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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SMT.NISHITA MHATRE, J.
Shri Tukaram S. Dighole - Petitioner
V/s.
Shri Manikrao Shivaji Kokate - Respondent
ELECTION PETITION NO.13 OF 2004
DEDICED ON: JANUARY 25th, 2008
Evidence Act, 1872 - Section 74-Public document-Proof of-Document not required to be proved under Evidence Act-Document must be placed on record as evidence- Must be admitted in evidence as a certified copy of original before drawing any presumption in respect of its genuineness.-It is no doubt true that the petitioner has produced the VHS cassette on record. This cassette was produced on 30.11.2004. However, the petitioner has produced no evidence on record to indicate that this VHS cassette was a true reproduction of the original speeches. The submission of the counsel for the petitioner that the VHS cassette is a public document as defined under Section 76 of the Indian Evidence Act, cannot be accepted. There is no evidence to indicate that the VHS cassette was obtained from the Election Commission. The petitioner who examined himself has not adverted to this video recording in his examination-in-chief. There is no averment in the affidavit filed in lieu of examination-in-chief to the effect that he had obtained the cassette from the office of the Election Commission and that he had paid the requisite charges for the same. It the time of the arguments the counsel for the petitioner pointed out that this cassette was in fact issued to the petitioner by the Election Commission’s Office. But this is not sufficient. A public document need not be proved under the Indian Evidence Act. However it must be brought on record as evidence. It must be admitted in evidence as a certified copy of the original before any presumption can be drawn regarding its genuineness. Court is fortified in its view by the decision of the Supreme Court in the case of Amarnath Agarwal where the Supreme Court has held that the mere production of the documents alongwith the written submissions without exhibiting them at the trial would be sufficient for the Court to look into those documents as they were not in evidence and the defendant had no opportunity to reply to those documents. The petitioners has not proved the receipt issued by the Election Commission’s Office and has thus failed to prove that the VHS cassette was a public document. That being the position it is not possible to rely on the contents of the VHS cassette.
Representation of the People Act, 1951 - Section 123(3)-Civil Procedure Code, 1908, Order VII-Election petition-Pleadings therein-Must be strictly construed-Framed issues must be precise-So as to respondent in election petition or returned candidate can meet charges of corrupt practice levelled against him.-It is settled that pleadings in an election petition must be strictly construed and the issues framed must be precise in order that the respondent in an election petition or the returned candidate can meet the charges levelled against him. Therefore these judgments would not be of any assistance to the petitioner.
1. This election petition challenges the declaration of the respondent as the elected candidate from 69, Sinnar constituency at the election held on 13.10.2004. It has been filed by a candidate of the NCP-Congress and R.P.I. alliance who unsuccessfully contested the elections. The petitioner has alleged that the respondent has indulged in corrupt practices thereby materially affecting the result of the election for the Sinnar constituency. The petitioner has prayed that the election of the respondent be declared void u/s 100 1(b), 100 1(d)(ii), 100(d)(iv) of the Representation of the People Act, 1950 (for short, hereinafter referred to as ‘the Act’).
2. The petitioner has alleged that the returned candidate had flagrantly violated the provisions of the Act and the election rules framed thereunder. He has also alleged that the returned candidate had violated several orders of the election commission issued under the provisions of the Act. The petitioner has pointed out in his election petition that 135065 votes were cast. The respondent secured 67556 votes while the petitioner managed 47593 votes. The respondent was therefore, declared elected by the returning officer on 16.10.2004. The Petitioner has contended that the respondent had caused deletion of names of a particular community from the voters’ list and voters from another community who supported the respondent were included in the electoral rolls by 10.7.2003. Bogus names were included in the voters’ list at the behest of the respondent with the connivance of the Talathi and the Tehsildar of the constituency. The petitioner claims to have complained, on 11.7.2003, to the Minister of State for Revenue and Forest, bringing to light the illegal deletion and addition of names to the voters’ list. The petitioner then claims that the respondent issued a pamphlet elucidating details of the work undertaken by the latter, who was a sitting MLA. The pamphlet had details about the inauguration of a welfare centre and about a bhoomi-puja being performed for the schools. The petitioner on 7.9.2004 addressed a letter to the Divisional Commissioner (Revenue) Nasik Road, complaining against the Tehsildar who had deleted the names of the voters from the Vanzari community as well as other voters from the minority community. According to the petitioner, a letter/pamphlet was circulated in his constituency purported to be authored by him. This pamphlet which was allegedly signed by the petitioner exhorted the voters to cast their vote for the petitioner who belonged to the Vanzari caste. According to the petitioner copies of this letter were distributed amongst the members of the Maratha community in order to prejudice them. Reliance is placed on a copy of the letter/pamphlet dated 28.9.2004 by annexing it to the election petition at Exhibit E and E1. The petitioner claims to have complained about this false propaganda to the election commissioner on 11.10.2004, by a written communication, which is annexed at F and F1. The Election Commissioner was to identify the real author of the document by making the necessary investigations. The petitioner issued a public notice in the local newspaper clarifying to the effect that he had not issued the letter/pamphlet. This document has been annexed at Exhibit G and G1. An FIR was lodged by the petitioner with Sinnar police station and the case was registered as CR No.I-180/2004 on 12.10.2004 under sections 465, 467, 471, 419, 420, 500 of the Indian Penal Code. The FIR was lodged against an unknown person on the basis of the letters/pamphlets. A representation was also sent to the Deputy Chief Minister by the petitioner seeking an enquiry into the issue.
3. The Petitioner has then alleged that the private secretary of the respondent had issued a press release stating that the employees of Bhairavnath Path Sanstha were working against the respondent and that the resp
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