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26 The contention of Shri Jethmalani that the entire election petition is liable to be dismissed under Section 86(1) of the R.P. Act for non-compliance of subs-section (1) and/or sub-section (3) of Section 81 is, therefore, rejected.

Non-compliance of Section 83 (1) of the R.P. Act - its

------------------------------------------------------------ effect.

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The next question now is : Whether the contents of the election petition are as required by Section 83 of the Act or there is any deficiency therein to attract Order 7 Rule 11 or Order 6 Rule 16, C.P.C. ? This question arises from the alternative submission of Shri Jethmalani who contended that the pleading of corrupt practice with reference to the use of video cassettes is deficient and is, therefore, liable to be struck out under Order 6 Rule 16, C.P.C. He submitted that this would leave for consideration only the speeches of Manohar Joshi, Bal Thackeray, Pramod Nawalkar and Chhagan Bhujbal on 24.2.1990 as the only basis for the charge of the corrupt practice under sub-section (3) and (3A) of Section 123 for consideration in the election petition. He urged that there is no pleading of any part of the speech of Chhagan Bhujbal in the election petition and, therefore, reference to his speech is innocuous. For the speeches of Manohar Joshi, Bal Thackeray and Pramod Nawalkar, he urged that the specific pleading contained in the body of the election petition alone requires consideration, excluding all other material brought on record during the trial which is an impermissible addition to the record on account of a serious mistrial resulting from the unusual procedure adopted by the learned trial Judge in the High Court. Shri Jethmalani referred copiously to the evidence to support his submission that the learned trial Judge himself directed a witness to search for certain documents and produce them in addition to extensively cross- examining that witness himself to bring on record a log of material which is wholly irrelevant and inadmissible. In sort, his submission is that on the basis of the only pleading contained in the body of the election petition and the admissible and relevant evidence alone, no corrupt practice under sub-section (3) or sub-section (3A) of Section 123 is made out.

"7. The petitioner states that accepting a candidature in the election of the said alliance meant that the said particular candidate had accepted the basic concept and plank on which the said two parties were jointly contesting the elections for the Assembly. It further meant that the candidate accepted Bal Thackeray, Pramod Mahajan, Kirti Somaiya as their leaders and consented to the said leaders making an appeal to vote for the candidates of the said alliance. It further meant that the philosophy and ideology of the leaders of the alliance, and particularly Bal Thackeray, such as (a) Hindus are and Hindu religion is in danger, (b) that only the alliance can protect Hindus and Hindus religion, (c) that the Congress-I and Janata Dal have failed to protect, and will not protect Hindus and Hindu religion and their candidates are unfit to be elected, (d) that Hindus have suffered and will continue to suffer indignity, discrimination and unequal treatment, (e) that the problems in states like Kashmir, Punjab, Assam etc. have arisen because of the pampering of the minorities, (f) that Hindus must come together and fight the attack on them and their religion and say with pride that they are Hindus, (g) that Hindus owed a duty to their religion and if necessary must give their life for it, (h) that minorities, and particularly the Muslims, were treated more favourably for their votes than Hindus.

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

123. Para 35 is the only other para in the election petition which is relied on by Shri Desai in this context and it merely says that the `aforesaid facts clearly prove that the respondent (appellant in this appeal) and his agents with his consent have indulged into corrupt practice under Section 123 of the said Act.' This is a mere repetition of the statutory provision and not a pleading of any material fact.

We have no doubt that the requisite consent of the returned candidate or his election agent which is a constituent part of the corrupt practices under sub-sections (3) and (3A) of Section 123, and an ingredient of the ground under Section 100(1)(b) has nowhere been pleaded in the election petition either in connection with the allegations based on the speeches by Bal Thackeray, Pramod Mahajan and any other leader or the display of video and audio cassettes in the constituency, when this is an essential requirement for raising a triable issue of corrupt practice to bind the appellant with the consequences of such a corrupt practice and to invalidate his election. In our opinion, this alone is sufficient to ignore the entire pleading in the election petition relating to speeches by Bal Thackeray, Pramod Mahajan and any other leader as well as the display of video and audio cassettes since none of those acts is attributed to the appellant or his election agent. For this reason, it is also not necessary to consider the specific portions alleged to form parts of speeches of Bal Thackeray and Pramod Mahajan mentioned in paras 16 and 17 of the election petition. Same is the result of pleadings in paras 32 and 33 relating to the video and audio cassettes. In para 31 there is a general averment that the speakers went on to say that on the respondent (appellant in this appeal) being elected and the said alliance establishing a Hindu Government jobs would be given to all Hindus. No speaker is specifically named and what is alleged to have been said by the appellant in his speech in the meeting held on 24.2.1990 is contained only in para 30 of the election petition. Since the contents of para 31 cannot be related to the speech alleged to have been made by the appellant in that meeting, that too must be left out of consideration.