REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2928 OF 2008
TUKARAM S. DIGHOLE -- APPELLANT
VERSUS
MANIKRAO SHIVAJI KOKATE -- RESPONDENT
JUDGMENT
D.K. JAIN, J.:
1. This appeal under Section 116-A of the Representation of the
People Act, 1951 (for short “the Act”) is directed against the
final judgment and order dated 25th January, 2008, rendered by
the High Court of Judicature at Bombay in Election Petition
No.13 of 2004, whereby the election petition preferred by the
appellant, challenging the election of the respondent to the
House of People (Lok Sabha) from 69, Sinnar Parliamentary
Constituency in the State of Maharashtra has been dismissed.
2. Briefly stated, the material facts giving rise to the present
appeal are as under:
Election to the said parliamentary constituency was held on 13th
October, 2004 and the results were declared on 16th October, 2004.
The appellant contested the elections as a candidate of NCP-
Congress — R.P.I. alliance, whereas the respondent contested the
election as a Shiv Sena — Bharatiya Janta Party alliance candidate.
Out of a total of 1,35,063 votes cast in the election, while the
respondent secured 67,556 votes, the appellant could manage
47,593 votes. Resultantly, the respondent was declared elected.
3. Not being satisfied with the election result, the appellant
preferred an election petition, challenging the election on several
grounds and for declaring the said election to be void in terms of
Sections 100(1)(b), 100(1)(d)(ii) and 100(1)(d)(iv) of the Act, with
consequential relief of declaring the appellant as elected in terms of
Section 101(b) of the Act.
4. The election petition was contested by the respondent denying
all the allegations. It was pleaded that the election petition was not
maintainable inasmuch as it was not in the prescribed format; no
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details of the communal appeals allegedly made by respondent and
his agents were mentioned in the petition; certified copies of the VHS
Cassette and its transcript, containing the speeches delivered by the
respondent, had not been furnished and even the provisions of
Section 86 of the Act had not been complied with.
5. Upon consideration of the pleadings, the High Court
(hereinafter referred to as “the Tribunal”) framed the following issues:
“(1) Whether the petitioner proves that the election of
the respondent is liable to be quashed and set
aside for having made communal appeals in his
speeches recorded on the VHS Cassette produced
by the petitioner in Court?
(2) Whether the petitioner proves that the election of
the respondent is liable to be quashed and set
aside under Sections 100(1)(d)(ii) and 100(1)(d)(iv)
of the Representation of People Act, 1951 for the
reasons set out in paragraphs 9 to 18 of the
Election Petition?
(3) Whether the petitioner proves that the respondent
had deliberately issued the letter at Exhibit E page
42 dated 28.9.2004 in the name of the petitioner
with a view to misguide the voters?
(4) Whether the respondent proves that he has not
addressed communal and racial speeches as
alleged in VHS Cassette filed by the petitioner?”
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6. In support of the case, one of the documents placed on record
by the appellant was a VHS Cassette which, according to him, was
obtained from the Election Commission of India and contained a true
reproduction of the speeches delivered by the respondent and his
supporters during the election campaign. Out of the 20 documents
produced, only 3 documents viz. FIR dated 12th October, 2004 (Ex.
P2), complaint dated 29th October, 2004 (Ex.P3) and a special
supplement issued in the newspaper “Gavkari” on 3rd September,
2004 (Ex.P4) were exhibited. No other documents, including the
VHS Cassette, were exhibited. The appellant and the respondent
examined themselves as witnesses in support of their respective
stands. No other witness was examined.
7. Analysing the evidence adduced by the parties on the Issues,
the Tribunal answered Issues No.1 to 3 in the negative and in view of
answer to Issue No.1, Issue No.4 was not answered. On Issue No.1
the Tribunal observed that though the appellant had placed on record
the VHS Cassette but had failed to produce any evidence to show
that the said cassette was a true reproduction of the original
speeches. The Tribunal did not accept the plea of the appellant that
since the cassette is a “public document”, as defined in Section 74 of
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the Indian Evidence Act, 1872 (for short “the Evidence Act), its mere
production was sufficient and no further evidence was required to be
adduced to prove as to how the said cassette was obtained by the
appellant. It has been observed that even in the affidavit filed by the
appellant, in lieu of examination-in-chief, there is no mention of the
said cassette and that it had been obtained from the office of the
Election Commission on payment of requisite charges for the same.
The Tribunal has also found that the transcripts produced by the
appellant have not been proved to be those of the original audio
recordings. The Tribunal finally held that since the contents of the
cassette and the transcripts had not been proved, the allegation of
the appellant that the respondent had indulged in corrupt practices by
appealing to the Maratha community to vote on the basis of
community, could not be accepted. On Issue No.2, the Tribunal has
observed that apart from the fact that there are no specific pleadings
in the election petition with regard to the claim of the respondent
about the work done by him and the alleged threats by him in
publication “Deshdhoot”, the appellant had failed to adduce any
evidence to prove that the claims made by the respondent in the
special supplement of the local newspaper (Ex.P4) were false or that
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the said threats amounted to corrupt practices under Section
123(2)(a)(i) of the Act. The Tribunal has, accordingly, held that the
appellant has failed to prove that the respondent had indulged in any
corrupt practices. As regards Issue No.3, the Tribunal has held that
the letter/pamphlet purportedly written by the appellant and allegedly
circulated by the respondent in order to defame the appellant had not
been proved by the appellant. The election petition having been
dismissed with costs, the appellant is before us in this appeal.
8. Mr. Krishnan Venugopal, learned senior counsel, appearing on
behalf of the appellant, confined his challenge to the finding of the
Tribunal on Issue No.1. He submitted that besides being a public
document, the contents of VHS Cassette were not specifically denied
by the respondent and, therefore, no further evidence was required to
be produced to prove the authenticity of the cassette. According to
the learned counsel, the Tribunal has committed a serious error of
law in rejecting the evidence adduced by the appellant, in the form of
the said cassette. It was strenuously urged that the finding of the
Tribunal to the effect that the appellant had failed to prove the factum
of communal speeches being made by the respondent and/or his
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agents, is palpably erroneous and, therefore, deserves to be set
aside.
9. Mr. K.V. Vishwanathan, learned senior counsel, appearing on
behalf of the respondent, on the other hand, supported the
decision of the Tribunal and submitted that apart from the fact
that there was no specific pleading in the election petition with
regard to the mode of acquisition of the cassette in question,
even if it was assumed that the said cassette was a public
document yet in order to attract the provisions of Section 123 of
the Act, the appellant was required to prove with cogent
evidence that the speeches recorded therein were, in fact,
made by the respondent and his agents. In support of the
proposition that unless a document is exhibited at the trial and
is put in evidence it cannot be looked into, reliance was placed
on a decision of this Court in Amar Nath Agarwalla Vs.
Dhillon Transport Agency1. Learned counsel asserted that
the finding recorded by the Tribunal on the issue, being a pure
finding of fact, no interference is called for.
1
(2007) 4 SCC 306
7
10. The short question for consideration is whether the Tribunal
was justified in discarding the cassette placed on record by the
appellant to prove the allegation of appeal by the respondent to
the voters to vote on communal ground, amounting to a corrupt
practice within the meaning of Section 123(3) of the Act?
11. Before we proceed to examine the controversy at hand, we
deem it necessary to reiterate that a charge of corrupt practice,
envisaged by the Act, is equated with a criminal charge and
therefore, standard of proof therefor would not be
preponderance of probabilities as in a civil action but proof
beyond reasonable doubt as in a criminal trial. If a stringent
test of proof is not applied, a serious prejudice is likely to be
caused to the successful candidate whose election would not
only be set aside, he may also incur disqualification to contest
an election for a certain period, adversely affecting his political
career. Thus, a heavy onus lies on the election petitioner to
prove the charge of corrupt practice in the same way as a
criminal charge is proved.
12. Explaining the nature and extent of burden of proof in an
election trial involving a charge of corrupt practice, in Razik
8
Ram Vs. Jaswant Singh Chouhan2, speaking for the Bench,
Sarkaria, J. observed as under:
…It is well settled that a charge of corrupt practice is
substantially akin to a criminal charge. The commission
of a corrupt practice entails serious penal consequences.
It not only vitiates the election of the candidate concerned
but also disqualifies him from taking part in elections for a
considerably long time. Thus, the trial of an election
petition being in the nature of an accusation, bearing the
indelible stamp of quasi-criminal action, the standard of
proof is the same as in a criminal trial. Just as in a
criminal case, so in an election petition, the respondent
against whom the charge of corrupt practice is levelled, is
presumed to be innocent unless proved guilty. A grave
and heavy onus, therefore, rests on the accuser to
establish each and every ingredient of the charge by
clear, unequivocal and unimpeachable evidence
beyond reasonable doubt.”
(emphasis supplied)
13. In Jeet Mohinder Singh Vs. Harminder Singh Jassi3, a
Bench of three judges of this Court, summarising the principles
laid down by this Court from time to time in the field of election
jurisprudence; adumbrated the following legal principles,
relevant for our purpose: to be kept in view by the Election
Tribunals and the Appellate Courts while dealing with election
petitions and appeals arising therefrom:
2
(1975) 4 SCC 769
3
(1999) 9 SCC 386
9
“(i) The success of a candidate who has won at an
election should not be lightly interfered with. Any
petition seeking such interference must strictly
conform to the requirements of the law. Though the
purity of the election process has to be safeguarded
and the Court shall be vigilant to see that people do
not get elected by flagrant breaches of law or by
committing corrupt practices, the setting aside of an
election involves serious consequences not only for
the returned candidate and the constituency, but also
for the public at large inasmuch as re-election
involves an enormous load on the public funds and
administration.
(ii) Charge of corrupt practice is quasi-criminal in
character. If substantiated, it leads not only to the
setting aside of the election of the successful
candidate, but also of his being disqualified to contest
an election for a certain period. It may entail
extinction of a person’s public life and political career.
A trial of an election petition though within the realm
of civil law is akin to trial on a criminal charge. Two
consequences follow. Firstly, the allegations relating
to commission of a corrupt practice should be
sufficiently clear and stated precisely so as to afford
the person charged a full opportunity of meeting the
same. Secondly, the charges when put to issue
should be proved by clear, cogent and credible
evidence. To prove charge of corrupt practice a mere
preponderance of probabilities would not be enough.
There would be a presumption of innocence available
to the person charged. The charge shall have to be
proved to the hilt, the standard of proof being the
same as in a criminal trial.
(iii) The Appellate Court attaches great value to the
opinion formed by the trial Judge more so when the
trial Judge recording findings of fact is the same who
had recorded the evidence. The Appellate Court
shall remember that the jurisdiction to try an election
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petition has been vested in a Judge of the High
Court. Secondly, the trial Judge may have had the
benefit of watching the demeanour of witnesses and
forming first-hand opinion of them in the process of
evaluation of evidence. The Supreme Court may re-
assess the evidence and come to its own
conclusions on feeling satisfied that in recording
findings of fact the High Court has disregarded
settled principles governing the approach to
evidence or committed grave or palpable errors.”
14. In the backdrop of the afore-stated principles, we may now
advert to the facts at hand to examine if the finding recorded by
the Tribunal in the judgment in appeal, holding that the
appellant has failed to prove that the respondent had committed
corrupt practice, falling within the ambit of sub-Section (3) of
Section 123 of the Act, is justified or not.
15. Section 123 of the Act defines corrupt practices. In the instant
case, Issue No.1 is based on the alleged violation of sub-
Section (3) of Section 123, which reads as follows:
“(3) 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:
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[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 purposes of this clause.]”
16. The vital ingredients of the sub-Section, relevant for this appeal,
are – (i) appeal by a candidate or his agent or by any person
with the consent of a candidate or his election agent; (ii) to vote
or refrain from voting for any person and (iii) on the ground of
religion, race, caste, community or language. As stated above,
the case of the appellant is that the respondent had appealed to
the electorate to vote on communal lines. In support of the
allegation, a cassette, allegedly containing speeches made by
him and his agents, along with its transcript was produced.
According to the appellant, the cassette contained speeches,
which were recorded at the instance of the Election
Commission and that the cassette having been obtained from
the Election Commission, it was a public document and
therefore, the burden of proof which lay on him to prove the
allegation stood discharged.
17. Chapter V of the Evidence Act deals with documentary
evidence. Section 61 thereof lays down that the contents of
documents may be proved either by primary or by secondary
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evidence. As per Section 62 of the Evidence Act, primary
evidence means the document itself produced for the
inspection of the Court. Section 63 categorises five kinds of
secondary evidence. Section 64 lays down that documents
must be proved by primary evidence except in the cases
mentioned in the following Sections. To put the matter briefly,
the general rule is that secondary evidence is not admissible
until the non-production of primary evidence is satisfactorily
proved. However, clause (e) of Section 65, which enumerates
the cases in which secondary evidence relating to documents
may be given, carves out an exception to the extent that when
the original document is a “public document” secondary
evidence is admissible even though the original document is
still in existence and available. Section 74 of the Evidence Act
defines what are known as “public documents”. As per Section
75 of the Evidence Act, all documents other than those stated
in Section 74 are private documents. There is no dispute that
certified copy of a document issued by the Election
Commission would be a public document.
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18. However, in the present case, the dispute is not whether a
cassette is a public document but the issues are whether: (i) the
finding by the Tribunal that in the absence of any evidence to
show that the VHS Cassette was obtained by the appellant
from the Election Commission, the cassette placed on record
by the appellant could not be treated as a public document is
perverse and (ii) a mere production of an audio cassette,
assuming that the same is a certified copy issued by the
Election Commission, is per se conclusive of the fact that what
is contained in the cassette is the true and correct recording of
the speech allegedly delivered by the respondent or his agent?
19. Insofar as the first question, formulated above, is concerned, it
would be profitable to extract the observations of the Tribunal
on the issue. The Tribunal observed thus:
“14. It is no doubt true that the Petitioner has produced
the VHS Cassette on record. This cassette was produced
on 30.11.2004. However, the Petitioner has produced no
evidence on record to indicate that this VHS cassette was
a true reproduction of the original speeches. The
submissions of the learned counsel for the Petitioner, that
the VHS Cassette is a public document as defined u/s. 76
of the Indian Evidence Act, cannot be accepted. There is
no evidence to indicate that the VHS cassette was
obtained from the election commission. The Petitioner
who examined himself has not adverted to this video
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recording in his examination in chief. There is no
averment in the affidavit filed in lieu of examination in
chief to the effect that he had obtained the cassette from
the office of the election commission and that he had paid
the requisite charges for the same. At the time of the
arguments, the learned counsel for the Petitioner pointed
out that this Cassette was in fact issued to the Petitioner
by the election commission’s office. But this is not
sufficient. A public document need not be proved under
the Indian Evidence Act. However, it must be brought on
record as evidence. It must be admitted in evidence as a
certified copy of the original before any presumption can
be drawn regarding its genuineness. I am fortified in my
view by the decision of the Supreme Court in the case of
Amarnath Agarwal (supra) where the Supreme Court has
held that the mere production of the documents along
with the written submissions without exhibiting them at the
trial would be sufficient for the Court to look into those
documents as they were not in evidence and the
defendant had no opportunity to reply to those
documents. The Petitioner has not proved the receipt
issued by the election commission’s office and has thus
failed to prove that the VHS Cassette was a public
document. That being the position, it is not possible to
rely on the contents of the VHS cassette.”
Thus, observing that the appellant had failed to produce even the
receipt stated to have been issued by the Election Commission’s
office, the Tribunal held that mere production of the cassette with the
Election Petition would not lead to the inference that it had been
produced in evidence and being a public document, it was not
required to be proved. Having perused the material on record, we
are in complete agreement with the Tribunal that in the absence of
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any cogent evidence regarding the source and the manner of its
acquisition, the authenticity of the cassette was not proved and it
could not be read in evidence despite the fact that the cassette is a
public document. No relevant material was brought to our notice
which would impel us to hold that the finding by the Tribunal is
perverse, warranting our interference.
20. The second issue, in our opinion, is of greater importance than
the first one. It is well settled that tape-records of speeches are
“documents” as defined in Section 3 of the Evidence Act and
stand on no different footing than photographs. (See:
Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass
Mehra & Ors.4). There is also no doubt that the new
techniques and devices are the order of the day. Audio and
video tape technology has emerged as a powerful medium
through which a first hand information about an event can be
gathered and in a given situation may prove to be a crucial
piece of evidence. At the same time, with fast development in
the electronic techniques, the tapes/cassettes are more
susceptible to tampering and alterations by transposition,
excision, etc. which may be difficult to detect and, therefore,
4
(1976) 2 SCC 17
16
such evidence has to be received with caution. Though it
would neither be feasible nor advisable to lay down any
exhaustive set of rules by which the admissibility of such
evidence may be judged but it needs to be emphasised that to
rule out the possibility of any kind of tampering with the tape,
the standard of proof about its authenticity and accuracy has to
be more stringent as compared to other documentary evidence.
21. In Yusufalli Esmail Nagree Vs. State of Maharashtra5, this
Court observed that since the tape-records are prone to
tampering, the time, place and accuracy of the recording must
be proved by a competent witness. It is necessary that such
evidence must be received with caution. The Court must be
satisfied, beyond reasonable doubt that the record has not
been tampered with.
22. In R. Vs. Maqsud Ali6, it was said that it would be wrong to
deny to the law of evidence advantages to be gained by new
techniques and new devices, provided the accuracy of the
recording can be proved and the voices recorded are properly
identified. Such evidence should always be regarded with
5
(1967) 3 SCR 720
6
(1965) 2 ALL E.R. 464
17
some caution and assessed in the light of all the circumstances
of each case.
23. In Ziyauddin Burhanuddin Bukhari (supra), relying on R. Vs.
Maqsud Ali (supra), a Bench of three judges of this Court held
that the tape-records of speeches were admissible in evidence
on satisfying the following conditions:
“(a) The voice of the person alleged to be speaking
must be duly identified by the maker of the record or by
others who know it.
(b) Accuracy of what was actually recorded had to be
proved by the maker of the record and satisfactory
evidence, direct or circumstantial, had to be there so as to
rule out possibilities of tampering with the record.
(c) The subject-matter recorded had to be shown to be
relevant according to rules of relevancy found in the
Evidence Act.”
24. Similar conditions for admissibility of a tape-recorded statement
were reiterated in Ram Singh & Ors. Vs. Col. Ram Singh7 and
recently in R.K. Anand Vs. Registrar, Delhi High Court8.
25. Tested on the touchstone of the tests and safeguards,
enumerated above, we are of the opinion that in the instant
case the appellant has miserably failed to prove the authenticity
7
1985 (Supp) SCC 611
8
(2009) 8 SCC 106
18
of the cassette as well as the accuracy of the speeches
purportedly made by the respondent. Admittedly, the appellant
did not lead any evidence to prove that the cassette produced
on record was a true reproduction of the original speeches by
the respondent or his agent. On a careful consideration of the
evidence and circumstances of the case, we are convinced that
the appellant has failed to prove his case that the respondent
was guilty of indulging in corrupt practices.
26. For the afore-going reasons, we see no merit in this appeal.
We, therefore, affirm the decision of the Tribunal and dismiss
the appeal with costs, quantified at Rs.20,000/-.
………………………………….J.
(D.K. JAIN)
………………………………….J.
(P. SATHASIVAM)
NEW DELHI;
FEBRUARY 5, 2010
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