Judgment

SIKRI, J. (For himself and Bachawat, J.):- This appeal under Section 116-A of the Representation of the People Act, 1951, is directed against the judgment and order of the High Court of Gujarat in Election Petition No. 3 of 1967, setting aside the election of Kanti Prasad Jayshanker Yagnik, appellant before us, to the Gujarat State Assembly from Mehsana State Assembly Constituency under Section 123 (2), Section 123 (3) and Section 100 (1) (b) of the Representation of the People Act, 1951- hereinafter referred to as the Act.

2. The High Court held that certain speeches made by Shambhu Maharaj, with the consent of the appellant, amounted to corrupt practices within the meaning of Sections 123 (2) and 123 (3) of the Act. Since we are in agreement with some of the conclusions arrived at by the High Court it is not necessary to deal with all the speeches made by Shambhu Maharaj, but only with the speeches which the High Court held to amount to corrupt practices within the meaning of Sections 123 (2) and 123 (3). Before we set out the impugned passages from the speeches we may give a few preliminary facts.

3. The poll for the election was taken on February 21, 1967, and the result of the election declared on February 22, 1967. Purshottamdas Ranchhoddas Patel, the petitioner in the High Court and respondent before us, secured 16159 votes whereas the appellant secured 23055 votes. The other candidates, who were respondents to the petition, secured 720 votes, 1017 votes and 454 votes, respectively. The petition out of which this appeal arises was filed on April 5, 1967, and the petitioner prayed for the relief that the election of the appellant be declared void and further prayed that he be declared duly elected to the Assembly. Various grounds were urged in the petition but we need only deal with the ground that the appellant and his agents arranged public meetings of Shri Shambhu Maharaj on February 18, 1967, at various villages which were part of the Mechsana Assembly constituency, and Shambhu Maharaj made a systematic appeal in his speeches to a large section of the electors to vote for the appellant on ground of religion, caste and community, and the electors were told that it would be an irreligious act to vote for the petitioner who was a Congress candidate as Congress allowed slaughtering of cows and bullocks. It was also alleged that Shri Shambhu Maharaj had used undue influence and interfere with the free electoral rights of electors by inducing or attempting to induce them to believe that they would become object of divine displeasure or spiritual censure by his speeches.

4. The petitioner sought to prove the speeches by producing members of the Police Force, as witnesses, who had under instructions of Government taken down notes of the speeches and reported them to their officers. The High Court relied on the reports of these members of the Police Force and held that their reports were correctly recorded and fairly represented the speeches made by Shambhu Maharaj. In this connection, the High Court discarded the testimony of the petitioner s witnesses (P. Ws. 25 to 33) on the ground that it would be safe not to accept the evidence of partisan witnesses unless it was corroborated by independent witnesses.

5. The learned Counsel for the appellant, Mr. S. T. Desai, contends, first, that the reports made by the members of the Police Force are not admissible in evidence, and secondly, that in the circumstances of the case no weight should be attached to these reports. We may first deal with the question of the admissibility of the evidence before we set out the speeches.

6. The learned Counsel contends that under the Indian Evidence Act written reports of speeches can only be used in two ways : one, to refresh a witness s memory under Section 159, and secondly, under Section 160 after satisfying two conditions; (1) that the witness has no specific recollection of the facts themselves, and (2) the witness says that he is