TMI Blog2010 (2) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent(s) Mr. Sudhanshu S Choudhari, Adv. Mr. Naresh Kumar, Adv. 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal 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. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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 lay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, 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 (1967) 3 SCR 720 (1965) 2 ALL E.R. 464 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
