PROF RAMCHANDRA G KAPSE PRAMOD MAHAJAN SADHVI REETHAMBARA Vs. HARIBANSH RAMAKBAL SINGH:HARIBANSH RAMAKBAL SINGH:HARIBANSH RAMAKBAL SINGH

JUDGEMENT

(1.) These are appeals under Section 116A of the Representation of the People Act, 1951 (for short "The R. P. Act")by the returned candidate Prof. Ramchandra G. Kapse whose election has been declared void and by the tow noticees Pramod Mahajan and Sadhvi Reethambara who have been named under Section 99 of the R. P. Act for committing certain corrupt practices, on the ground of which the returned candidate's election has been set aside. At the election held on 15-6-1991, Prof. Kapse was the BJP candidate for the Lok Sabha from the Thane Parliamentary Constituency and he was declared elected on 17-6-1991 having polled 3,02,928 votes against 2,74,611 votes polled by the respondent who was the Congress (I) candidate. On 1-8-1991, the election petition was filed by the respondent for setting aside the election of Prof. Kapse on the ground of certain corrupt practices. By the impugned judgment dated 15-4-1994 in Election Petition No. 6 of 1991, Ashok Agarwal, J. of the Bombay High Court has declared the election of Prof. Kapse to be void on the ground under Section 100(1)(B), and named thee noticees Sadhvi Reethambara and Pramod Mahajan also under Section 99 of the R. P. Act of being guilty of the corrupt practices under Sections 123 (3)and 123(3A) of the R. P. Act. Even though the operative part of the impugned judgment mentions the corrupt practice under Section 123(2) also in addition to those under Section 123(3) and(3A),but there is no finding against any one for commission of any corrupt practice under Section 123(2). We are therefore, concerned only with the corrupt practices under Section 123(3) and 123(3A) of the R. P. Act.

(2.) The allegation of corrupt practices made in the election petition was on the basis of three speeches namely, on 21-5-1991 by Sadhvi Reethambara, on 1-6-1991 by L. K. Advani and on 11-6-1991 by Pramod Mahajan. However, the speech of L. K. Advani made on 1-6-1991 has not been held to be a corrupt practice either under sub-section(3)or sub-section(3A)and the claim in the election petition on that basis has been rejected. The other two speeches have been held to be corrupt practices under Section 123(3) and 123(3A). It has been held that both these speeches by Sadhvi Reethambara and Pramod Mahajan were made in the presence of Prof. Kapse which proves his consent.

(3.) Some facts relating to the first contention on behalf of the appellant may now be stated. On 7-8-1992 when Prof. Kapse was being examined as a witness, some questions put to him in his examination-in-chief indicating his personal absence in the meeting held on 21-5-1991 wherein the alleged speech of Sadhvi Reethambara was made, were disallowed by the court taking the view that there was no specific denial of his presence in that meeting in his written statement. This led to an application for amendment of written statement to expressly deny the presence of Prof. Kapse in that meeting and to plead his presence at some distant place at that time. That application was dismissed on 10-8-1992. A special leave petition in this court against that order was dismissed on 27-8-1992 obviously for the reason that no interference was considered appropriate at an interlocutory stage in the trial. The deposition of Prof. Kapse was then concluded and his evidence was closed on 7-9-1992. Thereafter on 24-9-1992, notices under Section 99 of the R. P. Act were given to Sadhvi Reethambara and Pramod Mahajan. In March 1993, Sadhvi Reethambara filed her reply denying the commission of any corrupt practice in making her speech and she also denied the presence of Prof. Kapse in her meeting on 21-5-1991. The noticee Sadhvi Reethambara also made an application for calling some evidence to prove the absence of Prof. Kapse from her meeting on 21-5-1991 and his presence at that time at a distant place. Obviously, this was a ground taken by the noticee to prove the absence of consent of the candidate for her speech because even if the language of her speech satisfied the other requirements of the definition of corrupt practice, it could not be a corrupt practice under sub-section(3)and/or(3A)of Section 123 for the purpose of this election petition without the consent of the candidate Prof. Kapse. The High Court rejected that application of the noticee on 8-4-1993. The noticee's special leave petition to this Court on 12-5-1993 was dismissed obviously because no interference in the trial at this stage was considered appropriate. The arguments in the election petition were concluded on 12-4-1994. The operative order allowing the election petition and declaring the election of Prof. Kapse to be void was made by Agarwal, J. on 15-4-1994.