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In the present case, there is reference in paras 32 and 33 of the election petition to certain video cassettes, the contents of which are deemed to be incorporated by reference in the election petition, and since the video cassettes or a transcript of its contents was not filed along with the election petition and was not supplied with the copy of the election petition to the respondent (returned candidate), it is argued, that it has resulted in non-compliance of Section 81(3) which attracts Section 86. No further reference to the audio cassettes is necessary since the audio cassettes were not produced even at the trial and were not relied on by the election petitioner for proof of the corrupt practice. These video cassettes were later produced at the trial but the subsequent production of the video cassettes at the trial, it is urged, does not cure the defect of non-compliance of Section 81(3). In reply, Shri Ashok Desai submitted that the video cassettes did not form part of the election petition as the contents thereof are not incorporated by reference in the election petition and, therefore, non-production of the video cassettes or their transcript with the election petition and failure to annex the same to the copy of the election petition served on the returned candidate did not amount to non-compliance of Section 81(3). Shri Desai submitted that Section 81(3) merely requires the copy to conform with the election petition as presented in the court and not an election petition as required to be drafted according to Section 83(1) of the R.P. Act. He further submitted that any defect or deficiency in the contents of the election petition found with reference to Section 83(1) of the R.P. Act may have any other consequence requiring the court to act under Order 7 Rule 11 C.P.C. or order 6 Rule 16 C.P.C., but there is no non-compliance of Section 81(3) if the copy accompanying the election petition which is served on the respondent is identical with the election petition as it is actually presented in the court. In short, Shri Desai submitted that non-compliance of Section 83(1) of the R.P. Act is not visited with the consequence of dismissal of the election petition at the threshold under Section 86 and, therefore, the non-compliance of Section 81 which attracts Section 86 has to be seen without reference to Section 83 of the R.P. Act. Both sides have placed reliance on the same set of decisions to support the rival contentions.

In the present case, the video cassettes, non-supply of a copy of transcript of which is urged by Shri Jethmalani to be a ground for non-compliance of Section 81(3), were not even filed in the High Court with the election petition in the High Court. This is, therefore, not a case of non-supply of a copy of a document which was filed along with the election petition. What was supplied to the returned candidate in the present case, was a true copy of the election petition as it was presented in the court without the video cassettes of which mere mention was made without incorporating its contents by reference of enumerating it in the election petition. It is not the case of the election petitioner that the full contents of the video cassettes or their transcripts are incorporated by reference in the election petition in order to make the video cassettes an integral part of the election petition, inasmuch as no video cassette was filed along with the election petition as it was presented in the High Court. Reliance is placed by the election petitioner on the video cassettes produced later during the trial as only evidence of the pleading in paras 32 and 33 of the election petition. It is, therefore, clear that the contents of the video cassettes except to the extent pleaded in paras 32 and 33 of the election petition, cannot be treated to be incorporated by reference in the election petition as a part of the pleadings and its use is sought to be made by the election petitioner only as evidence of the averments contained in paras 32 and 33 of the election petition. Admittedly, a true copy of the election petition as presented in the High Court was furnished to the returned candidate along with the notice of the election petition. There was thus no non-compliance of sub-section (3) of Section 81 of the R.P. Act. The election petition was, therefore, not liable to be dismissed under Section 86(1) even on the ground of non-compliance of section 81(3) of the R.P. Act.

32. The petitioner states that in addition to holding public meetings, the said alliance had also taken out video cassettes and audio cassettes. The video cassettes were titled "Challenge & Appeal "Shiv Sena" and the other called "Ajinkya". The said video cassettes and audio cassettes discloses promises, appeals, exhortations and inducements to the voters to vote for the said alliance and their candidates. The said cassettes show that the said alliance has scant respect for the religious beliefs and practices of other religions like Muslims, Christians etc. Not only the other religions are ridiculed but the followers thereof are termed as "traitors" and "betrayers". Under the guise of protecting Hindu religion/Hindutva the said cassettes attach other religions and whips up lowered instincts and animosities. The concept of secular democracy is totally eliminated. It generates powerful emotions by appealing to the Hindu voters to vote for the candidates of the alliance on a false impression given to voters that only the alliance and its candidates can protect Hindu religion. The petitioner will rely upon the visuals which have the aforesaid effect on the voters. The petitioner also craves leave to refer to and rely upon the said video cassettes as and when produced.

In para 16 of the election petition apart from some general pleading, there is reference to a speech at Shivaji Park, Dadar on 24.2.1990 by Bal Thackeray and some other leaders who have not been named therein except for the appellant (respondent in the election petition). In para 17, the alleged offending portions of the speeches of those leaders of the BJP-Shiv Sena alliance have been enumerated. These portions are from speeches alleged to have been made by Bal Thackeray of the Shiv Sena and Pramod Mahajan of the B.J.P. Thus para 17 contains allegation of specific portions of speeches by Bal Thackeray and Pramod Mahajan for the purpose of pleading the corrupt practice. Further reference to it would be made later. Para 18 merely says that the proceedings of the meeting were tape-recorded and taken down in shorthand by police authorities on which the petitioner would rely. Obviously this relates only to evidence of what is pleaded and does not amount to incorporation by reference of the contents of the alleged tapes and there is no enumeration of its contents in the election petition. Para 30 refers to the speech by the appellant himself and names some other speakers at different meeting. Further reference to para 30 would be made later. Para 31 is a general statement referring to speakers in general without naming any one of them and mentions the existence of certain audio and video cassettes of the speeches. Paras 32 and 33 then refer to certain video cassettes and audio cassettes giving merely the title of the video cassettes and generally their purport and say that the video cassettes were displayed in the constituency, particularly at Shaka offices, street corners after 6.30 p.m. and were regularly exhibited at or near the places of residence of some of the active workers of the said alliance in the said constituency. It is significant that neither these video cassettes and audio cassettes nor the transcript of their texts was reproduced in the election petition or annexed to the election petition so that the contents thereof were not pleaded in either of the required modes. That apart, there is nothing in the pleading to indicate the names of the persons who are alleged to have displayed the same or the dates on which they were displayed or in other words any other fact which would make the allegation clear and specific. The further requirement of consent of the returned candidate for those acts is not pleaded as required for the ground under Section 100(1)(b) of the R.P. Act and in the definition of the corrupt practices under sub-sections (3) and (3A) of Section