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WITH CIVIL APPEAL NO. 2835 OF 1989 Bal Thackeray V. Shri Prabhakar Kashinath Kunte & Others JUDGMENT J.S. VERMA, J. :

Both these appeals are under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as "the Act/R.P. Act') against the judgment dated 7th April, 1989 of the Bombay High Court in Election petition No. 1 of 1988 by which the election of Dr. Ramesh Yeshwant Prabhoo, the returned candidate from, Vile Parle Constituency to the Maharashtra State Legislative Assembly, held on 13th December, 1987, has been declared to be void on the ground under Section 100(1)(b) of the Act. The appellant has been found quality of the corrupt practices prescribed by sub-Sections (3) and (3A) of Section 123 of the Act at the election, in that he and his agent Bal Thackeray with his consent appealed for votes on the ground of the returned candidate's religion and that they promoted or tended to promote feelings of enmity and hatred between different classes of the citizens of India on the grounds of religion and community. Consequently, Bal Thackeray, after a notice issued under Section 99 of the Act to him, has also been named for commission of these corrupt practices. Civil Appeal No. 2836 of 1989 is by the returned candidate Dr. Ramesh Yeshwant Prabhoo and Civil Appeal No. 2835 of 1989 is by Bal Thackeray against that judgment.

Dr. Prabhoo was set up as candidate of the Shiv Sena which was then not a recognised political party for purposes of the Legislative Assembly elections end, therefore, Dr. Prabhoo's candidature was shown as "Shiv Sena - Independent". Bal Thackeray is the top leader of Shiv Sena and he participated in the election campaign of Dr. Prabhoo as the main speaker in his capacity as the leader of Shiv Sena. The status of Bal Thackeray as the top leader of Shiv Sena has never been disputed. The gist of election petitioner's case which has been found proved by the High Court is that the three public speeches of Bal Thackeray in the election campaign of Dr. Prabhoo were all in very intemperate language and incendiary in nature which were appeals to the voters to vote for Dr. Prabhoo because of his religion, i.e., he being a Hindu, and the speeches also promoted or tended to promote enmity and hatred between different classes of the citizens of India on the ground of religion. The High Court has held this charge of the alleged corrupt practices proved against the returned candidate Dr. Prabhoo and Bal Thackeray. Accordingly, the election of the returned candidate has been declared to be void on the ground contained in Section 100(1) (b) of the Act, and Bal Thackeray has been named in accordance with Section 99 of the Act. Hence these appeals by them.

The petitioner craves leave to call for the record of the speeches from the Police Department and to prove the point by examining the police reporters who have taken down the speeches. The petitioner craves leave to rely upon the said police report in the custody of the Police. A report regarding the said meeting and the speeches appeared in the newspaper "Mumbai Sakal" (A Marathi daily) dated 1.12.1987 with the photographs under the title "Hindu Dev- devtavareel Teeka Sahan Karnar Nahi Thackeray" (We will not tolerate the criticism of Hindu gods and goddesses - Thackeray). From the said photograph it is clear that respondent No. 1 was also present in the said meeting. Thus all the utterances regarding the speeches made by Bal Thackeray to appeal to voters in the name of Hindu religion are with the consent and connivance of the first respondent. The same meeting was also reported in `Sanj Tarun Bharat' (an evening daily) dated 30.11.87 with the photograph of Shri Thackeray, respondent NO. 1 and others on the dias. The said photograph further shows that a banner was put up on the dias which reads as under:-

As earlier stated, the three speeches of Bal Thackeray from which the above extracts have been quoted are admitted. Similarly the interview of Dr. Ramesh Yeshwant Prabhoo and its text published in Janmabhoomi Prawasi is admitted. Dr. Prabhoo was the Mayor of Bombay. Dr. Prabhoo (RW-1) admitted his presence in the meetings held on 29.11.1987, 9.12.1987 and 10.12.1987 in which the above speeches were given by Bal Thackeray. He admitted speaking himself also in these meetings. He has said nothing in his statement to suggest that he did not consent to the contents of the speeches of Bal Thackeray. In his deposition, he has expressly admitted that the speeches of Bal Thackeray were according to his election campaign. the element of the candidate's consent for the appeal to the voters made by bal Thackeray in his speeches is, therefore, adequately proved. About his interview published in the Janmabhoomi Prawasi, issue of 9.12.1987, he said that the report is substantially correct, even though the first paragraph of that news item is incorrect. Omitting the first paragraph of the news item which he denied, certain portions, translated into English, from the remaining news item publishing the interview are as under :-