Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 D 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 vs. Jaswant Singh Chouhan2, 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 G 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 1. (2007) 4 sec 306. 2. (1975) 4 sec 769. c 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 vs. Harminder Singh Jassi3, 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 —- 3. (1999) ~ sec 386. 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 c 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 pfobabilities 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 evidern:.e. 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 settl.ed 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- s Section (3) of Section 123 of the Act, is ·justified or not. c
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 read_s as foUows: "(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 thP. 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 syrnbol 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 G 'support of the allegation, a cassette,. 'allegedly containing ·speeches made by him and his agents, along with its transcript 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 H 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 n.ot 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 7 4 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 pres~nt 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 A or his agent? c
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 u/s. 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." 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 cas.sette was not proved and it could not.be read in evidence despite the fact that the cassette is a pubhc 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 speechP.s are "documents" as defined in Section 3 of the Evidence Act and stand on no different footing than photographs. (See: Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra & Ors. 4}. 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. 4. (1976) 2 sec 11. [20101 2 s.c,.R. A 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 B to be more stringent as compared to other documentary evidence.
21. In Yusufalli Esmail Nagree vs. State of Maharashtra5, this Court observed that since the tape-records are prone to C 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. vs. Maqsud Ali6, 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 E with some caution and assessed in the light of all the circumstances of each case.
23. In Ziyauddin Burhanuddin Bukhari (supra), relying on R. vs. Maqsud Ali (supra}, a Bench of three judges of this Court F 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 5. (1967) 3 SCR 720. H 6. (1975) 2 ALL E.R. 464. 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. vs. Col. Ram Singh7 and recently in R.K. Anand vs. Registrar, Delhi High Court8.
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 c 'of the cassette as well as the accuracy of the speeches purportedly made by the respondent. Admittedly, the appellant o 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/-. R.P. 7. " 1985 (Supp) sec 611. a. (2009) a sec 106. Petition dismissed.