S.S. Ahluwalia Vs. Union of India and ors. - Court Judgment

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constitution - compensation - article 21 of constitution of india - according to article 21 it is duty of state to create climate where members of society belonging to different faith, caste and creed live together - state has duty to protect their life, liberty, dignity and worth of individual which should not be jeopardised or endangered - if in any circumstance state is not able to do so then it cannot escape liability to pay compensation to families of persons killed during riots as their lives extinguished in clear violation of article 21. - [a. varadarajan,; syed m. fazal ali and; sabyasachi mukharji, jj.] in the general election to the state assembly held in 1982 the appellants and the respondents were the candidates. the respondent was declared elected to the assembly. in their election petition, the appellants alleged that the respondent was guilty of corrupt practice and booth capturing in that he went to two polling booths along with 50 to 60 persons, armed with guns, sticks and swords, threatened and pressurized the voters and as a result of the serious threats held out by the respondent and his men the voters ran away without exercising their franchise; that the respondent and his companions entered the polling booths and terrorized the polling officer and polling agents, assaulted the polling agents at gun point, snatched away the ballot papers and marking them in the respondent's favour, cast the votes in the ballot boxes and thumb marked the counter foil of ballot papers. they sought a declaration that the respondents election was void under section 100 of the representation of the people act 1951. a large number of witnesses were examined by both sides. the deputy commissioner who was the returning officer of the constituency recorded on a tape recorder the statements of same persons including the polling agents, the polling officer and the respondent and of himself. the high court held that the evidence of the witnesses and the petitioners on these points was not corroborated, no effort was made by the petitioners to connect the respondent with the ownership of vehicles purported to have been used by him, that the witnesses were drawing more upon their imagination to make out stories about the detention of the persons and forcible polling at that polling station by the respondent and that the petitioners failed to prove the charge beyond reasonable doubt. a the court also held that the role assigned to the respondent by the petitioners has not been proved. dismissing the appeal held: [per fazal ali j, sabyasachi mukharji j concurring and varadarajan j dissenting] the appellants have failed to prove their case that the respondent was guilty of indulging in corrupt practices. [446 f] clear and specific allegations with facts and figures regarding the corrupt practices indulged in by the respondent have not been alleged in the first part of the election petition. the petitioners should have given definitive and specific allegations regarding the nature of fraud or the corrupt practices committed by the respondent as briefly as possible in the main part of the petition. [407 e-f] the appellants have not established that the respondent was present at the time of the incidents at the two booths. once this is not proved, the appellants have failed. it is settled law that corrupt practices must be committed by the candidate or his polling agent or by others with the implicit or explicit consent of the candidate or his polling agent. where the supporters of the candidate indulged in corrupt practices on their own, without the authority from the candidate the election cannot be voided, and this factor is conspicuously absent in this case. it is also settled law that the charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of probabilities. as the charge of corrupt practice is in the nature of a criminal charge, it is for the party who sets up the plea of undue influence to prove it, to the hilt and the manner of proof should be the same as in a criminal case. [445 f-h] as regards the evidence recorded on a tape recorder or other mechanical process the preponderance of authorities is in favour of the admissibility of the statements subject to certain safeguards viz., (1) the voice of the speaker must be identified by the maker of the record or by others who recognise his voice. where the voice is denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. [414 e] (2) the voice of the speaker should be audible and not distorted by other sounds or disturbances. [414 e] (3) the accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence.[414 f] (4) every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out; [414 g] (5) the statement must be relevant according to the rules of evidence and [414 h] (6) the recorded cassette must be carefully sealed and kept in safe custody. [415 a] r. v. maqsud ali [1975] 2 all e.r. 464 and b. v. robson [1972] 2 all e.r. 699, referred to. in the instant case, the voices recorded at a number of places are not very clear and there is noise while the statements were being recorded by the deputy commissioner. a good part of the statement recorded on the cassette has been denied not only by the respondent but also the respondent's witnesses. no other witness has come forward to depose identification of the voice of the respondent or of witnesses. [444 e] there are erasures here and there in the tape and besides the voices recorded being not very clear, lt is hazardous to base a decision on such evidence. the deputy commissioner recorded the statements in violation of the instructions or the government and erred in not placing the recorded cassette in proper custody. he kept it with himself without authority and therefore the possibility of tampering with the statements cannot be ruled out. the transcript was prepared in his office by his stenographer and when the transcript was being prepared the deputy commissioner himself was absent from his office. the possibility of its being tampered with by his stenographer or somebody else cannot be ruled out. respondents witnesses have denied the identity of their voices. the recording was done in a haphazard and unsystematic manner. a conspectus of the evidence of the witnesses shows that the evidence adduced by the respondent in the court is much superior in quality than that adduced by the appellants. the high court was right in holding that the petitioners had failed to prove the allegations of corrupt practice or booth capturing beyond reasonable doubt. [441 e, 442 h-443 e] sabyasachi mukharji,j. concurring: while accepting the tape recorded statements the court should proceed cautiously. the evidence should be examined on the analogy of mutilated documents. if the tape recording is not coherent or distinct or clear it should not be relied upon. [502 b,d-e] r. v. maqsud ali [1975] 2 all e.r. 464 and r. v. robson [1972] 2 all e.r. 699, referred to. in the instant case, the tape recording was misleading and could not be relied on because in most places it was unintelligible and of poor quality. therefore, its potential prejudicial effect outweighs the evidentiary value of the recording. [504 c] shri n. sri rama reddy etc. v. shri v.v. giri [1971]1 s.c.r. 399 and r.m. malkani v. state of maharashtra [1973] 2 s.c.r. 417 m.chenna reddy v. v. ramachandra rao & anr. [1972] e.l.r. vol. 40, 390; ram sharan yadav v. thakur muneshwar nath singh & ors. [1984] 4 s.c.c. 649; c.a.no. 3419/81 decided on 29.11.84, referred to. it is settled law that the charge of corrupt practice is in the nature of a criminal charge which if proved entails a heavy penalty in the form of disqualification and that a more cautious approach must be made in order to prove the charge of undue influence levelled by the defeated candidate. in the instant case, it cannot be said that the appellants had proved their case to the extent required to succeed. [506 d] where the question is whether the oral testimony should be believed or not the views of the trial judge should not be lightly brushed aside, because the trial judge has the advantage of judging the manner and demeanour of the witness which advantage the appellate court does not enjoy. in view of the nature of the evidence on record there is no reason to disagree with the appraisal of the evidence by the trial judge. [506 g] moti lal v. chandra pratap tiwari & ors. a.i.r. 1975 s.c. 1178 and raghuvir singh v. raghuvir singh kushwaha a.i.r. 1970 s.c. 442, referred to. varadarajan j. dissenting : it is clear from decided cases that tape recorded evidence is admissible provided the originality and the authenticity of the tape are free from doubt. in the instant case, there is no valid reason to doubt them. it is not reasonable to reject the tape merely because some portions thereof could not be made out on account of noise and interference not only outside but also inside the polling station. on the contrary under the circumstances of this case great relevance has to be placed on the tape and its contents not only for corroborating the evidence of the district commissioner and the presiding officer to the extent they go but also as resgestae evidence of the first part of the incident. the trial judge was not justified in rejecting the tape record and transcription. the appellants have proved satisfactorily and beyond reasonable doubt the first part of the incident in one of the polling stations, that the respondent went armed with a rifle with 25 or 30 companions and entered the polling station with 4 or 5 armed companions and threatened the presiding officer and others who were present there with the use of force and got some ballot papers marked in favour of the respondent polled forcibly by his companions in the ballot box and that they left the polling station on seeing the villagers and the police coming towards the polling station. the discrepancy in evidence regarding the time of the incident is not material. [478 a-c, 483 e-484 a] secondly, the deputy commissioner recorded the conversation which he had with the presiding officer but some portion thereof was erased by his own voice by inadvertence. after recording, his stenographer prepared the transcript in his office most of it under his supervision and though he was temporarily absent to attend to some other work he compared it with the original tape and found it to be correct. the tape, the tape recorder and the transcript remained with him throughout and were not deposited by him in the record room and there was not possibility of tampering. [496 f-497 a] the respondent had managed to keep away from the court material evidence by way of the original report of the presiding officer. he had cited a person as his witness to depose about his case but did not examine him for that purpose and had called him only for the purpose of production of some record, without any oath being administered to him. he had denied to the appellants the opportunity to cross-examine that witness. the respondent had come forward with a new case of alleged booth capturing and forcible polling of bogus votes after the appellants had completed the examination of their witnesses to whom not such suggestion was made in the cross-examination. from the evidence on record two views are not possible. the appellants have proved beyond reasonable doubt that the respondent had committed the corrupt practices alleged against him. no lenient view can be taken in this case merely because the election petition is directed against the returned candidate. [499 g-500 b]rajendra babu, j.1. in the wake of assassination of smt. indira gandhi on october 31, 1984 there were several killings of sikhs in delhi and other parts of the country between october 31, 1984 till november 1984 which involved arson, looting and murder. a committee was constituted headed by justice r.n. misra of this court which made an inquiry and reported that sikhs killed in those riots were 3874 in delhi, 127 in kanpur and 69 in bokaro. civil writ petition no. 1429 of 1996 titled bhajan kaur v. delhi administration was filed in the high court of delhi for paying compensation to the dependents of those killed in the riots after the assassination of smt. indira gandhi as the state had a duty to protect the life of its citizens and the state ought to pay compensation thereof. the high court of delhi by its order dated july 5, 1996 held that in the expanded meaning attributed to article 21 of the constitution it is the duty of the state to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the state has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardised or endangered. if in any circumstance the state is not able to do so, then it cannot escape the liability to pay compensation to the family of the person killed during riots as his or her life has been extinguished in clear violation of article 21 of the constitution. the high court, therefore, directed payment of a sum of rs. 2 lakhs with interest and also made a general direction that this direction should apply to similar cases also. thereafter, this writ petition has been filed seeking to extend the benefit of the judgment in bhajan kaur v. delhi administration (supra) to the entire country and for certain other reliefs. it is brought to our notice that the number of persons killed in each of the states is as under:period of defaultrate of damages [% age of arrears per annum](a) less than two months17(b) two months and above but less than four months22(c) four months and above but less than six months27(d) six months and above 37certain amounts have been paid to some of the dependents of those killed.2. certain claims have been made in para 13.3 of this writ petition setting out certain facts which need to be verified. after this petition was filed notices were issued to the governments of different states and they have filed responses in each one of those cases stating the steps that have been taken by them in cases where there had been death or other kinds of violence resulting in injuries or loss of property. but in the nature of the circumstances of the case, it is very difficult for us to extend the decision of the high court of delhi in bhajan kaur v. delhi administration (supra) to all the states without making a detailed examination of the circumstances arising in each case. such examination cannot be done by us. therefore, it would be appropriate for us to direct the high courts of delhi, rajasthan, orissa, punjab & haryana, himachal pradesh, patna, madhya pradesh, allahabad, and bombay in the states of delhi, rajasthan, orissa, haryana, himachal pradesh, bihar, madhya pradesh, uttar pradesh, maharashtra and goa to deal with the matter in respect of the allegations made herein in respect of the state falling in its jurisdiction by treating this writ petition as a petition filed in that high court. these proceedings, therefore, shall stand transferred to the respective high courts. a copy of the petition with annexures and response of the respective state government shall be sent to the high court for appropriate action.3. the writ petition stands disposed of accordingly.