mobile audio recording is admissible in divorce case???

 
Representation of the People Act, 1951 Section 123 (3) - Corrupt practice - Nature of proof. Held as charge of corrupt practice is akin to criminal charge, standard of proof is not preponderance of probabilities as in a civil suit but proof beyond reasonable doubt as in a criminal trial. Such a stringent test of proof is applied due to serious consequences that may follow in terms of setting aside election of successful candidate or his incurring disqualification to contest an election for a certain period. Case law discussed. 

 

Supreme Court of India

CIVIL APPEAL NO.2928 of 2008

Judge(s): D.K. JAIN, P. SATHASIVAM

Date of Judgment: 05 February, 2010

TUKARAM S. DIGHOLE Versus MANIKRAO SHIVAJI KOKATE

JUDGMENT

D.K. JAIN, J.
 1. This appeal under Section 116A of the Representation of the People Act, 1951 (for short 'the Act') is directed against the final judgment and order dated 25th January, 2008, rendered by the High Court of Judicature at Bombay in Election Petition No.13 of 2004, whereby the election petition preferred by the appellant, challenging the election of the respondent to the House of People (Lok Sabha) from 69, Sinnar Parliamentary Constituency in the State of Maharashtra has been dismissed.

2. Briefly stated, the material facts giving rise to the present appeal are as under:
Election to the said parliamentary constituency was held on 13th October, 2004 and the results were declared on 16th October, 2004. The appellant contested the elections as a candidate of NCP-Congress -- R.P.I. alliance, whereas the respondent contested the election as a Shiv Sena -- Bharatiya Janta Party alliance candidate. Out of a total of 1,35,063 votes cast in the election, while the respondent secured 67,556 votes, the appellant could manage 47,593 votes. Resultantly, the respondent was declared elected.

3. Not being satisfied with the election result, the appellant preferred an election petition, challenging the election on several grounds and for declaring the said election to be void in terms of Sections 100(1)(b), 100(1)(d)(ii) and 100(1)(d)(iv) of the Act, with consequential relief of declaring the appellant as elected in terms of Section 101(b) of the Act.

4. The election petition was contested by the respondent denying all the allegations. It was pleaded that the election petition was not maintainable inasmuch as it was not in the prescribed format; no details of the communal appeals allegedly made by respondent and his agents were mentioned in the petition; certified copies of the VHS Cassette and its transcripttt, containing the speeches delivered by the respondent, had not been furnished and even the provisions of Section 86 of the Act had not been complied with.

5. Upon consideration of the pleadings, the High Court (hereinafter referred to as 'the Tribunal') framed the following issues:

'(1) Whether the petitioner proves that the election of the respondent is liable to be quashed and set aside for having made communal appeals in his speeches recorded on the VHS Cassette produced by the petitioner in Court?

(2) Whether the petitioner proves that the election of the respondent is liable to be quashed and set aside under Sections 100(1)(d)(ii) and 100(1)(d)(iv) of the Representation of People Act, 1951 for the reasons set out in paragraphs 9 to 18 of the Election Petition?

(3) Whether the petitioner proves that the respondent had deliberately issued the letter at Exhibit E page 42 dated 28.9.2004 in the name of the petitioner with a view to misguide the voters?

(4) Whether the respondent proves that he has not addressed communal and racial speeches as alleged in VHS Cassette filed by the petitioner?'

6. In support of the case, one of the documents placed on record by the appellant was a VHS Cassette which, according to him, was obtained from the Election Commission of India and contained a true reproduction of the speeches delivered by the respondent and his supporters during the election campaign. Out of the 20 documents produced, only 3 documents viz. FIR dated 12th October, 2004 (Ex. P2), complaint dated 29th October, 2004 (Ex.P3) and a special supplement issued in the newspaper 'Gavkari' on 3rd September, 2004 (Ex.P4) were exhibited. No other documents, including the VHS Cassette, were exhibited. The appellant and the respondent examined themselves as witnesses in support of their respective stands. No other witness was examined.

7. Analysing the evidence adduced by the parties on the Issues, the Tribunal answered Issues No.1 to 3 in the negative and in view of answer to Issue No.1, Issue No.4 was not answered. On Issue No.1 the Tribunal observed that though the appellant had placed on record the VHS Cassette but had failed to produce any evidence to show that the said cassette was a true reproduction of the original speeches. The Tribunal did not accept the plea of the appellant that since the cassette is a 'public document', as defined in Section 74 of the Indian Evidence Act, 1872 (for short 'the Evidence Act), its mere production was sufficient and no further evidence was required to be adduced to prove as to how the said cassette was obtained by the appellant. It has been observed that even in the affidavit filed by the appellant, in lieu of examination-in-chief, there is no mention of the said cassette and that it had been obtained from the office of the Election Commission on payment of requisite charges for the same. The Tribunal has also found that the transcripttts produced by the appellant have not been proved to be those of the original audio recordings. The Tribunal finally held that since the contents of the cassette and the transcripttts had not been proved, the allegation of the appellant that the respondent had indulged in corrupt practices by appealing to the Maratha community to vote on the basis of community, could not be accepted. On Issue No.2, the Tribunal has observed that apart from the fact that there are no specific pleadings in the election petition with regard to the claim of the respondent about the work done by him and the alleged threats by him in publication 'Deshdhoot', the appellant had failed to adduce any evidence to prove that the claims made by the respondent in the special supplement of the local newspaper (Ex.P4) were false or that the said threats amounted to corrupt practices under Section 123(2)(a)(i) of the Act. The Tribunal has, accordingly, held that the appellant has failed to prove that the respondent had indulged in any corrupt practices. As regards Issue No.3, the Tribunal has held that the letter/pamphlet purportedly written by the appellant and allegedly circulated by the respondent in order to defame the appellant had not been proved by the appellant. The election petition having been dismissed with costs, the appellant is before us in this appeal.

8. Mr. Krishna Venugopal, learned senior counsel, appearing on behalf of the appellant, confined his challenge to the finding of the Tribunal on Issue No.1. He submitted that besides being a public document, the contents of VHS Cassette were not specifically denied by the respondent and, therefore, no further evidence was required to be produced to prove the authenticity of the cassette. According to the learned counsel, the Tribunal has committed a serious error of law in rejecting the evidence adduced by the appellant, in the form of the said cassette. It was strenuously urged that the finding of the Tribunal to the effect that the appellant had failed to prove the factum of communal speeches being made by the respondent and/or his agents, is palpably erroneous and, therefore, deserves to be set aside.

9. Mr. K.V. Vishwanathan, learned senior counsel, appearing on behalf of the respondent, on the other hand, supported the decision of the Tribunal and submitted that apart from the fact that there was no specific pleading in the election petition with regard to the mode of acquisition of the cassette in question, even if it was assumed that the said cassette was a public document yet in order to attract the provisions of Section 123 of the Act, the appellant was required to prove with cogent evidence that the speeches recorded therein were, in fact, made by the respondent and his agents. In support of the proposition that unless a document is exhibited at the trial and is put in evidence it cannot be looked into, reliance was placed on a decision of this Court in Amar Nath Agarwalla v. Dhillon Transport Agency [2007 (4) SCC 306]. Learned counsel asserted that the finding recorded by the Tribunal on the issue, being a pure finding of fact, no interference is called for.

10. The short question for consideration is whether the Tribunal was justified in discarding the cassette placed on record by the appellant to prove the allegation of appeal by the respondent to the voters to vote on communal ground, amounting to a corrupt practice within the meaning of Section 123(3) of the Act?

11. Before we proceed to examine the controversy at hand, we deem it necessary to reiterate that a
charge of corrupt practice, envisaged by the Act, is equated with a criminal charge and therefore, standard of proof therefor would not be preponderance of probabilities as in a civil action but proof beyond reasonable doubt as in a criminal trial. If a stringent test of proof is not applied, a serious prejudice is likely to be caused to the successful candidate whose election would not only be set aside, he may also incur disqualification to contest an election for a certain period, adversely affecting his political career. Thus, a heavy onus lies on the election petitioner to prove the charge of corrupt practice in the same way as a criminal charge is proved.

12. Explaining the nature and extent of burden of proof in an election trial involving a charge of corrupt practice, in Razik Ram v. Jaswant Singh Chouhan [1975 (4) SCC 769], speaking for the Bench, Sarkaria, J. observed as under:

...It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus, therefore, rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt.'
(emphasis supplied)

13. In Jeet Mohinder Singh v. Harminder Singh Jassi [JT 2009 (10) SC 1 : 1999 (9) SCC 386], a Bench of three judges of this Court, summarising the principles laid down by this Court from time to time in the field of election jurisprudence; adumbrated the following legal principles, relevant for our purpose: to be kept in view by the Election Tribunals and the Appellate Courts while dealing with election petitions and appeals arising therefrom:

'(i) The success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity of the election process has to be safeguarded and the Court shall be vigilant to see that people do not get elected by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves an enormous load on the public funds and administration.

(ii) Charge of corrupt practice is quasi-criminal in character. If substantiated, it leads not only to the setting aside of the election of the successful candidate, but also of his being disqualified to contest an election for a certain period. It may entail extinction of a person's public life and political career. A trial of an election petition though within the realm of civil law is akin to trial on a criminal charge. Two consequences follow. Firstly, the allegations relating to commission of a corrupt practice should be sufficiently clear and stated precisely so as to afford the person charged a full opportunity of meeting the same. Secondly, the charges when put to issue should be proved by clear, cogent and credible evidence. To prove charge of corrupt practice a mere preponderance of probabilities would not be enough. There would be a presumption of innocence available to the person charged. The charge shall have to be proved to the hilt, the standard of proof being the same as in a criminal trial.

(iii) The Appellate Court attaches great value to the opinion formed by the trial Judge more so when the trial Judge recording findings of fact is the same who had recorded the evidence. The Appellate Court shall remember that the jurisdiction to try an election petition has been vested in a Judge of the High Court. Secondly, the trial Judge may have had the benefit of watching the demeanour of witnesses and forming first-hand opinion of them in the process of evaluation of evidence. The Supreme Court may re-assess the evidence and come to its own conclusions on feeling satisfied that in recording findings of fact the High Court has disregarded settled principles governing the approach to evidence or committed grave or palpable errors.'

14. In the backdrop of the afore-stated principles, we may now advert to the facts at hand to examine if the finding recorded by the Tribunal in the judgment in appeal, holding that the appellant has failed to prove that the respondent had committed corrupt practice, falling within the ambit of sub-Section (3) of Section 123 of the Act, is justified or not.

15. Section 123 of the Act defines corrupt practices. In the instant case, Issue No.1 is based on the alleged violation of sub-Section (3) of Section 123, which reads as follows:

'(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:

[Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.]'

16. The vital ingredients of the sub-Section, relevant for this appeal, are - (i) appeal by a candidate or his agent or by any person with the consent of a candidate or his election agent; (ii) to vote or refrain from voting for any person and (iii) on the ground of religion, race, caste, community or language. As stated above, the case of the appellant is that the respondent had appealed to the electorate to vote on communal lines. In support of the allegation, a cassette, allegedly containing speeches made by him and his agents, along with its transcripttt was produced. According to the appellant, the cassette contained speeches, which were recorded at the instance of the Election Commission and that the cassette having been obtained from the Election Commission, it was a public document and therefore, the burden of proof which lay on him to prove the allegation stood discharged.

17. Chapter V of the Evidence Act deals with documentary evidence. Section 61 thereof lays down that the contents of documents may be proved either by primary or by secondary evidence. As per Section 62 of the Evidence Act, primary evidence means the document itself produced for the inspection of the Court. Section 63 categorises five kinds of secondary evidence. Section 64 lays down that documents must be proved by primary evidence except in the cases mentioned in the following Sections. To put the matter briefly, the general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved. However, clause (e) of Section 65, which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is a 'public document' secondary evidence is admissible even though the original document is still in existence and available. Section 74 of the Evidence Act defines what are known as 'public documents'. As per Section 75 of the Evidence Act, all documents other than those stated in Section 74 are private documents. There is no dispute that certified copy of a document issued by the Election Commission would be a public document.

18. However, in the present case, the dispute is not whether a cassette is a public document but the issues are whether: (i) the finding by the Tribunal that in the absence of any evidence to show that the VHS Cassette was obtained by the appellant from the Election Commission, the cassette placed on record by the appellant could not be treated as a public document is perverse and (ii) a mere production of an audio cassette, assuming that the same is a certified copy issued by the Election Commission, is per se conclusive of the fact that what is contained in the cassette is the true and correct recording of the speech allegedly delivered by the respondent or his agent?

19. Insofar as the first question, formulated above, is concerned, it would be profitable to extract the observations of the Tribunal on the issue. The Tribunal observed thus:

'14. 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 submissions of the learned 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. At the time of the arguments, the learned 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. I am fortified in my view by the decision of the Supreme Court in the case of Amarnath Agarwal (supra) where the Supreme Court has held that the mere production of the documents along with 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 Petitioner 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.'

19.1. Thus, observing that the appellant had failed to produce even the receipt stated to have been issued by the Election Commission's office, the Tribunal held that mere production of the cassette with the Election Petition would not lead to the inference that it had been produced in evidence and being a public document, it was not required to be proved. Having perused the material on record, we are in complete agreement with the Tribunal that in the absence of any cogent evidence regarding the source and the manner of its acquisition, the authenticity of the cassette was not proved and it could not be read in evidence despite the fact that the cassette is a public document. No relevant material was brought to our notice which would impel us to hold that the finding by the Tribunal is perverse, warranting our interference.

20. The second issue, in our opinion, is of greater importance than the first one. It is well settled that tape-records of speeches are 'documents' as defined in Section 3 of the Evidence Act and stand on no different footing than photographs. (See: Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors. [1976 (2) SCC 17]). There is also no doubt that the new techniques and devices are the order of the day. Audio and video tape technology has emerged as a powerful medium through which a first hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence.

21. In Yusufalli Esmail Nagree v. State of Maharashtra [1967 (3) SCR 720], this Court observed
that since the tape-records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The Court must be satisfied, beyond reasonable doubt that the record has not been tampered with.

22. In R. v. Maqsud Ali [1965 (2) ALL E.R. 464], it was said that it would be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded are properly identified. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.

23. In Ziyauddin Burhanuddin Bukhari (supra), relying on R. v. Maqsud Ali (supra), a Bench of three judges of this Court held that the tape-records of speeches were admissible in evidence on satisfying the following conditions:

'(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.'

24. Similar conditions for admissibility of a tape-recorded statement were reiterated in Ram Singh & Ors. v. Col. Ram Singh [1985 (Suppl.) SCC 611] and recently in R.K. Anand v. Registrar, Delhi High Court [JT 2009 (10) SC 1 : 2009 (8) SCC 106].

25. Tested on the touchstone of the tests and safeguards, enumerated above, we are of the opinion that in the instant case the appellant has miserably failed to prove the authenticity of the cassette as well as the accuracy of the speeches purportedly made by the respondent. Admittedly, the appellant did not lead any evidence to prove that the cassette produced on record was a true reproduction of the original speeches by the respondent or his agent. On a careful consideration of the evidence and circumstances of the case, we are convinced that the appellant has failed to prove his case that the respondent was guilty of indulging in corrupt practices.

26. For the afore-going reasons, we see no merit in this appeal. We, therefore, affirm the decision of the Tribunal and dismiss the appeal with costs, quantified at Rs.20,000/-.