Judgment

N. P. SINGH, J.:- The election of the appellant from Goregaon Legislative Assembly Constituency has been set aside by the High Court, on an election petition filed on behalf of the respondent No. I (hereinafter referred to as the respondent"). The appellant had contested the election as a candidate of Shiv Sena, whereas the respondent as of Janata Dal.

2. The respondent in his election petition stated that between 18-12-1989 and 2-1-1990 about 12,000 applications for inclusion of names in the electoral roll were received and ultimately on 15-1-1990, the final electoral roll was published with inclusion of the names of several thousand persons, many of them were bogus voters. Thereafter the details of the corrupt practices committed by the appellant, Shiv Sena, Bhartiya Janta Party, between 18-1-1990 and 27-2-1990 were stated. It was also alleged that they falsely propagated in February, 1990 that Pandal erected specifically for offering prayers by Hindu Women at the cost of Rupees 50,0001 was demolished at the instance of socialists viz. Mrinal Gore and K.R. Nevrekar, and as such, the Hindu traitors should be shown their place. for that reason it was necessary to vote for the appellant, who had brought the message of "Hindu Hridaya Samrat" Shri Balasaheb Thackeray. The aforesaid statements were exhibited on several boards in different localities in Goregaon constituency between 21-1-1990 and 27-2-1990.

3. It was then alleged that there is a Sankalpasiddhi Ganesh Mandir at Goregaon. On 14-2-1990. between 11.00 a.m. and 3.00 p.m.. Mahaprasad ceremony was to be celebrated. The trustees had invited thousands of prominent citizens of Goregaon for that celebration including the respondent and his colleagues. The respondent visited the said temple at about 1.00 p.m. with Shri K.R. Nevrekar (PW 3) and 50 workers. The respondent met the trustees and offered his obeisance to the deity. The respondent learnt that the appellant had also attended the said function with his workers an hour before. After accepting the Mahaprasad, the respondent along with his workers left the function at about 2.30 p.m. To the utter surprise of the respondent, the appellant, who was the printer and publisher of the Marathi daily "Samana", published a false report of respondents visit to the said functions, in the issue of "Samana" dated 152-1990. The heading of the publication was : "Riotous behaviour of Janta Dal green Goondas during Shri Ganesh Mahaprasad function at Goregaon". The relevant part of the news item translated in English is as follows:-

"During the ceremony of Mahaprasad of Sankalpasiddhi Ganesh Temple at Motilal Nagar in Goregaon, the Janta Dal workers wearing green scarf created a mess by shouting Allah Ho Akbar repeatedly and indulged in indecent gesture . The volunteers of Ganesh Mandir Trust, accompanied by the Shiv Sena and B.J.P. workers, were distributing Mahaprasad. There were women workers of the Mahila Front also present at that time. At this moment the Janta Dal candidate Sharad Rao came there with his followers. The supporters accompanying him had tied green scarfs around their heads. These workers came as if dancing in a fair, while the devotees of Ganesh were dining during the Mahaprasad ceremony. These devotees were made to vacate highway Allah Ho Akbar slogan shouting, these people came to this most disciplined function of the Hindus capable of provoking an evil eye, repeatedly shouting Allah Ho Akbar, performing indecent dances in an ugly manner and left after creating a pandemonium. It is understood that this Janta Dal gang also included a Muslim Goonda externed from the Kurla area."

4. The respondent in the election petition asserted that the aforesaid publication was false, deliberately published to blackmail the said respondent and his party. This was an attempt to create communal division between Hindus and Muslims and to promote the feeling of enmity or hatred between different classes of citizens of India on ground