Rule 11 of the CPC read with Sections 83, 86 and 87 of the Act referred to in the opening paragraph of this order was moved. It was contended in this application that from the reading of the entire election petition including annexures as also the affidavits accompanying the election petition, it is apparent that the petition does not disclose any cause of action as neither it contains a concise statement of the material facts nor does it set forth full part iculars of the corrupt practices alleged against the respondent. It was, therefore, contended that mandatory provisions of Section 83(1)(a) and (b) of the Act were not complied with. It was also contended that the affidavit accompanying the election petition also did not contain the full particulars in support of the allegations of the corrupt practices and was therefore defective. It was contended that contents of paragraph - 7(a), (b), (c). (d) and (e) were absolutely vague and frivolous and were of roving and fishing nature tending to prejudice and embarrass the fair trial of the petition and were even otherwise an abuse of the process of the Court. It was further contended that all the averments made in paragraph - 7(a) of the petition were bald and vague allegations and did not amount to concise statement of material facts and full particulars of alleged corrupt practices within the meaning of Sections 123(2), 123(3) and 123(3A) of the Act. It was further contended that the composition of the audience which was alleged to have attended the meeting dated October 27, 1993 not given in the petition and whether they were voters in the Constituency and their names and residence as also what was the strength of the audience and to which religion, caste and/or community or class of citizens they belonged, was not specified. It was contended that no material facts or full particulars were given as to how the respondent whether directly or indirectly interfered or attempted to interfere with the free exercise of any electoral right amounting to the corrupt practices of undue influence within the meaning of Section 123 of the Act. Neither the manner in which the undue influence was exercised was mentioned nor the persons on whom the undue influence was exercised were named. Even the portions of the speech which amounted to currupt practices of undue influence were not specified. As regards the alleged corrupt practices u/s 123(3) of the Act, it was contended that the nature and the kind of the appeal or the words thereof which amounted to appeal on the ground of religion and caste and use of religious symbol were not specified. It was, therefore, contended that the entire allegations were vague and did not amount to specific allegations of material facts with full particulars of corrupt practices u/s 123(3) of the Act. As regards allegation of corrupt practices u/s 123(3A) of the Act, it was contended that the nature of the offending statement and actual words which constituted such corrupt practices were not specified and, therefore, the allegations were vague. It was, therefore, contended that the allegations in paragraph - 7(a) of the petition were frivolous, vexatious and vague and were more in the nature of roving and fishing enquiry which tended to prejudice the fair trial and also amounted to abuse of the- process of the Court and, therefore, deserved to be struck off under Orders VI Rule 16 of the Code of Civil Procedure. It was also contended that the allegations did not disclose any cause of action and consequently did not raise any triable issue which the respondent might be required to answer and, therefore, the election petition deserved to be rejected under Order VII, Rule II of the Code of Civil Procedure. It was contended that the affidavit was defective in as much as in the verification of the petition paragraph - 7 was verified to be true on the basis of the information received and believed to be true while in the affidavit, the petitioner stated that all the contents of paragraph - 7(a) to (e) and paragraph - 8 were true to his knowledge. It was contended that because of this contradiction, the election petition deserved to be rejected under Order VII Rule 11 of the CPC as it did not comply with the mandatory provisions of Section 83 of the Act as regards filing of the affidavit.

The original petitioner filed reply to this application and contended that the objections raised in the application were baseless, unfounded and untenable and the application was filed to prolong the trial of the election petition. It was contended that the election petition contained concise statement of material facts and requisite particulars. It was further contended that the election petition was based on the speeches delivered by the respondent himself and on the posters published by the respondent. According to the petitioner the petition contained allegations in detail setting out specific corrupt practices. It was further contended that what was required to be stated was material facts with full particulars and not the evidence on which the allegations were based. Pleading was not expected to contain evidence to prove the material facts. As the entire speech was no vagueness in the allegations and it could be easily made out from the speech itself that the respondent had committed corrupt practices.

As regards the affidavit, it was submitted in the reply that it has to be read in the context of and along with the petition and so read, it could not be said to be a defective affidavit. The reply was supported by an affidavit of the original petitioner. The reply has been filed on April 23, 1994.

On May 20, 1994, a rejoinder was filed on behalf of the respondent supported by his affidavit. In this rejoinder, it was contended that the affidavit in support of the petition was integral part of the election petition and could not be described as a supporting affidavit. It was also contended that only because the alleged speech was reproduced in the petition, it could not be said that the specific allegations of corrupt practices were made and it could not have been left to the respondent to find out the objectionable portion from the speech and to infer that those portions in the speech were the basis of the corrupt practices alleged. The contentions raised in the application were reaffirmed.

On April 23, 1994 itself, an application for amending the affidavit filed with the petition was moved by the original petitioner. A reply was also filed by the respondent to this application.

On December 8, 1994, the original petitioner submitted an application u/s 109 of the Act seeking permission for withdrawal of the election petition. On December 13, 1994, this application for withdrawal was allowed. Notice of withdrawal of the election petition was ordered to be published. It was accordingly published. In response, two persons Ranveer Singh and Mohd. Yusuf applied for being substituted in place of the petitioner and to be allowed to continue the petition. On January 16, 1995, the prayer was allowed and the names of Ranveer Singh and Mohd. Yusuf were allowed to be substituted in place of the original petitioner. Arguments were then heard on the application filed by the respondent under Order VI Rule 16 and Order VII Rule 11 of the CPC read with Sections 83, 86 and 87 of the Act.

At the hearing the learned counsel for the petitioner Mohd. Yusuf made a statement at the bar on February 14, 1995 that he wished to argue in support of the application filed by the respondent and was of the opinion that the election petition deserved to be rejected or dismissed. Since Mohd. Yusuf was substituted in place of the original petitioner, he was not allowed to support respondent''s case and to argue that the election petition deserved to be dismissed.

Arguments advanced on behalf of Ranveer Singh petitioner in support of the application for amending affidavit were heard. The learned counsel for Ranveer Singh expressed his inability to support the application for amendment of the affidavit as it was not possible for him to obtain a fresh affidavit from the original petitioner or get the affidavit of the original petitioner rectified. That application was therefore dismissed as infru-ctuous on February 14, 1995.

The parties advanced arguments at length and cited several decisions of the Supreme Court and of various High Courts. Before applying mind to the facts of this particular case, it would be proper and convenient to survey the position of the case law cited at the Bar on the question of necessity or desirability to decide objections as to non-compliance with provision of Section 83 of the Act as preliminary objection at the threshold and as to the applicability of Order VI, Rule 16 and Order VII, Rule 11 of the CPC to election petitions.

In K. Kamaraja Nadar Vs. Kunju Thevar and Others, it was observed in paragraph-41 of the judgment that if the preliminary objection was not entertained and a decision reached thereupon, further proceedings taken in the election petition could mean a fullfledged trial involving examination of a large number of witnesses on behalf of the petitioner in support of the numerous allegations of corrupt practices attributed by him to the elected candidate or his agents etc., and examination of large number of witnesses. This would mean unnecessary harassment and expenses for the respondent which could certainly be avoided if the preliminary objection urged by him was decided at the initial stage by the tribunal.

In Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, it was observed as follows :

"Section 83 provides 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 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 the commission of each such practice. The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. 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 full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention 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. ....The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words ''material facts'' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election 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.....It is inconceivable that a petition could be filed without the material facts and the schedule by merely citing the corrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule but the distincition remains. The entire and complete cause of action must be in the petition in the shape of material facts, the particulars being the further information to complete the picture".

Further in paragraph - 30, it was observed as follows :

"Since a single corrupt practice committed by the candidate, by his election agent or by another person with the consent of the candidate or his election agent is fatal to the election the case must be specifically pleaded and strictly proved. If it has not been pleaded as part of the material facts, particulars of such corrupt practice cannot be supplied later on".

In paragraph - 37, it was further observed as follows :

"From our examination of all the cases that were cited before us we are satisfied that an election petition must set out a ground or charge. In other words, the kind of corrupt practice which was perpetrated together with material facts on which a charge can be made out must be stated. It is obvious that merely repeating the words of the statute does not amount to a proper statement of facts and the section requires that material facts of corrupt practices must be stated. If the material facts of the corrupt practice are stated more or better particulars of the charge may be given later, but where the material facts themselves are missing it is impossible to think that the charge has been made or can be later amplified. This is tantamount to the making of a fresh petition".

In Azhar Hussain Vs. Rajiv Gandhi, , it was observed in paragraph - 9, that the fact that Section 83 does not find a place in Section 86 of the Act does not mean that powers under the CPC cannot be exercised.

Further after referring to earlier decisions of the Supreme Court, in paragraph -11, it was observed as follows :

"In view of the pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the CPC can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, : Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, has expressed itself in no unclear terms that the omission of a single material fact would lead to an imcomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Shri Udhav Singh Vs. Madhav Rao Scindia, the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to cloth the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice".

It was further observed in Paragraph -12 of the decision as follows :

....."The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary Civil litigation the Court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious part of the pleadings or such pleadings wbich are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law".....

"The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument"..... "Such being the position in regard to matters pertaining to ordinary civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections".....

"Under the circumstances, there is greater reason why in a democratic set-up, in regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the nation, the controversy is set at rest at the earliest if the facts of the case and the law so warrant. Since the Court has the power to act at the threshold the power must be exercised at the threshold itself in case the court is satisfied that it is a fit case for the exercise of such power and that exercise of such power is warranted under the relevant provisions of law. To wind up the dialogue, to contend that the powers to dismiss or reject an election petition or pass appropriate orders should not be exercised except at the stage of final judgment after recording the evidence even if the facts of the case warrant exercise of such powers at the threshold is to contend that the legislature conferred these powers without point or purpose, and we must close our mental eye to the presence of the powers which should be treated as non-existent. The Court cannot accede to such a proposition".

It was further observed in paragraph-14 of the decision as follows :

"Material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition".

In Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi, it was observed as follows :

....."On a combined reading of Sections 81, 83, 86 and 87 of the Act, it is apparent that those paras of a petition which do not disclose any cause of action are liable to be struck off under Order VI, Rule 16 as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI, Rule 16 itself empowers the court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VI, Rule 11".

Further in paragraph - 10 it was observed that failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) and election petition could therefore be and must be dismissed if it suffers from any such vice.

In paragraph - 11, it was further observed as follows;

....."These authorities have settled the legal position that an election petition is liable to be dismissed in limine at the initial stage if it does not disclose any cause of action. Cause of action in questioning the validity of election must relate to the grounds specified in Section 100 of the Act. If the allegations contained in the petition do not set out grounds of challenge as contemplated by Section 100 of the Act and if the allegations do not confirm to the requirement of Sections 81 and 83 of the Act, the pleadings are liable to be struck off and the election petition is liable to be rejected under Order VII, Rule 11. A pleading if vague and general is embarrassing. If the allegation contained in the election petition even assuming to be true and correct do not make out any case of corrupt practice or any ground u/s 100 of the Act, the pleading would be unnecessary, frivolous and vexatious. It is always open to strike out the same. If after striking out defective pleadings the court finds that no cause of action remains to be tried it would be duty bound to reject the petition under Order VII. Rule 11, Civil P.C. If a preliminary objection is raised before the commencement of the trial, the court is duty bound to consider the same. It need not postpone the consideration for subsequent stage of the trial".

Then again in paragraph - 14, it was observed as follows :

....."The Representation of the People Act is a complete and self contained Code within which any rights claimed in relation to an election or an election dispute must be found. The provisions of the CPC are applicable to the extent as permissible by Section 87 of the Act. The scheme of the Act as noticed earlier would show that an election can be questioned under the statute as provided by Section 80 on the grounds as contained in Section 100 of the Act. Section 83 lays dows a mandatory provision in providing that an election petition shall contain a concise statement of material facts and set forth full particulars of corrupt practice. The pleadings are regulated by Section 83 and it makes it obligatory on the election petitioner to give the requisite facts, details and particulars of each corrupt practice with exactitude. If the election petition fails to make out a ground u/s 100 of the Act it must fail at the threshold. Allegations of corrupt practice are in the nature of criminal charges, it is necessary that there should be no vagueness in the allegations so that the returned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings, the trial of the election petition cannot proceed for want of cause of action. The emphasis of law is to avoid a fishing and roving inquiry. It is therefore necessary for the Court to scrutinise the pleadings relating to corrupt practice in a strict manner".

In M.J. Zakharia Sait Vs. T.M. Mohammed and Others, , it was observed that the facts and/or particulars which spell out the innuendo where one is alleged or relied upon to constitute a corrupt practice are themselves material facts and it is necessary to state them in the petition in view of the mandatory provisions of Section 83(1) of the Act.

It was further observed in the same paragraph as follows :

"It is clear from the provisions of both Clauses (a) and (b) of the Section that election petition has to contain (i) a concise statement of the material facts on which the petitioner relies and also (ii) give full particulars of any corrupt practice that the petitioner alleges. In a case, therefore, where what constitutes a corrupt practice is not a bare statement statements published but those which are not published and yet are implied, a statement of material facts will not be complete without the statement of such implicit facts. In other words, without the statement of the said facts, the statement will not be a statement of material facts within the meaning of the said Section. This provision of law is indisput- able".

In K.C. Madhava Kurup Vs. K. Muraleedharan, it was observed in paragraph - 2 as follows :

....."In the context of a charge or corrupt practice material facts would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election petition, a particular fact is material or not and as such required to be pleaded is a question which depends on the circumstances of the case"..... "The Supreme Court has consistently taken the view that an election petition can be and must be dismissed under the provisions of Civil P.C. if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice are not complied with".

In Narain Chand Prashar v. Prem Kumar Dhumal, AIR 1993 Him Pra 84 in paragraph - 130, it was observed as follows :

....."In the absence of stating the material facts with clarity and without giving a clear picture of the charges alleged and making half-hearted attempt with a view to make out a fishing or roving enquiry, it cannot be said that the aforementioned allegations in the petition can be set down for hearing on merits. No corrupt practice can be inferred from reading one sentence here and other sentence there. Each instance in itself, making out a charge of corrupt practice must make out statement of material facts. Words can neither be imported nor implied to search out or infer the intention of the petitioner".

Further in paragraph 198 it was observed as follows :

"Having considered the entire petition on the whole an impression is gathered that there must be some cause of action disclosed for taking the petition for trial on merits, but on a close scrutiny, the entire petition discloses no cause of action. It suffers from lack of material facts and the cause of action pleaded is totally incomplete with respect to the various grounds. No doubt, an election petition normally deserves to be and should be tried on merits, provided it discloses cause of action, but when on a closer scrutiny, material facts of the alleged corrupt practice(s) are not furnished and it does not disclose any cause of action, the other allegations in the absence of complete cause of action pleaded may be of a serious nature, it must be dismissed in limine".

The decision of the Supreme Court in Balwan Singh Vs. Lakshmi Narain and Others, was cited on behalf of the petitioner for the proposition that if the particulars of corrupt practices are found to be insufficient, an opportunity should be given to the petitioner. The following observations in the judgment deserve to be reproduced : (para 8)

"By Section 90(1) of the Act every election petition is, subject to the provisions of the Act and Rules made thereunder, to be tried as nearty as may be in accordance with the procedure applicable under the CPC to the trial of suits : and for failure to furnish particulars after being so ordered, but not before, the tribunal may strike out a defective plea. The practice to be followed in cases where insufficient particulars of a corrupt practice are set forth in an election petition is this. An election petition is not liable to be dismissed in limine merely because full particulars of a corrupt practice alleged in the petition are not set out. Where an objection is raised by the respondent that a petition is defective because full particulars of an alleged corrupt practice are not set out the tribunal is bound to decide whether the objection is well founded. If the tribunal upholds the objection, it should give an opportunity to the petitioner to apply for leave to amend or amplify the particulars of the corrupt practice alleged; and in the event of non-compliance with that order the tribunal may strike out the charges which remain vague".

The petitioner also drew attention to the following observations in paragraphs 14, 16, 17 and 18 of the decision of Supreme Court in F.A. Sapa Etc., Etc., Vs. Singora and others,

PARA - 14

"It is fairly well settled that our election law being statutory in character must be strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity. Being statutory in character it is essential that it must conform to the requirements of our election law. But at the same time the purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation. If the returned candidate is shown to have secured his success at the election by corrupt means he must suffer for his misdeeds".

PARA--16:

"Election of a returned candidate can be rendered void on proof of the alleged corrupt practice. In addition thereto he would incur a subsequent disqualification also. This harshness is essential if we want our democratic process to be clean, free and fair. Eradication of corrupt practice from our democratic process is essential if we want it to thrive and remain healthy. Our democratic process will collapse if unhealthy corrupt practices like appeals to voters on basis of caste, creed, community, religion, race, language, etc., are allowed to go unchecked and unpunished. Use of corrupt practices in elections to secure short term gains at the cost of purity of our democratic process must be frowned at by every right thinking citizen. It is for that, reason that the law has provided for double jeopardy to deter candidates, their agents and others from indulging in such nefarious practices. But while there is sufficient justification for the law to be harsh with those who indulge in such practices, there is also the need to ensure that such allegations are made with a sense of responsibility and concern and not merely to vex the returned candidate. It is with this in view that the law envisages that the particulars of such allegations shall be set out fully disclosing the name of the party responsible for the same and the date and place of the Us commission. A simple verification was considered insufficient and, therefore, the need for an affidavit in the prescribed form. These procedural precautions are intended to ensure that the person making the allegation of corrupt practice realises the seriousness thereof as such a charge would be akin to a criminal charge since it visits the party indulging in such practice with a two fold penalty"/

PARA-- 17:

"Section 83(1)(a) stipulates that every election petition shall contain a concise statement of the ''material facts'' on which the petitioner relies. That means the entire bundle of facts which would constitute a complete cause of action must be concisely stated in an election petition. Section 83(1)(b) next requires an election petitioner to set forth full ''particulars'' of any corrupt practice alleged against a returned candidate. These ''particulars'' are obviously different from the ''material facts'' on which the petition is founded and are intended to afford to the returned candidate an adequate opportunity to effectively meet with such an allegation. The underlying idea in requiring the election petitioner to set out in a concise manner all the ''material facts'' as well as the ''full particulars'', where commission of corrupt practice is complained of is to delineate the scope, ambit and limits of the inquiry at the trial of the election petition".

PARA-- 18:

"It is significant to note that Section 86(5) permits ''particulars'' of any corrupt practice alleged in the petition'' to be amended or amplified and not the ''material facts''. It is, therefore, clear from the trinity of Clauses (a) and (b) of Section 83 and Sub-section (5) of Section 86 that there is a distinction between ''material facts'' referred to in Clause (b) and what Section 86(5) permits is the amendment/amplification of the latter and not the former. Thus the power of amendment granted by Section 86(5) is relatable to Clause (b) of Section 83(1) and is coupled with a prohibition, namely, the amendment will not relate to a corrupt practice not already pleaded in the election petition. The power is not relatable to Clause (a) of Section 83(1) as the plain ''language of Section 86(5) confines itself to the amendments of ''particulars'' of any corrupt practice alleged in the petition and does not extend to ''material facts''. In Balwan Singh Vs. Lakshmi Narain and Others, , this Court held that if full particulars of an alleged corrupt practice are not supplied, the proper course would be to give an opportunity to the petitioner to cure the defect and if he fails to avail of that opportunity that part of the charge may be struck down. We may, however, hasten to add that once the amendment sought falls within the purview of Section 86(5), the High Court should be liberal in allowing the same unless, in the facts and circumstances of the case, the Court finds it unjust and prejudicial to the opposite party to allow the same. Such prejudice must, however, be distinguished from mere inconvenience".

The next case relied upon on behalf of the petitioner was a decision of the Supreme Court in Mohan Rawale Vs. Damodar Tatyaba alias Dadasaheb and Others, Special attention was invited 10 the following excerpts from the judgment :

PARA-- 10:

"A reasonable cause of action is said to mean a cause of action with some chances of success when oniy the allegations in the pleading are considered. But so long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are quite often more known than clearly understood. It does introduce another special demurrer in a new shape. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars. The distinctions among the ideas of the "grounds" in Section 81(1); of ''material facts'' in Section 83(1)(a) and of "full particulars" in Section 83(1)(b) are obvious. The provisions of Section 83(1)(a) and (b) are in the familiar pattern of Order VI, Rules 2 and 4 and Order 7, Rule l(e), Code of Civil Procedure. There is a distinction amongst the ''grounds'' in Section 81(1); the ''material facts'' in Section 83(1)(a) and "full particulars" in Section 83(1)(b)."

PARA-12 :

"Further, the distinction between "material facts" and "full particulars" is one of degree. The lines of distinction are not sharp. "Material facts" are those which a party relies upon and which, if he does not prove, he fails at the time".

PARA-13:

"In Bruce v. Odhams Press Ltd. (1936) 1 KB 697 : (1936) 1 All ER 287, Scott L.J. said : "The word "material" means necessary for the purpose of formulating a complete cause of action; and if any one "material" statement is omitted, the statement of claim is bad". The purpose of "material particulars" is in the context of the need to give the opponent sufficient details of the charge set up against him and to give him a reasonable opportunity."

PARA-16 :

"The distinction between ''material facts'' and ''particulars'' which together constitute the facts to be proved -- or the facts probanda --on the one hand and the evidence by which those facts are to be proved -- facta probantia -- on the other must be kept clearly distinguished. In Philipps v. Philipps (1878) 4 QBD 127, Brett, L.J. said :

" "I will not say that it is easy to express in words what are the facts which must be stated and what matters need not be stated. The distinction is taken in the very rule itself, between the facts on which the party relies and the evidence to prove those facts. Erle C. J. expressed it in this way, he said that there were facts that might be called the allegata probanda, the facts which ought to be proved, and they were different from the evidence which was adduced to prove those facts. And it was upon the expression of opinion of Erle C.J. that Rule 4 (now Rule 7(1)) was drawn. The facts which ought to be stated are the material facts on which the party pleading relies."

PARA-17:

"Lord Denman, C.J. in Williams v. Wilcox, (1838) 8 AD&El 314, said :

"It is an elementary rule in pleading that, when a state of facts is relied it is enough to allege it simply, without setting out the subordinate facts which are the means of proving it, or the evidence sustaining the allegations."

PARA-18 :

"An election petition can be rejected under Order VII, Rule 11(a), CPC if it does not disclose a cause of action. Pleadings could also be struck out under Order VI, Rule 16, inter alia, if they are scandalous, frivolous or vexatious. The latter two expressions meant cases where the pleadings are obviously frivolous and vexatious or obviously unsustainable."

The next case cited on behalf of the petitioner was the decision of the Supreme Court in Subhash Desai Vs. Sharad J. Rao and Others, in which Para-13 is relevant for our purpose which is reproduced hereunder :

"The scope of Section 83(1) has been recently examined in the case of F.A. Sapa Etc., Etc., Vs. Singora and others, where it was pointed out that the underlying idea in requiring the election petition to set out in a concise manner all the ''material facts'' as well as the ''full particulars'' where the complaint is in respect of commission of corrupt practice is to ''delineate the scope, ambit and limits of the inquiry at the trial by the election petition''. In the present case, the allegations made, in the election petition may be true or false, but it is not possible to hold that the election petition does not disclose any material fact or give the material particulars of any of the corrupt practices. It need not be pointed out that even if the Court is satisfied that, in respect of one of the corrupt practices alleged, material facts and full particulars thereof have not been stated, still the election petition cannot be dismissed, if in respect of another corrupt practice the material facts and full particulars have been stated in accordance with the requirement of Section 83(1) of the Act."

Following settled position of law emerges from the decisions already referred :

(A) Section 83 of the Act is mandatory, hence an election petition must contain :

(a) a concise statement of facts on which the petitioner relies,

(b) fullest possible particulars of the corrupt practices that the petitioner alleges,

(B) The material facts mean (a) facts necessary to formulate a complete cause of action, (b) all the preliminary facts which must be proved by the party to establish a cause of action, (c) the basic facts which constitute ingredients of particular corrupt practice, (d) all the facts which are essential to clothe the petitioner with complete cause of action, (e) the facts which if established would give the petitioner the relief asked for, (f) the facts on the basis of which the Court could give a direct verdict in favour of the election petitioner in case the returned candidate did not appear to oppose the petition, (g) facts which if not proved, the petition must fail.

(C) A ''reasonable cause of action'' is said to mean a cause of action with some chances of success when only the allegations in the pleading are considered. So long as the claim discloses some cause of action or raises some questions, the mere fact that the case is weak and not likely to succeed is no ground for striking it out.

(D) There is a difference between the ''material facts'' and ''particulars''. The function of particulars is to present as full a picture of a cause of action with such information in details as to make the opposite party understand the case he will have to meet. There may be some overlapping between ''material facts'' and ''particulars'' but the two are quite distinct. The distinction is one of degree. The ''material facts'' are those which the party relies upon and which if it does not prove, he fails.

(E) Mere reproduction of the words of the statute would not be sufficient to maintain a petition. The facts which constitute the corrupt practice have to be set out and they must be correlated to one of the heads of the corrupt practices.

(F) Whether in an election petition a particular fact is material or not and as such required tc be pleaded or not depends on charges levelled and the circumstances of the case. Thus decision of each case would depend on the facts and circumstances of that case.

(G) An election petition can be summarily dismissed if it does not furnish a cause of action. If the mandatory requirements of Section 83 of the Act are not fulfilled, appropriate order under Order VI, Rule 16 and Order under Order VII, Rule 11 of the CPC can be passed. The whole purpose of conferring such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and exercise mind of the respondent. The sword of Damocles need not be kept hanging over his head without point or purpose. Since the Court has the power to act at the threshold the power must be exercised at the threshold itself in case the Court is satisfied that it is a fit case for the exercise of such power and that exercise of such power is warranted under the relevant provisions of law.

(H) An election petition cannot be dismissed in limine for want of particulars without giving an opportunity to the petitioner to supply better particulars.

Before applying the aforesaid propositions of law to the facts of this case, it would be necessary to reproduce Section 83 of the Act :

Section 83 reads of under :--

Contents of petition (1) An election petition -

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any 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 the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings :

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be singed by the petitioner and verified in the same manner as the petition.

The respondent has raised preliminary objection alleging that the petition does not contain concise statement of material facts and thus does not fulfil the requirement of Clause (a) of Sub-section (1) of Section 83 of the Act. The respondent further alleges that full particulars of corrupt practices have not been given and thus Clause (b) of Sub-section (1) of Section 83 of the Act has not been complied with. It is further alleged that the verification of the petition is defective and therefore CL (c) of Sub-section (1) of Section 83 of the Act have not been complied with and lastly it is alleged that the affidavit in support of allegations of corrupt practice is not valid and is no affidavit in the eye of law and thus the requirement of the proviso to Clause (c) of Sub-section (1) of Section 83 of the Act has not been complied with.

These allegations are dealt with here-under in that order :

NON-COMPLIANCE WITH REQUIREMENT OF CLAUSE (a) OF SUBSECTION (1) Of SECTION 83 OF THE ACT:

The main plank of the preliminary objections raised by the respondent is that the petition lacks in material facts, and therefore, deserves to be thrown out at the threshold. What is meant by ''material facts'' has already been discussed earlier. What could be said to be ''material facts'' in the facts and circumstances of this particular case has only to be examined.

There are three corrupt practices alleged by the petitioner against the respondent. These are : (1) use of undue influence as defined in Section 123(2) of the Act, (ii) an appeal to vote or refrain from voting on the ground of religion, race, caste, community or language or the use of, or appeal to religions symbols for the furtherance of the prospects, of the election of the respondent, as defined in Sub-section (3) of Section 123 of the Act, and (iii) the promotion of or attempt to promote, feelings of enmity or hatred between different classes of citizens on grounds of religion for the furtherance of the prospects of the election of the respondent or prejudicially affecting the election of any other candidate as define in Sub-section (2 A) of Section 123 of the Act.

As already seen ''material facts'' would mean the basic facts which constitute ingredients of the particular corrupt practice and facts which are necessary to formulate the complete cause of action. It would, therefore, be necessary to examine the allegations in the petition in the context of the particular corrupt practice to find out whether the facts alleged make out the ingredients of that particular corrupt practice.

Section 123(2) reads as under :

Section 123(2) : Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person (with the consent of the candidate or his election agent) with the free exercise of any electoral right :

Provided that -

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who -

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii)'' induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.

It would be clear from a bare reading of the petition that there is no specific allegation about any threat to any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community. There are no allegations regarding any inducement or attempt to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure. It is, therefore, clear that proviso to Section 123(2) of the Act does not apply to the case and the petitioner has only relied on the generality of the provision as contained in Sub-section (2) of Section 123 of the Act. The ingredients of the provision are interference '' or attempt to interfere with the free exercise of electoral right, whether direct or indirect, by the candidate himself or his agent or by any other person with the consent of the candidate or his election agent. Thus to make out a cause of action, the following facts would be material :

The manner in which a specific electoral right is alleged to have been interfered or attempted to be interfered.

Whether there was actual interference of an attempt to interfere.

Who interfered or attempted to interfere with the electoral right, the candidate, his agent or any other person. If the allegation is about any other person, whether he had the consent of the candidate or his election agent in doing so.

Whether such interference or attempt to interfere was direct or indirect.

The allegations in the petition, read most liberally, only make out that the alleged corrupt practice of undue influence was committed by the candidate himself and not by his agent or any person with the consent of the candidate or his agent. Apart from the fact that no specific portion of the speech has been pointed out to support the allegation of corrupt practice of undue influence having been committed, there are also no allegations to specify as to what was the electoral right free exercise of which was interfered with and in what manner, whether it was interfered with or attempted to be interfered with and whether it constituted direct interference or indirect interference. All this cannot be left to be guessed by the respondent and the petitioner cannot be allowed to keep all options open to himself and be able to spring a surprise or the respondent at the trial by choosing any of the options available to him because of the vagueness of the pleadings.

The petitioner cannot be allowed to confront the respondent with the full script of a long speech said to be delivered by the respondent on several issues branding the entire speech to be such as causing undue influence on the free exercise of electrol right of the voters without specifying the portions of the speech alleged to be offending and amounting to corrupt practice. It has to be remembered that freedom of expression is a fundamental right which is subject only to reasonable restrictions. In the context of Section 123(2) of the Act the reasonable restriction is that such speech should not cause any direct or indirect interference or should not attempt to cause any such direct or indirect interference with the free exercise of any electrol right. That the speech exceeded the reasonable limits has to be alleged specifically and proved by the person who alleges this. The petitioner was, therefore, duty bound to specify and point out which portion of the speech exceeded the limits and amounted to the corrupt practice of undue influence as defined u/s 123(2) of the Act. As the material facts in this regard have not been pleaded, the allegations as to commission of corrupt practices of undue influence within the meaning of Section 123(2) of the Act are vague and therefore, have to be struck out.

The petition, therefore, lacks material facts so far as the allegation of corrupt practice of undue influence u/s 123(2) of the Act is concerned.

CORRUPT PRACTICE u/s 123(3) OF THE ACT:

Section 123(3) reads as under :

"The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate :

Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purpose of this clause."

The break-up of the requirements of the Section which can be said to be its ingredients are as under :

An appeal, by a (i) candidate (ii) his agent, (iii) any other person with the consent of the candidate or his election agent,

To (i) vote, or (ii) refrain from voting for any person,

On the ground of : (a) religion, (b) race, (c) caste, (d) community, (e) language,

Use of, or appeal to religious symbols or national symbols,

For the furtherance of the prospects of the election of the respondent or prejudicially affecting the election of any other candidate.

In the petition the corrupt practice u/s 123(3) of the Act is alleged to have been committed by the respondent by making speech and by publishing Diwali Greetings in the newspapers. So far, as the speech is concerned, it is alleged to have been given by the respondent. So it is clear that the corrupt practice has been alleged to have been committed by the candidate himself and not, by his agent or any other person. No specific portion of the speech has been pointed out as offending one but in paragraph 7(a) of the petition, it has been alleged that : statement/ appeal made in the speech constitutes "corrupt practice of undue influence within the meaning of Section 123(2), appeal on the ground of religion and caste and use of religious symbols u/s 123(3) of the Act."

In paragraph 7(b) of the petition, it is alleged that in the speech the respondent "made an appeal to the electors to cast their votes for the furtherance of the prospects of his election on the ground of his religion (Hindu religion) and also made an appeal to the religious symbol of Goddess Laxmi seated on a lotus (Kamal Ka Phool) who is worshipped by every Hindu and particularly on the eve of ''Dhan Teras'' and the lotus being the symbol allotted to BJP which constitutes a corrupt practice within the meaning of Section 123(3) the Act."

Again, no specific part of the speech was pointed out as being offending and constituting the corrupt practice. The respondent has been left to guess as to what part of the speech or what exact words are alleged to constitute an appeal on the ground of religion. The composition of the audience has also not been specified as to whether it was a cross-section of the electorate or only Hindu voters who were present at the meeting. The allegation, therefore, cannot be said to be specific and it cannot be said that all the material facts necessary to constitute the ingredients of corrupt practice u/s 123(3) of the Act have been furnished.

Similarly as regards appeal to the religious symbol of Goddess Laxmi seated on a lotus, no specific portion of the speech has been pointed out as offending and it is again left to the respondent to guess as to which words used by him are being alleged to be offending and constituting corrupt practice. Proviso to Sub-section (3) of Section 123 of the Act clearly provides that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of Clause (3) of Section 123 of the Act. Despite this what is alleged in paragraph 7(b) of the petition is that "lotus being the symbol allotted to the BJP, the appeal to the Goddess Laxmi seated on lotus amounted to corrupt practice u/s 123(3) of the Act."

As regards the publication of poster containing symbol of Goddess Laxmi on a lotus, it has only been alleged at the end of paragraphs 7(d) and 7(e) of the petition that "by publishing poster Annexures 1 and 2, the respondent made an appeal to the electorate on the ground of religious symbol and made use of it for the furtherance of prospects of his election". There is no inkling as to whether Goddess Laxmi was taken to be the religious symbol or lotus was taken to be the religious symbol or the combined effect of Goddess Laxmi and the lotus was said to be that of a religious symbol. It was again left to the respondent to guess as to whether publishing photograph of Goddess Laxmi by itself was alleged to have amounted to an appeal to or using religious symbol or the use of photograph of Goddess Laxmi seated on lotus was taken to be an appeal to or use of religions symbol or whether use of lotus itself was alleged to be use of religious symbol. The material facts essential for making out the ingredients of the corrupt practice under Clause (3) of Section 123 of the Act are, therefore, lacking in the petition and allegations in respect of corrupt practice under Clause (3) of Section 123 of the Act deserve to be struck off for vagueness.

CORRUPT PRACTICES u/s 123(3A) OF THE ACT :

Section 123(3A) of the Act reads as under :

Section 123(3A): "The promotion of or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate."

The ingredients of the sub-section would be as follows :

(i) Promotion of feelings of enmity between different classes of the citizens of India or attempt thereof,

(ii) Promotion of feelings of hatred between different classes of the citizens of India or attempt thereof,

(iii) On the grounds of religion, race, caste, community or language,

(iv) By the candidate, or his agent or any other person with the consent of the candidate or his election agent,

(v) For the furtherance of the prospects of the election of the candidate or for prejudicially affecting the election of any candidate."

The position as to allegations in regard to the corrupt practice enumerated in Clause (3A) of Section 123 of the Act is still precarious. At the end of paragraph 7(a) of the petition, it has been alleged that the speech given by the respondent on 27th October, 1993 which was reproduced in the petition, constitutes corrupt practice ''relating to promotion of hatred between different classes of citizens of India on the ground of religion and community u/s 123(3A) of the Act''. In the earlier portion of this paragraph, it was alleged that the respondent made ''an appeal in the name of Lord Ram for seeking votes and also referred to demolition of the structure of Babri Masjid and construction of the Ram Temple in the context of promotion of hatred between different classes of citizens of India on the ground of religion and community''. No particular portion of the speech has been pointed out as offending and it has been left to the respondent to guess as to which portion of the speech or which words used by him will be pressed into service later on in support of the allegations of corrupt practice. Even the communities or classes between which hatred was intended to be or promoted were not specified. It was not specified as to whether hatred was promoted or attempted to be promoted. It was not alleged that reference to the demolition of the structure of Babri Masjid and construction of Ram Temple was for the promotion of hatred. Merely saying that it was in the context of promotion of hatred would not suffice. Moreover, it was also not alleged that the reference was for furtherance of the prospects of the election of respondent or for prejudicially affecting the prospects of any other candidate. The anegations being vague and general do not make out the ingredients of corrupt practice under Clause (3A) of Section 123 of the Act. The allegations in the petition in this respect also, therefore, being vague and general deserve to be struck out.

It was contended by the learned counsel for the petitioner that incorporation of the entire speech alleged to have been given by the respondent in the petition and annexing the greetings published in Newspapers as annexures to the petition, presents a full and complete picture of the case of the petitioner to the respondent and, therefore, it cannot be said that the petition as a whole lacked material facts and did not give rise to a cause of action.

In reply, the learned counsel for the respondent contended that even taking into consideration the entire speech assuming it to have been delivered by the respondent and also assuming that the greetings Annexures-1 and 2 to the petition were published by the respondent, material facts were lacking in the entire allegations taken together and as such they do not give rise to any cause of action. The next question to be answered, therefore, would be as to whether the giving of the speech and the publication of ''Diwali Greetings'' assuming that the speech as alleged was given and the Greetings as alleged were published, would make out, prima facie a case of any corrupt practice having been committed by the respondent.

According to the learned counsel for the respondent even if the entire allegations in the petition are assumed to be proved, even then no corrupt practice can be said to be made out and no cause of action can be said to be disclosed and the petition, therefore, would be liable to be rejected under Order VII, Rule 11 of the Code of Civil Procedure. Several decisions were cited on the point which are being dealt with hereafter:

In Kultar Singh Vs. Mukhtiar Singh, , following observations were made in Paragraph 8 of the decision:

"It is well known that there are several parties in this country which subscribe to different political and economic ideologies, but the membership of them is either confined to, or predominantly held by, members of particular communities or religions. So long as law does not prohibit the formation of such parties and in fact recognises them for the purpose of election and parliamentary life, it would be necessary to remember that an appeal made by candidate of such parties for votes may, if successful, lead to their election and in an indirect way, may conceivably be influenced by consideration of religion, race, caste, community or language. This infirmity cannot perhaps be avoided so long as parties are allowed to function and are recognised though their composition may be predominantly based on membership of particular communities or religions. That is why we think in considering the question as to whether a particular appeal made by a candidate falls within the mischief of Section 123(3), Courts should not be astute to read into the words used in the appeal anything more than can be attributed to them on its fair and reasonable construction."

Further in Paragraph 9, the following observations were made:

"The principles which have to be applied in construing such a document are well settled. The document must be read as a whole and its purport and effect determined in a fair, objective and reasonable manner. In reading such documents, it would be unrealistic to ignore the fact that when election meetings are held and appeals are made by candidates of opposing political parties, the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language, or the adoption of metaphors, and the extravagance of expression in attacking one another, are all a part of the game; and so, when the question about the effect of speeches delivered or pamphlets distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allowance must be made and the impugned speeches or pamphlets must be construed in that light. In doing so, however, it would be unreasonable to ignore the question as to what the effect of the said speech or pamphlet would be on the mind of the ordinary voter who attends such meetings and reads the pamphlets or hears the speeches."

Further in Paragraph 14, it was observed as follows:

"In these proceedings, we are not concerned to consider the propriety, the reasonableness or the desirability of the claim for Punjabi Suba. That is a political issue and it is perfectly competent to political parties to hold bona fide divergent and conflicting views on such a political issue."

Further in Paragraph 17, it was observed as follows:

"Political issues which form the subject-matter of controversies at election meetings may indirectly and incidently introduce considerations of language or religion, but in deciding the question as to whether corrupt practice has been committed u/s 123(3), care must be taken to consider the impugned speech or appeal carefully and always in the light of the relevant political controversy."

The next case cited was the decision of the Supreme Court in Jagdev Singh Sidhanti Vs. Pratap Singh Daulta,

In Paragraph 26, it was observed in relation to appeal on the ground of the condidate''s language as follows:

"The corrupt practice defined by Clause (3) of Section 123 is committed when an appeal is made either to vote or refrain from voting on the ground of the candidate''s language. It is the appeal to the electorate on a ground personal to the candidate relating to his language which attracts the ban of Section 100 read with Section 123(3). Therefore, it is only when the electors are asked to vote or not to vote because of the particular language of the candidate that a corrupt practice may be deemed to be committed. Where however for conservation of language of the electorate appeals are made to the electorate and promises are given that steps would be taken to conserve that language, it will not amount to a corrupt practice."

In Paragraph 28, it was further observed as follows:

"Speeches made at political meetings held for canvassing votes must be examined in the context of the atmosphere of a political campaign and the passions which are generally aroused in such a campaign. In adjudging whether an appeal is made to the language of the candidate, a meticulous examination of the text of the speech in the serene atmosphere of the Court room picking out a word here and a phrase there to make out an offending appeal to vote for or against a candidate on the ground of language would not be permissible. A general and overall picture of the speeches delivered by Sidhanti and other speakers at the meetings disclosed nothing more than a tale of political promises, exhortations and inducements to vote at the forthcoming election for Sidhanti."

The next case cited was a decision of the Supreme Court in Ramanbhai Ashabhai Patel Vs. Dabhi Ajitkumar Fulsinji and Others,

In Paragraph 11, following passage from an earlier judgment was quoted:

"A distinction must, therefore, be drawn, between canvassing on grounds of religion and seeking of votes in graphic or picturesque language with analogies from religious lore; to illustrate, a candidate may appeal to the electorate consisting of persons professing different religions, say Hindu, Mohammadans, Christians etc., to vote for him and say that he would sacrifice his life in the cause of his constitutency just like Christ sacrificed his life to redeem the world. He may also say that like Rama, the virtuous, who killed Ravana, the rakshasa, the embodiment of evil, he would, if elected put down corruption, nepotism and the like in Government. He may even say that he would sacrifice himself as a goal before Kali to bring happiness and prosperity to his constituency. All these similies are drawn from religion, but they do not embody an appeal, directly or indirectly, to vote for the candidate on grounds of religion."

In Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel, AIR 1969 SC 85), the following observations in Paragraphs 24,25 and 28 are relevant for our purpose:

Para-24: "In the present case there is no proof that Jagadguru Shankaracharya of Puri was the religious head of the majority of the electors in this constituency or exercised great influence on them. It cannot be held on the facts of this case that an ordinary Hindu voter in this constituency would feel that he would be committing a sin if he disregarded the alleged directive of the Jagadguru."

Para-25 : "In our opinion, there is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name of religion. What Section 123(3) bars is that an appeal that a candidate or his agent or any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, i.e. the religion of the candidate."

In Ebrahim Suleiman Sait Vs. M.C. Mohammed and Another, it was observed as follows:

Para-8: "The first paragraph of the speech as reported contains a statement that the society will not forgive the anti-religious league people, meaning the Muslim League (Opposition), because of their alliance with Jansangh that had killed many Muslims in Northern India and also at Tellicherry and had burnt mosques and further, that these people had been driving the poor Muslims to the camp of the communal reactionaries. In the second paragraph of the report, it is alleged that these anti-religious people were giving away the secrets of "our society" to "Marxists and Hindu leaders". The third paragraph slates that the speaker made it clear that these anti-religious parties must not entertain the hope of securing the votes of Muslims "In whose head the Islam''s blood was flowing". Mr. Nariman submitted that the allegations as regards the killing of Muslims and the burning of mosques were based on facts and he referred to the report of the Commission of Inquiry that investigated the facts relating to the disturbances which took place in Tellicherry in 1971. In our opinion truth is not an answer to a charge of corrupt practice u/s 123(3A), what is relevant is whether the speech promoted or sought to promote feelings of community or hatred as mentioned in that provision. If it is immaterial whether what was said was based on facts or not, especially when in this case the events mentioned occurred years age."

Para-9: "Turning now to the speech, the allegations of killing of Muslims and burning of mosques appear to have been made against Jansangh which is a political party. It is not claimed that this is a party whose membership is restricted to Hindus only. The members of the Muslim Leage (Opposition) are described as "anti-religious people" but as held by this Court in Kanti Prasad Jayshanker Yagnik Vs. Purshottamdas Ranchhoddas Patel and Others, the law does not place any bar on describing a party as irreligious. Then it is said that these people were "giving away" the "secrets" of the Muslim society to "Marxists and the Hindu leaders". It is not clear what was the nature of ''''secrets" which were being passed on to the Hindu leaders and to the Marxists. It is to be noted that the recipients of the information were not only the Hindu Leaders but the Marxists as well. The speech appears to have ended with the assertion expressed in rather high flown language that the anti-religious parties had no hopes of securing the vote of any Muslim "in whose head the Islam''s blood was flowing."

Para-10: "Reading the speech as a whole it cannot be denied that its tone is communal, but in this country communal parties are allowed to function in politics. That being so, how an appeal to the voters, such as the one made in the speech in question, should be viewed in the context of corrupt practices mentioned in the Act, has been explained by Gajendragadkar, C.J. speaking for the Court in Kultar Singh Vs. Mukhtiar Singh,

In the aforesaid circumstances it was concluded that it cannot be said that the speech given in that case fell within the mischief of Section 123(3A) of the Act.

In P.R. Francis Vs. Raghavan Pozhakadavil and Others, following portion of the pamphlet Ex. P/4 were objected to by the petitioner:

"There are mainly two fronts on the scene : those who believe in God and democracy on the one hand and atheistic and anti-religious forces not having faith in democracy on the other. In this fight between these two alignments, don''t create such situations whereby the democratic forces become weak by discord and division amongst themselves or by entering into such alliances as would help atheistic forces. This is the desire of the Bishop of Kerala".

" "Each Catholic is bound to act in accordance with the guidelines given by the Bishops. No one who treasures religion and ethics, a Catholic or (for this matter) any one who believes in religion, cannot support the atheistic forces or their allies. To act otherwise would be a challenge to the holy teaching authority of the Church. Obvisouly the Church-leadership which has given these guidelines has vested interest or selfish motive. As dignitaries of he Church they have the right and the responsibility to give such guidelines at this crucial moment; the reason is, politics does not mean governance alone but the way of Government founded on some political ideology and when such ideology is opposed to the legitimate rights of the Church and the individual, it is the responsibility of the Church by virtue of its teaching authority, to point out the same; especially taking into account past experience."

Pronouncing on these two passages in Paragraph-27 of the decision, it was observed a follows:

"In these two passages or in Ext. P4 read as a whole there is absolutely no compulsion under any kind or threat that the electors are to vote one way and not the other way. No doubt there is an entreaty to vote one way based on the guidelines given by the Bishops which guidelines (as stated therein) have been given on ideological grounds."

Similarly, the following portion of the pamphlet Ex. P/5 were objected to by the petitioner:

"Basically and substantially, in theory and in practice, communism is an atheistic force. Wherever this force has come into power there these tenets (laid down by Marx. Lenin and Stalin to the effect that communism is opposed to belief in the existence of God and practise of religion which P.W. 6 has quoted in the immediately preceding portions therein) have been brought into force. In such places churches have been destroyed; priests and nuns have been killed; Bishops have been deported; Cardinals have been imprisoned; educational institutions have been taken over; freedom of opinion (expression) and freedom of writing (press) have been abolished; freedom fighters have been made into slaves. In 1957 Kerala experienced on a small scale the reflection of this global phenomenon. That is why the Bishops have at this crucial juncture given guidelines to believer''s (in God) to see that atheistic forces do not capture power."

While pronouncing on the aforesaid portion of Ex. P/5. it was observed in Paragraph-30 as under:

"Ext. P/5 also either by the passages read above or pamphlet read as a whole does not hold out any threat or compulsion that the electors are to vote one way and not in any other way. For reasons stated therein which are based on ideological differences electors are entreated to vote for Janadhipathya Munnani and to defeat the Idathuparkasha Janadhipathya Munnani. Such entreaties are within bounds."

Again in Paragraph 32, it was concluded as follows:

"In Kanti Prasad Jayshanker Yagnik Vs. Purshottamdas Ranchhoddas Patel and Others, the Supreme Court said that the law does not place any bar on describing a party as irreligious and in Ebra-him Ebrahim Suleiman Sait Vs. M.C. Mohammed and Another, : Ebrahim Suleiman Sait Vs. M.C. Mohammed and Another, the Court following the abovesaid case took the view that to describe members of a party as ''anti-religious people'' does not violate the election laws. In short the purport of Ext. P/4 and Ext. P/5 as well as that of the four sermons rendered by the two priests, Rev. Frs. Mandumpala and Anthicad, is that Idathupaksha Janadhipathy Munnanai is anti-God, anti-religious and anti-democratic. For that reason the electorate was exhorted to vote for the Janadhipathy Munnani, which, according to these documents and as stated in these sermons, stands for God, religion and democracy."

In the light of the aforesaid observations of the Supreme Court and the High Courts the speech alleged to have been rendered by the respondent has to be examined. As already stated no particular offending portion in the speech has been pointed out by the petitioner in the petition but at the hearing some portion of the speech were targeted. It is, therefore, to be seen whether any of the portions of the speech would make out corrupt practices u/s 123(2), (3) and (3A) of the Act in the context and the manner in which they appear in the speech.

It would be worthwhile to recapitulate the salient features of the speech to appreciate its context and import. In the speech, after preliminary references, the respondent is said to have said that the slogan ''Jai Shri Ram'' was being shouted before he rose to speak and in that reference he said that in the days of the British Raj, Mahatama Gandhi gave the slogan ''Vande Materam'' and the Britishers were driven out of the country. He further said that in the present time in India, the slogan ''Jai Shri Ram'' is in vogue. It has the same power as ''Vande Materam'' had and as ''Vande Materam'' had seen the departure of the British, ''Jai Shri Ram'' is after the Congress and would see the departure of Congress. Then, he again raised the slogan of ''Jai Shri Ram'' and asked the audience to respond. Then, he further continued that main question in the election was as'' to whether temple of ''Shri Ram'' should be built at the place of his birth. The Prime Minister of India was saying that he will build a mosque at that place. He then stated that the audience might not know that during the British Rule the dispute of tempic and the mosque arose and they felt that there was no better way of setting Hindus and Muslims against each other and they instigated Hindus and Muslims to fight amongst each other and the fight went on till the country was divided into two parts and Pakistan was formed. The respondent further stated that after independence Congress Party also thought that if they had to rule India, they had to see that Hindus and Muslims quarrel with each other. They raised the dispute of the structure �<kapk�- The dispute snow-balled to the extent that Indian people started voluntary service (Kar Seva) and the people had seen that those who had gone for ''Kar Seva'' had not gone on a business tour, or as mercenaries, nor for earning wealth. They went there for building the temple of ''Lord Ram'' and those who had gone there with this resolve faced bullets and blood started flowing in the lanes of Ayodhya. Later on eyes of the Government opened and they started saying that the matter be resolved amicably by discussions and negotiations between ''Babri Masjid Action Committee'' and ''Vishva Hindu Parishad''. When they were not ready to come to the negotiating table, the Prime Minister asked the respondent and Shri Sharad Pawar the then Chief Minister of Maharashtra to mediate. The respondent further stated that during the negotiations Muslims agreed that if it was proved that the structure which was standing at the place was constructed after demolishing a religious place earlier standing there, then they would relinquish the claim to the structure. Congress-men were annoyed with this and allowed the matter to drift. Then the protogo-nists of the temple told the Prime Minister that let the matter be referred to a Judge of the Supreme Court. The Prime Minister did not reply but when the structure was demolished, the Prime Minister referred it to the Supreme Court. The respondent further stated that when the matter was pending in the Surpeme Court, the Prime Minister was saying that he would get a mosque constructed at the place of the demolished structure. He then stated that the idol of Lord Ram was still there at the place and the result of the construction of the mosque at that place would be the removal of the Idol from the place. He then asked the audience whether they are in favour of removal of the Idol from that place and replied himself that nobody was in favour of displacement of the Idol. Immediately after this, the respondent stated that they had no quarrel with the Masjid. According to him in the disputed structure till date no Muslim had offered Namaz. The holy Kuran was not kept there. No ''Ajan'' was ever given from the structure but in order to promote separatist tendencies amongst the Muslims, time and again, the structure was called as mosque. He stated that the structure could not have been a mosque because in the structure on a pillar a photograph of twelve incarnations of the God was hanging. There was a stone fixed there which was bearing inscription of twelve incarnations. Despite this it was being misrepresented that the structure was a mosque in order to create disruption and tension amongst the two communities, the Hindus and the Muslims and that too to at last votes in favour of Congress. He further said that after the demolition of the structure, Muslims got disillusioned and in the elections in Kerala they defeate the Congress.

In his speech the respondent has further stated that he had been the Chief Minister of Rajasthan and challenges any Muslim to show that any Congress Government had spent a paisa on the Khwaja Saheb Dargah at Ajmer. He then said that he had given rupees five crores for the development of Dargah and that if he was opposed to mosque or Muslims, he would not have done so. He then exhorted the people to stand by his side if they want a temple to be constructed. He said in any case, mosque was not going to be constructed there even if in place of Narsimha Rao, God himself appears as ''Narsingh Avatar'' (incarnation of God). Then he said that in the election it would bedecided whether a temple should be built at the birth place of Lord Ram or not. He then said that Lord Ram is for all. He is installed there for all. He is also there in the cottage of the poor. Explaining it further he said that if any one in a village acts against the norms of the society, people say that Ram has quit him (his body). Further in the speech, he referred to the impending festival of Diwali and explained the historical importance of Diwali. Then he referred to the economic programme implemented by his Government, the steps taken by him for the upliftment of the downtrodden, for getting employment to the poor, to feed the poor persons. He also referred to the waiver of agricultural loans. Then he referred to the help rendered by him to some ''Rebaris'' who were victims of violence. Thereafter, he referred to the candidate put up by the Congress Party against him and narrated also an incident when a moneyed man was brought from outside to contest election in the constituency. He had also said that they have also resolved to oppose the implemention of Duqcal recommendations. Lastly, he referred to the polling date falling on the day of Dhan Teras. He said that he had opposed the polling date being fixed on Dhan Teras but despite this the date was so fixed. He told the people, in charge of the elections, that he had nothing to worry as the expenditure of his party will go down and when the in charge of the elections asked how the expenditure would be reduced, he told them that on that day everybody will purchase the picture of Goddess Laxmi and there will not be Hindu who would not bring home the picture-portrait of Laxmi. In that picture Laxmiji would be seen coming out of the lotus and thus there will be automatic propaganda of the lotus and then it would be said that propaganda of lotus was made by Laxmiji and if this happened it is impossible that there would be anyone in the world who would not see Laxmiji on lotus and would not vote for Bhartiya Janta Party by affixing seal on the lotus.

This portion of the speech was vehemently attacked at the time of the arguments on behalf of the petitioner as extremely offending and amounting to appeal in the name of the religion as well as using of religious symbol. If the entire speech is read as a whole, it would be clear that the respondent when he spoke in regard to building of the temple of Shri Ram at his birth place, he was not canvassing that the temple should be built at the palce where ''mosque'' stood. He made it clear that he was neither against the Muslims nor against the mosque. He clearly stated that according to him the structure was not a mosque and Namaz was never offerred, holy Kuran was never placed there and Ajan was ;never given from that structure. If in a dispute as to whether a particular structure was a temple or a mosque, if a person contends that it was a temple and was never a mosque, his statement cannot be branded as communal or an appeal in the name of religion. Religion has nothing to do with such a dispute, though normally a majority of Hindus are likely to have an opinion in favour of the structure being a temple and a majority of Muslims are likely to have an opinion that the structure was a mosque. Still, there would be some Hindus of the opinion that the stucture was a mosque and, therefore, temple should not be built there and some Muslims of the opinion that the structure was originally a temple and, therefore, it should be handed over to Hindus for building a temple there. The division of opinion on such a property dispute may not always be on communal lines. That the Congress Party which is a national party, having unquestionably a Hindu majority in its membership and not a Muslim majority of members, was perceived to have an opinion that the structure was a mosque is enough proof of this. It cannot be said that every Muslim was a supporter of the mosque and every Hindu was an opponent of the Mosque. The question was, therefore, not a communal one. It was at best a question of politico-Historical opinion and everyone was free for have his own view on the point and a right to express it freely irrespective of his religion. It cannot also be lost sight of that the respondent was attacking the Congress Party, its Government at the Centre and its Prime Minister on the question of the structure and was not blaming the Muslims for the same. The entire tenor of the speech was against the Congress Party and the Prime Minister. It is, therefore, clear that there was no appeal to religion in the speech so far as reference to the temple and the mosque were concerned. It was being canvassed as a political question and not a religious question and objection was being raised to the politicisation of a purely property dispute and its conversion into a Hindu-Muslim dispute. The Congress Party was being attacked for prevaricating on the issue for fear or loosing Muslim votes.

As regards the reference of the names of ''Lord Ram'' and ''Goddess Laxmi'' in the speech it cannot by itself be said to be an appeal in the name of religion. Gods and incarnations of Hindus cannot be contained within the limits of religion. They have with passage of time transcended all barriers and have entered the social psyche of the masses. There was a time when religious sects believing in different Gods were separated from each other and were at logger-heads. ''Shaivas'' (those who believed in God Shiv) and ''Vaish-navas'' (those who believed in God Vishnu) were distinctly recognised religious denominations. At that time it might have been relevant to invoke sympathies or garner support in the name of Lord Shiva or Lord Ram or Lord Krishna. A synthesis was then arrived at and it came to be largely believed that all sects were only different paths to reach the same goal. Names like ''Shivram'', ''Laxmi Parvati'' which would have been sacrilegious earlier became common. Gods and Goddess ceased to divide the society and started helping in uniting it. Practices having their origin in the religion became social practices and lost the irreligious ferver or significance. Thus ''Ram -- Ram'', ''Jai Siya Ram* or ''Jai Shri Krishna'' became the accepted form of salutations having little religious significance. Similar is the case with the names of Gods.

''Lord Ganesh'' and ''Goddess Sarasvati'' came to be regarded as symbols of learning quite apart-from their religious significance. ''Kuber'' and ''Laxmi'' became symbols of wealth apart from their place in the Hindu religion. That is why normally, social functions in India, though not even remotely connected with religion, begin with ''Gasnesh Vandana'' or ''Saraswati Vandana''. Even Government functions have been known to begin with certain invocations and ceremonies which had their roots in religious practices of Hindus. It must be accepted that Ram, Krishna, Laxmi, Ganesh and several other Gods of the Hindus have religious as well as non-religious significance depending on the context. Names of those deities are not only taken in religious context alone. In Indian society they are taken to be ideals to be emulated. If ideal relationship of brothers is to be described example of ''Ram-Laxman'' is given. Ideal couple is referred to as ''Laxmi Narain'' or ''Seeta-Ram''. An ideal Government is described as ''Ram-Raj'' and an ideal servant is described as ''Hanuman''. That has become a manner of speech. Thus unless used in the religious context these names of Gods have little religious significance. Reference to ''Ram'', ''Krishna'', ''Ganesh1, ''Saraswati'' and ''Laxmi'' in a speech, therefore, cannot per se be taken as reference to or use of religious symbols or an appeal on the ground of religion. By themselves, these names have ceased to arouse religious feelings and to that extent can be said to have been secularised. In the context in which the respondent is said to have referred to ''Ram'' and ''Laxmi'' in his speech, it cannot be said that he was appealing to vote for him on the ground of religion or was making any use of or making any appeal to religious symbols.

So far as the reference to Diwali and the polling being on Dhan Teras is concerned, it cannot be forgotten that if the elections are held during a festival such reference would be almost inevitable. In our polity almost every day of the Calendar has some religious, social or mythological significance. It would be impossible to find out a day in Hindu Calendar which has no association at all with some historical, religious, mythological or social event or the other. It is normal practice in the society to emphasize the importance of the day on which something was being done or proposed to be done by reference to its historical or religious significance. Even beggers do not fail to remind us whether the day was ''Amavasya'', ''Pornima'', or ''Eka-dashi''. The whole idea at best could be to emphasize that the day was auspicious and nothing beyond that.

As observed in Kultar Singh Vs. Mukhtiar Singh, use of hyperboles or exaggerated language, or the adoption of metaphors, and the extravagance of expression in attacking one another are all a part of the game, and so, when the question about the effect of speeches delivered or pamphlets distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allowance must be made and the impugned speeches or pamphlets must be construed in that light.

Similar is the case of reference to Goddess Laxmi in the speech. To associate the election symbol of lotus with Goddess Laxmi would not amount to use of or an appeal in the name of religious symbol. As lotus has been allotted as official symbol to the Bhartiya Janata Party under the proviso to Section 123(3) of the Act, it could not be said to be the religious symbol. There is no exhortation in the speech to vote for BJP because of its symbol being associated with Goddess Laxmi. To say that the respondent had warned the Officers/In charge of the election not to fix ''Dhan Teras'' as the polling date because that would automatically result in propaganda of lotus and objections would be raised that because of this BJP benefited would not amount to seeking votes on the basis of religion. It cannot be said that he was asking any one to vote for the BJP on the ground of religion. It could only be use of hyperbole, exaggerated language or use of metaphor.

So far as the Greetings Annexure/1 and Annexure/2 are concerned, admittedly they were published during Diwali. They did not contain any exhortation to vote for any one. They were published as Diwali Greetings. Goddess Laxmi seated on a lotus has been shown in the picture. It cannot be disputed that Goddess Laxmi is worshipped during Diwali and lotus is associated with her. As already discussed, ''Goddess Laxmi'' is taken more as symbol of wealth than that of religion. Diwali is of immence significance to business community or traders irrespective of their religions. The trading year starts from Diwali and, therefore, it is important to non-Hindu traders also. Diwali, therefore, cannot be said to be a strictly religious festival. It has more social and commercial significance than religious significance. Moreover political parties and political leaders in India are not immune from following religious norms and it is an accepted practice in our public life that political leaders greet the masses on the eve of various festivals. It is not even necessary that the religious festival should belong to the religion of the particular leader. Thus, Muslim leaders greet Hindus on Diwali, Dashera and other festivals and Hindu leaders greet Muslims on Idd and on other Muslim festivals. Hindu political leaders are known to even host ''Iftar'' parties during Ramzan. If that is the socio-political norm developed over the years, the respondent''s publishing Diwali Greetings with photograph of Laxmi seated on a lotus in the newspapers cannot be said to be an appeal to religion or use of religious symbol for the purpose of election.

Moreover, what the Supreme Court has said about symbols also supports the view taken above. In Jagdev Singh Sidhanti Vs. Pratap Singh Daulta, , in para-10 of the decision, following observations were made about ''OM''�š�:

"A symbol stands for or represents something material or abstract. In order to be a religious symbol, there must be a visible representation of a thing or concept which is religious. To ''Om'' high spiritual or mystical efficacy is undoubtedly ascribed; but its use on a flag does not symbolise religion, or anything religious."

Following observations in Ramanbhai Ashabhai Patel Vs. Dabhi Ajitkumar Fulsinji and Others, are also relevant:

Para-10: "It is impossible to say that any particular object, bird, or animal could be regarded as a "symbol of the Hindu religion". The basic concept of Hindu religion is that the supreme being is in every "inanimate" object, plant, creature or person, i.e., in the entire creation and that the entire creation is within the Supreme Being. If, therefore, according to the fundamental concept of Hindu religion, God or Divinity is the reality or the substance of everything that exists, it would not be possible to say that any particular object is a symbol of the Hindu religion. It is true that various deities in the Hindu pantheon are associated with some specific objects, birds or animals. Thus for example, Shiv is associated with a trident and a coiled cobra round neck; Vishnu is associated with the cobra, ''Shesha'' on which he reclines as upon a bed; the eagle is associated with Vishnu as his vehicle; the Goddess Lakshmi is associated with lotus upon which she stands and so on and so forth. Does it mean then that if a person uses a lotus or a cobra or a trident as his election symbol he will be appealing to the religious sentiments of the people? The answer must be clearly in the negative".

Para-12 : "But where, as in the case of the Hindu religion, it is not possible to associate a particular symbol with religion, the use of a symbol even when it is associated with some deity, cannot, without something more, be regarded as a corrupt practice within the meaning of Sub-section (3) of Section 123 of the Act. For instance, a particular object or a plant, a bird or an animal associated with a deity is used in such a way as to show that votes are being solicited in the name of that deity or as would indicate that the displeasure of that deity would be incurred if a voter does not react favourably to that appeal, it may be possible to say that this amounts to making an appeal in the name of religion. But the symbol standing by itself cannot be regarded as an appeal in the name of religion."

In Amarnath Gupta v. Ram Gopal Shawlwala, (1968) ELR 1Del., the following observations were made :

"So far as the word "Allah" is concerned, it cannot be said to be a religious symbol. It is the Arabic name used by Muslims of all nationalities for the one true. God compounded of al, the definite article, and ilah, a God. The same word is found in Hebrew and Aramaic as well as in ancient Arabic (vide "Encyclopaedia" Britannica, p. 643). It is true that Muslims generally use the word "Allah" for God but that is no more than the Arabic word for God and cannot be treated as a religious symbol in the sense laid down by their Lordships of the Supreme Court."

It was also contended that even if the words used in the speech are not held to be amounting to a direct appeal to religion or religious symbol, it was clearly a case of the same being done through innuendo. M.J. Zakharia Sait Vs. T.M. Mohammed and Others, has already been referred to earlier but it would be necessary to reproduce the following observations in paragraphs-10 and 15 of that case :

Para-10: "The facts and/or particulars which spell out the innuendo where one is alleged or relied upon to constitute a corrupt practice are themselves material facts and it is necessary to state them in the petition in view of the mandatory provisions of Section 83(1) of the Act."

Para-15: "The conspectus of the autho rities thus shows that where the defamatory words complained of are not defamatory in the natural or ordinary meaning, or in other words, they are not defamatory per se but are defamatory because of certain special of extrinsic facts which are in the knowledge of particular persons to whom they are ad dressed, such innuendo meaning has to be pleaded and proved specifically giving the particulars of the said extrinsic facts. It is immaterial in such cases as to whether the action is for defamation or for corrupt practice in an election matter for in both cases it is the words complained of together with the extrinsic facts which constitute the cause of action."

If the petitioner wanted to contend that even though the plain words used by the respondent were not offending to election law per se, but were offending because of certain I extrinsic facts which were in the knowledge of the respondent and the persons to whom they were addressed, then it was incumbent upon him to plead and prove specifically the innuendo meaning alleged and to give particulars of the said extrinsic facts. The words complained of together with the extrinsic facts which go to show that though the words were plain but the intended meaning or the innuendo constituted the cause of action had to be specifically pleaded.

In the present case, the petitioner has not at all pleaded that the plain words contained some innuendo meaning and the basic facts on the basis on which such inference could be drawn and such innuendo meaning could be proved have also not been pleaded. It cannot, therefore, be said that any cause of action could be inferred to be existing in favour of the petitioner on the basis of the innuendo meaning of the speech.

The petitioner''s learned counsel also pressed into service, the following observations of the Supreme Court in Section S.R. Bommai and others Vs. Union of India and others etc. etc., of the judgment''s were referred to.

In paragraph-196, the argument that the interpretation and applicability of subsections (3) and (3A) of Section 123 of the Act has to be confined to only cases in which individual candidate offends religion of rival candidate and the ratio cannot be extended to a political party espousing as a part of its manifesto a religious cause, was rejected. It was held on the basis of earlier cases of the Supreme Court relating to the election law that the interpretation lends no licence to a political party to influence the electoral prospects on the ground of religion. It was observed that in a secular democracy, mingling of religion with politics was unconstitutional being a flagrant breach of constitutional features of secular democracy. It was further observed that it was imperative that the religion and caste should not be introduced into politics by any political party, association or an individual and it was imperative to prevent religious and caste pollution of politics. It was thus held that every political party, association of persons or individuals contesting election should abide by the constitutional ideals, the Constitution and the laws thereof.

In paragraph-310 of the judgment, it was observed that if the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognise or permit, mixing of religion and State power. Introducing religion into politics is to introduce an impermissible element into body politic and an imbalance in our constitutional system. It was further observed that under our Constitution no party or organisation can simultaneously be a political and a religious party. It has to be either. It was further observed that same would be the position, if a party or organisation acts and/ or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party.

In paragraph-311, it was observed that consistent with the constitutional philosophy, Sub-section (3) of Section 123 of the Act treats an appeal to the electorate to vote on the basis of religion, race, caste or community of the candidate or the use of religious symbols as a corrupt practice. Even a single instance of such a nature was enough to vitiate the election of the candidate. It was further observed that similarly, Sub-section (3A) of Section 123 of the Act provided that "promotion of, or attempt to promote, feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community or language", by a candidate or his agent, etc., for the furtherance of the prospects of the election of that candidate is equally a corrupt practice.

It is not known as to how the aforesaid observations would be helpful in deciding the present case. It is nobody''s case that a political party was guilty of any corrupt practice or of unconstitutional conduct. The allegations are not against the political party to which the respondent belongs. It is pure and simple case u/s 100(b) read with Section 123(2), 123(3) and 123(3A) of the Act. The petitioner has not challenged in his petition any act of the respondent or the party to which he belongs, as unconstitutional or even unlawful apart from being violative of provisions of Section 123(2)(3)(3A) of the Act. The case has to be decided on the pleadings contained in the petition and not on the basis of any imaginary unconstitutional act, not even alleged to have been committed by the respondent and/or the political party to which he belongs. The reference to Section R. Bommai''s case AIR 1994 SCW 2946, therefore is wholly irrelevant for the purpose of this case.

From the aforesaid discussions, it can be concluded that the speech alleged to be delivered by the respondent and the publication of the greetings do not amount to any corrupt practices under Sees. 123(2), 123(3) and 123(3A) of the Act and the allegations in the petition do not give rise to any cause of action.

Non-compliance with the provisions of Section 83(1 )(b) of the Act:

It is to be examined in the light of the case law already referred whether the petition lacks in material particulars and if so, what would be the effect of the defect.

As already seen, the difference between the material facts and material particulars is that facts necessary to formulate the complete cause of action are said to be material facts and the function of particulars is to present as full picture of a cause of action with such information in details as to make the opposite party understand the case he will have to meet.

As already noted, paragraph-7 of the petition contains the pleadings on the point of corrupt practice. The contents of the paragraph have been thoroughly discussed earlier. It is not therefore necessary to repeat the same again. The material particulars can be said to be lacking in the petition can be pointed out as follows:

In paragraph-7(a), the date of the meeting has been given but the strength of the audience has been described vaguely by saying that it was "a largely attended election meeting". ''Largely'' being a relative term gives no idea as to what was the approximate strength of the gathering Constituting the audience. The time of the meeting is given as ''afternoon''. The exact or approximate time in terms of hours and minutes Is not given.

In paragraph-7(1)(d) of the petition, it was stated that the BJP published a poster in newspaper, viz., ''Rajasthan Patrika'' dated November 9, 1993 in its Jodhpur edition. The particulars as to who in the BJP published the poster and how much wide circulation it had in the constituency, as also who amongst electorate saw the publication is not stated. As a ''poster'' is not supposed to be printed in a newspaper, the particulars in that regard can also be said to be lacking.

Similar is the case of publication referred to in paragraph 7(e) of the petition. An attempt was made on behalf of the petitioner to say that most of the material facts alleged to be lacking in the petition, at best, could be said to be particulars and not material facts. Though, there is a possibility of some over-lapping in material facts and particulars, the difference has been discussed in detail earlier. It has already been found that the petition lacks in material facts. There is no point in repeating the same discussion again.

It is now settled law that a petition cannot be straightway dismissed for want of full particulars. If an objection in this regard is upheld, an opportunity has to be given to the petitioner to apply for leave to amend or amplify the particulars of the corrupt practices alleged and in the event of non-compliance of that order, the concerned charges may be struck off as vague.

In paragraph-27 of the decision of the Supreme Court in F.A. Sapa Etc., Etc., Vs. Singora and others, , it has been observed while discussing the cases of defective verification of the petition and defective affidavit in support of the petition that if the respondent desires better particulars in regard to certain averments or allegations, he may call for the same in which case the petitioner may be required to supply the same.

In the present case, it appears that as the respondent is relying mainly on his objection that the petition, does not contain material facts, particulars have not been asked for. As it has been found that the petition lacks in material facts, it is futile to ask for particulars from the petitioner or to ask the respondent to move an application for better particulars. The petition however cannot in the circumstances be dismissed or rejected on the sole ground that it was lacking in particulars.

Non-compliance with the requirements of Sec. 83(1)(c) of the Act and its proviso:

The question to be considered is as to whether the petition deserves to be thrown out at the threshold for non-compliance with the provisions as to verification and affidavit contained in Section 83(1)(c) of the Act.

In M. Kamalam Vs. Dr. V.A. Syed Mohammed, it was observed as follows:

"It would, therefore, be seen that if a schedule or annexure is an integral part of the election petition, it must be signed by the petitioner and verified since it forms part of the election petition. The subject-matter of Sub-section (2) is thus a schedule or annexure forming part of the election petition and hence it is placed in S, 83 which deals with contents of an election petition. Similarly, and for the same reasons, the affidavit referred to in the proviso to Section 83 of sub- Section (1) also forms part of the election petition. The election petition is in truth and reality one document, consisting of two parts, one being the election petition proper and the other being the affidavit referred to in the proviso to Section 83, sub-sec: (1)".

In F.A. Sapa Etc., Etc., Vs. Singora and others, after a detailed discussion on the case law on the point, in paragraph-27, U was, observed as follows:

"From the text of the relevant provisions.of the R. P. Act, Rule 94A and Form 25 as well as Order 6, Rule 15 and Order 9, Rule 3 of the Code and the resume'' of the case law discussed above it clearly emerges (i) a defect in the verification, if any, can be cured, (ii) it is not essential that the verification clause'' at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true, (iii) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same, and (iv) the defect in the affidavit in the prescribed Form 25 can be cured unless the affidavit forms an.integral part of the petition, in which case the defect concerning material facts will have to be dealt with, subject to limitation, u/s 81(3) as indicated earlier".

In paragraph-28, it was further observed as follows:

"A charge of corrupt practice lias a two-dimensional effect; its impact on the returned candidate has to be viewed from the point of view of the candidate''s future political and public life and from the point of view of the electorate to ensure the purity of the election process. There can, therefore, be no doubt that such an allegation involving corrupt practice must be viewed very seriously and the High Court should ensure compliance with the requirements of Section 83 before the parties go to trial. This is quite clear from the observations of this Court in the case of K. M. Mani v. P. J. Anthony, (1979) 1 SCR 701 : K.M. Mani Vs. P.J. Antony and Others, While defective verification or a defective affidavit may not be fatal, the High Court should ensure its compliance before me parties go to trial so that the party required to meet the charge is not taken by surprise at the actual trial. It must also be realised that delay in complying with the requirements of Section 83 read with the provisions of the Code or the omission to disclose the grounds or sources of information, though not fatal would weaken the prubative value of the evidence ultimately lead at the actual trial.....If, however, the affidavit or the schedule or annexure form an integral part of the election petition itself, strict compliance would be insisted upon".

In the same case after laying down the law as aforesaid, in paragraph-33 of the. decision, the facts of that case were consi-dered and it was pointed out that some of the paragraphs of the petition were verified to be true on knowledge, whereas other paragraphs on information received and believed to be true. There were certain paragraphs which were not verified at all. Some paragraphs were verified under both the heads of verification by stating that they were true to knowledge as well as true on the basis of the information received and believed to be true. In the affidavit sworn in compliance of the proviso to Section 83(1), it was stated that particulars and details of corrupt practice were contained in paragraphs-4 to 40 in the election petition and it was stated that what, was alleged by way of corrupt practice in the election petition was correct to the best of the petitioner''s knowledge and to the information received by him and believed to be true. Thus it was not clear which allegation of corrupt practice was based on his knowledge and which information he believed to be true. There was confusion created by the contradictions in the verification of the petition and the affidavit as certain contents of the petition verified to be true to the petitioner''s knowledge were in the affidavit verified to be true to the information and vice versa. In this back ground, it was observed by the Court that there was considerable force in the submission of the learned counsel for the appellant in that case that even if the High Court concluded that the defect in verification/ affirmation was not fatal, the High Court ought to have directed to cure''the defect within a time stipulated so that the appellant could know the exact position before the trial and would not be taken by surprise. A suitable direction was therefore, made for removal of the defects.

Examining the present case in the light of the above observations, it would appear that the case is akin to F.A. Sapa Etc., Etc., Vs. Singora and others, so far as the contradictory verification of the petition and the accompanying affidavit creating confusion is concerned. It was pointed out that in the verification of the petitidn, paragraphs-I to 5 were verified to be true to the petitioner''s Knowledge and the documents and the contents of paragraphs-6, 7, 8, 9, 10 and 11 were verified to be true on the information received and believed to be true. In- the affidavit the entire paragraph-7 with its sub-paragraphs (a) to (e) was verified to be true to the petitioner''s knowledge and the documents referred to therein. Thus paragraphs-7(a) to (e) are verified to be true on the basis of the information received and believed to be true in the petition whereas in the affidavit the same paragraph was verified to be true to the personal knowledge of the petitioner.

It appears that directions given in F.A. Sapa Etc., Etc., Vs. Singora and others, to cure the defects were because of acceptance of alternative submission made in that case and it has not been held that in all cases of defective affidavit Court has to give an opportunity to remove the defects. This should be clear from the last sentence of paragraph-28 of the judgment, quoted above, where it was observed that where the affidavit or the schedule or annexure form an integral part of the election petition itself, strict compliance would be insisted upon. In the present case the affidavit cannot be said to be a separable part of the petition. It is no doubt an integral part of the petition. Without the affidavit in support of corrupt practices the petition would not have been complete and could not have been entertained. Defect in the affidavit was therefore defect in the petition. When verification of petition and the contents of the affidavit contradict each other and present a contradictory and confusing picture, the petition has to be taken to be defective in as much as h does not present a clear picture before the respondent and the Court. Information as to whether the allegations made in the petition were based on personal knowledge of the petitioner or on his derived knowledge is of vital importance to the respondent. Source of information may not be required to be disclosed initially but that does not mean that the petitioner is allowed to equivocate on the point to the extent that he can keep both the mutually exclusive options open to himself and surprise the respondent at the hearing by adopting one of the options suiting his convenience at that time. Self contradictory verification and affidavit has therefore to be taken as a fatal defect and not a curable defect.

Moreover, in the present case, since the substituted petitioner has expressed inability to get the defects in the affidavit, u/s 83(1) of the Act, cured by obtaining a fresh affidavit from the original petitioner and has got the application moved for the purpose dismissed as infructuous, it would be futile to make any direction for removal of defects in the affidavit. The petition therefore, deserves to be.thrown out at the threshold also on the ground that it does not comply with the provisions of Section 83(1)(c) of the Act.

For the aforesaid reasons, the application under Order 6, Rule 16 and Order?, Rule 11 of the CPC read with Sections 83, 86 and 87 of the Representation of the People Act, 1951 filed by the respondent deserves to be and is hereby allowed. The allegations in the petition in respect of corrupt practices under Sections 123(2), 123(3) and 123(3A) of the Act are ordered to be struck out being vague and general and being, therefore, embarrasing for a fair trial of the petition. The election petition is rejected with costs as it does not disclose any cause of action. Costs quantified at Rs. 5,000/- payable to the respondent by petitioner Ranveer Singh who is the lone contesting petitioner, petitioner Mohd. Yusuf having declared that he was not at issue with the respondent and having in fact prayed for dismissal of the petition. The amount, if any, deposited by petitioner Mohd. Yusuf shall be refunded to him.