Hon'ble Judges/Coram:
A. Alagiriswami, M. Hameedullah Beg and N.L. Untwalia

JUDGMENT

1. This appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act') is directed against the Judgment and order of the High Court of Bombay setting aside the election of the appellant to the Maharashtra State Assembly from Kumbharwada constituency held on 9-8-1972 on a voter's election petition.

2. The voter alleged that the appellant, in the course of his election, had committed corrupt practices defined in Section 123, Sub-section (2) and (3) and (3A) of the Act. The gist of the charges, against the appellant Ziyauddin Burhanuddin Bukhari (hereinafter referred to as 'Bukhari'), a Muslim League candidate, was, that, he had made speeches in the course of his election campaign calculated to induce a belief in the voters that they will be objects of divine displeasure or spiritual censure if they voted for Shaukat Currimbhoy Chagla (hereinafter referred to as 'Chagla'), a Congress Party candidate, who was impleaded as the 2nd respondent that, in the above mentioned speeches, the appellant had called upon the electors to vote for him and not for Chagla on the ground that he alone stood for all that was Muslim whereas Chagla represented all that was against Muslim religion and belief so that Chagla could not be a true Muslim at all, the object of such appeals being to further the chances of election of Bukhari and to prejudicially effect the prospects of the election of Chagla ; that, the appellant, Bukhari, had attempted to promote feelings of enmity and hatred between Muslims and Hindus on grounds of religion and community. Particulars of the speeches delivered at sixteen meetings and what was said there by Bukhari were furnished with the election petition.

3. The alleged corrupt practices are defined in the following provisions of Section 123:

(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:

Provided that-

(a) without prejudice to the generality of the provisions of this Clause any such person as is referred to therein who-

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will became or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this Clause;

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.

(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 refra........