{"id":45243,"date":"1969-01-07T00:00:00","date_gmt":"1969-01-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manubhai-nandlal-amersey-vs-popatial-manilal-joshi-ors-on-7-january-1969"},"modified":"2017-02-13T18:48:50","modified_gmt":"2017-02-13T13:18:50","slug":"manubhai-nandlal-amersey-vs-popatial-manilal-joshi-ors-on-7-january-1969","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manubhai-nandlal-amersey-vs-popatial-manilal-joshi-ors-on-7-january-1969","title":{"rendered":"Manubhai, Nandlal Amersey vs Popatial Manilal Joshi & Ors on 7 January, 1969"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Manubhai, Nandlal Amersey vs Popatial Manilal Joshi & Ors on 7 January, 1969<\/div>\n
Equivalent citations: 1969 AIR 734, \t\t 1969 SCR (3) 217<\/div>\n
Author: R Bachawat<\/div>\n
Bench: Bachawat, R.S.<\/div>\n
           PETITIONER:\nMANUBHAI, NANDLAL AMERSEY\n\n\tVs.\n\nRESPONDENT:\nPOPATIAL  MANILAL JOSHI & ORS.\n\nDATE OF JUDGMENT:\n07\/01\/1969\n\nBENCH:\nBACHAWAT, R.S.\nBENCH:\nBACHAWAT, R.S.\nSIKRI, S.M.\nHEGDE, K.S.\n\nCITATION:\n 1969 AIR  734\t\t  1969 SCR  (3) 217\n 1969 SCC  (1) 372\n CITATOR INFO :\n RF\t    1970 SC2097\t (264)\n RF\t    1975 SC1788\t (8)\n R\t    1982 SC 515\t (20)\n R\t    1986 SC1253\t (14,18)\n D\t    1990 SC1731\t (9)\n\n\nACT:\nRepresentation\tof  the People Act (43 of 1951),  ss.  86(5)\n116A, 23(2), proviso (a)(ii)-Amendment of election petition-\nWhen  should be allowed-Jurisdiction of Supreme Court  under\ns.  116 A-Interference with discretion of  High\t Court-Undue\ninfluence-Threat of divine displeasure.\n\n\n\nHEADNOTE:\nThe  appellant, the Swatantra party candidate, was  declared\nelected\t to  the  Lok Sabha as against\tthe  Congress  party\ncandidate.   On\t April 10, 1967, the  first  respondent,  an\nelector in the constituency filed an election petition.\t  In\nthe petition he charged the appellant with corrupt  practice\nunder  s. 123(2) proviso (a) (ii) of the  Representation  of\nthe  People Act, 1951.\tThe allegation was that\t one:  S.M.,\nwith  the consent of the appellant or his  election  agents,\ntold  the  electors in speeches that if they voted  for\t the\nCongress  candidate,  they  would  commit  the\tsin  of\t cow\nSlaughter  and would become objects of\tdivine\tdispleasure.\nOn  September  25, 1967 the first respondent  'obtained\t 'an\norder  giving  him leave ,o amend the petition by  adding  a\ncharge\twith  regard to the sin of Brahma  hatya  and  Sadhu\nhatya.\tOn February 29, 1968 the trial commenced and one  of\nthe  witnesses\tsaid that he heard S.M. giving a  speech  on\nFebruary  8,  1967, where S.M. told the\t electors  that\t Sri\nShankaracharya\thad  commanded\tthem not  to  vote  for\t the\nCongress  and that a contravention of the mandate  would  be\nvisited\t with  spiritual  censure.  On\tan  objection  being\nraised\tby  the appellant's counsel,  the  first  respondent\nagreed\tthat  the  statement of the witness  should  not  be\ntreated\t as part of the evidence.  The trial  proceeded,  11\nwitnesses  were\t examined and the appellant  agreed  to\t the\nmarking\t of  the  full reports of the speeches\tof  S.M.  as\nexhibits and adopted a definite line of cross-examination on\nthe footing that the first respondent would not rely on\t the\ncharge\twith  regard to the command of\tSri  Shankaracharya.\nHowever on March 5, 1968, the first respondent 'applied\t for\nan amendment of his petition to include a charge of  corrupt\npractice based on the command of Sri Shankaracharya and\t the\nHigh Court allowed the amendment.  The, High Court set aside\nthe  'appellants  election on its finding that\tthe  corrupt\npractice  in relation to the command of\t Sri  Shankaracharya\nwas proved.\nIn  appeal to this Court on the questions  (1) Whether\tthe\nHigh  Court  should  have allowed  the\tamendment;  and\t (2)\nWhether the appellant was guilty of any corrupt practice,\nHELD : The appellant's election was rightly set aside.\n(Per  Bachawat, J.) : (1) The High, Court erred in  allowing\nthe amendment.\nWhen  a\t corrupt practice is charged  against  the  returned\ncandidate   the\t election  petition  Must  set\tforth\tfull\nparticulars of the corrupt practice so as to give the charge\na  definite character and to enable the Court to  understand\nwhat the charge is.  It must be substantially proved as laid\nand  evidence cannot be allowed to be given in respect of  a\ncharge not dis\n7Sup CI\/69-15\n218\nclosed\tin  the\t particulars.  Section\t86(5)  of  the\tAct,\nhowever,  allows  amendment of particulars,  but  the  Court\nshall  not  allow any amendment of the petition\t which\twill\nhave  the  effect of introducing particulars  of  a  corrupt\npractice  not  previously  alleged  in\tthe  petition,\t and\nnormally, an application for amendment should be made within\na  reasonable time.  Though the Court has power to allow  an\namendment  even\t after commencement of the trial,  leave  to\namend would not he granted if the petitioner was not  acting\nin good faith or had kept back facts known to him. [221 B-D,\nG-H; 222 A-B]\nIn the present ease, the first respondent knew of both items\nof corrupt practice' from his witnesses who were present  at\nthe  speeches  made by S.M. If S.M. had\t told  the  electors\nabout the mandate of Sri Shankaracharya, the witnesses\tmust\nhave  given  information  to the first\trespondent,  and  no\nexplanation  was given by the first respondent as to why  he\nwithheld the information at the time of filing the  petition\nor when he first amended his petition.\tHe was aware of\t the\ndifference  between the two charges of telling the  electors\nabout  the sin of gohatya and that of telling  the  electors\nabout  the sin of disobeying the command of their  religious\nleader.\t  But the :first respondent  deliberately  refrained\nfrom taking the new charge earlier and moved the application\nfor  amendment\tin  bad faith at a very late  stage  of\t the\ntrial.\t Ordinarily, in an appeal under s. 116A of the\tAct,\nthis  Court would not interfere with the discretion  of\t the\nHigh  Court in granting amendments, but since the  order  of\nthe  High  Court has resulted in 'manifest  injustice,\tthis\nCourt has the power and duty to correct the error. [222 B-D,\nF-H; 223,A-E]\n(Per  Hegde,  J.) The High Court has given good\t reasons  in\nsupport of its order allowing the amendment and no case\t was\nmade out to interfere with it. [227 D]\n(2)  (Per  Bachawat,  J.) There is' no absolute ban  on\t cow\nslaughter  in  several\tstates in India\t and  the  Swatantra party\n was agitating for such a total ban.  Public criticism\n'of the Congress party for not abolishing cow 'Slaughter was\npermissible,  but the criticism ceases to be  legitimate  if\nthe speaker commits the corrupt practice of undue  influence\nunder  s. 123(2) of the Act.  Under s. 123(2), proviso\t(-a)\nel. (ii), there is such undue influence if any person,\twith\nthe consent of the candidate or his election agent, attempts\nto induce an elector to, believe that he will be tendered an\nobject of divine displeasure or spiritual censure. [224 D-F]\n     In\t the  present  case, S.M. spoke at  the\t meeting  on\nFebruary8, 1967\t  with\tthe consent of the election  agent\nof the appellant. S.M.was a Kirtankar of repute and  well\nknown  and  respected for his lectures\ton  Hindu  religion,\nwhile his audience consisted mostly of illiterate and ortho-\ndox Hindus of rural areas who are filled with horror at\t the\nslaughter  of a cow.  The dominant theme of the speech\twas\nthat  those who commit the sin of gohatya would\t be  visited\nwith  divine  displeasure.  Therefore, even apart  from\t the\ncharge\trelating to the command of Sri\tShankaracharya,\t the\nspeech was calculated to interfere with the free exercise of\nelectroral  right.  The corrupt practice was thus  committed\nat the meeting on February 8, 1967, with the consent of\t the\nelection agent of the appellant. [224 G-H; 225 G-H; 226\t F-G\n227 B-C]\nNarbada\t Prasad\t v.  Chhagan  Lal,<\/a>  [1969]  1  S.C.R.\t499,\nfollowed.\n(Per Hegde, J.) Everyone of the speeches made by S.M.,\tread\nas a whole, are fanatical outpourings and a direct challenge\nto  the concept of a secular democracy, and fell within\t the\nvice of the proviso (a)(ii) of s. 123(2) of the Act. [227 E]\n219\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1438 of 1968.
\nAppeal\t under s. 116-A of the Representation of the  People
\nAct,  1951 from the judgment and order dated April  22,\t 23,
\n1968  of the Gujarat High Court in Election Petition No.  22
\nof 1967.\n<\/p>\n
I.M. Nanavati, P. M. Raval, D. N. Mishra and J. B.  Dada-
\nchanji, for the appellant.\n<\/p>\n
H.R.  Gokhale,\tK. G. Vakharia, K. L.  Hathi  and  Atiqur
\nRahman, for respondents Nos.  1 and 2.\n<\/p>\n
The  Judgment  of SIKRI and BACHAWAT, JJ. was  delivered  by
\nBACHAWAT, J. HEGDE, J. delivered a separate opinion.
\nBachawat,  J. This appeal is directed against a judgment  of
\nsingle\tjudge  of the Gujarat High Court setting  aside\t the
\nelection of the appellant from the Banaskantha Parliamentary
\nconstituency.  At the last general election to the Lok Sabha
\nfrom  the’  Banaskantha constituency in Gujarat\t there\twere
\nthree  contesting candidates.  The appellant, the  Swatantra
\nparty  candidate, secured 110,028 votes.  Respondent No.  2,
\nthe   Congress\tparty  candidate  secured  1,05,621   votes.
\nRespondent  No. 3, an independent candidate  secured  14,265
\nvotes.\tThe appellant was declared elected.
\nThe  election  petition was filed by respondent\t No.  1,  an
\nelector\t in  the constituency.\tRespondent No. 1  alleged  a
\nnumber of corrupt practices on the part of the appellant  or
\nhis  election agents, but at the trial, he pressed only\t the
\ncharge of corrupt practice under s. 123 (2) proviso (a) (ii)
\nof  the\t Representation\t of the People Act, 195\t 1.  In\t the
\npetition-  the\tcharge\twas that several  persons  with\t the
\nconsent\t of the appellant or his election agents induced  or
\nattempted  to  induce the electors to believe that  if\tthey
\nvoted for the congress party candidate they would become the
\nobjects\t of divine displeasure and spiritual,  censure.\t  In
\nthe  particulars of this charge it was alleged that  in\t the
\npublic meetings held at Amirgadh, Ikbalgadh, Wav, Laxmipura,
\nTharad Bhabhar and other places one Shambhu Maharaj told the
\nelectors that if they voted for the congress candidate\tthey
\nwould commit the sin of cow slaughter and urged them in\t the
\nname  of  mother  cow  to take a vow not  to  vote  for\t the
\ncongress  candidate with the result that several members  of
\nthe audience publicly took the vow.\n<\/p>\n
At  a  late stage of the trial on March 7,  1968,  the\tHigh
\nCourt gave leave, to respondent No. 1 to, amend the petition
\nby  adding fresh particulars of the corrupt  practice.\t The
\nsubstance  of  the  new charge was that\t at  those  meetings
\nShambhu Maharaj
\n220<\/span>
\ninduced or attempted to induce the electors to believe\tthat
\ntheir  religious head Jagadguru Shankracharya had  commanded
\nthem not to vote for the congress and that contravention  of
\nhis  Command  would  be\t a sin and  would  be  visited\twith
\nspiritual  censure and divine displeasure.  The\t High  Court
\nfound  that the aforesaid practice was committed by  Shambhu
\nMaharaj\t with the Consent of one Punambhai,  the  election
\nagent  of  the\tappellant,  and\t declared  the\t appellant’s
\nelection to be void.\n<\/p>\n
The appellant challenges the legality of the order passed by
\nthe High Court on March 7, 1968 allowing the amendment.\t The
\nelection  petition  was\t filed\ton  April  10,\t1967.\t The
\nappellant  filed  his  written\tstatement  on  June  1;\t  on
\nSeptember  9, the High Court gave leave to respondent No.  1
\nto amend the petition, by adding the charge  that  certain
\npersons\t were threatened that they would commit the sins  of
\ngo  hatya, Brahma-hatya and Sadhuhatya, if they worked\tfor
\nthe  congress  candidate.  The order  disallowed  amendments
\nseeking\t to  introduce, charges of appeal to voters  in\t the
\nname of religion under S. 123 (3).  The appellant filed\t his
\nadditional  written  statement on October 19.\tIssues\twere
\nframed\ton November 30.\t Respondent No. 1 filed his list  of
\nwitnesses  on January 11, 1968.\t On February 21,  the  trial
\nstarted and P.W. 1, P.W. 2, P.W. 3 and P.W. 4 were examined.
\nP.W. 4, Ram Swarup was a witness with regard to the  meeting
\nat  Amirgadh.  The issues were amended on March 1, so as  to
\nmake  it  clear\t that there was no  charge  of\tany  corrupt
\npractice under S. 123(3).  On the same date, respondent\t No.
\n1 was examined as P.W. 5. On March 2, P.W. 6, P.W. 7, P.W. 8
\nand P.W. 9 were examined.  P.W. 7 and P.W. 8 spoke about the
\nmeetings  at  Palanpur and Bhabhar.  P.W. 9  Bhogilal  spoke
\nabout  the  meeting at Ikbalgadh.  On March 4, P.W.  10\t and
\nP.W.  11 were examined and spoke, about the meetings at\t Wav
\nand  Laxmipura.\t  On the same day, P.W. 12 S. P.  Pandya,  a
\nsub-inspector  of  police  at Palanpur, and  P.W.  13,\tC.B.
\nBarot,\ta short-hand writer were examined.  The\t examination
\nof  Barot  was concluded on March 6. Barot proved  that\t he,
\ntook  shorthand notes of the speeches of Shambhu Maharaj  at
\nIkbalgadh, Amirgadh, Bhabhar, Laxmipura, Wav and Tharad\t and
\nsent  reports of the speeches to S. P. Pandya.\tOn March  6,
\nP.W.  14 and P.W. 15 were examined.  On March 5,  respondent
\nNo. 1 filed, an application for leave to amend the  petition
\nby  adding  portions of the speeches which referred  to\t the
\ncommand\t of Shankracharya not to vote for the  congress\t and
\nthe   consequences  of\tnot-  obeying  the   command.\t The
\napplication  was allowed on March 7, 1968.  The\t trial\twas,
\nthen adjourned and started again on April 8. Between April 8
\nand  April  15, P.W. 17, P.W. 18, D.W. 1 and,  D.W.  2\twere
\nexamined., The judgment was delivered on April,22 and 23.\n<\/p>\n
221<\/span><\/p>\n
The  first question is whether the trial judge\tshould\thave
\nallowed\t the amendment.\t Section 83(1)(b) provides that\t “An
\nelection  petition shall set-forth full particulars  of\t any
\ncorrupt\t practice that the petitioner alleges, including  as
\nfull  a statement ;as possible of the names of\tthe  parties
\nalleged\t to  have committed such corrupt  practice  and\t the
\ndate, and place of the commission  of  each such  practice”.
\nThe  section  is  mandatory.  Where a  corrupt\tpractice  is
\ncharged against the returned candidate the election petition
\nmust  set-forth full particulars of the corrupt practice  so
\nas  to give the charge a definite character and\t to.  enable
\nthe court to understand what the charge is.  The charge must
\nbe  substantially  proved  as laid and\tevidence  cannot  be
\nallowed to be given in respect of a charge not disclosed  in
\nthe particulars.  On a charge, of telling the electors\tthat
\nby  giving their vote to the Congress candidate, they  would
\ncommit the sin of go-hatya, evidence cannot be led to  prove
\nthe  charge of telling them that they would commit a sin  of
\nBrahma-hatya  or the sin of disobeying the command of  their
\nreligious  leader.   Section 86(5) allows amendment  of\t the
\nparticulars,.  It provides that “the High    Court may, upon
\nsuch  terms. as to, costs and otherwise as it may deem\tfit,
\nallow  the particulars of- any corrupt’ practice alleged  in
\nthe, petition to, be amended or amplified in- such manner as
\nmay  in\t its opinion be necessary for ensuring\ta  fair\t and
\neffective  trial  of the petition, but shall not  allow\t any
\namendment  of  the petition which will have  the  effect  of
\nintroducing   particulars   of\ta  corrupt   practice,\t not
\npreviously  alleged  in\t the petition.”\t In  Harish  Chandra
\nBajpai v. Triloki Singh<\/a>(1) the Court held that though  under
\nthe English law the petitioner was not obliged to give,\t the
\nparticulars  of\t the corrupt practice in  his  petition\t the
\ndifference  was\t a matter of form and not of  substance\t and
\nthat under S. 83(3) as it stood before 1955 the Court  could
\nallow\t  an  amendment introducing fresh instances  of\t the
\ncorrupt practice alleged in the petition.  Referring to\t the
\nEnglish\t practice  the Court observed at page 382 :  “it  is
\nsufficient  if the particulars are ordered to  be  furnished
\nwithin\ta  reasonable time before the  commencement  of\t the
\ntrial”.\t Section 83(3) has been repealed and is now replaced
\nby   s.\t 86(5)\twhich  forbids\tany  amendment\t introducing
\nparticulars of a corrupt practice not previously  alleged in
\nthe petition.  Assuming that the amendment of March 7,\t1967
\nwas permissible under s. 86(5), the question is whether\t the
\nHigh Court rightly allowed it.\tNormally an application\t for
\namendment under s. 86(5) should be made within a reasonable
\ntime  before the commencement of the trial.  The  Court\t has
\npower  to allow an amendment even after the commencement  of
\nthe  trial,  but as a rule leave to amend at  a\t late  stage
\nshould\tbe given in exceptional cases where  the  petitioner
\ncould not with
\n(1)[1957] S.C.R. 371.\n<\/p>\n
222<\/span><\/p>\n
reasonable diligence have discovered the new facts  earlier.
\nLeave  to amend will not be given if the petitioner  is\t not
\nacting in good faith or has kept back the facts known to him
\nbefore the trial started.\n<\/p>\n
According  to  respondent No. 1\t Shambhu  Maharaj  committed
\ncorrupt\t practice  at election meetings\t held  at  Ikbalgadh
\nwhere P.W. 9 was present, Amirgadh where P.W. 4 Was  present
\nand  at Wav where. one Chotaji Bhattji was present and\tthat
\nhe  came  to  know  of the,  corrupt  practices\t from  those
\npersons.   All the meetings are referred to in the  election
\npetition.  If Shambhu Maharaj had told the electors that Sri
\nShankracharya  had  commanded  them  not  to  vote  for\t the
\ncongress  candidate  and that disobedience  of\this  command
\nwould  be  sinful,  P.W. 4 and\tChotaji\t Bhattji  must\thave
\ninformed  respondent No. 1 of this corrupt  practice  before
\nApril  10,  1967 when the election petition was\t filed.\t  No
\nexplanation  is\t given as to why respondent No.\t 1  withheld
\nthis information in the petition.  Respondent No. 1 now says
\nthat  on April’17, 1967 he applied for certified  copies  of
\nthe  reports of C. B. Barot to the Deputy  Inspector-General
\nof  Police,  C.I.D.,  Ahmedabad\t but  the  application\t was
\nrejected  on May 14, 1967.  Assuming that he could  not\t get
\ncertified  copies of the reports, he could set-forth in\t the
\npetition’  the\tsubstance of the charge with regard  to\t the
\ncommand\t of Sri Shankracharya from the information  supplied
\nby  his informants.  He knew of the reports of C.  B.  Barot
\nbefore\tApril  17,  1967.   Immediately\t after\tfiling\t the
\nelection  petition he could subpoena the reports  and  under
\norders\tof the Court he could inspect them long\t before\t the
\ntrial started.\tHe was aware that the charge of telling\t the
\nelectors  that\tthey would commit the sin  of  go-hatya\t was
\nquite  different from the charge of telling them  that\tthey
\nwould  commit  the  sin\t of  Brahma-hatya  or  the  sin\t  of
\ndisobeying  the\t command  of  their  religious\tleader\t Sri
\nShankracharya.\tOn September 25, 1967, he obtained an  order
\ngiving him leave to amend the petition by adding the  charge
\nwith regard to the sins of Brahma-hatya and Sadhu-hatya, but
\nhe deliberately refrained from adding the charge with regard
\nto  the sin of disobeying the command of Sri  Shankracharya.
\nThe,  trial  commenced on February 29, 1968.  On  that\tdate
\nP.W.  4\t said that at the Amirgadh meeting  Shambhu  Maharaj
\ntold  the  electors  that  he had  brought  a  mandate\tfrom
\nJagadguru  Shankracharya.  On an objection being  raised  by
\nthe  appellant’s counsel Mr. Mehta, counsel  for  respondent
\nNo.  1,\t agreed that the statement of P.W. 4  would  not  be
\ntreated\t as part of the evidence on the record.\t  Thereafter
\nthe  trial proceeded and 11 more witnesses were examined  on
\nthe  footing  that respondent No. 1 would not  rely  on\t the
\ncharge\twith  regard to the, command of\t Jagadguru  Shankra-
\ncharya.\t  On that footing the appellant’s counsel adopted  a
\ndefinite
\n223<\/span>
\nline of cross-examination.  On March 4, he consented to\t the
\nmarking\t of  the full reports of the speeches of  ,  Shambhu
\nMaharaj\t as  exhibits  and  on\tMarch  5,  he  extracted  an
\nadmission  from\t Barot that the witness had  taken  verbatim
\nnotes  of the speeches of Shambhu Maharaj.  Counsel  adopted
\nthis  line of cross-examination because he took,  the  stand
\nthat the speeches did not prove the corrupt practice alleged
\nin  the petition.  The application, for amendment was  filed
\non  March 5 and was allowed on March 7. The  order  allowing
\nthe  amendment\thas resulted in manifest  injustice  to\t the
\nappellant.  His counsel could not thereafter take the  stand
\nthat the reports had been fabricated at the instance of\t the
\ncongress party , Respondent No. 1 moved the application\t for
\namendment  in bad faith at a very late stage of\t the  trial.
\nHe  deliberately  refrained  from  taking  the\tnew   charge
\nearlier.\n<\/p>\n
Under  s. 116A an appeal lies to this Court on any  question
\nwhether\t of  law or fact from the order of the\tHigh  Court.
\nThe  procedure in appeal is regulated by s. 116C.   All\t the
\nprovisions  of the Code of Civil Procedure including s.\t 105
\napply to the appeal, and any error in an order of the  Trial
\ncourt  affecting the decision of the case may be taken as  a
\nground\tof objection in the appeal.  In an appeal  under  s.
\n116A  the  whole  case is within the  jurisdiction  of\tthis
\nCourt.\t Normally  the\tCourt does not\tinterfere  with\t the
\nJudge’s discretion in granting amendments except on  grounds
\nof law but where, as in this case, the order has resulted in
\nmanifest injustice, the Court has the power and the duty  to
\ncorrect\t the  error.   In Evans\t v.  Bartlam(1)\t Lord  Atkin
\nobserved
\n\t      “Appellate jurisdiction is always statutory  :
\n\t      there  is in the statute no  restriction\tupon
\n\t      the  jurisdiction of the court of appeal:\t and
\n\t      while  the appellate court in the exercise  of
\n\t      its  appellate  power  is\t no  doubt  entirely
\n\t      justified in saying that normally it will\t not
\n\t      interfere\t with  the exercise of\tthe  judge’s
\n\t      discretion except on grounds of law, yet if it
\n\t      sees, that on other grounds the decision\twill
\n\t      result in injustice being done it has both the
\n\t      power and the duty to remedy it.”\n<\/p>\n
We,  therefore,\t hold  that the order  of  the\ttrial  judge
\nallowing the amendment was erroneous and must be set aside.
\nRespondent No. 1 proved six speeches of Shambhu Maharaj.  He
\ndid  not  rely\tin  the\t trial\tcourt  on  the\tspeeches  at
\nLaxmipura,  Bhabhar and Tharad.\t Mr. Gokhale stated that  he
\ndid not rely on these ‘speeches for any purpose\t whatsoever.
\nAccordingly,  those  speeches were not read in\tthis  Court.
\nThere is no charge
\n(1)  [1937] A.C.473,480-481
\n224<\/span>
\nagainst\t the,  appellant  on the ground\t of  appeal  to\t the
\nelectors  ,on  the  ground of religion.\t  The  only.  charge
\nagainst\t him is that in his speeches at lkbalgadh,  Amirgadh
\nand  Wav, Shambhu Maharaj with the consent- of his  election
\nagent  Punambhai told the electors that “if they  voted\t for
\nthe  congress party candidates the voters would\t commit\t the
\nsin  of cow slaughter (gaumata vadh).” Respondent No. 1\t has
\nnot  proved the charge that the electors were urged  in\t the
\nname  of  mother  cow  to take a vow not  to  vote  for\t the
\ncongress  party\t candidates, with the ,result  that  several
\nmembers\t of  the,  audience  publicly  took  the  vow.\t The
\nIkbalgadh speech (Ex.  B1) and the Amirgadh speech (Ex.\t B3)
\nwere  delivered\t on February 8, 1967.  The Wav\tspeech\t(Ex.
\nB4)  was delivered on February 9, 1967.\t There was  then  an
\nacute political controversy with regard to the total ban  on
\ncow   slaughter.    Section  5(1)  of  the   Bombay   Animal
\nPreservation  Act,  1954 (Bombay Act No. LXXII of  1954)  as
\namended\t by Gujarat Act No. XVI of 1961, there was  a  total
\nban on cow slaughter in Gujarat.  But there was no  absolute
\nban,  on  cow  slaughter  in  several  other  States.\t The
\nSwatantra  party  was  agitating  for a\t total\tban  on\t cow
\nslaughter   throughout\tIndia.\t Public\t criticism  of\t the
\nCongress  party for not abolishing cow slaughter  throughout
\nthe  country  was  permissible\tand  legitimate.   But\t the
\ncriticism ceases to be legitimate if the speaker commits the
\ncorrupt\t practice of undue influence under s.  123(2),\tthat
\nis, if he interferes or attempts to interfere with the\tfree
\nexercise  of electoral right.  Under. s. 123(2) proviso\t (a)
\ncl.  (ii) there is such undue influence if any\tperson\twith
\nthe  consent of the candidate or his election agent  induces
\nor  attempts to induce a candidate or an elector to  believe
\nthat be, or any person in whom he is interested, will become
\nor  will  be  rendered an object of  divine  displeasure  or
\nspiritual  censure.” The actual effect of the speech is\t not
\nmaterial,.  Corrupt practice, is committed if the speech  is
\ncalculated to interfere with the free exercise of  electoral
\nright  and  to\tleave no choice to  the:  electors  in-\t the
\nmatter, see Ram Dial v., San; Lal & Others(1).
\nIn  considering the speeches the status of the\tspeaker\t and
\nthe  character of the audience are relevant  considerations.
\nShambhu Maharaj was a kirtankar of repute and well known and
\nrespected for his lectures on Hindu religion.  The  audience
\nconsisted  mostly of illiterate and orthodox Hindus  of\t the
\nrural areas, adivasis and rabaris belonging to the scheduled
\ntribes and scheduled castes.  In this background, let us now
\nconsider  the  speeches.  Respondent No. 1  charges  corrupt
\npractice  in respect of 4 passages in the  Ikbalgadh  speech
\n(Ex.   B1),  passages  in the Wav speech  (Ex.\t B4)  and  3
\npassages’. in the Amirgadh speech (Ex.\tB3).
\n(1)  [1959] Supp. 2. S.C.R. 748, 758, 760.\n<\/p>\n
225<\/span><\/p>\n
The learned trial judge found that the corrupt practice\t was
\nnot  committed by the 1st and 2nd passages in Ex.   B1,\t the
\n1st,  2nd  and 3rd and 6th passages in Ex.  B4 and  the\t 1st
\npassage in Ex.\tB3.\n<\/p>\n
But the learned Judge held that 3rd and 4th passages in\t Ex.
\nB1  and\t the  4th and 5th passages in Ex.   B4\tamounted  to
\ncorrupt\t practice  as  the  electors  were  told  that\t Sri
\nShankracharya  had  commanded  them  not  to  vote  for\t the
\ncongress  and that if they disobeyed his command they  would
\nincur  divine  displeasure and spiritual censure.   We\thave
\ndisallowed the amendment introducing this charge and we must
\ntherefore  set aside the finding of the learned\t judge\twith
\nregard to those passages.  We find that the passages do\t not
\nshow any corrupt practice as alleged in the petition.
\nIn  the 2nd passage, in the, Amirgadh speech (Ex.   B3)\t the
\nspeaker\t referred to-the ban on cow slaughter  in  Pakistan,
\nAfghanistan  and Madhya Pradesh and said that the  Swatantra
\nParty  had  promised  to ban slaughter of  cow\tprogeny\t and
\nexemption  of land revenue.  He also said : “Sun  rises\t and
\ntwenty\ttwo thousand cows are slaughtered …. In  Ahmedabad
\nthere is a prohibition oh cow slaughter but the slaughtering
\nof  calf and ox is continued.  The earth took the form of  a
\ncow  and if the said ‘Gaumata’ or ox is slaughtered how\t can
\nearth be satisfied and so long as the earth is not satisfied
\nhow  can  there\t be fertility in the earth.”  In  the  third
\npassage (Ex.  B3), the speaker said:-\n<\/p>\n
\t      “In  the year 1942 sixteen lacs and  in.\t1946
\n\t      twenty  four  lacs  and in  1947\tafter  India
\n\t      became  separate and at present about 1  crore
\n\t      cows are slaughtered.  You say whether to vote
\n\t      for  congress is to become partner in  sin  or
\n\t      anything\telse.  If you give  cooperation\t for
\n\t      good  cause you may get good fruit and if\t you
\n\t      cooperate\t in  committing a sin you  become  a
\n\t      partner  of sin.\tWhy you become a partner  of
\n\t      sin by giving votes to congress ?”\n<\/p><\/blockquote>\n
He  then referred to the command of Sri\t Shankracharya\tthat
\nthe  electors should not vote for the Congress\tparty.\t But
\neven  apart  from  the\tcommand\t of  Sri  Shankracharya\t the
\nelectors are distinctly told that though there was a ban  on
\ncow slaughter in Ahmedabad, the congress was permitting\t the
\nslaughter  of  crores  of cows elsewhere in  India  and\t was
\ncommitting  the\t sin of gohatya and those who vote  for\t the
\ncongress  would be partners in the sin.\t The dominant  theme
\nof the speech was that those who commit the sin of  go-hatya
\nwould be visited with divine displeasure.  Having regard  to
\nthe character of the audience, the speech was calculated  to
\ninterfere with the free exercise of
\n226<\/span>
\nelectoral right.  In Narbada Prasad v. Chhagan Lal & Ors.
\nHidayatullah, C.J.,<\/a> observed :\n<\/p>\n
\t      “It is  not necessary to enlarge upon the fact
\n\t      that  cow is venerated in our country  by\t the
\n\t      vast  majority  of the people  and  that\tthey
\n\t      believe  not  only  in  its  utility  but\t its
\n\t      holiness.\t  It, is also believed that  one  of
\n\t      the   cardinal  sins  is\tthat  of   go-hatya.
\n\t      Therefore, it is quite obvious that to  remind
\n\t      the  voters that they would be committing\t the
\n\t      sin  of go-hatya would be to remind them\tthat
\n\t      they would be objects of divine displeasure or
\n\t      spiritual censure.”\n<\/p><\/blockquote>\n
\t      In  Encyclopaedia\t of  Religion  and   Ethics,
\n\t      edited  by  James Hastings, vol. 4,  pp.\t225,
\n\t      226, it is stated:-\n<\/p><\/blockquote>\n
\t      “A well known verse (Mahabharata, xiii.  74.4)
\n\t      says  :  ‘All that kill, eat  and\t permit
\n\t      the slaughter of cows, rot in hell for as many
\n\t      years  as there are hairs on the body  of\t the
\n\t      cow so slain.\n<\/p><\/blockquote>\n
\t      “Reverence  for the cow has not diminished  in
\n\t      modem times.  It is well known that the Hindus
\n\t      of the present day ‘are filled with horror  at
\n\t      the  slaughter of the cow, which is  therefore
\n\t      prohibited  in  native States  under  treaties
\n\t      with the English.”\n<\/p><\/blockquote>\n
According   to\t B.  N.\t Mehta’s   Modern   Gujarati-English
\nDictionary,  vol.  1, page 480, gohatya\t (go,  a  cow+hatya,
\nkilling)  means\t in Gujarat “slaughter of a cow;  killing  a
\ncow,  being  one of the five great sins according  to  Hindu
\nscriptures  which  can\tbe  atoned  for\t only  with  capital
\npunishment.”\n<\/p>\n
Accordingly,  the offending passages in the Amirgadh  speech
\nfell  within s. 123 (2) proviso (a) (ii).  We are  satisfied
\nthat Shambhu Maharaj spoke at the Amirgadh meeting with\t the
\nconsent\t of Punambhai, the election agent of the  appellant.
\nPunambhai was present at the Amirgadh meeting.\tHe addressed
\nthe meeting before Shambhu Maharaj spoke.  Shambhu  Maharaj
\naddressed  several other election meetings of the  Swatantra
\nparty.\t Punambhai  issued  a pamphlet calling\tone  of\t the
\nmeetings.  P.W. 10 proved that he was asked by Punambhai  to
\ncall  Shambhu Maharaj for addressing another meeting as\t the
\nvoters\twere  uneducated and had deep  belief  in  religion.
\nPunambhai  accompanied\tShambhu Maharaj from  one  place  to
\nanother.   On February 8, 1967 he went with Shambhu  Maharaj
\nto the meeting at Ikbalgadh
\n(1)  [1969] S.C.E. 499.\n<\/p>\n
\t\t\t    227<\/span><\/p>\n
and  thereafter\t went to Amirgadh.  On February 9,  he\twent
\nwith  Shambhu Maharaj to the meeting at Wav.  The  offending
\npassages of the speech at the Amirgadh meeting are  integral
\nparts  of  the dominant theme of the sin of  cow  slaughter.
\nThey  cannot  be regarded as stray words spoken\t by  Shambhu
\nMaharaj\t without  Punambhai’s consent.\t Punambhai  did\t not
\nraise  any  objection  to  the\timpugned  speeches at  the
\n‘meeting.  He gave evidence in Court but did not say that he
\nwas  not a consenting party to the offending  passages.\t  We
\nhold that the corrupt practice under s. 123(2) proviso\t (a)\n<\/p>\n
(ii)  was committed at the Amirgadh meeting on\tFebruary  8,
\n1967  with  the\t consent  of  the  election  agent  of\t the
\nappellant.\n<\/p>\n
In  the result, the appeal is dismissed.  There will  be  no
\norder as to costs.\n<\/p>\n
Hegde,\tJ. I have had the advantage of reading the  judgment
\njust  now read out by Bachawat, J. I agree that\t the  appeal
\nshould\tbe  dismissed.\tBut I am unable to  agree  that\t the
\namendment  complained  of  was not  properly  allowed.\t The
\nlearned trial judge has given good reasons in support of his
\norder.\tIn my opinion no case is made out to interfere\twith
\nthat order.  I am also of the opinion that each and everyone
\nof  the\t speeches  made by Shambhu  Maharaj  which  are\t the
\nsubject matter of this appeal, read as a whole as we  should
\ndo,  fall within the vice of proviso a(ii) of s.  123(2)  of
\nthe Representation of the People Act, 1951.  Nothing so\t bad
\nas  those  speeches I have come across\tin  election  cases.
\nThey are fanatical outpourings and a direct challenge to the
\nconcept of a secular democracy.\n<\/p>\n
Appeal dismissed.\n<\/p>\n
228<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Manubhai, Nandlal Amersey vs Popatial Manilal Joshi & Ors on 7 January, 1969 Equivalent citations: 1969 AIR 734, 1969 SCR (3) 217 Author: R Bachawat Bench: Bachawat, R.S. PETITIONER: MANUBHAI, NANDLAL AMERSEY Vs. RESPONDENT: POPATIAL MANILAL JOSHI & ORS. DATE OF JUDGMENT: 07\/01\/1969 BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SIKRI, S.M. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-45243","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nManubhai, Nandlal Amersey vs Popatial Manilal Joshi & Ors on 7 January, 1969 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/manubhai-nandlal-amersey-vs-popatial-manilal-joshi-ors-on-7-january-1969\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Manubhai, Nandlal Amersey vs Popatial Manilal Joshi & Ors on 7 January, 1969 - 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