Judgment

J.S. VERMA, J.

(1) THESE are appeals under Section 116-A of the Representation of the People Act, 1951 (for short "the R.P. Act") by the returned candidate Professor Ramchandra G. Kapse whose election has been declared void, and by the two noticees Pramod Mahajan and Sadhvi Reethambara who have been named under Section 99 of the R.P. Act for committing certain corrupt practices on the ground of which the returned candidates election has been set aside. At the election held on 15/6/1991, Professor Kapse was the BJP candidate for the Lok Sabha from the Thane Parliamentary Constituency and he was declared elected on 17/6/1991 having polled 3,02,928 votes against 2,74,611 votes polled by the respondent who was the Congress (1 candidate. On 1/8/1991, the election petition was filed by the respondent for setting aside the election of Professor Kapse on the ground of certain corrupt practices. By the impugned judgment dated 15/4/1994 in Election Petition No. 6 of 1991, Ashok Agarwal, J. of the Bombay High court has declared the election of Professor Kapse to be void on the ground under Section 100(l)(b), and named the noticees Sadhvi Reethambara and Pramod Mahajan also under Section 99 of the R.P. Act of being guilty of the corrupt practices under S. 123(3 and 123(3-A) of the R.P. Act. Even though the operative part of the impugned judgment mentions the corrupt practice under Section 123(2 also in addition to those under S. 123(3 and 123(3-A), but there is no finding against anyone for commission of any corrupt practice under Section 123(2. We are, therefore, concerned only with the corrupt practices under S. 123(3 and 123(3-A) of the R.P. Act.

(2) THE allegation of corrupt practices made in the election petition was on the basis of three speeches, namely, on 21/5/1991 by Sadhvi Reethambara, on 1/6/1991 by L.K. Advani and on 11/6/1991 by Pramod Mahajan. However, the speech of L.K. Advani made on 1/6/1991 has not been held to be a corrupt practice either under Ss. (3 or Ss. (3-A) and the claim in the election petition on that basis has been rejected. The other two speeches have been held to be corrupt practices under S. 123(3 and 123(3-A). It has been held that both these speeches by Sadhvi Reetharnbara and Pramod Mahajan were made in the presence of Professor Kapse which proves his consent.

(3) SOME facts relating to the first contention on behalf of the appellant may now be stated. On 7/8/1992 when Professor Kapse was being examined as a witness, some questions put to him in his examination-in-chief indicating his personal absence in the meeting held on 21/5/1991 wherein the alleged speech of Sadhvi Reetharnbara was made, were disallowed by the court taking the view that there was no specific denial of his presence in that meeting in his written statement. This led to an application for amendment of written statement to expressly deny the presence of Professor Kapse in that meeting and to plead his presence at some distant place at that time. That application was dismissed on 10/8/1992. A special leave petition in this court against that order was dismissed on 27/8/1992 obviously for the reason that no interference was considered appropriate at an interlocutory stage in the trial. The deposition of Professor Kapse was then concluded and his evidence was closed on 7/9/1992. Thereafter on 24-9-1992, notices under Section 99 of the R.P. Act were given to Sadhvi Reetharnbara and Pramod Mahajan. In March 1993, Sadhvi Reethambara filed her reply denying the commission of any corrupt practice in making her speech and she also denied the presence of Professor Kapse in her meeting on 21/5/1991. The noticee Sadhvi Reethambara also made an application for calling some evidence to prove the absence of Professor Kapse from her meeting on 21/5/19911 and his presence at that time at a distant place. Obviously, this was a ground taken by the noticee to prove the absence of consent of the candidate for her