J. S. Verma, J. - (1.) Both these appeals are under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as "the Act/R.P. Act") against the judgment dated 7th April, 1989 of the Bombay High Court in Election Petition No.1 of 1988 by which the election of Dr. Ramesh Yeshwant Prabhoo, the returned candidate from 38, Vile Parle Constituency to the Maharashtra State Legislative Assembly, held on 13th December, 1987, has been declared to be void on the ground under Section 110(1)(b) of the Act. The appellant has been found guilty of the corrupt practices prescribed by sub-section (3) and (3A) of Section 123 of the Act at the election, in that he and his agent Bal Thackeray with his consent appealed for votes on the ground of the returned candidate's religion and that they promoted or tended to promote feelings of enmity and hatred between different classes of the citizens of India on the grounds of religion and community. Consequently, Bal Thackeray, after a notice issued under Section 99 of the Act to him, has also been named for commission of these corrupt practices. Civil Appeal No.2836 of 1989 is by the returned candidate Dr. Ramesh Yeshwant Prabhoo and Civil Appeal No.2835 of 1989 is by Bal Thackerary against that judgment.
(2.) The said election was held on 13th December, 1987 and the result was declared on 14th December, 1987, at which Dr. Ramesh Yeshwant Prabhoo was declared to be duly elected. The charge of these corrupt practices is based on three public speeches delivered by Bal Thackeray:on 29-11-1987 at Parle (opposite Shiv Sena Shaka No.84), on 9-12-1987 at Khar-Danda near Shankar Temple, and on 10-12-1987 at Jaltaran Maidan, Vile Parle (East). The public speech given on 9-12-1987 has been held to amount to the corrupt practice under sub-section (3) of Section 123, while public speeches delivered on 29-11-1987 and 10-12-1987 have been held to be corrupt practices under sub-sections (3) and (3A) of Section 123 of the Act. The relevant pleading relating to these corrupt practices is contained in paras 6 and 8 of the election petition. Sub-paras (a) to (d) of para 6 relate to first speech, sub-para (e) of para 6 relates to second speech and sub-para (f) of para 6 relates to third speech. Para 8 of the election petition then says that returned candidate indulged in the corrupt practices provided by sub-sections (3) and (3A) of Section 123 of the Act and, therefore, his election is void.
(3.) After the election petitioner closed his evidence, the returned candidate Dr. Prabhoo examined only himself in rebuttal. After close of the evidence of the parties and hearing arguments of both sides, the High Court ordered issue of notice under Section 99 of the Act to Bal Thackeray who filed an affidavit in reply to the notice. The election petitioner and his three witnesses were recalled for cross-examination by counsel for the notice. Bal Thackeray. The noticee did not examine himself or any other witness in rebuttal. The decision of the High Court is based on this material.;