Judgment

VAIDIALINGAM, J.:- On April 1, 1970 Shri Jagat Narain (R. W. 25) was being cross-examined by the counsel for the petitioners in Election Petition No. 5 of 1969, when certain suggestions were put to him that he had tried to dissuade the first petitioner in the said Election Petition, viz., Shri Abdul Ghani Dar from filing the election on political reasons and when the witness denied not only those suggestions but also certain other suggestions put to him, counsel for the petitioner represented that Shri Abdul Ghani Dar had a tape recording of the talk that took place between him and the witness and he sought permission from the Court to play the same for being put to the witness. Objection was raised by Mr. C. K. Daphtary, learned counsel for the respondent, that the tape recorded conversation was not admissible in evidence. In view of this objection, counsel on both sides were heard regarding the admissibility of the tape recorded conversation, on April 2, 1970 and, after hearing arguments on both sides, we then expressed the opinion that the tape recorded conversation could be received in evidence and that we would give our reasons later. The further cross-examination and re-examination of the witness proceeded in respect of the tape-recorded conversation which was played in Court in the presence of the witness.

2. We now proceed to state our reasons for holding that the tape recorded conversation could be admitted in evidence. But we make it clear that we have dealt with only the question regarding the admissibility in evidence of the tape recorded conversation, which is distinct and separate from the weight to be given to such evidence which question will be dealt with in the main judgment to be delivered in the election petitions.

3. Before we deal with the question of admissibility of the tape recorded conversation, it is necessary to state that in Election Petition No. 5 of 1969 the petitioners allege that offences of undue influence at the election had been committed by the returned candidate and by his supporters with the connivance of the returned candidate. The material facts relating to the said allegations have also been given in the petition in paragraph 13 of the election petition. It has been alleged that on August 9, 1969 an unsigned pamphlet in cyclostyled form and also a printed pamphlet without bearing the name of its publisher or printer (marked as Exhibits P-18B and P-37B respectively) were published by free distribution among the members of the Electoral College for the Presidential Election. It has been further alleged that the offence of undue influence was freely committed at the election by the returned candidate and the persons mentioned in the election petition and by their supporters and workers with the connivance of the returned candidate, by voluntarily interfering and attempting to interfere with the free exercise of the electoral rights of the candidates and the various electors mentioned in the petition. It is further alleged that with the object of interfering with the free exercise of electoral rights by Sri N. Sanjiva Reddy, a candidate at the election, Sri Jagat Narain and certain other persons named in the petition who are described as supporters and workers of the returned candidate in general with the consent and connivance of the returned candidate published, by free distribution, pamphlets in Hindi and English in cyclostyled form as well as in printed form in which very serious allegations were made against Shri Reddy, which amounted to undue influence upon the persons referred to in the election petition within the meaning of Section 171 {c) of the Indian Penal Code. There is a further allegation that these pamphlets were distributed from August 9, 1969 to August 16, 1969 among all the electors of the Electoral College for the Presidential election and they were also distributed during this period in the Central Hall of the Parliament by the various persons mentioned in the pe