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SUPREME COURT OF INDIA
M.H. BEG, A. ALAGIRISWAMI AND N.L. UNTWALIA, JJ.
Ziyauddin Burhanuddin Bukhari, Appellant
Versus
Brijmohan Ramdass Mehra and others, Respondents.
Civil Appeal No. 134 of 1973, D/-25-4-1975.
Advocates appeared
M/s. K. K. Singhvi, R. K. Garg, V. J. Francis, and S. C. Agarwala, Advocates of M/s. Ramamurthi & Co., for Appellant; Mr. M. C. Bhandare, Sr. Advocate (Mr. P. H. Parekh and Mrs. S. Bhandare, Advocates of M/s. Bhandare Parekh & Co. with him), (for No, 1) and Mr. D. V. Patel, Sr. Advocate, (Mr. B. R. Agarwala, Advocate of M/s. Gagrat & Co. with him), (for No. 2) for Respondents.
(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.
– see the decision in Ziyauddin Burhanuddin Bukari v. Brijmohan Ramdass Mehra, AIR 1975 SC 1788.
In the case of Ram Singh v. Col. Ram Singh, AIR 1986 SC 3, the conditions for admissibility of a tape recorded statement were stated as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logically corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, in admissible.
(4) The statement must be relevant according to the Rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and must be kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sound, or disturbances.
– candidates at an election to a legislature, which is a party of “the State”, cannot be allowed to tell electors that their rivals are unfit to act as their representatives on grounds of their religion professions or practices. To permit such propaganda would be not merely to permit undignified personal attacks on candidates concerned but also to allow assaults on what sustains the basic structure of our Democratic State, as held in the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ram Dass Mehra, AIR 1975 SC 1788, and it was held that the High Court had rightly found the appellant guilty of the corrupt practices defined by the provisions of Sections 123(2), 123(3) and 123(3A) of the Act.
– (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tempering with the record.
(c) The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.
-see the decision in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, AIR 1975 SC 1788.
– in the cases of Ram Singh v. Col Ram Singh, AIR 1986 SC 3, the conditions for admissibility of a tape recorded statement were stated as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logically corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence whether direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the Rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and must be kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sound, or disturbances.
– sub–sections (2), (3) and (3A) of Section 123 were enacted so as to eliminate, from the electoral process, appeals to those divisive factors which arouse irrational patience that run counter to the basic tenets of our constitution, and, indeed, of any civilized political and social order. Due respect for the religious beliefs and practices, race, creed, culture, and language of other citizen is one of the basic postulates of our democratic system. Under the guise of protecting your own religion, culture, or creed you cannot embark on personal attacks on those of others or Whip–up law hard instincts and animosities or irrational fears between groups to secure electoral victories. The line has to be drawn by the Courts, between what is permissible and what is prohibited, after taking into account the facts and circumstances of case interpreted in the context in which the statements or acts complained of were made, as held in the case of Ziyuddin Burhanuddin Bukhari Appellant v. Brijmohan Ramdass Mehra and others, Respondent, AIR 1975 SC 1788.
– see decision in the case of Ziyuddin Burhanuddin Bukhari Appellant v. Brijmohan Ramdass Mehra and others Respondent, AIR 1975 SC 1788 = Shubnath Deogam v. Ram Narain Prasad, AIR 1960 SC 148.
– the contents of such speeches could be brought on record by direct oral evidence in the manner prescribed by Section 160 of the Evidence Act, as held in the case of Ziyauddin Burhanuddin Bokhari Appellant v. Brijmohan Ramdass Mehra and others Respondent, AIR 1975 SC 1788, a Courts the proprietory of which has the support of the decision of the Supreme Court in Laxminarayan v. Returning Officer, AIR 1974 SC 66 and in Kanti Prasad Jay Shankar v. Purshottam Das, AIR 1969 SC 851 = 1969 (3) SCC 400.
Judgment
BEG J.:- This appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as the Act ) is directed against the judgment and order of the High Court of Bombay setting aside the election of the appellant to the Maharashtra State Assembly from Kumbharwada constituency held on 9-8-1972 on a voter s election petition.
2. The voter alleged that the appellant, in the course of his election, had committed corrupt practices defined in Sec. 123, sub-ss. (2) and (3) and (3A) of the Act. The gist of the charges against the appellant Ziyauddin Burhanuddin Bukhari (hereinafter referred to as Bukhari ), a Muslim League candidate, was: that, he had made speeches in the course of his election campaign calculated to induce a belief in the voters that they will be objects of divine displeasure or spiritual censure if they voted for Shaukat Currimbhoy Chagla (hereinafter referred to as Chagla ), a Congress party candidate, who was impleaded as the 2nd respondent that, in the above mentioned speeches, the appellant had called upon the electors to vote for him and not for Chagla on the ground that he alone stood for all that was Muslim whereas. Chagla represented all that was against Muslim religion and belief so that Chagla could not be a true Muslim at all, the object of such appeals being to further the chances of election of Bukhari and to prejudicially affect the prospects of the election of Chagla; that, the appellant, Bukhari, had attempted to promote feelings of enmity and hatred between Muslims and Hindus on grounds of religion and community. Particulars of the speeches delivered at sixteen meetings and what was said there by Bukhari were furnished with the election petition.
3. The alleged corrupt practices are defined in the following provisions of Section 123:
"(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:
Provided that:
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who:
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or,
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right shall not be decried to be interference within the meaning of this clause.
(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate."
4. Before considering whether the allegations
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