SAROJ SANDESH NAIK BHOSALE Vs. SURYAKANT VENKATRAO MAHADIK

JUDGEMENT

(1.) THE petitioner, a candidate of the Indian National Congress (Congress-I) contested the election for the Maharashtra Legislative Assembly from Constituency No. 48, that is, Nehru Nagar Constituency. The elections were held on 27th February, 1990. the respondent is the candidate belonging to Shiv Sena. He won the election by a margin of about 7212 votes. He secured 40, 409 votes as against his nearest rival candidate one Shri Rashid, who secured 33, 197 votes, whereas the petitioner secured only 23,783 votes. The petitioner has challenged this election in this petition. She is only asking for a declaration that the election of the respondent be declared as null and void on the ground that the respondent and his election Agent and/or his party workers, with the consent of the respondent or his Election Agent, have committed corrupt practices as defined under section 123 (3) and 123 (A) of the Representation of the People Act, 1951 (hereinafter referred to as "the Act of 1951 ). "

(2.) NOW, in the affidavit-in-support, there is no denial of any of the material averments in the plaint, particularly, averments relating to the plank of Shiv Sena-BJP Alliance, the contents of the speeches made by Bal Thackeray and others on 29-1-1990 and also on 24-2-1990. The fact that the video cassette AVHAN ANI AVAHAN was produced and displayed by Shiv Sena at number of places and that the said cassette had many objectionable materials as set out in the plaint and also the fact that very many slogans were used, all in the cause of the Hindutva, has not been deniedat all. Yet, in the written-statement, the respondent adopted a strange attitude, almost disowning his party, his alliance, above all his leader, only with a view to outwit the petitioner. It is in that sense the written-statement is patently unfair almost bordering on lack of bona fides, filed, perhaps on legal advice, with a lop-sided view pertaining to an Election Petition. The respondent thinks that in an election petition, as in a criminal trial, he is not to open his mouth and that his only plea is to deny every statement made in the petition, true, false or otherwise. In this view of the matter, he does not even enter the witness-box and I will comment upon it later on. He forgets that there is a basic difference between an election petition and criminal trial. In a criminal trial, the accused is not required to file a written-statement before the commencement of the trial. But no so in an election petition. If he does not file a written-statement, perhaps I can give a judgment for want of written-statement or perhaps I can proceed under Order VIII, Rule 5, sub-rule (2) of the Code of Civil Procedure on the basis that the respondent admits the allegations in the petition. Similarly, he has a duty to be fair to the Court inasmuch as in an election petition/the object being purity in electoral process, the entire constituency is before the Court. He has a duty to tell the truth and particularly the facts which are within his knowledge. Of course, before holding that the alleged corrupt practice is proved, the Court will insist on better standard of proof than in a civil matter. But that does not mean that the respondent can keep his mouth shut on all matters which are within his knowledge and if he does so, the Court can draw such inferences as are permissible under the law, as against the respondent. ISSUE No. 1

(3.) THIS petition was lodged on 16-4-1990 being the last day of limitation for filing this petition. This petition was scrutinised by the office. The office noted down five objections " (1) Please annex proforma pages (2) Exh. B is very faint. So also the verification made therein. So also Exhibit G (3) Exhibit C is faint. (4) Declaration not proper (5) Please annexaffidavit in support -see page 30. " There is a further endorsement to the effect that all objections were removed on 19-4-1990. It says that proforma was annexed. Exhibit B and verification thereto were replaced and re-verfication was done on 19-4-1990. With regard to Exhibit C the endorsement mentions that it was replaced by a better copy and a true translation thereto was annexed as Exhibit C-1. Thereafter it says that declaration was done in the proper form and affidavit-in-support was annexed and duly verified on 19-4-1990. Thereafter on or about 6. 6. 1990 was placed before me when the petition was accepted and made returnable on 18-7-1990.